[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Proposed Rules]
[Pages 21936-21946]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8807]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2010-0043; 4500030114]
RIN 1018-AV49
Endangered and Threatened Wildlife and Plants; Listing 23 Species
on Oahu as Endangered and Designating Critical Habitat for 124 Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on our August 2, 2011, proposal to list
as endangered and to designate critical habitat for 23 species on the
island of Oahu in the Hawaiian Islands under the Endangered Species Act
of 1973, as amended (Act); designate critical habitat for 2 plant
species that are already listed as endangered; and to revise critical
habitat for 99 plant species that are already listed as endangered or
threatened. We also announce the availability of a draft economic
analysis (DEA) of the proposed designation and an amended required
determinations section of the proposal. We are reopening the comment
period to allow all interested parties an opportunity to comment
simultaneously on the proposed rule, the associated DEA, and the
amended required determinations section. Comments previously submitted
on this rulemaking do not need to be resubmitted, as they will be fully
considered in preparation of the final rule. We are also considering
revising the boundary for Oahu--Lowland Dry--Unit 8, from that
described in the proposed rule, based on new information regarding the
biological conditions within certain portions of the unit.
DATES: The comment period end date is May 14, 2012. We request that
comments be submitted by 11:59 p.m. Eastern Time on the closing date.
ADDRESSES:
Document Availability
You may obtain a copy of the DEA via http://www.regulations.gov at
Docket No. FWS-R1-ES-2010-0043 or by contacting the office listed under
FOR FURTHER INFORMATION CONTACT.
Comment Submission
You may submit comments by one of the following methods:
[[Page 21937]]
Electronically: Go to the Federal eRulemaking Portal at
http://www.regulations.gov. Search for Docket No. FWS-R1-ES-2010-0043,
which is the docket number for this rulemaking.
By hard copy: Submit by U.S. mail or hand-delivery to:
Public Comments Processing, Attn: FWS-R1-ES-2010-0043; Division of
Policy and Directives Management; U.S. Fish and Wildlife Service; 4401
N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Loyal Mehrhoff, Field Supervisor,
Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Box
50088, Honolulu, HI 96850; by telephone at 808-792-9400; or by
facsimile at 808-792-9581. If you use a telecommunications device for
the deaf (TDD), call the Federal Information Relay Service (FIRS) at
800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed listing of 23 species on Oahu
and the designation of critical habitat for 124 species that was
published in the Federal Register on August 2, 2011 (76 FR 46362), our
DEA of the proposed designation, and the amended required
determinations provided in this document. We will consider information
and recommendations from all interested parties. We are particularly
interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act, including whether
there are threats to the species from human activity, the degree to
which threats from human activity can be expected to increase due to
the designation, and whether that increase in threats outweighs the
benefit of designation such that the designation of critical habitat
may not be prudent.
(2) Specific information on:
(a) The amount and distribution of habitat for the 124 species
described in the proposed rule;
(b) What areas that contain features essential to the conservation
of the 124 species described in the proposed rule should be included in
the designation, and why;
(c) The habitat components (primary constituent elements) essential
to the conservation of the species, such as substrate, plant
associations, stream characteristics, and the quantity and spatial
arrangement of these features on the landscape needed to provide for
the conservation of the species;
(d) What areas (if any) not occupied by the species are essential
for the conservation of the species, and why; and
(e) Special management considerations or protections that the
features essential to the conservation of the 124 species may require,
including managing for the potential effects of climate change.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any reasonably foreseeable economic, national security, or
other relevant impacts that may result from designating any area that
may be included in the final designation. We are particularly
interested in any impacts on small entities, and the benefits of
including or excluding areas from the proposed designation that are
subject to these impacts.
(5) Information on whether the benefit of an exclusion of any
particular area outweighs the benefit of inclusion under section
4(b)(2) of the Act, after considering both the potential impacts and
benefits of the proposed critical habitat designation. Under section
4(b)(2) of the Act, we may exclude an area from critical habitat if we
determine that the benefits of such exclusion outweigh the benefits of
including that particular area as critical habitat, unless failure to
designate that specific area as critical habitat will result in the
extinction of the species.
(6) Information on the projected and reasonably likely impacts of
climate change on the 124 species for which critical habitat is being
proposed.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comment.
(8) Information on the extent to which the description of economic
impacts in the DEA is reasonable and accurate.
(9) Information on the probable or reasonably foreseeable economic
impacts to water users that could potentially result from the
designation of critical habitat.
(10) Information on the potential cost of irrigation-related
activities, as well as their timing and likely source of funding,
Federal permit requirements, and the extent or scale of repairs or
modifications required.
(11) Information on the planned development activities within the
areas proposed as critical habitat.
(12) Information on primary constituent elements that may or may
not be present in certain portions of proposed Oahu--Lowland Dry--Unit
8, as identified in Part II, Chapter 2 of the DEA (see Figure 3.3 of
the DEA).
(13) Information on whether portions of proposed Oahu--Lowland
Dry--Unit 8 are essential for the conservation of the species, as
identified in Part II, Chapter 3 of the DEA.
(14) Information on potential future Federal actions and possible
economic impacts of the proposed critical habitat designation within
Oahu--Lowland Dry--Unit 8 at Kalaeloa, as identified in Part II,
Chapter 3 of the DEA.
(15) Information on whether conservation measures or conservation
recommendations that ensure Federal actions avoid jeopardizing the
species are also adequate to avoid adversely modifying critical
habitat.
If you submitted comments or information on the proposed rule
during the initial comment period from August 2 to October 3, 2011 (76
FR 46362), please do not resubmit them. We will incorporate them into
the public record as part of this comment period, and we will fully
consider them in the preparation of our final determination. Our final
determination concerning critical habitat will take into consideration
all written comments and any additional information we receive during
all comment periods. On the basis of public comments, we may, during
the development of our final determination, find that areas proposed
are not essential, are appropriate for exclusion under section 4(b)(2)
of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
request that you send comments only by the methods described in
ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
[[Page 21938]]
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R1-ES-2010-0043, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain
copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R1-ES-2010-0043, or by mail
from the Pacific Islands Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the 124 species described in
the August 2, 2011, proposed rule (76 FR 46362). For more information
on previous Federal actions for these species, refer to the proposed
designation of critical habitat published in the Federal Register on
August 2, 2011 (76 FR 46362).
Previous Federal Actions
On August 2, 2011, we published a proposed rule to list 23 species
on Oahu as endangered and designate critical habitat for 124 species
(76 FR 46362) over approximately 43,491 acres (ac) (17,603 hectares
(ha)). Within that proposed rule, we announced a 60-day comment period,
which closed October 3, 2011. Approximately 93 percent of the area
proposed as critical habitat is already designated as critical habitat
for other species, including 99 plant species for which critical
habitat was designated in 2003 (68 FR 35950; June 17, 2003).
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Potential Oahu--Lowland Dry--Unit 8 Boundary Adjustment
The August 2, 2011, proposed rule proposed to designate Oahu--
Lowland Dry--Unit 8 as critical habitat for 17 endangered (or proposed
endangered) plants (also see Part II, Chapter 3 of the DEA, pp. 61-64).
This unit is composed of pockets of native and nonnative species. We
initially determined this area to be essential for the conservation and
recovery of these lowland dry plant species because we believed it
provided the environmental conditions essential for each species,
including the appropriate microclimatic conditions for germination and
growth of the plants (e.g., light availability, soil nutrients,
hydrologic regime, temperature, and space for population growth and
expansion), as well as to maintain the historical geographical and
ecological distribution of each species. In addition, proposed Oahu--
Lowland Dry--Unit 8 provides the coral outcrop substrate that is a
unique habitat requirement for Chamaesyce skottsbergii var.
skottsbergii.
None of the endangered plants currently occur in Lowland Dry Unit
8, although both Achyranthes splendens var. rotundata and Chamaesyce
skottsbergii var. skottsbergii were reported from this area as recently
as 1989 and 1993, respectively. Chamaesyce skottsbergii var.
skottsbergii is restricted to the arid coastal plain of Ewa, Oahu. It
may have been a common species in the original ecosystem that existed
on the Ewa Plains, although it is suspected to have been reduced to
scattered remnants by the turn of the 20th century (FWS 1993, p. 6). In
1936, it was recorded as ``abundant'' in one location on the Ewa Plains
but was not documented again for 40 years, when it was rediscovered in
1976, in the vicinity of the present Kalaeloa Barbers Point Deep Draft
Harbor. In 1982, at the time of listing, this species was known from 4
occurrences containing approximately 1,000 to 1,500 individuals (Char
and Balakrishnan 1979, p. 67; HBMP 2008). Almost all known individuals
at that time were found in the area around Oahu--Lowland Dry--Unit 8.
Surveys conducted between 1983 and 1984, in the vicinity of the former
Barbers Point Naval Air Station, indicated there was a total of
approximately 5,000 plants (HINHP 1991; USFWS 1993, pp. 13-15).
However, surveys conducted a decade later located only several hundred
plants in the same location (USFWS 1993, pp. 13-15). Currently
Chamaesyce skottsbergii var. skottsbergii is only known from
approximately 1,500 wild and outplanted individuals on the Navy's
former Trap and Skeet Range and the Service's Kalaeloa Unit of the Oahu
National Wildlife Refuge. This species has been extirpated from all
other known locations on the Ewa Plains.
We are considering revising the boundaries of Oahu--Lowland Dry--
Unit 8 based on comments received related to the physical and
biological conditions of portions of the unit, and new biological
information gained from field visits to Kalaeloa indicating certain
portions of this unit may not be essential to the conservation of the
species in question. During our field visits, we observed that
approximately 69 percent of the originally proposed unit is no longer
suitable due to development and land modification activities including
grading, dredging, waste/recycle pile management, compost piles, solar
array installation, fill deposition, golf course development, and road
construction. Under section 3(5)(A)(ii) of the Act, specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of the Act can
only be designated as critical habitat if such areas are essential for
the conservation of the species. Those portions of Oahu--Lowland Dry--
Unit 8 that may not be essential to the conservation of the species
based on new biological information are identified below in Figure 1.
We are considering removing approximately 185 ac (75 ha) from the
proposed unit and designating critical habitat in the remaining
approximately 107 ac (43 ha). Accordingly, we are seeking public
comments regarding the removal from this unit of the areas that may not
be essential for the conservation of the species.
[[Page 21939]]
[GRAPHIC] [TIFF OMITTED] TP12AP12.007
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
the 124 Oahu species
[[Page 21940]]
identified in the proposed rule (76 FR 46362; August 2, 2011), the
benefits of critical habitat include public awareness of the presence
of the species and the importance of habitat protection, and, where a
Federal nexus exists, increased habitat protection due to protection
from adverse modification or destruction of critical habitat. In
practice, situations with a Federal nexus exist primarily on Federal
lands or for projects authorized, funded, or undertaken by Federal
agencies.
Final decisions on whether to exclude any areas will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a DEA concerning the proposed critical habitat
designation, which is available for review and comment (see ADDRESSES
section).
Draft Economic Analysis
This analysis draws heavily on economic analyses conducted for
previous critical habitat designations, because there is a 93 percent
overlap between the proposed designation and the prior critical habitat
designations and because economic impacts, particularly to potential
water resources, are similar between the proposed critical habitat and
the previous designations. The DEA has been developed in two parts,
because of differences in development potential based on the geographic
area involved. Part I focuses on the proposed designation for 123
species on Oahu, exclusive of the Kalaeloa area. None of the proposed
critical habitat units in this area contain significant residential,
commercial, industrial, or agricultural development or operations, and
few projects are anticipated within the proposed critical habitat
units. This situation reflects that fact that most of the land is
unsuitable for development, farming, or other economic activities due
to the rugged mountain terrain, lack of access, remote locations, and
existing land use controls that severely limit development and most
other economic activities in the mountainous interior of Oahu. Part II
of the DEA is focused on the City of Kapolei and the Kalaeloa area,
which is west of the city of Honolulu, in the vicinity of the former
Barbers Point Naval Air Station (NAS). The NAS was decommissioned in
1999, under the Base Realignment and Closure Act, and the surrounding
community is in the process of developing a strategic plan for
sustaining and developing the economy in this area. In May 2005, the
Hawaii Community Development Authority, in response to the closure of
the NAS, adopted a strategic plan that would develop Kalaeloa into a
diversified economy. The City of Kapolei has also prepared an urban
design plan that defines how they want to evolve as Kapolei develops
into a secondary urban center to absorb future growth emanating from
the City of Honolulu. The proposed critical habitat units overlap with
some of the development envisioned for this area; this has been
evaluated and fully considered in Part II of the DEA.
The DEA describes the economic impacts of all potential
conservation efforts for these species; many of these costs will likely
be incurred regardless of whether we designate critical habitat. The
economic impact of the proposed critical habitat designation is
analyzed by comparing scenarios both ``with critical habitat'' and
``without critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat, above and beyond the baseline costs; these are the
costs we may consider in the final designation of critical habitat when
evaluating the benefits of excluding particular areas under section
4(b)(2) of the Act.
Draft Economic Analysis, Part I
Because there is a 93-percent overlap between the critical habitat
proposed on August 2, 2011, and the areas considered in the past
economic analyses, and because of the similar nature of potential water
resource economic impacts, this analysis draws heavily on previous
economic analyses. Part I of the DEA was developed using relevant
economic information from three detailed economic analyses prepared for
previous proposed critical habitat rules on Oahu (Oahu elepaio, 66 FR
30372, June 6, 2001; 99 Oahu plants, 67 FR 37108, May 28, 2002; 12
picture-wing flies, 72 FR 67428, November 28, 2007). Part I of the DEA
also considers relevant economic information from three economic
analyses that evaluated potential impacts to water resources on other
Hawaiian islands, which is an issue also being evaluated in this
analysis (Newcomb's snail, 67 FR 15159, March 29, 2002; 83 Kauai and
Niihau plants, 67 FR 36851, May 28, 2002; 48 species on Kauai, 73 FR
62592, October 21, 2008). Those studies present economic information
and context regarding the regulatory and socio-economic baseline,
against which the potential incremental impacts of the proposed
designation are evaluated. For a further description of the methodology
of the analysis in Part I of the DEA, see Chapter 3, ``Previous
Economic Analyses of Critical Habitat Designations on Oahu.''
Part I of the DEA summarizes the previously predicted economic
costs of critical habitat designation on 40,446 ac (16,371 ha) that
overlap with the August 2, 2011, proposed critical habitat designation,
and the areas that do not overlap. The terrestrial areas being proposed
as critical habitat are remote and lack development potential. In
addition, approximately 93 percent of the area proposed as critical
habitat completely overlaps critical habitat that is already
designated. Our previous economic analyses of critical habitat
designations for the Oahu elepaio and 99 Oahu plants evaluated
potential economic costs over a 10-year timeframe (2002-2012), and the
previous economic analysis for the Hawaiian picture-wing fly species
evaluated potential economic costs over a 20-year timeframe (2008-
2028). We believe these analyses are still valid within the 93-percent-
overlap area, as the potential activities and conservation measures
considered in those studies are similar to those that would be
applicable under the current proposal. We are aware of only a small
number of section 7 consultations that have been conducted within the
93-percent-overlap area, because these areas lack development
potential. In addition, the physical or biological features described
within the overlap areas under the existing and proposed designations
are similar (e.g., 99 Oahu plants (ecosystem type, elevation (68 FR
35950; June 17, 2003)); Oahu elepaio (ecosystem type, associated native
species, rainfall, elevation (66 FR 63752; December 10, 2001));
Hawaiian picture-wing flies (ecosystem type, elevation, host plants (73
FR 73794; December 4, 2008))). Therefore, we anticipate few, if any
incremental costs attributable to the proposed critical habitat
designation in the 93-percent-overlap area beyond those identified in
the previous
[[Page 21941]]
economic analyses. We also do not anticipate section 7 consultation
costs to be significantly different than those identified in our
previous economic analyses within the 93-percent-overlap area. This is
because: (1) Habitat is considered in section 7 consultations,
regardless of critical habitat designation; (2) any conservation
measures needed to protect a species' habitat requirements would be
identified during section 7 consultation; (3) those measures would also
conserve the physical or biological features that were identified for
the existing and the proposed critical habitat designation; and (4)
those measures would coincidentally benefit unoccupied critical
habitat, as the occupied and unoccupied critical habitat areas entirely
overlap.
Of the remaining 7 percent (2,478 ac (1,001 ha)) of proposed
critical habitat that does not overlap existing critical habitat, 95
percent (2,354 ac (951 ha)) is classified as being in conservation
districts, and 5 percent (124 ac (50 ha)) is within urban or
agricultural districts. Figure 4 and the corresponding key in the draft
economic analysis (pp. 23-25), identifies objectives for land uses
within the conservation district zoning. However, 74 percent (92 ac (37
ha)) of these urban or agricultural district lands are within State
forest reserves, parks, seabird sanctuaries, or natural area reserves,
and are also unlikely to be developed. The remaining lands (32 ac (13
ha)) are on the Naval Radar Transmitting Facility at Lualualei (which
are unlikely to be developed), or lands of unknown use. These unknown
use lands are most likely roads and existing manmade structures, which
do not contain the physical or biological features, or are not
essential to the conservation of the species. Further, no section 7
consultations have been conducted in these areas to date. Accordingly,
with the possible exception of presently unknown costs associated with
the proposed damselfly critical habitat (as discussed in the next
paragraph), we do not believe the proposed designation of critical
habitat in the non-overlap areas would result in any appreciable
economic impacts. This conclusion is based on the lack of development
potential for these areas. We acknowledge there may be circumstances
under which additional costs may be incurred because of the designation
of critical habitat, for example, due to the nature of a particular
project or because currently occupied habitat becomes unoccupied in the
future. Accordingly, we are seeking information from the public on the
potential costs of this critical habitat designation to ensure the
final determination is based on the best available scientific and
commercial information.
Our August 2, 2011, proposed rule includes the proposed listing of
the blackline Hawaiian damselfly (Megalagrion nigrohamatum
nigrolineatum), crimson Hawaiian damselfly (Megalagrion leptodemas),
and oceanic Hawaiian damselfly (Megalagrion oceanicum) as endangered,
and the proposed designation of critical habitat for these species. The
aquatic life-history stages of these species may use open water areas,
slow sections or pools, or stream riffle areas, and adults perch on
streamside vegetation and patrol along stream corridors. For species
like these damselflies, which are at risk because of loss of habitat,
an action could jeopardize the continued existence of a listed species
through alteration of its habitat, regardless of whether that habitat
has been designated as critical habitat (51 FR 19927; June 3, 1986).
Because Federal agencies would need to consider damselfly habitat
impacts in occupied areas during section 7 consultation regardless of a
critical habitat designation, any conservation measures needed to avoid
jeopardy would, in most cases, be sufficient to avoid adversely
modifying critical habitat (i.e., the outcome of a section 7
consultation under the jeopardy standard and adverse modification
standards would be similar). Accordingly, we do not anticipate the need
for project modifications or measures to address effects to critical
habitat beyond those that would result from the jeopardy analysis. We
acknowledge there could be a difference between consulting on effects
for some species and their critical habitat, depending on the
particular circumstances of the Federal action being proposed. In
addition, some level of incremental economic impact may accrue in
unoccupied critical habitat areas, because they would not otherwise be
subject to section 7 consultation. Critical habitat could also trigger
incremental economic impacts if an occupied area were to become
unoccupied as a result of a stochastic or other catastrophic event. In
this situation, a Federal agency would still have a section 7
consultation responsibility based on the critical habitat designation,
even though the species is no longer present. Conservation
recommendations under this scenario could target management actions to
reintroduce the species into the vacated critical habitat area. There
have been few section 7 consultations in the areas being proposed as
Hawaiian damselfly critical habitat, and we are generally unaware of
any future development plans. In addition, there is very little
information available on potential direct or indirect costs related to
critical habitat designation in aquatic areas on Oahu or elsewhere in
the Hawaiian Islands. Although future Federal actions that could affect
either the damselflies or their critical habitat are unpredictable, the
areas generally lack development potential because of their topography
and remote locations.
Most of the damselflies' proposed primary constituent elements
(PCEs) are related to elevation, annual precipitation, substrate, and
associated native vegetation, which are comparable to those propsoed
for the Oahu plant species identified in the proposed rule. However,
the damselflies' proposed PCEs also have an aquatic habitat component
(e.g., slow reaches of streams, pools, etc.), which would be considered
during section 7 consultation on a Federal action. Each of the units
proposed as damselfly critical habitat is occupied by one or more of
the damselfly species. Accordingly, it is likely that most, if not all,
potential future section 7 consultation costs or project modifications
costs would result from the listing of the damselflies, and would
represent baseline costs. However, there is very little information
available on potential direct or indirect costs related to critical
habitat designation in aquatic areas on Oahu or elsewhere in the
Hawaiian Islands. We acknowledge there could be circumstances under
which additional costs may be incurred because of the designation of
critical habitat, for example due to the nature of a particular project
or because currently occupied habitat becomes unoccupied in the future.
Because there is some uncertainty, we are seeking information from the
public on the potential cost of activities involving water structures
(including irrigation-related activities), their timing and likely
source of funding, the extent or scale of future repairs or
modifications contemplated, and Federal permits that may be required,
to ensure the final determination is based on the best available
scientific and commercial information. We will fully consider all
comments we receive related to future water management activities,
economic concerns, Federal involvement, or other regulatory
requirements to ensure the final determination is based on the best
scientific data available.
[[Page 21942]]
Draft Economic Analyis, Part II
Part II of the DEA assesses the potential economic impacts
associated with the proposed 566-ac (229-ha) critical habitat
designation at Kalaeloa, Oahu, for 24 plant species. Only two of these
plants, Achyranthes splendens var. rotundata (round-leaved chaff
flower) and Chamaesyce skottsbergii var. skottsbergii (Ewa Plains
akoko) currently occur at Kalaeloa, although the other 22 species were
historically present. Six of the seven proposed units are currently
occupied by either Achyranthes splendens var. rotundata or Chamaesyce
skottsbergii var. skottsbergii, and represent proposed unoccupied
critical habitat for 22 other species. One proposed unit (Oahu--Lowland
Dry--Unit 8) is not currently occupied by any of the 17 species for
which this unit is being proposed as critical habitat. The critical
habitat units that are occupied by the species are not expected to
incur any appreciable economic impact related to additional
conservation measures, because Federal actions in areas occupied by the
species already undergo section 7 consultation, and the need to
incorporate additional conservation measures related to critical
habitat designation would generally not be anticipated. This is because
the PCEs for occupied critical habitat areas are habitat-based (i.e.,
elevation, annual precipitation, substrate, canopy, subcanopy, and
understory), and habitat is considered during section 7 consultations
involving these species, regardless of a critical habitat (see Part II,
Chapter 4 of the DEA). We acknowledge there could be a difference in
conservation measures, depending on the particular circumstances of the
Federal action being proposed, but we are unable to quantify that
difference based on our consultation history to date (i.e., we have no
section 7 precedent in Hawaii with which to formulate an incremental
cost/value difference). In addition, because future Federal actions in
these areas are unknown at this time, we are unable to reasonably
predict their future impacts on the species and the proposed critical
habitat areas. However, we are seeking comments on these issues.
Critical habitat could also trigger incremental economic impacts if
an occupied area were to become unoccupied as a result of a stochastic
or other catastrophic event. In this situation, a Federal agency would
still have a section 7 consultation responsibility based on the
critical habitat designation, even though the species is no longer
present. Conservation recommendations under this scenario could target
management actions to reintroduce the species into the vacated critical
habitat area. However, we are unaware of any instances of this
situation arising.
We received several comment letters in response to the proposed
rule that published in the Federal Register on August 2, 2011 (76 FR
46362), expressing concern that the proposed critical habitat
designation could result in economic impacts to current or planned
activities, with particular emphasis directed toward the Oahu--Lowland
Dry--Unit 8, near the Kalaeloa Barbers Point Deep Draft Harbor. Some of
the economic activities that were specifically identified in this area
included aggregate transshipment operations; hot mix asphalt plant
facilities; harbor expansion; maritime and related service needs,
including light industrial, warehouse, and distribution facilities;
resort and mixed use residential/commercial activities; marina
facilities; industrial lot development; biofuel tankfarm construction
and transshipment operations; and solar power facilities. Other
economic activities were identified in Oahu--Lowland Dry--Unit 10,
where a solar power generating facility is planned. These comment
letters are available for public review at http://www.regulations.gov,
under docket number FWS-R1-ES-2010-0043.
Although these comments are informative from the standpoint of
further understanding the ongoing and planned development activities in
the area, absent a Federal nexus, the designation of critical habitat
would have no direct economic impacts to those activities. We are also
unaware of any indirect economic impacts that would result from
critical habitat designation, absent a Federal nexus. Several of the
commenters indicated they would provide additional comments related to
economic impacts once the draft economic analysis for the proposed
critical habitat designation became available for public review. In
this regard, comments that specifically identify Federal permits,
licenses, funding, or other Federal assistance that are or would be
necessary for ongoing or planned development activities would be
helpful. All comments received will be fully considered in the
Service's final critical habitat determination.
In the absence of definitive data or other economic information,
the analysis presents a range of economic effects. The lower-bound
estimate of effects is that the landowners would incur no economic
impact from the designation of critical habitat. The upper-bound
estimate of effects is that each parcel owner would participate in
section 7 consultation with the Service before initiating their action,
and the Service, Federal action agency, and/or the parcel owner would
incur additional costs (see DEA Table 4.3, p. 75).
Total incremental administrative costs to address critical habitat
concerns in occupied critical habitat, in 2011 dollars over a 21-year
timeframe, would be approximately $405 for technical assistances,
$2,380 for an informal consultation, and $5,000 for a formal
consultation. The potential upper-bound administrative costs to address
critical habitat concerns for occupied critical habitat units assumes
that every parcel within the unit would have a formal consultation
because of critical habitat designation. The total annualized costs in
2011 dollars over a 21-year timeframe would be approximately $1,380 for
the Service, $1,550 for the Federal action agency, $875 for the third
(private or State) party receiving Federal funding or seeking a Federal
permit, and $1,200 for the biological assessment.
Oahu--Lowland Dry--Unit 8 is the only unit that is not currently
occupied by any of the 17 species for which it is proposed as critical
habitat. Consequently, Federal agencies are not currently compelled to
consult with the Service on any actions that they authorize, fund, or
carry-out with regard to possible effects on the 17 plants for which
critical habitat is proposed in this unit. In the future, should
critical habitat be designated for this area, Federal agencies would
need to consult with the Service to ensure that their actions do not
adversely modify critical habitat. However, due to the infrequency of
section 7 consultations with Federal agencies on private development
activities, the Service is unsure how the designation of critical
habitat will affect future conservation measures and associated
economic impacts. This unit contains 13 separate parcels, none of which
are owned by the Federal Government. Although the parcels in Oahu--
Lowland Dry--Unit 8 are planned to be commercially developed, for the
most part, it remains difficult for the Service to determine the
likelihood that such planned activities will be subject to a
consultation. The primary reason why the Service has difficulty
predicting how the planned future activities will be subject to a
section 7 consultation is the inability to identify a Federal nexus
that would require consultation. Accordingly, we are seeking specific
public comments in this regard.
[[Page 21943]]
Due to the uncertainty of whether or not future commercial
development will be subject to a section 7 consultation, the analysis
in Part II of the DEA presents a range of potential effects. The lower-
bound estimate is no economic effect because future development would
not be subject to a section 7 consultation. However, should future
development require section 7 consultation, it would presumably be
attributable to the proposed critical habitat designation. The upper-
bound estimate of effects is that each parcel owner would participate
in section 7 consultation with the Service before initiating their
action, and the Service, Federal action agency, or the parcel owner
would incur additional administrative costs. The upper-bound estimate
of administrative costs to address critical habitat concerns for a
single parcel in unoccupied critical habitat, annualized in 2011
dollars over a 21-year timeframe, would be approximately $5,500 for the
Service, $6,200 for the Federal action agency, $3,500 for the third
(private or State) party receiving Federal funding or seeking a Federal
permit, and $4,800 for the biological assessment, or $20,000 total
annualized costs.
With regard to possible costs for conservation measures, as
discussed above, the Service cannot identify a reasonably foreseeable
Federal nexus which would lead to a formal section 7 consultation,
related to the types of future uses identified in the Kapolei Area Long
Range Master Plan or the Kalaeloa Master Plan. Therefore, the analysis
estimates the upper-bound limit of such economic impacts based on land
assessments and the percentage of parcel lands proposed as critical
habitat. Specifically, because the Service is unable to estimate how
much of the proposed critical habitat could be disturbed as part of
planned future development activities without violating the prohibition
on destroying or adversely modifying critical habitat, this analysis
bases its upper-bound estimate of economic impacts using the very
conservative approach that the designation could effectively lead to
all of the proposed areas remaining in an open, undeveloped state.
Oahu--Lowland Dry--Unit 8 surrounds the Kalaeloa Barbers Point Deep
Draft Harbor. This unit consists of 13 mostly undeveloped distinct
parcels ranging from as little as 3 ac (1.2 ha) to over 400 ac (162 ha)
in size. The Kapolei Area Long Range Master Plan generally identifies
intense development for these parcels, and the County has already zoned
these areas in a manner appropriate for planned future development. The
total current assessment for these parcels is slightly over $206
million, which according to the Real Property Assessment Division,
reflects the current market value for the properties. The analysis
assumes that the designation of critical habitat could lead to a loss
in land values if property owners are unable to implement their
development plans. The upper-bound annualized property value impacts
from critical habitat designation over a 21-year timeframe is a total
of $55,806,934 for all 13 parcels in proposed Oahu--Lowland Dry--Unit
8. Since the DEA was prepared before the Service gained new biological
information on the unit, the approximate $55.8 million estimate is
based on the 292 acres originally proposed within the unit. As
discussed above, we are considering removing 185 acres (approximately
63%) of the area originally proposed as critical habitat from this
unit. A proportional adjustment to the $55.8 million upper-bound
estimate would result in an estimated $20.6 million in economic costs
for the 107 acres remaining in the unit, under the worst-case scenario
(i.e., no development may occur). However, this scenario is unlikely,
and actual costs will probably be much less.
Given the relatively small land area proposed for designation
island-wide, coupled with the fact that the designation is generally
not expected to result in any additional conservation measures for the
species above and beyond the baseline (particularly in occupied
critical habitat areas), this designation is not expected to
significantly affect land market prices on the island even though the
designation could have an effect on individual parcels. The designation
of critical habitat could lead to economic costs if the designation
caused either significant delays in the planned development of the land
or if the designation leads to restrictions in the type of development
allowed. In the first instance, a delay in planned development, which
could be caused by a section 7 consultation with the Service that
otherwise would not have occurred absent critical habitat, may
correspond to a delay in the realization of revenue streams associated
with the development (i.e., rental income) even if the consultation
results in no change to the type of development initially planned. Land
value losses could be greater under the second scenario if a section 7
consultation results in a change in the type of development that would
have occurred absent a designation of critical habitat and associated
consultation with the Service. For example, if a section 7 consultation
results in less land area being developed than originally conceived and
allowed under pre-existing conditions, the total value of the
development and associated revenue streams may be less.
There could also be a difference between consulting on effects for
some species and their critical habitat, depending on the particular
circumstances of the Federal action being proposed. Some level of
incremental economic impact to land values may accrue in unoccupied
critical habitat areas, because they would not otherwise be subject to
section 7 consultation. Critical habitat could also trigger incremental
economic impacts if an occupied area were to become unoccupied as a
result of a stochastic or other catastrophic event. In this situation,
a Federal agency would still have a section 7 consultation
responsibility based on the critical habitat designation, even though
the species is no longer present. Conservation recommendations under
this scenario could target management actions to reintroduce the
species into the vacated critical habitat area. We are unaware of any
instances of this situation arising, although there could potentially
be an impact to land values if a Federal action were to be proposed in
such areas.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public comment period. In particular, we may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of the species.
Required Determinations--Amended
In our August 2, 2011, proposed rule (76 FR 46362), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data to make these determinations. In this
document, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
12630 (Takings), E.O.
[[Page 21944]]
13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211
(Energy, Supply, Distribution, and Use), E.O. 13175 (Government-to-
Government Relationship with Tribes), the Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), and the National Environmental Policy Act (42 U.S.C.
4321 et seq). However, based on the DEA data, we are amending our
required determination concerning the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)),
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. Based on our DEA of the proposed
designation, we provide our analysis for determining whether the
proposed rule would result in a significant economic impact on a
substantial number of small entities. Based on comments we receive, we
may revise this determination as part of our final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the 124 species included in the proposed rule (76 FR 46362, August 2,
2011) would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities, such as commercial and residential
development. In order to determine whether it is appropriate for our
agency to certify that this rule would not have a significant economic
impact on a substantial number of small entities, we considered each
industry or category individually. In estimating the numbers of small
entities potentially affected, we also considered whether their
activities have any Federal involvement. Critical habitat designation
will not affect activities that do not have any Federal involvement;
designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. In areas where
listed species are present, including the 101 Oahu plant species
described in the proposed rule, Federal agencies already are required
to consult with us under section 7 of the Act on activities they fund,
permit, or implement that may affect the species. If we finalize this
proposed critical habitat designation, consultations to avoid the
destruction or adverse modification of critical habitat would, in most
cases, be incorporated into the existing consultation process.
Our regulatory flexibility analysis considers the potential
economic effects on small entities resulting from the implementation of
conservation actions related to the proposed designation of critical
habitat for 124 Oahu species, and looks in more detail at the proposed
designation in the Kalaeola area (which is considered in Part II of the
DEA), based on the potential for development in that area. As estimated
in Part I, Chapter 11 of the DEA, incremental impacts of the proposed
designation in Oahu with the exception of Kalaeloa would likely be
limited to additional incremental costs of time spent by the Service,
Federal action agency, and any third parties in section 7 consultation
over and above time spent on the jeopardy analysis component of the
consultation. We anticipate few, if any, incremental costs attributable
to the proposed critical habitat designation where it overlaps existing
critical habitat (approximately 93-percent overlap). Within this area,
any conservation measures needed to protect the physical or biological
features in occupied habitat areas would likely be identified during
section 7 consultation based on occupancy by the species. Those
measures would coincidentally benefit unoccupied habitat because those
areas entirely overlap. Ninty-five percent of the non-overlap areas is
classified as conservation district, and 5 percent is within urban or
agricultural districts. However, 74 percent of the lands within urban
or agricultural districts are within State forest reserves, parks,
seabird sanctuaries, or natural area reserves, and are unlikely to be
developed. Most of the remaining lands are on the Naval Radar
Transmitting Facility at Lualualei (which are unlikely to be developed)
or lands of unknown use (most likely roads and existing manmade
structures).
Small entities may participate in section 7 consultation as a third
party (the primary consulting parties being the Service and the Federal
action agency); therefore, it is possible that the small entities may
spend additional time considering critical habitat during section 7
consultation for the 124 Oahu species. Based on the best available
information, these administrative impacts would likely be the only
potential incremental impacts of critical habitat that may be borne by
small entities. We do not believe the proposed designation would have a
significant effect on a substantial number of small entities because
none of the proposed critical habitat units contains significant
residential, commercial, industrial, or agricultural development or
operations, and few projects are anticipated within the proposed
critical habitat. Any existing and planned projects, land uses, and
activities that could affect the proposed critical habitat that have no
Federal involvement would not require section 7 consultation and would
not be restricted by the requirements of the Act. Finally, many of the
anticipated projects and activities with Federal involvement are
conservation efforts that would be expected to trigger formal section 7
consultations. If formal consultation were to be required, we
anticipate that a project proponent could modify the project or take
measures to protect the affected species or critical habitat, such as
establishing conservation set-asides, management of competing nonnative
species, restoration of degraded habitat, and regular monitoring. The
Service has been involved with these types of projects for many years
throughout the Hawaiian Islands. We are unaware of instances where
these types of activities have resulted in any significant economic
impacts to the individuals or agencies involved.
[[Page 21945]]
In addition, in the 2001, 2003, and 2008 economic analyses for the
designation of critical habitat for the Oahu elepaio, 99 species of
Oahu plants, and 12 Hawaiian picture-wing flies, respectively, we
evaluated the potential economic effects on small entities resulting
from the protection of these species and their habitats related to the
proposed designation of critical habitat, and determined that
designation would not have a significant economic impact on a
substantial number of small entities. The significant overlap (93
percent) between the critical habitat designations for the Oahu
elepaio, 99 Oahu plant species, and 6 Oahu picture-wing flies and this
proposed critical habitat designation is further evidence that the
designation of critical habitat in the areas evaluated in Part I of the
DEA will not have a significant economic impact on a substantial number
of small entities. None of the proposed critical habitat units
considered in Part I of the economic analysis contains significant
residential, commercial, industrial, or agricultural development or
operations, and few projects are anticipated within the proposed
critical habitat. This situation reflects the fact that most of the
land is unsuitable for development, farming, or other economic
activities due to the rugged mountain terrain, lack of access, and
remote locations, and existing land-use controls severely limit
development and most other economic activities in the mountainous
interior of Oahu.
Although some existing and continuing activities involve the
operation and maintenance of existing manmade features and structures
in certain areas, these areas do not contain the primary constituent
elements for the species, and would not be impacted by the designation.
Any existing and planned projects, land uses, and activities that could
affect the proposed critical habitat that have no Federal involvement
would not require section 7 consultation and would not be restricted by
the requirements of the Act. Finally, many of the anticipated projects
and activities with Federal involvement are conservation efforts that
would be expected to trigger formal section 7 consultations. If formal
consultation were to be required, we anticipate that a project
proponent could modify the project or take measures to protect the
affected species or critical habitat, such as establishing conservation
set-asides, management of competing nonnative species, restoration of
degraded habitat, and regular monitoring. The Service has been involved
with these types of projects for many years throughout the Hawaiian
Islands. We are unaware of instances where these types of activities
have resulted in any significant economic impacts to the individuals or
agencies involved.
Our regulatory flexibility analysis for the Kalaeloa area contained
in Part II of the DEA is based on an assessment of the highest level of
incremental costs (upper-bound) of critical habitat designation due to
reductions in land value due to development restrictions following the
designation of critical habitat and administrative consultation costs.
The analysis focuses on impacts to development activities, which may be
experienced by small entities, and assumes that the designation of
critical habitat would primarily impact businesses in the building
construction industry. As estimated in Chapter 4 of Part II the DEA,
incremental impacts of the proposed designation in occupied habitat
areas would likely be limited to additional incremental costs of time
spent by the Service, Federal action agency, and any third parties in
section 7 consultations over and above the time spent on the jeopardy
analysis component of the consultation. Small entities may participate
in a section 7 consultation as a third party, and it is possible that
they could spend additional time considering critical habitat during
section 7 consultation for these 24 plant species. These administrative
impacts would likely be the only potential incremental impacts of
designating critical habitat in occupied habitat that may be borne by
small entities. Critical habitat could theoretically trigger
incremental economic impacts if an occupied area were to become
unoccupied as a result of a stochastic or other catastrophic event. In
this situation, a Federal agency would still have a section 7
consultation responsibility based on the critical habitat designation,
even though the species is no longer present. Conservation
recommendations under this scenario could target management actions to
reintroduce the species into the vacated critical habitat area.
However, we are unaware of any actual instances of this situation
arising.
Based on the DEA, the only critical habitat unit facing potential
property value impacts would be the unoccupied unit, Oahu--Lowland
Dry--Unit 8. Property value impacts were used because we are not
certain about how the designation will affect future conservation
measures through the section 7 consultation process, so we used a
``worst case scenario'' assumption that designation could effectively
lead to critical habitat remaining in an undeveloped state. However, we
believe this is extremely unlikely to occur. Oahu--Lowland Dry--Unit 8
is the only proposed critical habitat unit in Kalaeloa that is not
currently occupied by at least one listed species, and consequently,
Federal agencies are not currently compelled to consult with the
Service on actions they authorize, fund, or carry out in this unit.
Although some of the parcels in Oahu--Lowland Dry--Unit 8 are planned
to be commercially developed, it is difficult to determine the
likelihood that planned activities would have Federal involvement,
which would trigger the need for section 7 consultation. Due to this
uncertainty, the DEA presents a range of possible effects. The lower-
bound estimate is that there would be no economic effect because future
development would not be subject to section 7 consultation. As Oahu--
Lowland Dry--Unit 8 is unoccupied, any costs associated with section 7
consultation would be attributable to the proposed critical habitat
designation. The upper-bound estimate assumes none of the parcels in
Oahu--Lowland Dry--Unit 8 could be developed, which could lead to a
property value loss. If this were to occur, potentially up to 13 small
developers could be affected with an average financial impact of 2.0
percent to 2.8 percent to their annual receipts. Similarly, under the
upper-bound assumption that every parcel would incur a formal
consultation, the financial impact (due to administrative costs) to the
average small developer would be 0.03 percent of annual receipts. Under
this scenario, up to 34 small businesses could potentially be impacted,
although it is unlikely that every parcel would be subject to section 7
consultation in the future. It is also unlikely that every potentially
affected developer would be a small business as defined by the Small
Business Administration. Accordingly, the potential economic impacts of
the proposed designation on small entities are likely overstated. There
is also no factual basis for the Service to conclude the designation of
critical habitat would result in the inability of landowners to develop
their parcels in the Kalaeloa area, based on our existing section 7
consultation history for this area.
In summary, we have considered whether the proposed designation of
critical habitat for 124 species on Oahu would result in a significant
economic impact on a substantial number of small entities. Information
for our analysis was gathered from the Small Business Administration,
stakeholders, and the
[[Page 21946]]
Service. For the above reasons and based on currently available
information, we certify that if promulgated, the proposed designation
would not have a significant economic impact on a substantial number of
small business entities. Therefore, an initial regulatory flexibility
analysis is not required.
Authors
The primary authors of this notice are the staff members of the
Pacific Islands Fish and Wildlife Office, Pacific Region, U.S. Fish and
Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 30, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-8807 Filed 4-11-12; 8:45 am]
BILLING CODE 4310-55-P