        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 216
        Docket No. 0907301201-91203-01
        RIN 0648-AY15
        Implementation of Fish and Fish Product Import Provisions of the Marine Mammal Protection Act

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Advance notice of proposed rulemaking; request for comments.

          SUMMARY:
          NMFS issues this advance notice of proposed rulemaking to announce that it is developing procedures to implement provisions of the Marine Mammal Protection Act for imports of fish and fish products. NMFS is seeking advance public comment on the development of these procedures and on the types of information to be considered in the process.

          DATES:
          Written comments must be received by 5 p.m. on June 29, 2010.

          ADDRESSES:
          You may submit comments by any of the following methods:

          (1) Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at http:// www.regulations.gov.
          (2) Mail: Director, Office of International Affairs, Attn: MMPA Fish Import Provisions, NMFS, F/IA, 1315 East-West Highway, Silver Spring, MD 20910
          (3) Fax: (301) 713-2313

          All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (e.g., name, address) voluntarily submitted by the commenter may 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, Excel, WordPerfect, or Adobe portable document file (pdf) formats only.

          FOR FURTHER INFORMATION CONTACT:
          Michael Simpkins at Michael.Simpkins@noaa.gov or 301-713-9090.

        SUPPLEMENTARY INFORMATION:
        Background
        The Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361-1423h, contains provisions addressing bycatch, or the incidental mortality and serious injury, of marine mammals in both domestic and foreign fisheries. With respect to foreign fisheries, section 101(a)(2) of the MMPA (16 U.S.C. 1371(a)(2)) states that “[t]he Secretary of the Treasury shall ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards. For purposes of applying the preceding sentence, the Secretary [of Commerce]- (A) shall insist on reasonable proof from the government of any nation from which fish or fish products will be exported to the United States of the effects on ocean mammals of the commercial fishing technology in use for such fish or fish products exported from such nation to the United States.”
        This rulemaking would define the “United States standards” referred to in MMPA section 101(a)(2), along with any associated criteria by which the United States would assess foreign fisheries that supply fish and fish product imports to the United States (hereafter “import-supplying fisheries”) with respect to marine mammal bycatch. The rule also would describe procedures for ensuring the established standards and their associated criteria are met, as well as procedures for developing recommendations regarding import prohibitions if those standards and associated criteria are not met. In defining the standards and associated criteria by which marine mammal bycatch in import-supplying fisheries would be evaluated, this rulemaking would consider U.S. statutory provisions and regulations applied to the management of incidental mortality and serious injury of marine mammals, including provisions of the MMPA, the Endangered Species Act (ESA), and the High Seas Driftnet Fishing Moratorium Protection Act (HSDFMPA).
        This rulemaking also would recognize existing bilateral or multilateral arrangements to address marine mammal bycatch in foreign fisheries as well as the potential for such arrangements in the future. In the case of eastern tropical Pacific yellowfin tuna purse seine fisheries, marine mammal bycatch is covered by section 101(a)(2)(B) and Title III of the MMPA (16 U.S.C. 1371(a)(2)(B) & 1411-1417, respectively), which incorporate requirements adopted under the auspices of the Agreement on the International Dolphin Conservation Program (AIDCP).
        U.S. Incidental Marine Mammal Mortality and Serious Injury Statutory Provisions

        Section 2 of the MMPA describes several broad goals, including (1) maintaining the health and stability of the marine ecosystem; (2) retaining marine mammals as a significant functioning element in the ecosystem of which they are a part; and (3) ensuring that marine mammals can remain at or recover to their optimum sustainable population. The term “optimum sustainable population” is defined in section 3(9) (16 U.S.C. 1362(9), 50 CFR 216.3) of the MMPA as “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.”
        Sections 117 and 118 (16 U.S.C. 1386 and 1387) of the MMPA describe the current U.S. program for regulating bycatch in domestic commercial fisheries. The program includes (1) evaluating marine mammal stock status; (2) evaluating bycatch in commercial fisheries; (3) developing bycatch reduction measures and regulations following consultation with stakeholder-based take reduction teams; and (4) implementing emergency regulations when necessary.
        MMPA section 118(f)(2) defines both short- and long-term goals for take reduction plans created by take reduction teams. The short-term goal is to reduce and maintain marine mammal bycatch below the potential biological removal level for a given stock. MMPA section 3(20) defines “potential biological removal” (PBR) as “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.” The long-term goal is to reduce bycatch “to insignificant levels approaching a zero mortality and serious injury rate,” often referred to as the zero-mortality rate goal. MMPA section 118(f)(3) provides NMFS with discretion to prioritize and develop take reduction plans based on available funding. MMPA section 118(f)(2) provides additional discretion with respect to the long-term goal by requiring NMFS to take into account “the economics of the fishery, the availability of existing technology, and existing State or regional fishery management plans.”
        Section 118(g) of the MMPA empowers NMFS to prescribe emergency regulations to reduce marine mammal bycatch in a fishery if the Secretary of Commerce finds that such bycatch is having, or is likely to have, an immediate and significant adverse impact on a stock or species.
        The ESA contains provisions that apply more broadly to any direct or incidental serious injury or mortality of species listed as endangered or threatened under the ESA. Specifically, section 7 of the ESA (16 U.S.C. 1536) requires Federal agencies to ensure that any action authorized, funded, or carried out by such agencies is not likely to jeopardize the continued existence of any species listed as endangered or threatened under the ESA, or any species proposed for such listing. If an action is determined to likely result in jeopardy to a species that has been listed or proposed to be listed under the ESA, the responsible Secretary (of Interior or Commerce) is required to develop reasonable and prudent alternatives, as necessary or appropriate, to mitigate such impact. If there is no reasonable and prudent alternative available, then section 7 of the ESA also provides that the Endangered Species Committee may decide whether to grant an exemption from the jeopardy prohibition.
        Under section 610 of the HSDFMPA (16 U.S.C. 1826k), the Secretary of Commerce is required to identify nations whose fishing vessels engage in fishing activities or practices that result in bycatch of protected living marine resources (PLMRs), including marine mammals. In determining whether a nation's vessels have engaged in bycatch of a PLMR, the Secretary must determine whether the fishing activities in question result in bycatch of PLMRs in waters beyond any national jurisdiction or whether the bycatch involves stocks that are shared by the United States and occur beyond the exclusive economic zone of the United States. Such nations are identified if (1) the fishing activity in question occurred during the preceding calendar year; (2) the relevant international organizations for managing the fisheries or protecting the bycaught species have failed to implement effective measures to end or reduce such bycatch, or the nation is not a party or cooperating member of such organization; and (3) the nation has not adopted a regulatory program to reduce bycatch that is comparable to that of the United States, taking into account different conditions.
        After a nation has been identified, the HSDFMPA requires that the Secretary, acting through the Secretary of State, notify and consult with the identified nation for the purpose of entering into treaties to protect the PLMRs in question. The HSDFMPA also authorizes the Secretary of Commerce to provide appropriate assistance to identified nations to assist those nations in qualifying for positive HSDFMPA certification, described below. Such assistance may include cooperative research, technology transfer, and assistance in designing and implementing fish harvesting plans.
        Following consultation, an identified nation is certified positively only if it provides documentary evidence that the nation has adopted a regulatory program to conserve PLMRs that is comparable to that of the United States, taking into account different conditions, and also has established a management plan that will assist in gathering species-specific data to support international stock assessments and conservation efforts for PLMRs.
        Failure by a nation to receive a positive certification under the HSDFMPA may result in denial of port privileges and prohibition of imports of some fish or fish products.
        Possible Standards for Evaluating Marine Mammal Bycatch Associated with Fish and Fish Product Imports
        NMFS is considering whether the statutory provisions described above rise to the level of “United States standards,” and, if so, NMFS is considering several possible standards that could be used when evaluating marine mammal bycatch in import-supplying fisheries for the purposes of implementing MMPA section 101(a)(2). NMFS also is considering whether to use only one of these standards or a combination of two or more standards when evaluating marine mammal bycatch in import-supplying fisheries. The options under consideration as possible standards are described below.
        Several possible standards that NMFS is considering are derived from the short- and long-term goals of take reduction plans developed under section 118(f)(2) of the MMPA. Specifically, NMFS is considering evaluating whether marine mammal bycatch in import-supplying fisheries is maintained at a level below PBR for impacted marine mammal stocks (option 1). Alternatively, NMFS is considering evaluating whether such bycatch has been reduced to insignificant levels approaching a zero mortality and serious injury rate to the extent feasible, taking into account different conditions (option 2). NMFS recognizes that these two goals have been met for many, but not all, U.S. domestic fisheries. Another alternative possible standard NMFS is considering is to evaluate whether marine mammal bycatch in import-supplying fisheries is maintained at levels below PBR or at levels comparable to those actually achieved in comparable U.S. fisheries, whichever is higher (option 3). With respect to all three of these possible standards, NMFS recognizes that section 118(f)(3) of the MMPA provides NMFS with discretion to prioritize and develop take reduction plans for domestic U.S. fisheries to achieve these goals subject to available funding.

        NMFS also is considering possible standards derived from the population status goal described in MMPA section 2. Specifically, NMFS is considering evaluating whether marine mammal bycatch in import-supplying fisheries either causes the depletion of a marine mammal stock below its optimum sustainable population or impedes the ability of a depleted stock to recover to its optimum sustainable population (option 4). Domestically, the United States manages marine mammal bycatch based on PBR levels to achieve the goal of allowing marine mammal stocks to reach or maintain their optimum sustainable populations. However, NMFS recognizes that foreign nations may have other approaches to achieving the same goal, and that some of these might be commensurate with the U.S. marine mammal bycatch management program.
        NMFS also is considering possible standards derived from the trigger for emergency regulations in MMPA section 118(g). Specifically, NMFS is considering evaluating whether bycatch in import-supplying fisheries has, or is likely to have, an immediate and significant adverse impact on a marine mammal stock (option 5).
        NMFS also is considering possible standards derived from the jeopardy criteria described in ESA section 7. Specifically, NMFS is considering evaluating whether bycatch in import-supplying fisheries is likely to jeopardize the continued existence of any endangered or threatened marine mammal species (option 6). For this option, NMFS is considering whether and how to apply such possible standards uniformly to bycatch of foreign or international marine mammal species that are endangered or threatened, but have not been evaluated or listed under the ESA. Alternatively, NMFS is considering evaluating more broadly whether bycatch by import-supplying fisheries is likely to jeopardize the continued existence of a marine mammal species (option 7).
        NMFS also is considering possible standards derived from HSDFMPA section 610. Specifically, NMFS is considering evaluating whether marine mammal bycatch in a foreign nation's import-supplying fisheries is managed effectively by a relevant international fisheries management or conservation organization, or by the fishing nation itself (option 8). For this possible standard, NMFS would evaluate whether effective measures have been implemented by a relevant international fisheries management or conservation organization to which the nation is a party or cooperating member. If the relevant organization has not implemented effective measures, or the fishing nation is not a party or cooperating member of the organization, then NMFS would also evaluate whether the nation has adopted a regulatory program to reduce marine mammal bycatch that is comparable to that of the United States, taking into account different conditions.
        Finally, NMFS is considering possible standards derived from regulations implemented to manage marine mammal bycatch in U.S. domestic fisheries. Specifically, NMFS is considering evaluating whether foreign nations that supply fish and fish product imports to the United States have implemented regulations to address marine mammal bycatch in the nations' import-supplying fisheries that are comparable to regulations implemented by the United States, taking into account different conditions (option 9). These U.S. domestic regulations are developed and applied on a regional and fishery-by-fishery basis, recognizing that different regional and fishery conditions bear on the effectiveness of the measures.
        To the extent that the options described above are determined to rise to the level of “United States standards,” NMFS anticipates selecting one or more of the possible standards described above to apply when evaluating marine mammal bycatch in a foreign nation's import-supplying fisheries and, in turn, to define those standards as “United States standards” for the purposes of section 101(a)(2)(A). NMFS intends to select clear standards and associated criteria that could be applied uniformly to all foreign fisheries that supply fish and fish product imports to the United States. NMFS also intends to select only standards and associated criteria that have been met by U.S. domestic fisheries.
        NMFS requests comments on the standards to be used when evaluating foreign import-supplying fisheries, including any suggestions of other standards or associated criteria NMFS should consider or modifications of the standards suggested above; and whether to apply one or more standards.
        Potential Procedures for Ensuring that U.S. Marine Mammal Bycatch Standards Are Met for Foreign Imports
        NMFS is considering developing a process for evaluating bycatch in foreign import-supplying fisheries that would be consistent with both the U.S. process for managing domestic marine mammal bycatch, outlined in MMPA sections 117 and 118, and the process for assessing and certifying nations for bycatch of protected living marine resources, outlined in HSDFMPA section 610. In particular, NMFS is considering a process that would include (1) requesting that nations whose fisheries supply imports to the United States provide reasonable proof of the impact of those fisheries on marine mammals; (2) initiating consultation with nations who fail to provide such reasonable proof or whose import-supplying fisheries are known or likely to not meet U.S. marine mammal bycatch standards; (3) allowing some time for nations undergoing consultation to meet U.S. marine mammal bycatch standards by providing acceptable “reasonable proof” of the impacts of their import-supplying fisheries on marine mammals, by improving their assessment capabilities in order to provide such proof, or by implementing effective bycatch mitigation measures; and (4) recommending that the import of certain fish and fish products from a nation or fishery into the United States be prohibited if that nation or fishery fails to meet U.S. marine mammal bycatch standards after consultation.
        With regard to (1) above, NMFS is considering defining “reasonable proof” as information that indicates that a nation's import-supplying fisheries meet U.S. marine mammal bycatch standards.

        With respect to (2) above, NMFS is considering initiating consultation with nations to encourage each nation to take the necessary corrective action to meet the U.S. marine mammal bycatch standards. Such consultation would likely consider the efficacy of marine mammal bycatch measures adopted under multilateral agreements to which the nation is a party, as well as the nation's implementation of those measures. Such consultation also would likely identify different conditions that NMFS may consider when making decisions regarding foreign fisheries imports, including existing scientific capacity within the nation, differences in fishing practices, logistical and technical challenges to assessing status or bycatch of specific marine mammal stocks, and logistical and technical challenges to mitigating bycatch for some stocks or fisheries. As necessary, appropriate, and feasible, NMFS may provide capacity building, training, or technology transfer to address issues identified during consultation. Such consultation and capacity building would be consistent with the approach described in HSDFMPA section 610 for identifying and certifying nations for bycatch of protected living marine resources. Further, U.S. domestic consultations with take reduction teams also consider similar conditions, such as the quality of data available, logistical or technological challenges, and the feasibility of mitigation measures. NMFS also provides scientific support during domestic take reduction team consultations.

        The time allotted in (3) above recognizes the need for some nations to improve their capacity to conduct suitable assessments, implement effective mitigation measures, or address unique challenges. NMFS is considering whether to include time to address these issues within the consultation period or to allow some time after consultation to assess the effectiveness of newly implemented measures before making import determinations. Both MMPA section 118(f) and HSDFMPA section 610 allow time for consultation before action is taken.
        Finally, (4) refers to the implementation of import prohibitions themselves. NMFS would coordinate with other Federal agencies to make decisions regarding possible import prohibitions. NMFS also is considering whether and what kind of alternative procedures to establish for implementing import prohibitions on a shipment-by-shipment, shipper-by-shipper, or other basis if such imports were harvested by practices that do not result in marine mammal bycatch or were harvested by practices that are comparable to those of the United States. The HSDFMPA allows for the development of such alternative procedures.
        NMFS is considering if and how intermediary nations should be addressed by the procedures under consideration. Intermediary nations are those that serve as intermediaries in re-exporting fish or fish products to the United States from the nation whose fisheries originally harvested the fish. With respect to yellowfin tuna harvested in the eastern tropical Pacific purse seine fisheries, section 101(a)(2)(D) of the MMPA requires that any intermediary nation certify and provide reasonable proof that “it has not imported, within the preceding six months, any yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation to the United States.” NMFS is considering using a similar approach to ensure that imports from intermediary nations meet U.S. marine mammal bycatch standards.
        NMFS is requesting comments on the procedures under consideration for ensuring that foreign fisheries imports meet U.S. marine mammal bycatch standards, including whether to apply one or more of the possible standards when evaluating import-supplying fisheries to make decisions regarding initiating consultation or banning imports, which standards to apply, and whether to apply different standards for making the decision to initiate consultation than are used to make the decision to ban imports. Further, NMFS is requesting comments on what issues and conditions should be considered during consultation and whether and what kind of alternative procedures should be established for implementing import prohibitions on a shipment-by-shipment or shipper-by-shipper basis. Finally, NMFS is requesting comments regarding if and how intermediary nations should be addressed by the procedures under consideration.
        Petition for Rulemaking

        On March 5, 2008, the U.S. Department of Commerce and other relevant Departments were petitioned to initiate rulemaking to ban importation of swordfish and swordfish products from countries that have not satisfied the MMPA section 101(a)(2) requirement. The petition for rulemaking under the Administrative Procedure Act was submitted by two nongovernmental organizations, the Center for Biological Diversity and the Turtle Island Restoration Network. The complete text of the petition is available via the internet at the following web address: http://www.nmfs.noaa.gov/ia/. Copies of this petition may also be obtained by contacting NMFS [see ADDRESSES].
        On December 15, 2008, NMFS published a notification of receipt of the petition, with a January 29, 2009, deadline for comments (73 FR 75988). NMFS subsequently reopened the comment period from February 4 to March 23, 2009 (74 FR 6010, February 4, 2009).
        Although the petition only requested action regarding imports of swordfish and swordfish products, the import provisions of MMPA section 101(a)(2) apply more broadly to imports from other foreign fisheries that use “commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards”. Therefore, this rulemaking would be broader in scope than the petition. Comments received on the petition were considered during the development of this advance notice of proposed rulemaking. Many of the comments were limited to the scope of the petition, but others are more broadly applicable. We have summarized all comments on the petition below.
        Summary of Comments Received on Petition
        NMFS received almost 45,000 comments on the petition during the two public comment periods, including comments from individual members of the public, environmental and industry groups, members of Congress, and swordfish exporting nations. The vast majority of public comments were submitted in association with mass comment campaigns by the Center for Biological Diversity and the Natural Resources Defense Council. NMFS developed this advance notice of proposed rulemaking in response to the comments received on the petition.
        (1) Support for the petition—The vast majority of public comments supported the petition and recommended that NMFS implement the MMPA import provisions. Most of those comments recommended banning swordfish imports immediately, although a few comments recommended that NMFS request and evaluate information from nations before banning imports.
        Some comments in support of the petition indicated that implementing the MMPA import provisions would (1) provide an incentive for foreign fisheries to implement bycatch reduction measures and data requirements similar to those of the United States; (2) provide added protection for marine mammals outside of U.S. waters; (3) level the “playing field” and protect U.S. fishers from unfair competition; and (4) ensure that U.S. consumers do not unwittingly contribute to the depletion of marine mammal populations as a result of poorly regulated fisheries. Several comments claimed that NMFS had failed to implement the MMPA import provisions and, thereby, had promoted the destruction of marine mammal populations and placed U.S. fishers at a significant competitive disadvantage. One comment suggested that NMFS did not need to develop regulations to implement a ban on swordfish imports because NMFS could “readily compare” foreign fishing operations to U.S. marine mammal bycatch standards.
        (2) Suggested alternative approaches to addressing international marine mammal bycatch—Several comments suggested that working cooperatively with trading partners would be more effective than banning imports. Some of those comments suggested that the United States work to address international marine mammal bycatch through international organizations, such as regional fishery management organizations.

        One comment suggested a capacity-building effort to bring about change in the fishing practices of trading partners. Another comment suggested developing a coalition of fish-importing companies in the United States to encourage suppliers in other countries to buy fish caught with “mammal safe” gear, which it suggested could be provided, installed, and demonstrated by the U.S. government, industry, or non-governmental organization partners.
        (3) Possible standards—A few comments pointed out the need to clearly define the “United States standards” regarding marine mammal bycatch in the context of section 101(a)(2) of the MMPA. Two comments recommended that NMFS consider the fisheries and fishing conditions of individual nations when evaluating those fisheries against U.S. marine mammal bycatch standards.
        The majority of comments suggested that “United States Standards” should include consideration of the bycatch mitigation measures implemented by exporting nations. Comments suggested that foreign measures should be comparable to those used in U.S. fisheries, which include pingers (acoustic deterrents), net extenders, limits on longline length, time-area closures, safe handling and release training and equipment, and observer coverage.
        Many comments suggested applying either the short- or long-term bycatch reduction goal of MMPA section 118 as a standard. The short-term goal specifies that bycatch should be reduced below a marine mammal stock's PBR level, while the long-term goal specifies that bycatch should be reduced to insignificant levels approaching a zero mortality and serious injury rate (sometimes referred to as the “zero mortality rate goal”). In contrast, one comment suggested that it would be inappropriate to hold exporting nations to the long-term goal until U.S. fisheries have achieved it. One comment recommended applying additional MMPA standards, including (1) maintaining the health and stability of the marine ecosystem; (2) recovering populations to, and maintaining them at, optimum sustainable populations; (3) ensuring that authorized take levels do not disadvantage affected stocks; and (4) requiring development of take reduction plans for fisheries that exceed a stock's PBR level. Several comments also pointed out that MMPA section 101(a)(2)(B) establishes standards for the eastern tropical Pacific purse seine fishery for tuna. Another comment suggested using the standards described in section 610 of the HSDFMPA.
        (4) Trade and economic issues—Several comments discussed the relevance of the MMPA import provisions to intermediary nations. One comment recommended that NMFS apply the provisions to intermediary nations by requiring those nations to provide documentation as to how swordfish or swordfish products they export to the United States were harvested and what impact those fisheries had on marine mammals. Another comment suggested that harvesting nations should be responsible for issuing “mammal-free certifications” to vessels and that importers in intermediary nations should be required to obtain such “certifications” prior to landing fish at the nations' ports.
        Numerous comments stated that a ban on swordfish imports would cause economic hardship for exporting nations. Another comment claimed that banning imports would financially harm importing companies in the United States because foreign harvesters would sell their fish to alternative markets.
        Some comments voiced concern that implementing the MMPA import provisions could result in “unlawful barriers to international trade.” Some comments suggested that any measures taken should not hamper trade in swordfish or any other fish caught by “proper fishing devices.” A comment from one nation suggested that banning imports of swordfish would contradict the existing spirit of partnership and good relations with the United States. In contrast, one comment suggested that a ban on swordfish imports could be implemented in a manner consistent with the General Agreement on Tariffs and Trade and the World Trade Organization. That comment further suggested that NMFS is obligated to implement the MMPA import provisions, even if a ban on swordfish imports were found to be in conflict with international trade agreements.
        (5) Inaccuracies in petition and counter claims—During its review of the petition, NMFS noted that the petition contained some factual errors. For example, some of the swordfish import amounts reported for Taiwan (referred to as China-Taipei in the petition), Mauritius, Mexico, New Zealand, and South Africa were incorrect. Corrections are available at http://www.st.nmfs.noaa.gov/st1/trade/.
        NMFS also noted some discrepancies in the petition's description of the scope and timing of some U.S. fishery closures described in the petition. In particular, the description on page eleven of the petition underestimated the extent of longline closures in the Pacific, ignoring areas closed to longline fishing in Guam and the Northwestern and Main Hawaiian Islands. The description on page eight of the petition failed to recognize that the gillnet prohibition in the western Pacific fishery management area includes all U.S. EEZ waters around Hawaii, Guam, American Samoa, Commonwealth of the Northern Mariana Islands, and U.S. Pacific remote island areas. Further, the description on the same page of the timing of drift gillnet fishery closures on the U.S. west coast during El Niño events was incorrect; those closures are implemented from June 1 through August 31 when NMFS has forecasted or announced the occurrence of an El Niño event.
        Several exporting nations offered counterclaims to those listed in the petition. Brazil noted that the petition claimed that Brazil expanded its longline fleet by leasing vessels from flag of convenience countries. In its comments, Brazil cited a law prohibiting vessels operating for Brazilian fishing companies from registering in other countries under flags of convenience. Taiwan provided comments questioning the validity of bycatch estimates for Taiwan fisheries in the petition. Taiwan argued that the estimates were derived using incorrect methods and data. Two nations commented that they believed there was no valid justification for the measures proposed by the petitioners.
        A number of nations commented that their marine mammal protection programs were comparable to those of the United States. Those nations provided a variety of supporting information regarding their laws, regulations, and/or bycatch management measures.
        One nation suggested that the provision of reasonable proof regarding the effects of fisheries on marine mammals is not a prior obligation of exporting nations, although the United States is entitled to request such information.
        Classification
        This advance notice of proposed rulemaking has been determined to be not significant for purposes of Executive Order 12866.

          Dated: April 26, 2010.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2010-10158 Filed 4-29-10; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R1-ES-2013-0028; 4500030114]
        RIN 1018-AZ38
        Endangered and Threatened Wildlife and Plants; Designating Critical Habitat for Three Plant Species on Hawaii Island

          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 public comment period on our October 17, 2012, proposed designation of critical habitat for three plant species (Bidens micrantha ssp. ctenophylla (kookoolau), Isodendrion pyrifolium (wahine noho kula), and Mezoneuron kavaiense (uhiuhi)) on Hawaii Island under the Endangered Species Act of 1973, as amended (Act). We are reopening the comment period to allow all interested parties further opportunity to comment on areas that we are considering for exclusion from critical habitat designation in the final rule. Comments previously submitted on the proposed rule do not need to be resubmitted, as they will be fully considered in preparation of the final rule.

          DATES:

            Written Comments: We will consider comments received or postmarked on or before June 6, 2016. Please note comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. If you are submitting your comments by hard copy, please mail them by June 6, 2016, to ensure that we receive them in time to give them full consideration.

          ADDRESSES:

            Document Availability: You may obtain copies of the October 17, 2012, proposed rule, this document, and the draft economic analysis of the proposed designation of critical habitat at http://www.regulations.gov at Docket Number FWS-R1-ES-2013-0028, from the Pacific Islands Fish and Wildlife Office's Web site (http://www.fws.gov/pacificislands/), or by contacting the Pacific Islands Fish and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT).

            Written Comments: You may submit written comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R1-ES-2013-0028, which is the docket number for this rulemaking, and follow the directions for submitting a comment.
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R1-ES-2013-0028; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service; MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
          We will post all comments we receive on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

          FOR FURTHER INFORMATION CONTACT:

          Mary Abrams, Field Supervisor, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850; by telephone at 808-792-9400; or by facsimile at 808-792-9581. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for Bidens micrantha ssp. ctenophylla (kookoolau), Mezoneuron kavaiense (uhiuhi), and Isodendrion pyrifolium (wahine noho kula), that was published in the Federal Register on October 17, 2012 (77 FR 63928). In that proposed rule, we proposed to list 15 species on the Hawaiian island of Hawaii as endangered species under the Act (16 U.S.C. 1531 et seq.), to designate critical habitat for one of these species, and to designate critical habitat for two plant species that were listed as endangered species in 1986 and 1994. We finalized the listing determinations of those 15 species on October 29, 2013 (78 FR 64638). Critical habitat has not yet been finalized. We previously reopened the comment period on the proposed critical habitat twice: once for 30 days, on April 30, 2013 (78 FR 25243), and again for 60 days on July 2, 2013 (78 FR 39698).

        In particular we are seeking public comment on the areas that we are considering for exclusion from the final designation of critical habitat for Bidens micrantha ssp. ctenophylla (kookoolau), Mezoneuron kavaiense (uhiuhi), and Isodendrion pyrifolium (wahine noho kula). Although we previously indicated that we were considering the possible exclusion of non-Federal lands, especially areas in private ownership, and asked for comment on the broad public benefits of encouraging collaborative conservation efforts with local and private partners, we are now offering an additional opportunity for public comment on this issue. Subsequent to the publication of the proposed rule, conservation agreements with the Service were signed by several of the landowners previously identified for possible exclusion. Furthermore, the Service has identified some additional areas considered for exclusion based on partnerships with landowners who signed conservation agreements with the Service subsequent to the publication of the proposed rule. Therefore, we are offering another opportunity for public comment on the broad public benefits of encouraging collaborative conservation efforts with local and private partners. We will consider information and recommendations from all interested parties.
        We are particularly interested in comments concerning 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 (16 U.S.C. 1533(b)(2)), after considering the potential impacts and benefits of the proposed critical habitat designation. We are considering the possible exclusion of non-Federal lands, especially areas in private ownership, and whether the benefits of exclusion may outweigh the benefits of inclusion of those areas. We, therefore, request specific information on:
        • The benefits of including any specific areas in the final designation and supporting rationale.
        • The benefits of excluding any specific areas from the final designation and supporting rationale.
        • Whether any specific exclusions may result in the extinction of the species and why.
        For non-Federal lands in particular, we are interested in information regarding the potential benefits of including such lands in critical habitat versus the benefits of excluding such lands from critical habitat. In weighing the potential benefits of exclusion versus inclusion of non-Federal lands, the Service may consider whether existing partnership agreements provide for the management of the species. This consideration may include, for example, the status of conservation efforts, the effectiveness of any conservation agreements to conserve the species, and the likelihood of the conservation agreement's future implementation. In addition, we may consider the formation or fostering of partnerships with non-Federal entities that result in positive conservation outcomes for the species, as evidenced by the development of conservation agreements, as a potential benefit of exclusion. We request comment on the broad public benefits of encouraging collaborative efforts and encouraging local and private conservation efforts.

        Our final determination concerning the designation of critical habitat for Bidens micrantha ssp. ctenophylla, Mezoneuron kavaiense, and Isodendrion pyrifolium will take into consideration all written comments and information we receive during all comment periods; from peer reviewers; and during the public information meeting, as well as comments and public testimony we received during the public hearing, that we held in Kailua-Kona, Hawaii, on May 15, 2013 (see 78 FR 25243; April 30, 2013). The comments will be included in the public record for this rulemaking, and we will fully consider them in the preparation of our final determination. On the basis of peer reviewer and public comments, as well as any new information we may receive during the development of our final determination concerning critical habitat, we may find (1) that areas within the proposed critical habitat designation do not meet the definition of critical habitat, (2) that some modifications to the described boundaries are appropriate, or (3) that areas may or may not be appropriate for exclusion under section 4(b)(2) of the Act.
        If you submitted comments or information on the proposed rule (October 17, 2012; 77 FR 63928) during one of the three previous open comment periods from October 17, 2012, through December 17, 2012 (77 FR 63928), April 30, 2013, through May 30, 2013 (78 FR 25243), and July 2, 2013, through September 3, 2013 (78 FR 39698), or at the public information meeting or hearing on May 15, 2013 (78 FR 25243), please do not resubmit them. We will fully consider them in the preparation of our final determinations.

        You may submit your comments by one of the methods listed in ADDRESSES. We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you submit your comment via U.S. mail, you may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

        Comments and materials we receive will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0028, 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).
        Background
        Previous Federal Actions

        On October 17, 2012, we published a proposed rule (77 FR 63928) to list 15 species on the Hawaiian island of Hawaii as endangered species under the Act, to designate critical habitat for one of these species, Bidens micrantha ssp. ctenophylla, and to designate critical habitat for two previously listed plant species, Mezoneuron kavaiense (51 FR 24672, July 8, 1986) and Isodendrion pyrifolium (59 FR 10305, March 3, 1994). We proposed to designate 18,766 acres (ac) (7,597 hectares (ha)) on the island of Hawaii. Approximately 55 percent of the area proposed as critical habitat is already designated as critical habitat for 41plants and the Blackburn's sphinx moth (Manduca blackburni), for which critical habitat was designated on July 2, 2003 (68 FR 39624), and June 10, 2003 (68 FR 34710), respectively.
        In our October 17, 2012, proposed rule (77 FR 63928), we announced a 60-day comment period, which began on October 17, 2012, and ended on December 17, 2012. On April 30, 2013, we announced the availability of the draft economic analysis on the proposed designation of critical habitat, and reopened the comment period on our proposed rule, the draft economic analysis, and amended required determinations for another 30 days, ending May 30, 2013 (78 FR 25243). On April 30, 2013, we also announced a public information meeting in Kailua-Kona, Hawaii, which we held on May 15, 2013, followed by a public hearing on that same day (78 FR 25243). On July 2, 2013, we announced the reopening of the comment period on the proposed designation of critical habitat and the draft economic analysis for an additional 60 days, through September 3, 2013 (78 FR 39698).
        Critical Habitat
        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency unless it is exempted pursuant to the provisions of the Act (16 U.S.C. 1536(e)-(n) and (p)). Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Consistent with the best scientific data available, the standards of the Act, and our regulations, we initially identified and proposed a total of 18,766 ac (7,597 ha) in 7 units for three plant species located on the island of Hawaii, that meet the definition of critical habitat. In addition, the Act provides the Secretary with the discretion to exclude certain areas from the final designation after taking into consideration economic impacts, impacts on national security, and any other relevant impacts of specifying any particular area as critical habitat.
        Consideration of Impacts Under Section 4(b)(2) of the Act
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

        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 Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, the benefits of critical habitat include public awareness of the presence of the three species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the three species 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 undertaken by Federal agencies.
        In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise her discretion to exclude the area only if such exclusion will not result in the extinction of the species.
        When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. Additionally, continued implementation of a management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.
        When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation and the continuation, strengthening, or encouragement of partnerships.
        When we evaluate a management plan during our consideration of the benefits of exclusion, we assess a variety of factors, including but not limited to, whether the plan is finalized, how it provides for the conservation of the essential physical or biological features, whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future, whether the conservation strategies in the plan are likely to be effective, and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
        After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.

        Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we will evaluate whether certain lands in proposed critical habitat Hawaii—Lowland Dry—Units 31, 32, 33, 34, and 35 are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation.

        In our October 17, 2012, proposed rule (77 FR 63928), we identified areas in four of the proposed critical habitat units for potential exclusion from the final critical habitat designation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense under section 4(b)(2) of the Act. Table 1 provides approximate areas (ac, ha) of these lands that meet the definition of critical habitat but were proposed for consideration for possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule.

          Table 1—Areas Considered for Exclusion in the 2012 Proposed Rule (77 FR 63928), by Critical Habitat Unit

            Unit
            Specific area
            Areas meeting the definition of critical habitat, in
              acres
              (hectares)

            Areas considered
              for possible
              exclusion, in
              acres
              (hectares)

            Hawaii—Lowland Dry—Unit 31
            Kamehameha Schools
            2,834 (1,147)
            2,834 (1,147)

            Hawaii—Lowland Dry—Unit 33
            Palamanui Global Holdings LLC
            502 (203)
            502 (203)

            Hawaii—Lowland Dry—Unit 34
            Kaloko Properties Corp.
            48 (19)
            48 (19)

            SCD-TSA Kaloko Makai LLC
            558 (226)
            558 (226)

            TSA Corporation
            26 (10)
            26 (10)

            Lanihau Properties
            47 (19)
            47 (19)

            Hawaii—Lowland Dry—Unit 35
            Department of Hawaiian Home Lands
            355 (144)
            87 (35)

        We are now considering whether to exclude additional areas. Table 2 below provides approximate areas (ac, ha) of the additional lands that meet the definition of critical habitat but are now under our consideration for possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule. In the paragraphs that follow below, we provide a detailed analysis of our consideration of these additional lands for exclusion under section 4(b)(2) of the Act.

          Table 2—Additional Areas Considered for Exclusion, by Critical Habitat Unit

            Unit
            Specific area
            Areas meeting the definition of critical habitat, in
              acres
              (hectares)

            Areas considered for
              possible
              exclusion, in
              acres
              (hectares)

            Hawaii—Lowland Dry—Unit 32
            Waikoloa Village Association
            1,758 (711)
            1,758 (711)

            Hawaii—Lowland Dry—Unit 33
            Department of Hawaiian Home Lands
            91 (30)
            91 (30)

            Hawaii—Lowland Dry—Unit 35
            County of Hawaii (State)
            165 (67)
            165 (67)

            Hawaii Housing and Finance Development Corporation (State)
            30 (12)
            30 (12)

            Department of Hawaiian Home Lands
            401 (165)
            401 (165)

            Forest City Kona
            265 (107)
            265 (107)

            Queen Liliuokalani Trust
            302 (122)
            302 (122)

        Exclusions Based on Other Relevant Impacts
        Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as habitat conservation plans, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
        We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service.
        We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement.

          (i) The degree to which the plan or agreement provides for the conservation of the species or the essential physical or biological features (if present) for the species;
          (ii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented;
          (iii) The demonstrated implementation and success of the chosen conservation measures;
          (iv) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership;
          (v) The extent of public participation in the development of the conservation plan;

          (vi) The degree to which there has been agency review and required determinations (e.g., State regulatory requirements), as necessary and appropriate;

          (vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) compliance was required; and
          (viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.

        In the proposed rule (October 17, 2012; 77 FR 63928), we identified several specific areas under consideration for exclusion from critical habitat based on the landowner's conservation partnerships; these exclusions totaled approximately 4,099 ac (1,659 ha) of State land and private lands. The areas identified for potential exclusion, as detailed in our proposed rule, included lands owned or managed by Kamehameha Schools; Palamanui Global Holdings, LLC; Kaloko Properties Corp.; Lanihau Properties; SCD-TSA Kaloko Makai, LLC; TSA Corporation; and the Department of Hawaiian Homelands. We asked for public comment on the potential exclusions, and for information regarding the potential benefits of including private lands in critical habitat versus the benefits of excluding such lands from critical habitat. After publication of the proposed rule, three of these landowners (Palamanui Global Holdings, LLC; Lanihau Properties; and the Department of Hawaiian Homelands) signed memoranda of understanding with the Service covering actions beneficial to Bidens micrantha ssp. ctenophylla, Mezoneuron kavaiense, and Isodendrion pyrifolium. Furthermore, in the proposed rule we noted that exclusions in the final rule would not necessarily be limited to those we initially identified in the proposed rule. Subsequent to publication of the proposed rule, we identified additional private or non-Federal lands that we are considering for exclusion from critical habitat, based on conservation partnerships with the Service. These include lands owned or managed by Waikoloa Village Association, County of Hawaii, Hawaii Housing and Finance Development Corporation, Forest City Kona, and Queen Liliuokalani Trust. Therefore, at this time we request public comment on the following: the benefits of including any specific areas in the final designation and supporting rationale, benefits of excluding any specific areas from the final designation and supporting rationale, and whether any specific exclusions may result in the extinction of the species and why. The three of the areas originally proposed for exclusion, as well as the additional areas being considered for exclusion, are briefly described below.
        Certain Areas Considered for Exclusion in the 2012 Proposed Rule
        Palamanui Global Holdings, LLC

        In the October 17, 2012, proposed rule (77 FR 63928), we stated that we were considering the exclusion of 502 ac (203 ha) owned or managed by Palamanui Global Holdings, LLC (Palamanui). These lands fall within a portion of the 1,583 ac (640 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 33; the proposed unit is occupied by Mezoneuron kavaiense, and unoccupied but essential to the conservation of Bidens micrantha ssp. ctenophylla and Isodendrion pyrifolium (77 FR 63928; October 17, 2012). Palamanui has demonstrated their willingness to work as a conservation partner by undertaking site management that provides important conservation benefits to the native Hawaiian species that depend upon the lowland dry ecosystem habitat. Under an integrated natural cultural resource management plan (INCRMP 2005) addressing preservation, mitigation, management, and stewardship measures for the natural and cultural resources at the Palamanui development, Palamanui successfully implemented the following conservation actions on their lands: (1) Fencing to protect a 55-ac (22-ha) Lowland Dry Forest Preserve (Preserve) and other endangered plant locations outside the Preserve; (2) maintenance of firebreaks to control the threat of fire at the Preserve and other endangered plant locations outside the Preserve; (3) establishment of the Palamanui Dry Forest Working Group and research partnership; and (4) partnerships with other landowners and practitioners to benefit the conservation and recovery of dry forest species and their habitat.

        Subsequent to the publication of the October 17, 2012, proposed rule, Palamanui participated in a series of collaborative meetings with the Service, County of Hawaii, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in proposed Critical Habitat Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2015, Palamanui signed a memorandum of understanding (MOU) with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, and the lowland dry ecosystem upon which they depend (Memorandum of Understanding Between Palamanui Global Holdings LLC and U.S. Department of Interior Fish and Wildlife Service 2015). In the MOU, Palamanui agreed to increase the area of fenced and managed lowland dry forest protected within the Preserve by 19 ac (7.7 ha), for a total of approximately 75 ac (30 ha). Palamanui also agreed to ensure funding for conservation actions within the Preserve for the next 20 years at a minimum of $50,000 per year. Palamanui will also contribute conservation actions valued at an additional $200,000 to benefit the recovery of the three plant species and the lowland dry ecosystem, and agreed to work cooperatively with the Service or other conservation partners to conduct activities expected to benefit Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense and their habitat. Implementation has already been initiated on the following actions agreed to in the MOU: (1) Firebreak maintenance around the Preserve; (2) fence maintenance to exclude ungulates from the Preserve and removal of ungulates that had been allowed to enter the Preserve; (3) regular weed control in the Preserve; and (4) propagation, outplanting, and maintenance of listed species in the Preserve.
        Lanihau Properties

        In the October 17, 2012, proposed rule (77 FR 63928), we considered the exclusion of 47 ac (19 ha) of land owned/managed by Lanihau Properties. These lands fall within a portion of the 961 ac (389 ha) proposed as critical habitat in Hawaii— Lowland Dry—Unit 34; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, and Mezoneuron kavaiense, and unoccupied but essential to the conservation of Isodendrion pyrifolium (77 FR 63928; October 17, 2012). Lanihau Properties has demonstrated their willingness to work as a conservation partner by undertaking site management that provides important conservation benefits to the native Hawaiian species that depend upon the lowland dry ecosystem habitat. In 2010, Lanihau Properties agreed to set aside a 4.6-ac (1.9-ha) area as a dryland forest reserve and implement conservation measures as a condition for issuance of a county grading permit associated with the construction of the Ane Keohokalole Highway (USFWS 2010, in litt.).

        Subsequent to the publication of the October 17, 2012, proposed rule, Lanihau Properties participated in a series of collaborative meetings along with the Service, County of Hawaii, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in proposed Critical Habitat Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2014, Lanihau Properties signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and endangered plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding between Lanihau Properties and U.S. Department of Interior Fish and Wildlife Service 2014, entire). In the agreement, Lanihau Properties agreed to set aside and not undertake development in an approximately 16-ac (6-ha) area, adding 11.4 ac (4.6 ha) to the previous 4.6-ac (1.9-ha) set aside, and work cooperatively with the Service or other conservation partners to conduct activities expected to benefit the conservation of the three species and the lowland dry ecosystem for the next 20 years.
        Department of Hawaiian Home Lands

        In the October 17, 2012, proposed rule (77 FR 63928), we announced we were considering the exclusion of 87 ac (35 ha) of lands owned by the Department of Hawaiian Home Lands (DHHL) out of the total 446 ac (181 ha) of DHHL land proposed as critical habitat. Based on a new MOU evidencing a more robust partnership with the Service, summarized below, and updated land ownership records that added approximately 46.5 ac (18.4 ha) to DHHL's land considered for exclusion, we are now considering the exclusion of 492 ac (199 ha) of lands owned by DHHL. These lands fall within portions of two proposed units. The DHHL owns 91 ac (30 ha) of the 1,583 ac (640 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 33; this proposed unit is occupied by Mezoneuron kavaiense, and unoccupied by but essential to the conservation of Bidens micrantha ssp. ctenophylla and Isodendrion pyrifolium. The DHHL also owns 401 ac (165 ha) of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; this proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012).
        The DHHL has worked in partnership with the Service to protect and restore endangered and threatened species and their habitats during the last 15 years on Hawaii Island. In December 2010, the Hawaiian Homes Commission adopted the “Aina Mauna Legacy Program,” a 100-year plan to reforest approximately 87 percent of a 56,200-ac (22,743-ha) contiguous parcel managed by DHHL on the eastern slope of Mauna Kea, Hawaii Island. Implementation of the Aina Mauna Legacy Program calls for removal of all feral ungulates from the Aina Mauna landscape and several restoration projects have been implemented to benefit endangered and threatened species and their habitats (DHHL 2009, pp. 19-21). Each of these projects received funding from the Service's Partners for Fish and Wildlife Program for 10-year landowner agreements to maintain the conservation actions, and includes multiple partners such as the State, National Wildlife Refuge System, and the Mauna Kea Watershed Alliance.

        From 1996 to 2006, the DHHL acquired a total of approximately 685 ac (277 ha) at Laiopua, Kealakehe, and Keahuolu from the Hawaii Housing Finance Development Corporation (HHFDC, previously HCDCH) (Masagatani 2012, in litt.) and subsequently committed two parcels equaling approximately 40 ac (16 ha) for the development, management, and maintenance as preserves with the sole purpose of protecting of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium,
          Mezoneuron kavaiense, and other endangered species. The three parcels included the two principal preserves of the 1999 plan and the area identified for protection of archaeological resources, for a total of 73 ac (29 ha) protected. Since 2010, the DHHL has committed approximately $1,198,052 for the development and management of the preserve areas (Masagatani 2012, in litt.). Conservation actions in the preserve areas include: (1) Fencing to exclude ungulates and prevent human trespass; (2) control and removal of nonnative plants; (3) control and prevention of the threat of fire; (4) propagation, outplanting, and care of common native and endangered plant species; and (5) promoting community volunteer and education programs that support native plant conservation.

        Subsequent to the publication of the October 17, 2012, proposed rule, the DHHL participated in a series of collaborative meetings with the Service, County of Hawaii, Department of Land and Natural Resources, and other stakeholders in Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2015, the DHHL signed an MOU with the Service for a conservation agreement expected to benefit the recovery of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between the Department of Hawaiian Home Lands and U.S. Department of Interior Fish and Wildlife Service 2015). Under the agreement, the DHHL will continue to protect the 73 ac (29 ha) of existing preserves and agrees to set aside and not develop an additional 24 ac (10 ha) for a total protected area of 97 ac (39 ha) to benefit the recovery of the three plant species and the lowland dry ecosystem. The DHHL agreed in the MOU to funding conservation actions valued at $3.229 million on 44 ac (18 ha) of the existing preserves for 40 years and within the additional 24 ac (10 ha) for 20 years. The remaining 29 ac (ha) of existing preserves will not be actively managed but will remain protected from development. Conservation actions on the 68 managed acres include: (1) Fencing to exclude ungulates; (2) control and the prevention of the threat of fire; (3) control and removal of nonnative plant species; (4) propagation, outplanting, and care of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, and other rare and endangered plant species; and (5) other management actions expected to benefit the recovery of listed plant species and the lowland dry ecosystem. Implementation has already been initiated on the following actions agreed to in the MOU: (1) Fence and firebreak maintenance around the preserves; (2) regular weed control of the managed areas in the preserves; and (3) initiated improvements to the fences and gates in the existing Aupaka Preserve, including raising the height of the fence to exclude ungulates and removing barbed wire, which is a threat to the endangered Hawaiian hoary bat (Lasiurus cinereus semotus).

        Additional Areas Currently Under Consideration for Exclusion
        Waikoloa Village Association

        We are considering excluding 1,758 ac (711 ha) of lands from critical habitat that are owned or managed by the Waikoloa Village Association (WVA). These lands include the majority of the 1,779 ac (720) proposed as critical habitat in Hawaii—Lowland Dry—Unit 32; the proposed unit is occupied by one of the three plant species, Mezoneuron kavaiense, and is unoccupied but essential to the conservation of Bidens micrantha ssp. ctenophylla and Isodendrion pyrifolium (77 FR 63928; October 17, 2012). Since 2012, the WVA has voluntarily facilitated and supported the conservation of Isodendrion pyrifolium and Mezoneuron kavaiense and other federally listed species and their habitat in the lowland dry ecosystem, on their privately owned lands. In 2012, the WVA Board of Directors granted permission to protect and restore 275 ac (111 ha) of dry forest habitat south of Waikoloa Village for a period of 75 years by way of a license agreement with the nonprofit Waikoloa Dry Forest Initiative, Inc. The project's management program includes: (1) Construction and maintenance of a 275-ac (111-ha) fence to exclude ungulates; (2) removal of ungulates from the fenced exclosure; (3) control of nonnative plant species to reduce competition and the threat of fire; (4) integrated pest management to reduce impacts on native plant species; (5) provision of infrastructure for propagation and maintenance of outplantings; (6) establishment of common native and endangered plant species; and (7) education and community outreach activities. Furthermore, in 2014, the WVA signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Mezoneuron kavaiense, Isodendrion pyrifolium and Bidens micrantha ssp. ctenophylla and the lowland dry ecosystem upon which they depend (Memorandum of Understanding between Waikoloa Village Association and U.S. Department of Interior Fish and Wildlife Service 2014, entire). The WVA agreed not to undertake development in 60 ac (24 ha) adjacent to the Waikoloa Dry Forest Recovery Project's 275-ac (111-ha) exclosure and to work cooperatively with the Service or other conservation partners to conduct activities expected to benefit Mezoneuron kavaiense, Isodendrion pyrifolium, and Bidens micrantha ssp. ctenophylla and their habitat.
        County of Hawaii

        We are considering exclusion of 165 ac (67 ha) of lands owned by the State of Hawaii that are under management of the County of Hawaii (County). These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012). Since 2010, the County of Hawaii (County) has been involved in voluntary cooperative partnerships and conservation agreements with the Service for the conservation of rare and endangered species and their habitats. In 2010, the County helped facilitate protection of over 150 ac (61 ha) of lowland dry ecosystem habitat known to contain numerous listed plant species (USFWS 2010, in litt.).

        Subsequent to the publication of the October 17, 2012, proposed rule, the County participated in a series of collaborative meetings with the Service, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2015, the County signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between County of Hawaii and U.S. Department of Interior Fish and Wildlife Service 2015, entire). The County agreed to set aside and not develop approximately 30 ac (12 ha) of lands under its management, and also agreed to conduct conservation actions valued at $1.534 million on a total of 50.1 ac (20.3 ha) to benefit the recovery of the three plant species, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem, over the next 20 years. The 50.1 ac (20.3 ha) where conservation actions will occur includes 30 ac (12 ha) owned by the County, 4.2 ac (1.7 ha) owned by the Hawaii Housing Finance and Development Corporation, and 15.9 ac (6.4) owned by Lanihau Properties. Of the total 30 ac (12 ha) of County land protected from development, 22 ac (8.9 ha) are adjacent to a 4.2-ac (1.7-ha) set-aside by the Hawaii Housing Finance and Development Corporation and another 21.7-ac (8.8-ha) set-aside by the Department of Hawaiian Homelands; these three areas together create approximately 47.9 contiguous acres (19.4 ha) protected for the conservation of the three species and the lowland dry ecosystem. The remaining 8-ac (3.2-ha) set-aside is located within the proposed Kealakehe Regional Park and adjacent to an existing 3.4-ac (1.4-ha) preserve managed by County but owned by the Hawaiian Department of Land and Natural Resources. Because the conservation actions will occur in some areas jointly managed by the County and other agencies or at offsite locations, the County will work cooperatively and in partnership with these landowners. These conservation actions will include: (1) Fencing to exclude ungulates; (2) control and prevention of the threat of fire; (3) control of nonnative plant species; and (4) other management actions expected to benefit the recovery of listed plant species and the lowland dry ecosystem.
        Hawaii Housing Finance and Development Corporation

        We are considering exclusion of 30 ac (12 ha) of lands owned by the State of Hawaii that are under management of the Hawaii Housing Finance and Development Corporation (HHFDC). These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012). The HHFDC has demonstrated their willingness to work as a conservation partner by undertaking site management that provides important conservation benefits to the native Hawaiian species that depend upon the lowland dry ecosystem habitat.

        Subsequent to the publication of the proposed rule, HHFDC participated in a series of collaborative meetings with the Service, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2016, HHFDC signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium and Mezoneuron kavaiense and their habitat, as well as to other rare and federally listed species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between Hawaii Housing Finance and Development Corporation and U.S. Department of Interior Fish and Wildlife Service 2016, entire). The HHFDC agreed to set aside and not develop approximately 4.2 ac (1.7 ha) of lands under its management to provide protection and management for one of the seven remaining mature individuals of Mezoneuron kavaiense in proposed Unit 35, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem, over the next 20 years. The 4.2 ac (1.7 ha) protected from development by the HHFDC are adjacent to the 22-ac (8.9-ha) set-aside by the County and another 21.7-ac (8.8-ha) set-aside by the Department of Hawaiian Homelands; these three areas together create approximately 47.9 contiguous acres (19.4 ha) protected for the conservation of the three species and the lowland dry ecosystem. Because the conservation actions will occur in some areas jointly managed by the HHFDC and other agencies, the HHFDC will work cooperatively and in partnership with these landowners and the Service. These conservation actions will include: (1) Fencing to exclude ungulates; (2) control and prevention of the threat of fire; (3) control of nonnative plant species; and (4) other management actions expected to benefit the recovery of listed plant species and the lowland dry ecosystem.
        Forest City Kona

        We are considering the exclusion of 265 ac (107 ha) of lands that are owned by Forest City Kona, LLC. These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012). Forest City Kona has demonstrated their willingness to work as a conservation partner by undertaking site management that provides important conservation benefits to the native Hawaiian species that depend upon the lowland dry ecosystem habitat.

        Subsequent to the publication of the October 17, 2012, proposed rule, Forest City Kona participated in a series of collaborative meetings with the Service, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2016, Forest City Kona signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense and their habitat, as well as other rare and federally listed species and their habitat in the lowland dry ecosystem (Memorandum of Understanding between Forest City Kona and U.S. Department of Interior Fish and Wildlife Service 2016, entire). Forest City Kona agreed to set aside and not undertake development in two areas, totaling 20 ac (8 ha), and to work cooperatively with the Service on approved conservation programs to conduct activities to benefit the conservation of the three species and the lowland dry ecosystem in these areas for the next 20 years. The MOU's conservation actions include: (1) Fencing to exclude ungulates; (2) control of nonnative plant species; (3) propagation, outplanting, and care of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and common native plant species; (4) control and prevention of the threat of fire; and (5) other management actions expected to benefit the recovery of listed plant species and the lowland dry ecosystem. The MOU also includes a commitment from Forest City Kona to provide $500,000 towards the implementation of on-site or off-site conservation actions within the North Kona region that will benefit the recovery of the three plant species and the lowland dry ecosystem.
        Queen Liliuokalani Trust

        In the October 17, 2012, proposed rule (77 FR 63928), we stated that we were not considering for exclusion lands owned by Queen Liliuokalani Trust (QLT) for the following reasons: (1) The conservation plans in place at the time only addressed actions related to Isodendrion pyrifolium, but did not address conservation of the other two plants with proposed critical habitat on the land, Bidens micrantha ssp. ctenophylla and Mezoneuron kavaiense; and (2) since 2005, we were unaware of efforts to outplant propagated individuals of Isodendrion pyrifolium or any current plans to conserve listed species or their habitats in the lowland dry ecosystem on the lands at Keahuolu owned by QLT. In 2014, QLT signed an MOU with the Service addressing both of these previous concerns. We are now considering exclusion of 302 ac (122 ha) of lands that are owned or managed by QLT. These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012).

        Since 2004, QLT has supported the conservation of federally listed species and their habitat in the lowland dry ecosystem, on their privately owned lands. In 2004, the QLT entered into an agreement with the Service's Partners for Fish and Wildlife Program to conduct research on the propagation of two endangered plants, Isodendrion pyrifolium and Neraudia ovata, in order to secure genetic material in ex situ storage and provide individuals of each species for reintroduction or restoration projects. In February 2014, the QLT signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding between Queen Liliuokalani Trust and U.S. Department of Interior Fish and Wildlife Service 2014, entire). The management actions included in the MOU are: (1) Fencing to exclude ungulates; (2) control and prevention of the threat of fire; (3) propagation and outplanting of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as six other rare or listed plant species; (4) weed control; (5) watering and maintenance of outplanted individuals; (6) monitoring and reporting; (7) analysis of success criteria; and (8) adaptive management. The QLT also agreed to set aside and not undertake development in a separate 28-ac (11-ha) area and work cooperatively with the Service or other conservation partners to conduct activities to benefit the conservation of the three species and the lowland dry ecosystem. This area will be available for the conservation and propagation efforts for the three species and other listed and rare species of the lowland dry ecosystem.

        In addition to the agreements and commitments detailed above, QLT developed a culturally based service learning program that has involved over 1,300 beneficiaries, school groups, and other community members in removing invasive species. QLT continues to spend over $12,000 per year to control invasive species, such as fountain grass (Cenchrus setaceum) and haole koa (Leucaena leucocephala). Other significant expenditures include funds spent on security in response to trespassing and vandalism on its Kona lands (QLT 2013).
        Summary of Areas Considered for Exclusion

        We are considering exclusion of these non-Federal lands because we believe the exclusion may result in the continuation, strengthening, or encouragement of important conservation partnerships that will contribute to the long-term conservation of Bidens micrantha ssp. ctenophylla, Mezoneuron kavaiense and Isodendrion pyrifolium. The development and implementation of management plans, and ability to access private lands necessary for surveys or monitoring designed to promote the conservation of these federally listed plant species and their habitat, as well as provide for other native species of concern, would be important outcomes of these conservation partnerships.
        The final designation may not exclude these areas, or be limited to these exclusions, but may also consider other exclusions as a result of continuing analysis of relevant considerations (scientific, economic, and other relevant factors, as required by the Act) and the public comment process. In particular, we solicit comments from the public on whether to make the specific exclusions we are considering, and whether there are other areas that are appropriate for exclusion.
        The final decision on whether to exclude any area will be based on the best scientific data available at the time of the final designation, including information obtained during the comment periods and information about the economic impact of the designation.
        Authors
        The primary authors of this document 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: May 11, 2016.
          Karen Hyun,
          Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2016-11941 Filed 5-19-16; 8:45 am]
       BILLING CODE 4333-15-P