[Federal Register Volume 73, Number 156 (Tuesday, August 12, 2008)]
[Proposed Rules]
[Pages 46860-46867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18519]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2007-0006; 92210-1117-0000-B4]
RIN 1018-AU93


Endangered and Threatened Wildlife and Plants; Revised Proposed 
Designation of Critical Habitat for 12 Species of Picture-wing Flies 
From the Hawaiian Islands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period, notice of 
availability of draft economic analysis, and amended required 
determinations.

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[[Page 46861]]

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on the revised proposed designation of 
critical habitat for 12 species of Hawaiian picture-wing flies 
(Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. 
montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. 
ochrobasis, D. substenoptera, and D. tarphytrichia) under the 
Endangered Species Act of 1973, as amended (Act). We also announce the 
availability of a draft economic analysis (DEA) 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 revised proposed rule, the associated DEA, and 
the amended required determinations section. If you submitted comments 
previously, you do not need to resubmit them because we have already 
incorporated them into the public record and will fully consider them 
in preparation of the final rule.

DATES: We will consider comments received or postmarked on or before 
September 11, 2008.

ADDRESSES: You may submit comments by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV91; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.

    We will not accept e-mail or faxes. 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: Patrick Leonard, Field Supervisor, 
Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 
3-122, P.O. Box 50088, Honolulu, HI 96850; telephone 808-792-9400; 
facsimile 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 revised proposed designation of critical 
habitat for the 12 Hawaiian picture-wing fly species that was published 
in the Federal Register on November 28, 2007 (72 FR 67428), the June 
2008 DEA of Critical Habitat Designation for the Hawaiian Picture-wing 
Flies, and this document, including 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 (16 U.S.C. 1531 et seq.), 
including whether the benefit of designation would outweigh threats to 
the species caused by the designation, such that the designation of 
critical habitat is prudent;
    (2) Specific information on:
    (a) The amount and distribution of habitat for the 12 Hawaiian 
picture-wing fly species;
    (b) What areas occupied at the time of listing contain features 
essential for the conservation of the species we should include in the 
designation and why, and
    (c) Which areas not occupied at the time of listing are essential 
to the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on the proposed critical 
habitat.
    (4) Information on the extent to which any State and local 
environmental protection measures we reference in the DEA may have been 
adopted largely as a result of the species' listing.
    (5) Information on whether the DEA identifies all State and local 
costs and benefits attributable to the proposed critical habitat 
designation, and information on any costs and benefits that we have 
overlooked.
    (6) Information on whether the DEA makes appropriate assumptions 
regarding current practices and any regulatory changes that are likely 
to occur if we designate critical habitat as currently proposed.
    (7) Information on whether the DEA identifies all costs and 
benefits that could result from the designation.
    (8) Information on whether the DEA correctly assesses the effect on 
regional costs or benefits associated with any land use controls that 
may result from the proposed designation.
    (9) The extent to which the description in the DEA of economic 
impacts to public land management and other activities is complete and 
accurate.
    (10) Information on areas that the critical habitat designation 
could potentially impact to a disproportionate degree.
    (11) Economic data on the incremental costs of designating any 
particular area as critical habitat.
    (12) Information on any quantifiable economic or other potential 
benefits of the proposed designation of critical habitat. Factors which 
may be considered under the potential benefits of critical habitat 
designation may include, but are not limited to, aesthetic 
considerations, recreational use, biodiversity, aquatic resources, 
intrinsic values, and benefits to local communities.
    (13) Any foreseeable economic, national security, or other relevant 
impacts that may result from the proposed designation, and in 
particular, any impacts on small entities, and the benefits of 
including or excluding areas that exhibit these impacts. Other impacts 
in addition to economic effects that may be considered in the 
designation of critical habitat may include, but are not limited to, 
social factors, ecological factors, and impacts on local communities.
    (14) 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.
    (15) Whether we could improve or modify our approach to designating 
critical habitat to provide for greater public participation and 
understanding, or to better accommodate public concerns and comments.
    If you submitted comments or information during the initial comment 
period from November 28, 2007, to January 28, 2008, on the proposed 
rule (72 FR 67427), 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 preparation of our final determination. Our 
final determination concerning revised proposed critical habitat will 
take into consideration all written comments and any additional 
information we receive during both comment periods. On the basis of 
public comments, we may, during the development of our final 
determination, find that areas proposed are not essential, and 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 our proposed 
rule, the associated DEA, and our amended required determinations by 
one of the methods listed in the ADDRESSES section. We will not 
consider comments

[[Page 46862]]

sent by e-mail or fax or to an address not listed in the ADDRESSES 
section.
    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. 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. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this notice, will be available for 
public inspection on http://www.regulations.gov, 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 DEA by mail from the 
Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT), by visiting the Federal eRulemaking Portal at http://www.regulations.gov, or on our Web site at http://www.fws.gov/pacificislands.

Background

    Under the terms of a settlement agreement approved by the U.S. 
District Court for the District of Hawaii on August 31, 2005 (CBD v. 
Allen, CV-05-274-HA), we were to (1) make a final listing decision for 
the 12 picture-wing flies by May 6, 2006; (2) propose to designate 
critical habitat by September 15, 2006; and (3) finalize a critical 
habitat rule by April 17, 2007. A joint stipulation was approved by the 
Court on April 18, 2007, to allow additional time to reconsider the 
proposed rule in light of comments received to the August 15, 2006, 
proposed designation of approximately 18 acres as critical habitat for 
11 of the 12 species of Hawaiian picture-wing flies (71 FR 46944), and 
to provide an opportunity for additional public comment. Under the 
terms of the extension, we were required to submit a proposed critical 
habitat rule to the Federal Register by November 15, 2007, and a final 
critical habitat rule by November 15, 2008.
    On November 28, 2007, we published a revised proposed designation 
of approximately 9,238 acres (ac) (3,738 hectares (ha)) as critical 
habitat in four counties (City and County of Honolulu, Hawaii, Maui, 
and Kauai), in Hawaii in the Federal Register (72 FR 67427). For 
additional information on previous Federal actions concerning the 12 
species of Hawaiian picture-wing flies for which we are proposing to 
designate critical habitat, refer to the November 28, 2007, proposed 
revised designation of critical habitat and the final listing rule 
published in the Federal Register on May 9, 2006 (71 FR 26835).
    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat in this notice. For more 
information on the taxonomy and biology of the 12 species of Hawaiian 
picture-wing flies, refer to the final listing rule published in the 
Federal Register on May 9, 2006 (71 FR 26835), and the revised proposed 
critical habitat rule published in the Federal Register on November 28, 
2007 (72 FR 67428).
    Section 3 of the Act defines critical habitat as: (1) The specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the provisions of section 4 of the Act, 
on which are found those physical or biological features (a) essential 
to the conservation of the species, and (b) that may require special 
management considerations or protection; and (2) specific areas outside 
the geographical area occupied by a species at the time it is listed in 
accordance with the provisions of section 4 of the Act, 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 the destruction or adverse modification of critical habitat by 
any activity funded, authorized, or carried out by any Federal agency. 
Federal agencies proposing actions that may affect areas designated as 
critical habitat must consult with us on the effects of their proposed 
actions, pursuant to section 7(a)(2) of the Act.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial 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 have prepared a DEA of the 
proposed revised critical habitat designation based on our November 28, 
2007, proposed rule to designate critical habitat for 12 species of 
Hawaiian picture-wing flies. We request comment on the accuracy of our 
methodology for distinguishing baseline and incremental costs, the 
assumptions underlying it, and alternate methodologies that may merit 
consideration.
    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed critical habitat 
designation for the 12 Hawaiian picture-wing fly species. The DEA 
quantifies the economic impacts of all potential conservation efforts 
for the 12 Hawaiian picture-wing fly 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 two types of impacts: (1) Baseline impacts are 
those that would occur with or without designation of critical habitat, 
and (2) incremental impacts are those that would occur only with 
critical habitat designation. Baseline impacts represent the costs 
incurred regardless of whether critical habitat is designated. 
Incremental impacts represent the costs incurred specifically with the 
designation of critical habitat for the 12 Hawaiian picture-wing fly 
species. In other words, the incremental costs are those attributable 
solely to the designation of critical habitat for the picture-wing 
flies that are above and beyond the baseline costs; these are the costs 
we may consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
12 Hawaiian picture-wing fly species were listed, and forecasts both 
baseline and incremental impacts likely to occur after the proposed 
critical habitat is finalized. The DEA provides estimated costs of the 
foreseeable potential economic impacts of the proposed critical habitat 
designation for the 12 Hawaiian picture-wing fly species from 2009 
through 2028.
    The draft economic analysis also addresses how potential economic 
impacts are likely to be distributed, including an assessment of any 
local or regional impacts of habitat conservation and the potential 
effects of conservation activities on government agencies, private 
businesses, and individuals. Decision-makers can use the information 
from the final economic assessment to assess whether the effects of the 
revised designation might unduly burden a particular group or economic 
sector. The draft economic analysis also looks retrospectively at costs 
that have been incurred since May 9, 2006, the date we listed the 12 
Hawaiian picture-wing fly species under the Act (71 FR 26835), and 
considers those costs that may occur in the 20 years following the 
designation of critical habitat. Because the draft economic analysis 
considers the potential economic effects of all actions relating to the 
conservation of

[[Page 46863]]

the 12 Hawaiian picture-wing fly species, including costs associated 
with sections 4, 7, and 10 of the Act and those attributable to the 
revised designation of critical habitat, it may overestimate the 
potential economic impacts of the critical habitat designation.
    The analysis quantifies economic impacts of picture-wing fly 
critical habitat designation associated primarily with the following 
activities: (1) Preservation and watershed management in all but the 
Pit Crater unit on the Big Island; (2) game management and public 
recreational hunting in most of the units where land is owned by the 
State; (3) potential for future development on about 3 acres (1.2 
hectares) of the Pit Crater unit on the Big Island; (4) harvesting of 
commercial timber from portions of the Stainback Forest and Waiakea 
Forest units; and (6) section 7 consultation administrative costs.
    The total pre-designation baseline costs during the period from 
2006 to 2008 in the area proposed for critical habitat designation are 
estimated by the DEA to range from $750,130 using a 3 percent discount 
rate to $808,100 using a 7 percent discount rate. Because these costs 
are projected to occur whether critical habitat is designated or not, 
they cannot be considered in the Service's determination of whether the 
benefits of including an area as critical habitat outweigh the benefits 
of excluding the area. These costs are related to preservation and 
watershed management activities, and all or nearly all of the pre-
designation baseline costs have been or will be borne by Federal and 
State agencies. A portion of the preservation and watershed management 
costs has been borne by a few private landowners.
    The annualized post-designation baseline costs during the period 
2009 to 2028 for preservation and water management activities are 
estimated to range from $348,845 using a 3 percent discount rate to 
$379,753 using a 7 percent discount rate. Because these costs are 
projected to occur whether critical habitat is designated or not, they 
would not be considered in the Service's determination of whether the 
benefits of including an area as critical habitat outweigh the benefits 
of excluding the area. All or nearly all of the post-designation 
baseline costs would be borne by Federal and State agencies, although a 
portion of the preservation and watershed management costs would be 
borne by a few private landowners. The combined post-designation 
baseline cost for these conservation activities is estimated by the DEA 
to be $5,345,730 at a 3 percent discount rate, and $4,305,470 at a 7 
percent discount rate.
    The DEA estimates that the annualized post-designation incremental 
costs for the activities described below during the period 2009 to 2028 
may range from $44,733 using a 3 percent discount rate to $46,916 using 
a 7 percent discount rate. If we determine that these costs would occur 
as a result of critical habitat designation, they can be considered in 
our analysis of whether the benefits of including an area as critical 
habitat outweigh the benefits of excluding the area. The activity 
having the highest incremental cost ranking is preservation and 
watershed management, with an annualized value of approximately $23,969 
using a 3 percent discount rate to $25,568 using a 7 percent discount 
rate. The second highest cost reflects a possible opportunity loss of 
harvesting trees in the Stainback Forest and Waiakea Forest units, 
resulting in an annualized value of approximately $12,693 using a 3 
percent discount rate to $12,176 using a 7 percent discount rate.
    There may also be post-designation incremental costs of $68,590 
using a 3 percent discount rate to $56,000 using a 7 percent discount 
rate from 2009-2028, related to future section 7 consultations for 
preservation and watershed management activities. All or nearly all of 
the post-designation incremental costs would be borne by Federal and 
State agencies, although a portion of the preservation and watershed 
management costs would be borne by a few private landowners. The 
combined post-designation incremental cost for all activities is 
projected to be $685,450 using a 3 percent discount rate, and $531,780 
using a 7 percent discount rate.
    Only the incremental costs of designating critical habitat, over 
and above the costs associated with species protection under the Act 
more generally, may be considered in designating critical habitat. 
Therefore, the methodology for distinguishing these two categories of 
costs is important. This is particularly true in the current case, 
where approximately 90 percent of the total costs of species 
conservation over the next 20 years are projected to be baseline costs, 
and 10 percent are projected to be incremental costs associated with 
the critical habitat designation.
    In the absence of critical habitat, Federal agencies must ensure 
that any actions they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of any endangered species or 
threatened species--costs associated with such actions are considered 
baseline costs. Once an area is designated as critical habitat, 
proposed actions that have a Federal nexus in this area will also 
require consultation and potential revision to ensure that the action 
does not result in the destruction or adverse modification of 
designated critical habitat. Costs associated with these actions are 
considered incremental costs. The DEA explains that incremental section 
7 consultation that takes place as a result of critical habitat 
designation may fall into one of three categories: (1) Additional 
effort to address adverse modification in a consultation that also 
involves jeopardy; (2) re-initiation of a previously concluded 
consultation to address adverse modification; and (3) new consultation 
resulting entirely from critical habitat designation (i.e., where a 
proposed action may affect unoccupied critical habitat). The DEA 
estimates that there would be three project-level informal 
consultations related to Federal grants that would need to be 
reinitiated in 2009 to address picture-wing fly critical habitat. There 
would also be one programmatic consultation that would need to be 
reinitiated in 2009 related to the Hawai'i Volcano National Park 
management plan, and subsequent programmatic consultations every five 
years. The DEA indicates that since these consultations would be for 
preservation and watershed management activities, no or only minimal 
project modifications would be anticipated.
    We are soliciting data and comments from the public on the DEA, as 
well as on all aspects of the proposed rule and our amended required 
determinations. We may revise the proposed rule or its supporting 
documents to incorporate or address information we receive during this 
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 as critical habitat, 
provided the exclusion will not result in the extinction of the 
species.

Proposed Exclusions Under 4(b)(2) of the Act

    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. We may exclude an 
area from designated critical habitat based on economic impacts, 
national security, or

[[Page 46864]]

any other relevant impact. Under section 4(b)(2) of the Act, we must 
consider all relevant impacts, including economic impacts. For example, 
we consider whether there are landowners that have developed 
conservation plans for the area, or whether there are conservation 
partnerships that would be encouraged by designation of, or exclusion 
of lands from, critical habitat. We also consider any social impacts 
that might occur because of the designation. During the development of 
a final designation, we will consider economic and other relevant 
impacts, including additional conservation plans that may be available, 
with regard to potential exclusion from the final critical habitat 
designation under section 4(b)(2) of the Act.
    In preparing this notice, we have determined that voluntary 
conservation efforts by private landowners are vital for the 
conservation and recovery of the 12 Hawaiian picture-wing fly species. 
As one example, significant progress has been made in habitat 
restoration on Maui Land and Pineapple Company's (MLP) lands within the 
Puu Kukui Watershed Management Area (PKWMA), located in the West Maui 
Mountains. The proposed 584-acre (237-ha) critical habitat unit 
boundary for Drosophila neoclavisetae (Puu Kukui Unit 1) falls 
completely within the PKWMA. Since 1988, the MLP has proactively 
managed their 450 acres (182 hectares (ha)) within the PKWMA and is 
currently in its 15th year of contract with the State of Hawaii's 
Natural Area Partnership (NAP) Program to preserve the native 
biodiversity of the company's conservation lands. At just over 8,600 
acres (3,483 ha), the PKWMA is the largest privately owned preserve in 
the State.
    In 1993, the MLP became the first private landowner participant in 
the NAP program. They are pursuing four management programs stipulated 
in their Long Range Management Plan that emphasizes reducing nonnative 
species that immediately threaten the management area (Maui Land and 
Pineapple Company 1999). The primary management goals within PKWMA are 
to: (1) Eliminate ungulate activity in all Puu Kukui management units; 
(2) reduce the range of habitat-modifying weeds and prevent 
introduction of nonnative plants; (3) reduce the negative impacts of 
non-native invertebrates and small animals; (4) monitor and track 
biological and physical resources in the watershed in order to improve 
management understanding of the watershed's resources; and (5) prevent 
the extinction of rare species within the watershed. Specific 
management actions to address feral ungulates include the construction 
of fences surrounding 10 management units and removal of ungulates 
within the PKWMA.
    The nonnative plant control program within PKWMA focuses on weeds 
that modify habitat, prioritizing weeds according to the degree of 
threat to native ecosystems, and preventing the introduction of new 
weeds. The weed control program includes mapping and monitoring along 
established transects and manual/mechanical control. Natural resource 
monitoring and research address the need to track biological and 
physical resources of the PKWMA, and evaluate changes to these 
resources in order to guide management programs. Vegetation is 
monitored through permanent photographic points, nonnative species are 
monitored along permanent transects, and rare, endemic, and indigenous 
species are monitored. Logistical and other support for approved 
research projects, interagency cooperative agreements, and remote 
survey trips within the watershed are also provided.
    At this time, we are evaluating the sufficiency of protection that 
the conservation activities being conducted by the MLP are providing 
for the 12 picture-wing flies and features essential for their 
conservation on their lands (450 acres (182 ha)) that fall within the 
584-acre (237-ha) proposed critical habitat unit (Puu Kukui Unit 1). 
Therefore, we are specifically soliciting public comments on the 
possible exclusion of the MLP lands within proposed Puu Kukui Unit 1 
under section 4(b)(2) of the Act.

Benefits of Inclusion

    The benefits of including lands in critical habitat can be 
regulatory, educational, or promote the recovery of species. The 
principal regulatory benefit of designating critical habitat in this 
area would be that Federal actions affecting D. neoclavisetae would 
require consultation under section 7 of the Act. Consultation would 
ensure that a proposed action does not result in the destruction or 
adverse modification of critical habitat. The most likely Federal nexus 
would be associated with Service funding for management activities that 
target invasive species removal, and the likely outcome of a section 7 
consultation would be conservation recommendations to avoid stands of 
Cyanea kunthiana and Cyanea macrostegia ssp. macrostegia when applying 
herbicides, or to use backpack sprayers to specifically target 
herbicide application. However, even in the absence of critical habitat 
designation, these conservation recommendations would still be included 
within the PKWMA invasive species control program. Accordingly, we 
believe that few additional regulatory benefits would be derived by 
including the MLP lands within the area designated as critical habitat 
for Drosophila neoclavisetae beyond those conservation benefits already 
being achieved through the implementation of the PKWMA Watershed 
Management Plan (WMP).
    There have been no section 7 consultations regarding Drosophila 
neoclavisetae or its host plants with the PKWMA to date. The DEA 
anticipates that there would be two informal consultations associated 
with projects to remove non-native species over the next 13 years. It 
also predicts that no formal consultations would be likely to occur 
over the 20-year timeframe of the analysis. The two informal section 7 
consultations anticipated by the DEA would take place based on the 
species presence in the area. Accordingly, section 7 consultation under 
the jeopardy standard would be required for Federal activities that may 
affect D. neoclavisetae, regardless of critical habitat designation. We 
do not foresee any additional consultations beyond those anticipated by 
the DEA, and predict that the section 7 consultation process for 
critical habitat would be unlikely to result in additional protections 
for the species. Consequently, there would be little regulatory benefit 
of designating critical habitat on the MLP lands within Puu Kukui Unit 
1.
    The final listing rule for the 12 picture-wing flies (71 FR 26835) 
acknowledged the importance of this area to the overall conservation of 
Drosophila neoclavisetae (Service 2006). The MLP is aware of the areas 
where D. neoclavisetae occurs on their property, and is already 
implementing conservation actions to benefit the species (MLP 2008, p. 
2). We therefore believe that any additional educational benefits 
resulting from the designation of critical habitat on these lands would 
be minimal. The designation of critical habitat may provide benefits to 
the recovery of a species, however, in this case the MLP is already 
committed to implementing conservation actions on their lands under the 
existing watershed management plan (WMP), and any additional benefits 
to the recovery of this species beyond those already being realized 
would be limited.

[[Page 46865]]

Benefits of Exclusion

    The MLP has a history of entering into conservation agreements with 
Federal and State agencies and other private organizations on their 
lands. These agreements further their mission of practicing prudent 
stewardship of their land and water resources to ensure the protection 
of rare and endangered plant and animal species, and water resources 
crucial to the community. The continued implementation of the WMP by 
the MLP will benefit Drosophila neoclavisetae through actions that 
manage invasive species and restore native species habitat. The WMP 
provides a significant conservation benefit to D. neoclavisetae's host 
plant populations in the area, and we have a reasonable expectation 
that the strategies and measures will be effective.
    We believe that Drosophila neoclavisetae is benefiting 
substantially from the MLP's proactive management actions, which 
include reducing ungulate browsing and habitat conversion, competition 
with nonnative weeds, and the risk of fire. These management actions 
also include the reintroduction of currently extirpated native species 
into restored habitats.
    The exclusion of the MLP lands from the proposed Puu Kukui--Unit 1 
would allow us to continue working with this landowner in a spirit of 
cooperation and partnership. The MLP management plan acknowledges a 
shared interest in promoting healthy ecosystems and in protecting 
populations and habitat of D. neoclavisetae. Since the area has been 
actively managed as a preserve since 1988, there is a reasonable 
expectation that the conservation management strategies and actions 
will continue to be implemented for the benefit of D. neoclavisetae's 
habitat in the foreseeable future. Imposing an additional layer of 
section 7 consultation by designating critical habitat could undermine 
our existing conservation partnership with the MLP and remove their 
incentive to accept the additional time and expense of management 
planning. We believe that the designation of critical habitat would 
strain the existing proactive working relationship we share with the 
MLP, and may hinder future cooperative conservation projects.
    Excluding the MLP lands from critical habitat designation would 
acknowledge their positive contribution to conservation on Maui. It 
would also reduce the cost of additional section 7 consultation, which 
we believe would be unnecessary. We are hopeful that this recognition 
would provide other landowners with a positive incentive to undertake 
voluntary conservation activities on their lands, particularly where 
there is no regulatory requirement to implement such actions.

Weighing Benefits of Exclusion and Benefits of Inclusion

    We believe the proactive management of Drosophila neoclavisetae 
habitat provided under the Maui Land and Pineapple Company Watershed 
Management Plan provides significant benefits to this species. In 
contrast, the benefits of including their lands as critical habitat 
would likely be minor, since there have been no section 7 consultations 
in the area since the species was listed in 2006. If the MLP lands 
within the proposed Puu Kukui--Unit 1 were to be excluded from critical 
habitat designation, the Puu Kukui WMA plan would continue to provide 
conservation benefits to the species through the ongoing implementation 
of strategies and measures that are consistent with currently accepted 
principles of conservation biology.

Will Exclusion Result in Extinction of the Species?

    We believe that the exclusion of the MLP lands within the proposed 
Puu Kukui--Unit 1 from the final designation of critical habitat would 
not result in the extinction of the species. The continued 
implementation of their ongoing management programs will provide 
comparable or greater net conservation benefits than those that would 
result from critical habitat designation. These management programs 
provide tangible conservation benefits that reduce the likelihood of 
extinction for D. neoclavisetae, and increase the likelihood of its 
recovery. In addition, there are no known threats in the PKWMA 
associated with Federal actions requiring section 7 consultation, so 
extinction of the species as a consequence of not designating critical 
habitat would be unlikely. Further, because the 450 ac (182 ha)) of the 
MLP's lands we are considering excluding from critical habitat 
designation are occupied by D. neoclavisetae, section 7 consultation 
would be required even in the absence of critical habitat designation, 
and any Federal actions that may affect the species would be evaluated 
under the jeopardy standard of section 7 of the Act, which provides 
assurances that the species would not become extinct.
    In addition, Sec.  195D-4 of the Hawaii Revised Statutes, 
Endangered species and threatened species, stipulates that species 
determined to be endangered or threatened under the Federal Endangered 
Species Act shall be deemed endangered or threatened under the State 
law, and that it is unlawful under the State law (with some exceptions) 
to ''take'' such species, or to possess, sell, carry or transport them. 
The statutory protections provided under State law provide additional 
assurances that exclusion of the MLP lands from critical habitat 
designation would not result in extinction of Drosophila neoclavisetae.
    In summary, there may be few regulatory, educational, or recovery 
benefits from the exclusion of the MLP lands from critical habitat 
designation. On the other hand, there may be greater conservation 
benefits that would result from the exclusion of these lands, which 
include the implementation of affirmative actions for controlling 
invasive species, protecting host plant habitat, monitoring of native 
species, and restoration activities. Accordingly, we are requesting 
public comments on whether the benefits of excluding this area from 
critical habitat designation would outweigh the benefits of its 
inclusion, and thus whether the MLP lands should be excluded under 
section 4(b)(2) of the Act.

Required Determinations--Amended

    In our November 28, 2007, proposed critical habitat rule (72 FR 
67428), we said 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. In 
this document we affirm the information in our proposed rule concerning 
Executive Order (E.O.) 13132, E.O. 12988, the Paperwork Reduction Act, 
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 DEA, we revise our required 
determinations concerning E.O. 12866, the Regulatory Flexibility Act, 
E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded 
Mandates Reform Act, and E.O. 12630 (Takings).

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on

[[Page 46866]]

the economy or adversely affect an economic sector, productivity, jobs, 
the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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 (5 
U.S.C. 802(2)) (SBREFA), 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 
the 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 revised 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.
    According to the Small Business Administration (SBA), 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 
proposed critical habitat 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 12 Hawaiian picture-wing fly species would affect a substantial 
number of small entities, we considered the number of small entities 
affected within particular types of economic activities. 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; some kinds of activities are unlikely to have any Federal 
involvement. The designation of critical habitat will not affect 
activities that do not have any Federal involvement; designation of 
critical habitat affects activities conducted, funded, permitted, or 
authorized by Federal agencies.
    If we finalize this proposed critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect designated critical habitat. Consultations to 
avoid the destruction or adverse modification of critical habitat would 
be incorporated into the existing consultation process.
    Chapter 4 of the DEA evaluates the potential economic effects of 
the proposed revised designation on small entities, based on the 
estimated incremental impacts associated with the proposed rulemaking. 
The screening analysis is based on the estimated impacts associated 
with the proposed rulemaking as described in chapters 3 and 4 and 
Appendix C of the DEA. The analysis evaluates the potential for 
economic impacts related to several categories, including: (1) 
Preservation and watershed management, (2) the purchase of Honouliuli 
Preserve, (3) game management, (4) timber harvest, (5) property values, 
and (6) administrative costs associated with section 7 consultation.
    Incremental economic impacts associated with section 7 
consultations would fall on the U.S. Fish and Wildlife Service, U.S. 
Army Corps of Engineers, National Park Service, and Hawai`i Department 
of Lands and Natural Resources. The Hawai`i Department of Lands and 
Natural Resources may also experience an incremental economic impact 
associated with the opportunity loss of not selling mature trees from a 
portion of the Waiakea Timber Management Area. However, Federal 
agencies are not considered small entities, and State governments are 
not considered small government jurisdictions for purposes of the 
Regulatory Flexibility Act (RFA) and Small Business Regulatory 
Enforcement Fairness Act (SBREFA).
    The Board of Water Supply of the City and County of Honolulu may 
experience incremental costs for conservation on its land in the Makaha 
Valley and Mt. Ka`ala units. However, the RFA/SBREFA defines small 
governmental jurisdiction as the government of a city, county, town, 
school district, or special district with a population of less than 
50,000. Accordingly, the City and County of Honolulu is not considered 
a small government jurisdiction.
    Nonprofit organizations such as Kamehameha Schools, the Nature 
Conservancy of Hawai`i (TNCH), the Queen Emma Foundation, and Watershed 
Partnerships could experience incremental costs associated with (1) the 
loss of property value for 3 acres of land in the Pit Crater unit; (2) 
conservation projects on managed lands including the Pu`u Kolekole, 
Pu`u Kukui, Palikea, Pu`u Kaua, and Kalua`a Gulch units; (3) 
conservation projects on land in the Kohala Mountains West unit; and 
(4) conservation projects in the Wailupe, Pu`u Kolekoke, Pu`u Kukui, 
Kohala Mountains East, and Kohala Mountains west respectively. However, 
none of these nonprofit organizations are considered ``small 
organizations'' for purposes of the RFA/SBREFA.
    The James Campbell Co. LLC, Maui Land and Pineapple Company, Inc., 
and Moloka`i Ranch are private companies that could experience 
incremental impacts associated with critical habitat designation, 
however, none of these businesses are considered to be small businesses 
for purposes of the RFA/SBREFA. In this regard, the DEA concludes that 
none of the incremental economic impacts associated with designating 
critical habitat would be expected to fall on small entities.
    In summary, we have considered whether the proposed critical 
habitat designation would result in a significant economic impact on a 
substantial number of small entities, and do not anticipate any 
substantial impacts on any small entities. We therefore certify that, 
if promulgated, the proposed revised designation would not have a 
significant economic impact on a substantial number of small entities. 
Therefore, an initial regulatory flexibility analysis is not required.

[[Page 46867]]

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

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. OMB's guidance for implementing this 
Executive Order outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to no regulatory action. The 
DEA finds none of these criteria relevant to this analysis (Chapter 4 
of the DEA). Thus, based on information in the DEA, we do not expect 
conservation activities within proposed critical habitat for the 12 
Hawaiian picture-wing fly species to lead to energy-related impacts. As 
such, we do not expect the proposed designation of critical habitat to 
significantly affect energy supplies, distribution, or use, and a 
Statement of Energy Effects is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), we make the following findings:
    (a) The rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except as (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that the proposed designation will 
significantly or uniquely affect small governments because it will not 
produce a Federal mandate of $100 million or greater in any year, that 
is, it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act. The proposed designation of critical habitat 
imposes no obligations on State or local governments. The SBA does not 
consider the Federal Government to be a small governmental jurisdiction 
or entity. Consequently, we do not believe that the revised critical 
habitat designation would significantly or uniquely affect small 
government entities. As such, a Small Government Agency Plan is not 
required.

Executive Order 12630--Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the 12 Hawaiian picture-wing fly species 
in a takings implications assessment. The takings implications 
assessment concludes that the proposed designation of critical habitat 
for the 12 Hawaiian picture-wing fly species does not pose significant 
takings implications for lands within or affected by the proposed 
designation.

Authors

    The primary authors of this notice are the staff of the Endangered 
Species Program, 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: August 4, 2008.
 David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-18519 Filed 8-11-08; 8:45 am]
BILLING CODE 4310-55-P