[Federal Register Volume 78, Number 83 (Tuesday, April 30, 2013)]
[Proposed Rules]
[Pages 25243-25251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10044]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2012-0070; FWS-R1-ES-2013-0028; 4500030113]
RIN 1018-AY09; 1018-AZ38


Endangered and Threatened Wildlife and Plants; Listing 15 Species 
on Hawaii Island as Endangered and Designating Critical Habitat for 3 
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 October 17, 2012, proposal to 
list 15 species as endangered and designate critical habitat for 1 of 
these 15 species on the Hawaiian island of Hawaii, and to designate 
critical habitat for 2 plant species that are already listed as 
endangered, under the Endangered Species Act of 1973, as amended (Act). 
Critical habitat is not determinable for the remaining 14 species that 
we proposed to list in our October 17, 2012, proposed rule. We also 
announce the availability of a draft economic analysis (DEA) of the 
proposed designation and an amended required determinations section of 
the proposed designation. We are reopening the comment period to allow 
all interested parties an opportunity to comment simultaneously on the 
proposed rule, the associated DEA, and the amended required 
determinations section. In addition, we provide supplemental 
information on one of the species proposed for listing and seek 
comments on our proposal to list this species in light of this new 
information. Comments previously submitted on this rulemaking do not 
need to be resubmitted, as they will be fully considered in preparation 
of the final rule. We also announce a public hearing and public 
information meeting on our proposed rule and associated documents.

DATES: The comment period for the proposed rule published October 17, 
2012, at 77 FR 63928, is reopened. Written Comments: We will consider 
comments received or postmarked on or before May 30, 2013. 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.
    Public Information Meeting: We will hold a public information 
meeting in Kailua-Kona, Hawaii, on Wednesday, May 15, 2013, from 3 p.m. 
to 5 p.m. (see ADDRESSES below).
    Public Hearing: We will hold a public hearing in Kailua-Kona, 
Hawaii, on Wednesday, May 15, 2013, from 6 p.m. to 8 p.m. (see 
ADDRESSES below).

ADDRESSES: Document Availability: You may obtain copies of the October 
17, 2012, proposed rule, this document, and the draft economic analysis 
at http://www.regulations.gov at Docket Number FWS-R1-ES-2012-0070, 
from the Pacific Islands Fish and Wildlife Office's Web site (http://www.fws.gov/pacificislands/), or by contacting the Pacific Islands Fish 
and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT).
    Written Comments: You may submit written comments by one of the 
following methods, or at the public information meeting or public 
hearing:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket 
No. FWS-R1-ES-2012-0070, and submit comments on the critical habitat 
proposal, revisions, and associated draft economic analysis to Docket 
No. FWS-R1-ES-2013-0028. See SUPPLEMENTARY INFORMATION for an 
explanation of the two dockets.
    (2) By hard copy: Submit comments on the listing proposal by U.S. 
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R1-ES-
2012-0070; Division of Policy and Directives Management; U.S. Fish and 
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 
22203. Submit comments on the critical habitat proposal and draft 
economic analysis by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R1-ES-2013-0028; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    Public Information Meeting and Public Hearing: Both the public 
information meeting and the public hearing will be held in the Council 
Chambers of the West Hawaii Civic Center located at 74-5044 Ane 
Keohokalole Highway, Kailua-Kona, Hawaii 96740 (telephone 808-323-
4444).
    We request that you send comments only by the methods described 
above. We will post all comments we receive on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

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

SUPPLEMENTARY INFORMATION: We are proposing to list 15 species on the 
Hawaiian island of Hawaii as endangered: specifically, 2 animals 
(picture-wing fly (Drosophila digressa) and anchialine pool shrimp 
(Vetericaris chaceorum)) and 13 plants (Bidens hillebrandiana ssp. 
hillebrandiana, Bidens micrantha ssp. ctenophylla, Cyanea marksii, 
Cyanea tritomantha, Cyrtandra nanawaleensis, Cyrtandra wagneri, 
Phyllostegia floribunda, Pittosporum hawaiiense, Platydesma remyi, 
Pritchardia lanigera, Schiedea diffusa ssp. macraei, Schiedea 
hawaiiensis, and Stenogyne cranwelliae). We are proposing to designate 
critical habitat for 1 of these 15 proposed species (Bidens micrantha 
ssp. ctenophylla), and for 2 plant species that are already listed as 
endangered (Isodendrion pyrifolium and Caesalpinia kavaiense (taxonomic 
revision proposed, to Mezoneuron kavaiense)).

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed listing determination and 
proposed critical habitat designation that was published in the Federal 
Register on October 17, 2012 (77 FR 63928), our draft economic analysis 
of the proposed critical habitat designation, and the amended required

[[Page 25244]]

determinations provided in this document.
    On October 17, 2012, we published a proposal (77 FR 63928) to list 
15 species on the island of Hawaii in the Hawaiian Islands as 
endangered, and designate critical habitat for 1 of those species and 
for 2 plant species that are already listed as endangered. Later this 
year, we will publish two separate final rules: One concerning the 
listing determinations described above, and the other concerning the 
critical habitat determinations described above. The final listing rule 
will publish under the existing Docket No. FWS-R1-ES-2012-0070, and the 
final critical habitat designation will publish under Docket No. FWS-
R1-ES-2013-0028.
    We request that you provide comments specifically on our listing 
determination under Docket No. FWS-R1-ES-2012-0070. We will consider 
information and recommendations from all interested parties. We are 
particularly interested in comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
threats (or the lack thereof) to the 15 species proposed for listing, 
and regulations that may be addressing those threats.
    (2) Additional information concerning the biology, range, 
distribution, and population sizes of each of the 15 species proposed 
for listing, including any comments on the recently confirmed new 
location for Vetericaris chaceorum, the anchialine pool shrimp proposed 
for listing as endangered in the October 17, 2012, proposed rule (77 FR 
63928) (see discussion below), threats to the species at the new 
location, and the effect this new location information should have on 
our analysis of the listing factors for this species, which include:
     The present or threatened destruction, modification, or 
curtailment of its habitat or range;
     Overutilization for commercial, recreational, scientific, 
or educational purposes;
     Disease or predation;
     The inadequacy of existing regulatory mechanisms; or
     Other natural or manmade factors affecting its continued 
existence.
    (3) Any information on the biological or ecological requirements of 
the 15 species proposed for listing, and ongoing conservation measures 
for the species and their habitat.
    (4) Comments on our proposal to revise taxonomic classification 
with a name change for one plant species identified in the proposed 
rule.
    We request that you provide comments specifically on the critical 
habitat determination and related draft economic analysis under Docket 
No. FWS-R1-ES-2013-0028. We will consider information and 
recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (5) The reasons why we should or should not designate areas for 
Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and 
Mezoneuron kavaiense as ``critical habitat'' under section 4 of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), including whether there are threats to these species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether the benefit of designation would outweigh 
threats to these species caused by the designation, such that the 
designation of critical habitat is prudent.
    (6) Specific information on:
     The amount and distribution of critical habitat for the 
three plant species;
     Areas in the geographic area occupied at the time of 
listing and that contain the physical or biological features essential 
for the conservation of the three plant species;
     Whether special management considerations or protections 
may be required for the physical or biological features essential to 
the conservation of the three plant species; and
     What areas not currently occupied are essential to the 
conservation of the three plant species and why.
    (7) Land use designations and current or planned activities in the 
areas occupied or unoccupied by the species and proposed as critical 
habitat, and the possible impacts of these activities on these three 
species, or of critical habitat on these designations or activities.
    (8) Any foreseeable economic, national security, or other relevant 
impacts of designating any area as critical habitat. We are 
particularly interested in any impacts on small entities, and the 
benefits of including or excluding areas that may experience these 
impacts.
    (9) Whether the benefits of excluding any particular area from 
critical habitat outweigh the benefits of including that area as 
critical habitat under section 4(b)(2) of the Act, after considering 
the potential impacts and benefits of the proposed critical habitat 
designation. We are considering the possible exclusion of non-Federal 
lands, especially areas in private ownership, and whether the benefits 
of exclusion may outweigh the benefits of inclusion of those areas. We, 
therefore, request specific information on:
     The benefits of including any specific areas in the final 
designation and supporting rationale.
     The benefits of excluding any specific areas from the 
final designation and supporting rationale.
     Whether any specific exclusions may result in the 
extinction of the species and why.
     For private lands in particular, we are interested in 
information regarding the potential benefits of including private lands 
in critical habitat versus the benefits of excluding such lands from 
critical habitat. In weighing the potential benefits of exclusion 
versus inclusion of private lands, the Service may consider whether 
existing partnership agreements provide for the management of the 
species. We may consider, for example, the status of conservation 
efforts, the effectiveness of any conservation agreements to conserve 
the species, and the likelihood of the conservation agreement's future 
implementation.
    (10) Our process used for identifying those areas that meet the 
definition of critical habitat for the species, as described in the 
section of the October 17, 2012, proposed rule titled Criteria Used to 
Identify Critical Habitat Boundaries.
    (11) Information on the extent to which the description of 
potential economic impacts in the draft economic analysis is complete 
and accurate.
    (12) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and any regulatory changes that 
would likely occur if we designate critical habitat.
    (13) Whether the draft economic analysis identifies all Federal, 
State, and local costs and benefits attributable to the proposed 
designation of critical habitat, and information on any costs that may 
have been inadvertently overlooked. For example, are there any costs 
resulting from critical habitat designation related to the enhancement 
or maintenance of nonnative ungulates for hunting programs?
    (14) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (15) Specific information on ways to improve the clarity of this 
rule as it pertains to completion of consultations under section 7 of 
the Act.
    Our final determination concerning listing 15 species as endangered 
and designating critical habitat for 3 plant species on the island of 
Hawaii will take into consideration all written comments

[[Page 25245]]

we receive during the public information meeting, written comments and 
information we receive during both comment periods, from peer 
reviewers, as well as comments and public testimony we receive during 
the public hearing. The comments will be included in the public record 
for this rulemaking, and we will fully consider them in the preparation 
of our final determinations. On the basis of peer reviewer and public 
comments, as well as any new information we may receive, we may, during 
the development of our final determination concerning critical habitat, 
find that areas within the proposed critical habitat designation do not 
meet the definition of critical habitat, that some modifications to the 
described boundaries are appropriate, or that areas may or may not be 
appropriate for exclusion under section 4(b)(2) of the Act.
    If you submitted comments or information on the proposed rule 
(October 17, 2012, 77 FR 63928) during the comment period from October 
17, 2012, to December 17, 2012, please do not resubmit them. We will 
incorporate them into the public record as part of this comment period, 
and we will fully consider them in the preparation of our final 
determinations.
    You may submit your comments and materials concerning the proposed 
rule or draft economic analysis by one of the methods listed in the 
ADDRESSES section. Verbal testimony may also be presented during the 
public hearing (see DATES and ADDRESSES sections). We will post your 
entire comment--including your personal identifying information--on 
http://www.regulations.gov. If you submit your comment via U.S. mail, 
you may request at the top of your document that we withhold personal 
information such as your street address, phone number, or email address 
from public review; however, we cannot guarantee that we will be able 
to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and draft economic 
analysis, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R1-ES-2012-0070 or 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).

Public Information Meeting and Public Hearing

    We are holding a public information meeting and a public hearing on 
the date listed in the DATES section at the address listed in the 
ADDRESSES section (above). We are holding the public hearing to provide 
interested parties an opportunity to present verbal testimony (formal, 
oral comments) or written comments regarding the proposed listing of 15 
species as endangered and proposed designation of critical habitat for 
3 plant species on the island of Hawaii, and the associated draft 
economic analysis. A formal public hearing is not, however, an 
opportunity for dialogue with the Service; it is only a forum for 
accepting formal verbal testimony. In contrast to the hearing, the 
public information meeting allows the public the opportunity to 
interact with Service staff, who will be available to provide 
information and address questions on the proposed rule and its 
associated draft economic analysis. We cannot accept verbal testimony 
at the public information meeting; verbal testimony can only be 
accepted at the public hearing. Anyone wishing to make an oral 
statement at the public hearing for the record is encouraged to provide 
a written copy of their statement to us at the hearing. At the public 
hearing, formal verbal testimony will be transcribed by a certified 
court reporter and will be fully considered in the preparation of our 
final determination. In the event there is a large attendance, the time 
allotted for oral statements may be limited. Speakers can sign up at 
the hearing if they desire to make an oral statement. Oral and written 
statements receive equal consideration. There are no limits on the 
length of written comments submitted to us.
    Persons with disabilities needing reasonable accommodations to 
participate in the public information meeting or public hearing should 
contact Loyal Mehrhoff, Field Supervisor, Pacific Islands Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Reasonable 
accommodation requests should be received at least 3 business days 
prior to the public information meeting or public hearing to help 
ensure availability; at least 2 weeks prior notice is requested for 
American Sign Language needs.

Background

    The topics discussed below are relevant to designation of critical 
habitat for 3 plant species on the Hawaiian island of Hawaii in this 
document. For more information on previous Federal actions concerning 
these species, refer to the proposed listing and designation of 
critical habitat published in the Federal Register on October 17, 2012 
(77 FR 63928), which is available online at http://www.regulations.gov 
(at Docket Number FWS-R1-ES-2012-0070) or from the Pacific Islands Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On October 17, 2012, we published a proposed rule (77 FR 63928) to 
list 15 species as endangered and designate critical habitat for 3 
plant species. We proposed to designate a total of 18,766 acres (ac) 
(7,597 hectares (ha)) on the island of Hawaii as critical habitat. 
Within that proposed rule, we announced a 60-day comment period, which 
began on October 17, 2012, and ended on December 17, 2012. 
Approximately 55 percent of the area being proposed as critical habitat 
is already designated as critical habitat for other species, including 
for the plant Kokia drynarioides (49 FR 47397, December 4, 1984), and 
41 other listed plants (68 FR 39624, July 2, 2003), Blackburn's sphinx 
moth (68 FR 34710, June 10, 2003), and 3 picture-wing flies (73 FR 
73794, December 4, 2003).

New Information

    The anchialine pool shrimp Vetericaris chaceorum was recently 
documented at Manuka, Hawaii, approximately 15.5 mi (25 km) northwest 
of Luo o Palahemo, the previously only locality known for this species 
(77 FR 63928, October 17, 2012). The identification as V. chaceorum was 
confirmed by the Oxford Museum on Natural History and the Naturalis 
Biodiversity Center, Department of Marine Zoology, through the 
examination of two specimens collected by the Hawaii Department of 
Natural Resources, Division of Aquatic Resources (DAR) Hilo staff in 
2012. Visual accounts made by DAR staff suggest that a population of V. 
chaceorum is established throughout the complex of pools located along 
the southern section of the Manuka Natural Area Reserve. Positive 
identifications of V. chaceorum were recorded in three pools; however, 
accurate estimates of its population are still unavailable due to the 
cryptic nature of this species. The habitat in which V. chaceorum was 
found at Manuka is described as being considerably different than that 
of Lua o Palahemo, and was characterized by shallow (<0.5 m deep) open 
pools dispersed throughout barren basaltic terrain. Accordingly, it 
does not seem to be limited to the deep recesses of the anchialine 
habitat (where the species was observed in Lua o Palahemo), but it may 
also roam freely throughout shallow exposed areas (Sakihara 2013, pers. 
comm).

[[Page 25246]]

    The anchialine habitats in Manuka where V. chaceorum were recorded 
are located along the coastal boundary of the Manuka Natural Area 
Reserve (NAR), established in 1983 by the State of Hawaii. The Natural 
Area Reserves system is managed by the State of Hawaii, Department of 
Land and Natural Resources, Division of Forestry and Wildlife. 
Biological threats at Manuka have been described as including feral 
ungulates (goats) and an established population of alien invasive 
fountain grass (Pennisetum setaceum). NAR's management teams continue 
in their efforts in controlling biological threats to the natural 
resources within the NAR by active removal, monitoring, and public 
outreach (Sakihara 2013, pers. comm). The presence of and predation by 
introduced poecillids (fish in the Poeciliidae family that bear live 
young) may represent a threat to the biological integrity of one of the 
anchialine pools at Manuka (Sakihara 2009, pp. 20, 28; Sakihara 2012, 
pp. 91-92), although they have not been documented in the pools 
inhabited by V. chaceorum. Anthropogenic (human-caused) disturbance 
associated with the presence of a jeep trail and campsites near the 
anchialine pools at Awili Point and Keawaiki may also represent a 
threat to the species (Sakihara 2012, p. 92).
    Although this new information does not change our proposal to list 
this species as endangered or our finding that the designation of 
critical habitat is not determinable at this time, as discussed in the 
proposed rule (77 FR 63928, October 17, 2012), we will consider this 
new evidence of a second occurrence of V. chaceorum in analyzing the 
listing factors and making a final determination on whether this 
species should be listed. We request comments on whether this evidence 
should change the listing analysis contained in the proposed rule and, 
if so, how.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency unless it is exempted pursuant to the 
provisions of the Act (16 U.S.C. 1536(e)-(n) and (p)). Federal agencies 
proposing actions affecting critical habitat must consult with us on 
the effects of their proposed actions, under section 7(a)(2) of the 
Act.
    Consistent with the best scientific data available, the standards 
of the Act, and our regulations, we have initially identified, for 
public comment, a total of 18,766 ac (7,597 ha) in seven multi-species 
units located on the island of Hawaii that meet the definition of 
critical habitat for the three plant species. In addition, the Act 
provides the Secretary with the discretion to exclude certain areas 
from the final designation after taking into consideration economic 
impacts, impacts on national security, and any other relevant impacts 
of specifying any particular area as critical habitat.

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat. In the 
case of the three Hawaii Island plant species, the benefits of critical 
habitat include public awareness of the presence of one or more of 
these species and the importance of habitat protection, and, where a 
Federal nexus exists, increased habitat protection for the species due 
to protection from adverse modification or destruction of critical 
habitat. With regard to these species, situations with a Federal nexus 
exist primarily on Federal lands or for projects undertaken by Federal 
agencies.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. We also consider 
the potential economic or social impacts that may result from the 
designation of critical habitat.
    In the proposed rule, we identified several areas to consider 
excluding from the final rule. We are considering excluding from the 
final designation approximately 4,099 ac (1,659 ha) of private lands 
that have a voluntary conservation agreement, partners in watershed 
partnerships or dry forest working groups, conservation or watershed 
preserve designation, or similar conservation protection.
    These specific exclusions will be considered on an individual basis 
or in any combination thereof. In addition, the final designation may 
not be limited to these exclusions, but may also consider other 
exclusions as a result of continuing analysis of relevant 
considerations (scientific, economic, and other relevant factors, as 
required by the Act), and the public comment process. In particular, we 
solicit comments from the public on whether all of the areas identified 
meet the definition of critical habitat, whether other areas would meet 
that definition, whether to make the specific exclusions we are 
considering, and whether there are other areas that are appropriate for 
exclusion.
    The final decision on whether to exclude any area will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment periods 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis concerning the proposed 
critical habitat designation, which is available for review and comment 
(see ADDRESSES, above).

Draft Economic Analysis

    The purpose of the draft economic analysis (DEA) is to identify and 
analyze the potential economic impacts associated with the proposed 
critical habitat designation for the three Hawaii Island plant species.
    When a species is federally listed as endangered or threatened, it 
receives protection under the Act. For example, under section 7 of the 
Act, Federal agencies must consult with the Service to ensure that 
actions they fund, authorize, or carry out do not jeopardize

[[Page 25247]]

the continued existence of the species. Economic impacts of 
conservation measures undertaken to avoid jeopardy to the species are 
considered baseline impacts in our analysis as they are not generated 
by the critical habitat designation. In other words, baseline 
conservation measures and associated economic impacts are not affected 
by decisions related to critical habitat designation for these species.
    The DEA describes the economic impacts of potential conservation 
efforts for the three Hawaii Island plant species; some of these costs 
will likely be incurred regardless of whether we designate critical 
habitat. The economic impact of the proposed critical habitat 
designation is analyzed by comparing scenarios ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for these species (e.g., under 
the Federal listing and other Federal, State, and local regulations). 
The ``with critical habitat'' scenario describes the incremental 
impacts associated specifically with the designation of critical 
habitat for the three plant species. The incremental conservation 
efforts and associated impacts are those that would not be expected to 
occur without the designation of critical habitat for these species. In 
other words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs; 
these are the costs we may consider in the final designation of 
critical habitat when evaluating the benefits of excluding particular 
areas under section 4(b)(2) of the Act.
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, and considers the protections already afforded the 
three Hawaiian plants, regardless of critical habitat designation. The 
baseline for this analysis is the state of regulation, absent 
designation of critical habitat, which provides protection to these 
species under the Act, as well as any other Federal, State, and local 
laws and conservation plans. The baseline includes sections 7, 9, and 
10 of the Act to the extent that they are expected to apply absent the 
designation of critical habitat for the species. The analysis 
qualitatively describes how baseline conservation for the three Hawaii 
Island plant species is currently implemented across the proposed 
designation in order to provide context for the incremental analysis 
(DEA Chapter 1.4 and Appendix B.3.1). For a further description of the 
methodology of the analysis, see DEA Chapter B.3.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
three Hawaii Island plant species over the next 10 years, which was 
determined to be the appropriate period for analysis because limited 
planning information is available for most activities to forecast 
activity levels for projects beyond a 10-year timeframe. It identifies 
potential incremental costs as a result of the proposed critical 
habitat designation; these are the costs attributed to critical habitat 
over and above those baseline costs attributed to listing. The DEA 
separately identifies the potential incremental costs of the critical 
habitat designation on lands being considered for exclusion under 
section 4(b)(2) of the Act.
    The DEA focuses on economic activities that are occurring or have 
the potential to occur within the proposed critical habitat areas, and 
are of primary concern with respect to potential adverse modification 
of critical habitat. The key concern is the potential for activities to 
result in ground disturbance within a critical habitat unit. Such 
activities include commercial, residential, and industrial development, 
and transportation projects. Within these activity categories, the DEA 
is focused on those projects and activities that are considered 
reasonably likely to occur within the proposed critical habitat area. 
This includes projects or activities that are currently planned or 
proposed, or that permitting agencies or land managers indicate are 
likely to occur.
    The only Federal regulatory effect of the designation of critical 
habitat is the prohibition on Federal agencies taking actions that are 
likely to destroy or adversely modify critical habitat. Federal 
agencies are not required to avoid or minimize effects unless the 
effects rise to the level of destruction or adverse modification as 
those terms are used in section 7 of the Act. Even then, the Service 
must recommend reasonable and prudent alternatives that: (1) Can be 
implemented consistent with the intended purpose of the action; (2) are 
within the scope of the Federal agency's legal authority and 
jurisdiction; and (3) are economically and technologically feasible. 
Thus, while the Service may recommend conservation measures, unless the 
action is likely to destroy or adversely modify critical habitat, 
implementation of recommended measures is voluntary, and Federal 
agencies and applicants have discretion in how they carry out their 
section 7 mandates.
    Thus, the direct, incremental impacts of critical habitat 
designation stem from the consideration of the potential for 
destruction or adverse modification of critical habitat during section 
7 consultations. The two categories of direct, incremental impacts of 
critical habitat designation are: (1) The added administrative costs of 
conducting section 7 consultation related to critical habitat; and (2) 
implementation of any conservation efforts requested by the Service 
through section 7 consultation, or required by section 7 to prevent the 
destruction or adverse modification of critical habitat.
    The DEA describes the types of project modifications currently 
recommended by the Service to avoid jeopardy to the two currently 
listed species, Isodendrion pyrifolium (listed as an endangered species 
on March 4, 1994 (59 FR 10305)), and Mezoneuron kavaiense (listed as an 
endangered species on July 8, 1986 (51 FR 24672)) (``baseline'' project 
modifications). Critical habitat is also proposed for Bidens micrantha 
ssp. ctenophylla, which was proposed for listing as endangered on 
October 17, 2012 (77 FR 63928) and co-occurs with the above two 
species. These baseline project modifications would be recommended in 
occupied habitat areas regardless of whether critical habitat is 
designated for the two currently listed species, and would also be 
recommended for Bidens micrantha ssp. ctenophylla, regardless of 
critical habitat designation, should it be listed under the Act. 
Although the standards for jeopardy and adverse modification of 
critical habitat are not the same, because the degradation or loss of 
habitat is a key threat to the three Hawaii Island plant species, a 
jeopardy analyses for these species would already consider the 
potential for project modifications to avoid the destruction of 
habitat; therefore recommendations to avoid jeopardy would also likely 
avoid adverse modification or destruction of critical habitat for these 
species.
    The Service estimates that the only project modification that may 
be recommended to avoid adverse modification of critical habitat above 
and beyond that recommended to avoid jeopardy to the species would be 
in cases where permanent impacts to critical habitat are unavoidable; 
in such cases, the Service would recommend that habitat loss be offset 
elsewhere in designated critical habitat, preferably within the 
critical habitat unit where the loss occurred. In other words, while 
the Service may recommend that habitat loss be offset even absent 
critical habitat designation, critical habitat designation may generate 
the additional

[[Page 25248]]

recommendation that the offset occur within the critical habitat unit. 
In occupied critical habitat, therefore, the incremental impacts are 
most likely limited to the potential incremental cost of offsetting 
habitat loss within the critical habitat unit that is affected as 
opposed to outside of the unit. As noted above, any recommended offsets 
would not be required unless necessary to avoid violating the 
prohibition of section 7 (i.e., destroying or adversely modifying 
critical habitat). However, to be conservative regarding potential 
incremental costs of the proposed critical habitat designation, the DEA 
assumes that the Federal agency or applicant may choose to implement 
the recommended offsets.
    With regard to occupied habitat, the DEA predicts that a 
recommendation that ground disturbance be offset within the critical 
habitat unit would not generate additional economic impacts, beyond 
those related to the listing of the species under the Act. It is 
therefore unlikely that critical habitat designation would change the 
outcome of a future section 7 consultation on projects or activities 
within occupied areas, and incremental impacts would most likely be 
limited to the additional administrative effort of considering adverse 
modification as part of the consultation. However, the effects of each 
project on critical habitat would need to be evaluated as appropriate 
once a final decision has been made on this designation.
    The proposed critical habitat designation includes seven multi-
species units, totaling 18,766 acres (7,597 hectares) within Hawaii's 
lowland dry ecosystem. Each unit is occupied by at least one of the 
three species for which critical habitat is proposed, although the 
three plants do not necessarily occur across the entirety of each unit. 
Individuals of these species may be scattered intermittently throughout 
a unit or clumped in portions of a unit. While we have proposed areas 
that may be unoccupied on the basis that they are essential to the 
conservation of the species, for example in order to provide room for 
population expansion, there may be portions of each unit that would not 
be subject to section 7 consultation because the species does not occur 
in the specific location being impacted by a proposed action. 
Therefore, ground surveys to locate the individual plants would need to 
be conducted prior to each proposed project or activity within critical 
habitat and the cost of the consultation and any resulting conservation 
actions may be attributable to critical habitat.
    The designation of critical habitat may, under certain 
circumstances, affect actions that do not have a Federal nexus and thus 
are not subject to the provisions of section 7 under the Act. Indirect 
impacts are those unintended changes in economic behavior that may 
occur outside of the Act, through other Federal, State, or local 
actions, and that are caused by the designation of critical habitat. 
Chapter 2.6 of the DEA discusses the types of potential indirect 
impacts that may be associated with the designation of critical 
habitat, such as time delays, regulatory uncertainty, and negative 
perceptions related to critical habitat designation on private 
property. These types of impacts are not always considered incremental. 
In the case that these types of conservation efforts and economic 
effects are expected to occur regardless of critical habitat 
designation, they are appropriately considered baseline impacts in this 
analysis.
    Critical habitat may generate incremental economic impacts through 
implementation of additional conservation measures (beyond those 
recommended in the baseline) and additional administrative effort in 
section 7 consultation to ensure that projects or activities do not 
result in adverse modification of critical habitat. However, as 
described above and in Chapter 1 of the DEA, where critical habitat is 
considered occupied by the three Hawaii Island plant species, critical 
habitat designation is expected to have a more limited effect on 
economic activities, since section 7 consultation would already occur 
due to the presence of the species and these additional conservation 
measures would already be considered.
    The focus of the DEA is on projects that are occurring or are 
reasonably likely to occur, based on information received from the 
development community in response to the proposed rule (77 FR 63928, 
October 17, 2012). Based on our section 7 consultation history, it is 
unlikely that critical habitat designation would change the outcome of 
a future section 7 consultation on projects or activities within 
occupied areas of the proposed designation. However, within unoccupied 
areas, all costs associated with conservation efforts recommended in 
section 7 consultations (including administrative costs) would be 
direct incremental costs attributable to proposed designation. Within 
areas proposed for critical habitat designation, the DEA estimates a 
total present value impact of $35,000 over the next 10 years (an 
annualized impact of $4,700, with a 7 percent discount rate) associated 
with future section 7 consultations (DEA, Exhibit 2-1). Impacts on 
projects occurring in areas being considered for exclusion under 
section 4(b)(2) of the Act are expected to be $15,000 (an annualized 
impact of $2,000, with a 7 percent discount rate). These costs reflect 
administrative effort of considering critical habitat in future section 
7 consultations on projects identified as occurring within the proposed 
critical habitat area. Specifically, the DEA forecasts five future 
section 7 consultations for projects located in areas overlapping 
proposed critical habitat Units 33, 34, and 35, and three future 
consultations for projects located in areas being considered for 
exclusion in proposed critical habitat units 33, 34, and 35. The DEA 
assumes that all of the consultations would occur in 2013, following 
the designation of critical habitat.
    Since projects and activities occurring within occupied habitat 
areas are less likely to be directly affected (i.e., economic impacts 
would most likely be limited to administrative costs), the DEA 
primarily focuses on the two reasonably foreseeable projects of which 
we are aware, that would occur within unoccupied areas of the proposed 
designation. These projects include a Department of Hawaiian Homelands 
(DHHL) residential project within proposed critical habitat unit 33, 
and a Queen Liliuokalani Trust (QLT) mixed-use development project 
within proposed critical habitat unit 35.
    The DEA concludes that additional direct and indirect impacts of 
the designation are possible, although information limitations preclude 
quantification in this analysis. The DHHL project on 91 acres (37 
hectares) of an unoccupied area of proposed critical habitat unit 33 is 
likely to be subject to section 7 consultation. However, significant 
uncertainty exists regarding the extent of conservation efforts that 
DHHL would ultimately undertake to avoid adverse modification of 
critical habitat. The QLT project overlaps 302 unoccupied acres (122 
hectares) in proposed critical habitat Unit 35, and while a Federal 
nexus compelling consultation is unlikely, the project may be subject 
to indirect impacts including additional management by the county 
associated with required zoning changes. However, the uncertainties 
described in the DEA include whether the critical habitat designation 
will generate indirect economic impacts, including changes in land 
management by the State or county. Additionally, while the DEA 
describes the Service's initial recommendations, the projects would be 
reviewed on a case-by-case basis during

[[Page 25249]]

the consultation process. The ultimate nature and extent of 
conservation efforts is therefore uncertain.
    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 the Secretary determines 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 October 17, 2012, proposed rule (77 FR 63928), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the draft economic 
analysis. We have now made use of the draft economic analysis data to 
make these determinations. In this document, we affirm the information 
in our proposed rule concerning Executive Order (E.O.) 12866 
(Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988 
(Civil Justice Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
and the National Environmental Policy Act (42 U.S.C. 4321 et seq.). 
However, based on the draft economic analysis data, we are amending our 
required determinations concerning the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), E.O. 13211 (Energy, Supply, Distribution, and 
Use), and E.O. 12630 (Takings). We are also providing a determination 
for the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951), which we inadvertently omitted from the October 17, 2012, 
proposed rule (77 FR 63928). In light of the statutory requirement that 
listing decisions be made ``solely'' on the basis of the best 
scientific and commercial data available, the following determinations 
relate only to the proposed critical habitat rulemaking, not the 
proposed listing rule.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our draft economic analysis of the 
proposed designation, we are certifying that the critical habitat 
designation for the three Hawaii Island plant species, if adopted as 
proposed, will not have a significant economic impact on a substantial 
number of small entities. The following discussion explains our 
rationale.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities, such as: (1) 
Agricultural, commercial, and residential development; (2) 
transportation; and (3) livestock grazing and other human activities. 
We apply the ``substantial number'' test individually to each industry 
to determine if certification is appropriate. However, the SBREFA does 
not explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only has regulatory effects on 
activities authorized, funded, or carried out by Federal agencies. Some 
kinds of activities are unlikely to have any Federal involvement and 
will not be affected by critical habitat designation. In areas where 
any of the three Hawaii Island plant species are present, Federal 
agencies are already required to consult with us under section 7 of the 
Act on activities they authorize, fund, or carry out that may affect 
the species. Federal agencies also must consult with us if their 
activities may affect critical habitat. Designation of critical 
habitat, therefore, could result in an additional economic impact on 
small entities due to the requirement to reinitiate consultation for 
ongoing Federal activities (see ``Application of the Adverse 
Modification Standard'' section of the proposed rule (October 17, 2012, 
77 FR 63928)).
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA

[[Page 25250]]

to evaluate the potential impacts to entities not directly regulated, 
such as small businesses. However, Executive Orders 12866 and 13563 
direct Federal agencies to assess costs and benefits of available 
regulatory alternatives in quantitative (to the extent feasible) and 
qualitative terms. Consequently, it is the current practice of the 
Service to assess to the extent practicable these potential impacts if 
sufficient data are available, whether or not this analysis is believed 
by the Service to be strictly required by the RFA. In other words, 
while the effects analysis required under the RFA is limited to 
entities directly regulated by the rulemaking, the effects analysis 
under the Act, consistent with the E.O. regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. In 
doing so, we focus on the specific areas proposed to be designated as 
critical habitat and compare the number of small business entities 
potentially affected in that area with other small business entities in 
the region, instead of comparing the entities in the proposed area of 
designation with entities nationally, which is more commonly done. This 
analysis results in an estimation of a higher number of small 
businesses potentially affected.
    As identified in Exhibit A-1, the third parties for five of the 
eight projects identified in the analysis are not considered small 
businesses. As it is unknown whether or not the third parties 
associated with the remaining three projects are small businesses, we 
conservatively assume that they are small businesses for purposes of 
our analysis. The per-consultation third-party cost of participating in 
a formal consultation is estimated to be $900, as described in Appendix 
B, Exhibit B-1. Exhibit A-2 provides information on the average annual 
revenues of small entities in the development industry, calculated 
using Risk Management Association (RMA) data. As detailed in the 
exhibit, the per-entity cost to participate in a single consultation 
likely represents approximately 0.01 percent or less of annual 
revenues. Note that the average annual revenues reported in Exhibit A-2 
are derived from nationwide data, as there is limited data available to 
assess revenues of these types of businesses in Hawaii County, and 
therefore the revenues of these particular third parties may be far 
less. However, the estimated per-consultation cost of $900 is not 
likely to represent a significant portion of revenues for each third 
party. Therefore, we conclude that the economic impacts are not 
significant.
    Following our evaluation of potential effects to small business 
entities from the proposed rulemaking, we conclude that the number of 
potentially affected small businesses is not substantial, and that the 
economic impacts are not significant. In the draft economic analysis, 
we evaluated the potential economic effects on small entities resulting 
from implementation of conservation actions related to the proposed 
designation of critical habitat for the three Hawaii Island plant 
species. Quantified incremental impacts that may be borne by small 
entities are limited to the administrative costs of section 7 
consultation related to development and transportation projects (DEA, 
Appendix A-4). For projects located in occupied areas of the proposed 
critical habitat designation, incremental impacts of the designation 
are likely limited to these administrative costs for participation in 
the consultations. For projects located in unoccupied areas of the 
proposed critical habitat designation, incremental impacts may also 
include costs associated with additional conservation efforts 
implemented as a result of section 7 consultation.
    The proposed critical habitat is located in the South Kohala and 
North Kona districts of the Big Island. The Hawaii County General Plan, 
approved in 2005 by the County Council, identifies both districts as 
the major tourism centers on the island, and describes Kona as ``the 
center for government, commercial, and industrial activities for West 
Hawaii.'' The plan outlines a proposed land use pattern, known as the 
Land Use Pattern Allocation Guide, which identifies much of the 
proposed critical habitat area for ``urban expansion,'' where ``new 
settlements may be desirable, but where the specific settlement pattern 
and mix of uses have not yet been determined.'' In addition to the 
General Plan, which serves as the overall planning document for the 
county, Hawaii County also has Community Development Plans that 
translate the broader goals of the General Plan into specific 
implementation actions for geographic regions around the island. The 
Kona Community Development Plan (KCDP), adopted as Ordinance 08-131 in 
September 2008, identifies much of the area proposed for critical 
habitat designation as within the Kona Urban Area. Specifically, the 
entirety of proposed critical habitat Units 34, 35, and 36, and the 
majority of Unit 33, fall within the Kona Urban Area, as shown in 
Exhibit 2-2. One of the main goals of the KCDP is to direct future 
growth to the Kona Urban Area, and specifically to ``compact villages 
located along proposed transit routes or to infill areas within, or 
adjacent to, existing development,'' several of which overlap with the 
proposed critical habitat area.
    Of the projects we identified within areas proposed for critical 
habitat designation, only two are expected to occur on lands that are 
unoccupied by the species, and could experience the greatest economic 
impact related to the proposed critical habitat designation. A 
Department of Hawaiian Home Lands (DHHL) residential project is planned 
within proposed critical habitat Unit 33, and a development project is 
planned within critical habitat Unit 35 by the Queen Lili'uokalani 
Trust (QLT) (DEA, Chapter 2). The DHHL is a State governmental agency, 
and the QLT Statements of Financial Position dated December 31, 2011, 
and 2010 identifies current assets of $193,590,994 and $197,834,747, 
and liabilities of $4,137,037 and $2,518,920 respectively (QLT 2011). 
Accordingly, neither of these entities would be considered small 
businesses under the RFA, as amended by the SBREFA. Therefore, we 
conclude that the economic impacts are not significant. Following our 
evaluation of potential effects to small business entities from the 
proposed rulemaking, we conclude that the number of potentially 
affected small businesses is not substantial, and that the economic 
impacts are not significant.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. As described in the Chapter 1 of the DEA, 
the designation of critical habitat for the plants is not anticipated 
to result in any impacts to the energy industry. As such, the 
designation of critical habitat is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

E.O. 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference

[[Page 25251]]

with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, 
and Caesalpinia kavaiense (taxonomic revision proposed to Mezoneuron 
kavaiense) in a takings implications assessment. As discussed above, 
the designation of critical habitat affects only Federal actions. 
Although private parties that receive Federal funding, assistance, or 
require approval or authorization from a Federal agency for an action 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. The economic 
analysis found that no significant economic impacts are likely to 
result from the designation of critical habitat for the above three 
species. Because the Act's critical habitat protection requirements 
apply only to Federal agency actions, few conflicts between critical 
habitat and private property rights should result from this 
designation. Based on information contained in the economic analysis 
assessment and described within this document, it is not likely that 
economic impacts to a property owner would be of a sufficient magnitude 
to support a takings action. Therefore, the takings implications 
assessment concludes that this designation of critical habitat for 
Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and 
Caesalpinia kavaiense (taxonomic revision proposed to Mezoneuron 
kavaiense) does not pose significant takings implications for lands 
within or affected by the designation.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of Interior's 
manual at 512 DM2, we readily acknowledge our responsibility to 
communicate meaningfully with recognized Federal Tribes on a 
government-to-government basis. In accordance with Secretarial Order 
3206 of June 5, 1997 ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act,'' we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes.
    We have determined that there are no tribal lands occupied at the 
time of listing that contain the features essential for the 
conservation, and no tribal lands that are essential for the 
conservation, of the three Hawaii Island plant species. Therefore, we 
have not proposed designation of critical habitat for any of the three 
Hawaii Island plant species on tribal lands.

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: April 22, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-10044 Filed 4-29-13; 8:45 am]
BILLING CODE 4310-55-P