[Federal Register Volume 63, Number 193 (Tuesday, October 6, 1998)]
[Proposed Rules]
[Pages 53623-53631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26736]


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DEPARTMENT OF INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE51


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Oahu Elepaio from the Hawaiian Islands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and notice of finding.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for the Oahu elepaio (Chasiempis sandwichensis ibidis). 
This bird is endemic to the island of Oahu, Hawaiian Islands, where it 
was formerly found in all forested areas on the island. It is currently 
found in greatly reduced numbers and range in six isolated populations 
occurring in mid-elevation forests in the southern Koolau Mountain 
Range and parts of the Waianae Mountain Range. The Oahu elepaio is now 
thought to occupy less than 80 square kilometers (sq km) (30 square 
miles (sq mi)) or 8 percent of its original, historic range. Sightings 
of Oahu elepaio during Christmas Bird

[[Page 53624]]

Counts have dropped by 75 percent since 1960. The most recent 
population estimate for this taxon indicates that between 200 and 500 
birds remain. The Oahu elepaio has been affected in the past and will 
continue to be threatened by--habitat loss and degradation, including 
habitat loss from development, and habitat modification resulting from 
human activities; predation by introduced mammals; introduced avian 
disease; competition from introduced birds, and; the spread of certain 
alien plants which dramatically alter forest structure and/or 
diversity. The Oahu elepaio is also subject to an increased likelihood 
of extinction from naturally occurring events, such as hurricanes, etc.

DATES: Comments from all interested parties must be received by 
December 7, 1998. Public hearing requests must be received by November 
20, 1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to Manager, Pacific Islands Ecoregion, U.S. Fish and Wildlife 
Service, 300 Ala Moana Boulevard, P.O. Box 50088, Honolulu, Hawaii 
96850. Comments and material received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Pacific Islands Ecoregion Manager (see 
ADDRESSES section) (telephone 808/541-2749; facsimile 808/541-2756).

SUPPLEMENTARY INFORMATION:

Background

    The Hawaiian archipelago is comprised of eight main islands, and 
the shoals and atolls of the northwest Hawaiian Islands. The islands 
were formed sequentially by basaltic lava that emerged from a crustal 
hot spot located near the southeast coast of the island of Hawaii 
(Stearns 1985).
    The second oldest main island, Oahu, is 2.5 to 3.5 million years 
old, and is heavily weathered. Oahu has two principal mountain ranges--
the Koolau and Waianae. The Koolau Mountains extend 60 km (37 mi) from 
southeast to northwest along the eastern half of the island. The 
windward (northeast) slope of these mountains is characterized by steep 
cliffs and short ridges less than 6 km (4 mi) long. Leeward ridges as 
long as 18 km (11 mi) parallel one another to the southwest and west; 
alternating with steep-sided stream valleys. The peak elevation in the 
Koolau Mountains occurs at Puu Konahua Nui (955 meters (m); 3,100 feet 
(ft)). The Waianae Mountains run from southeast to northwest in a 32 km 
(20 mi) arc along the western coast of Oahu. The steep cliffs of the 
Waianae Mountains are leeward facing (western slope); both windward and 
leeward ridges are less than 5 km (3 mi) in length. The peak elevation 
occurs at Kaala (1,230 m (4,000 ft)).
    In general, native forest vegetation on Oahu presently only occurs 
above elevations of about 500 m (1,600 ft). By 1900, most lower 
elevation forests had been cleared for agricultural and commercial use 
or were heavily invaded by introduced vegetation. Current habitats for 
Oahu elepaio occur in the Waianae Mountains and in the southern Koolau 
Mountains on Oahu in a variety of wet and dry forests, including those 
dominated by either native or alien tree species.
    The elepaio from the island of Oahu has been recognized as a 
distinct taxonomic entity since Stejneger first described the Oahu 
elepaio as Chasiempis ibidis in 1887. Wilson (1891) described the bird 
as C. gayi, but, as pointed out by Olson (1989), the epithet ibidis has 
priority over gayi. Various taxonomic treatments of the Hawaiian 
elepaio have described from one to six species and up to five 
subspecies (Sclater 1885, Stejneger 1887, Wilson and Evans 1890-1899, 
Wilson 1891, Rothschild 1892-1900, Henshaw 1902, Perkins 1903, 
MacCaughey 1919, Bryan and Greenway 1944, Pratt 1979 and 1980, Olson 
1989, Olson and James 1991). The taxonomy used in this proposed rule 
follows Pyle (1992) and recognizes only a single species of elepaio in 
Hawaii (Chasiempis sandwichensis) with three subspecies, each of which 
is endemic to a different island. The three island-specific subspecies 
of elepaio are--Kauai elepaio (C.s. sclateri Ridgeway 1882), Oahu 
elepaio (C.s. ibidis Stejneger 1887), and Hawaii elepaio (C. s. 
sandwichensis Gmelin 1789 (as cited in Pyle 1992)). These subspecies 
differ considerably in plumage coloration and somewhat in 
vocalizations, but are quite similar in ecology and behavior (Conant 
1977, Pratt 1980, VanderWerf 1993, and 1994).
    The Oahu elepaio is a member of the Old-World insect-eater family 
of birds (Muscicapidae) and is most likely related to the genus 
Monarcha (Mayr 1943, Conant 1977). The ancestors that gave rise to 
elepaio were probably of Melanesian origin with colonization of Hawaii 
occurring through Polynesia or Micronesia.
    The Oahu elepaio has long slender legs and a broad, soft bill, 
black in color and bordered with bristles. Body length is about 14.6 
centimeters (cm) (6 inches (in)). Adults are rusty brown above, with a 
contrasting rufous-chestnut eyebrow and a whitish eye-ring. The chin is 
white and the throat black, with some rufous-chestnut streaking on the 
upper breast; the belly is white. Adult males and females are similar 
in appearance. Two distinctive field marks of adults are the white wing 
bars and white rump, both of which are easily seen when the bird is in 
flight. Immature birds lack both the white rump and the black throat 
and are relatively uniform rusty brown on the head and neck. The chest 
is tinged with buff and the belly is white. The whitish eye-ring and 
bold white, black, and chestnut markings of the adults are also absent 
in immature birds (Pratt 1980).
    Comments by early naturalists indicate that the Oahu elepaio was 
once widespread in forested areas throughout Oahu at all elevations. 
Perkins (1903) remarked that ``the universal distribution over the 
islands they severally inhabit, from the lowest bounds to the uppermost 
edge of continuous forest, as well as their extreme abundance and 
obtrusive familiarity, has caused them to be noticed by many persons 
who have seen no other native bird.'' Bryan (1905) noted that the 
elepaio ``remains the most abundant Hawaiian species on the 
mountainside all the way from the sea to well up into the higher 
elevations,'' while MacCaughey (1919) wrote that ``the altitudinal 
range on Oahu is approximately from 800 feet to the highest summits.''
    However, even the earliest described historical range was likely to 
have been somewhat modified by habitat destruction, as noted by 
MacCaughey (1919) ``[o]riginally, when the forests covered much more of 
the lowlands than at present, and extended down to the strand in many 
districts, the elepaio was abundant at the lower levels * * *''. In 
spite of the descriptions of reduced range, naturalists were optimistic 
about the elepaio's chances for survival. In 1902, Henshaw (1902) wrote 
``it is probable that when most of the Hawaiian birds are extinct the 
elepaio will long continue to maintain itself in scarcely diminished 
numbers.'' MacCaughey (1919) wrote, ``[t]he one indigenous forest bird 
that appears to successfully withstand the devastating influences of 
``civilization'' is the Hawaiian flycatcher elepaio.'' Munro (1944) was 
similarly optimistic about the elepaio, reporting that ``[i]t is 
holding its own well in the Oahu forests from which so many of the 
native birds have long disappeared.''
    Early observations indicate that the Oahu elepaio was widely 
distributed and extremely abundant. Rothschild (1892) called the 
elepaio ``one of the

[[Page 53625]]

commonest, if not the commonest, of all the small native birds on 
Oahu.'' Similarly, Seale (1900) said the elepaio was ``the commonest 
native land bird to be found on the island.'' MacCaughey (1919) stated 
that it was ``the most abundant representative of the native woodland 
avifauna'' and ``abundant in all parts of its range,'' but Bryan (1905) 
found it to be ``much more frequently met with in the Waianae Mountains 
than in the Koolau range back of Honolulu,'' which may indicate that 
the species' optimum habitat is dry rather than wet forest.
    Based on the above range descriptions, the Oahu elepaio was 
historically very general in its habitat requirements, and at least 
some populations occupied all types of forest at most elevations. 
Several authors noted that elepaio reached their greatest abundance in 
valleys at middle elevations. For example, Seale (1900) said that ``its 
usual haunt is the densely wooded canons at an elevation of from [sic] 
800 to 1,300 feet.'' MacCaughey (1919) observed that the elepaio is ``a 
bird of the humid and mesophytic forests,'' and said it ``is most 
plentiful in the protected wooded ravines and on the valley slopes.''
    The generalized habitat requirements of the Oahu elepaio are also 
shown by its ability to forage (as a generalized insectivore) and nest 
in a variety of different plant species, including areas with non-
native vegetation. Perkins (1903) believed that ``to the changes 
wrought by civilization they are less susceptible than any other bird, 
and they may be seen feeding and even nesting in dense thickets of the 
introduced guava, or amongst masses of the prickly lantana, as 
contentedly as amongst the native vegetation.'' Conant (1977) studied a 
population that existed in a forest of entirely introduced plant 
species. The species shows extremely versatile foraging behavior and 
uses all available plant species and all heights in forests of native 
plant species (Conant 1981, VanderWerf 1993 and 1994).
    More recent information indicates that the Oahu elepaio still 
inhabits various types of forest. The Oahu elepaio appears to be most 
common in areas of alien and mixed native/alien forest having a tall 
tree canopy and well developed subcanopy and understory structure that 
supports high density insect populations, and in valleys at middle 
elevations. The species is much less numerous in scrubby vegetation on 
higher-elevation ridges and slopes, and does not frequent forests 
lacking a subcanopy or comprised of monotypes. The apparent preference 
for alien or mixed alien-native forest may be a reflection of their 
continued affinity for mid-elevation valleys, where disturbance has 
been greater and the majority of plants are introduced. Virtually all 
forests below 500 m (1,600 ft) have been degraded to the point that 
they now consist almost entirely of introduced vegetation. During an 
intensive bird survey of the central Koolau Mountains on Oahu in 1978, 
Shallenberger and Vaughn (1978) found the greatest abundance of elepaio 
in alien forests, particularly areas with kukui (Aleurites moluccana) 
and guava (Psidium guajava and P. cattleianum) trees, and in mixed 
alien-native forest. The occurrence of elepaio was lower in forests of 
entirely native species, primarily ohia (Metrosideros polymorpha) and 
koa (Acacia koa). The lesser abundance in native forest found by 
Shallenberger and Vaughn (1978) is unlikely to be a sampling artifact 
because the greatest effort was spent in areas of native forest. It is 
likely due to a preference for certain elevations and diverse forest 
structure rather than for certain plant species. The results of the 
Oahu forest bird survey (Hawaii State Division of Forestry and 
Wildlife, 1991), indicate that the current habitat types occupied by 
the Oahu elepaio appear to be similar to what Shallenberger and Vaughn 
(1978) reported.
    Conant (1995) has identified 598 separate observations of Oahu 
elepaio dating from 1883 through 1995. Many of these sightings occurred 
in the same location, but over a period of years. By consolidating 
observations made at the same location, it was possible to identify 83 
site-specific locations where elepaio had been seen. Sixty-nine of 
these sites (84 percent) have been revisited between 1990 and 1995. Of 
these revisited sites, only 31 (45 percent) still had elepaio present. 
These 31 extant sites are distributed among six isolated populations in 
the southern Koolau Mountains and the central Waianae Mountains. 
Further analysis of both these data and the writings of early 
naturalists indicates that the elepaio originally inhabited 75 percent 
of Oahu's land mass. By 1960, only 30 percent of the original habitat 
was still occupied. Fifteen years later, in 1975, the distribution had 
declined to 14 percent of the original distribution. In 1990, the Oahu 
elepaio occupied an area of 80 sq km (30 sq mi). This represents less 
than 8 percent of its original range (Conant 1995).
    While a collapse of the Oahu elepaio's range has clearly occurred, 
decline in population density in the remaining populations has been 
more difficult to determine. Williams (1987) examined the decline of 
Oahu elepaio using Christmas Bird Counts from 1944 through 1985. Using 
standardized data (one census per year with number of birds per hour of 
observation), he documented a clear downward trend in elepaio 
observations. The data show a sharp decline in Oahu elepaio 
observations beginning in the late 1950s and continuing through the 
1960s, when observations were one or fewer birds per observer hour, 
dropping to approximately 0.5 birds per observer hour after 1974.
    In their recent reports, Sherwood (1995) and Cowell (1995) called 
attention to the population estimate of 200 to 500 total Oahu elepaio 
made by the Hawaii Forest Bird Conservation Assessment and Management 
report (Ellis et al. 1992). This report stated that two subpopulations 
of Oahu elepaio exist, one in the Waianae Mountains and the other in 
the Koolau Mountains. However, more detailed data suggest that there 
are actually six smaller and geographically isolated populations, three 
in each of the mountain ranges. Ellis et al. (1992) estimated that 20 
percent of the population was in the Waianae Mountains and 80 percent 
in the Koolau Mountains. In terms of the areal range, 40 percent of the 
range is in the Waianae Mountains and 60 percent in the Koolau 
Mountains. In 1994, at least 79 Oahu elepaio were seen (Conant 1995). A 
systematic range-wide count of Oahu elepaio has not been made and the 
population estimate of 200 to 500 birds by Ellis and others (1992) 
remains the only range-wide estimate of numbers.
    The remaining six populations occur on lands owned by Federal, 
State, City and County of Honolulu, and private parties. Analysis of 
major land ownership patterns identify 48 percent of occupied elepaio 
areas in privately held lands, 25 percent federally owned or leased 
lands, 22 percent State-owned areas and 5 percent owned by city and 
county governments. Ownership patterns vary between the six 
populations. Two populations have greater than fifty percent private 
ownership within their ranges, three populations' ranges cover land 
primarily owned by the State, and one population has the majority of 
land under Federal ownership. Ninety-two percent of the current elepaio 
range occurs within State-designated Conservation Districts and 29 
percent of the range occurs within additional protected areas, 
including State Forest Reserves, State Natural Area Reserves, and The 
Nature Conservancy's Honouliuli Preserve. Only 8 percent of the elepaio 
range falls outside the Conservation District and protected areas.

[[Page 53626]]

Previous Federal Action

    The Service was petitioned by Mr. Vaughn Sherwood on March 22, 
1994, to list the Oahu elepaio as an endangered or threatened species 
with critical habitat. The November 15, 1994, Animal Notice of Review 
(59 FR 58991) classified the Oahu elepaio (C. s. gayi) as a category 1 
candidate. Category 1 candidates are those species for which the 
Service has sufficient data in its possession to support a listing 
proposal. On June 12, 1995 (60 FR 30827), the Service published a 90-
day petition finding stating that the petition presented substantial 
information such that listing may be warranted. Because C. s. gayi is a 
synonym of C. s. ibidis, this proposed rule constitutes the final 12-
month finding for the petitioned action.
    As announced in a notice published in the February 28, 1996, 
Federal Register (61 FR 7596), the designation of multiple categories 
of candidates has been discontinued, and only former category 1 species 
are now recognized as candidates for listing purposes. The listing 
priority numbers for candidate taxa range from 1 (highest priority) to 
12 (lowest priority) and are assigned by the Service based on the 
immediacy and magnitude of threats, as well as taxonomic status (48 FR 
43098).
    The Service published Listing Priority Guidance for Fiscal Years 
1998 and 1999 on May 8, 1998 (63 FR 25502). The guidance clarifies the 
order in which the Service will process rulemakings giving highest 
priority (Tier 1) to processing emergency rules to add species to the 
Lists of Endangered and Threatened Wildlife and Plants (Lists); second 
priority (Tier 2) to processing final determinations on proposals to 
add species to the Lists, processing new proposals to add species to 
the Lists, processing administrative findings on petitions (to add 
species to the Lists, delist species, or reclassify listed species), 
and processing a limited number of proposed or final rules to delist or 
reclassify species; and third priority (Tier 3) to processing proposed 
or final rules designating critical habitat. Processing of this 
proposed rule is a Tier 2 action. The Pacific Islands Ecoregion 
currently has no outstanding Tier 1 species; therefore, processing of 
Tier 2 activities is appropriate under the listing priority guidance. 
This rule has been updated by the Pacific Islands Ecosystem Office to 
reflect any changes in distribution, status and threats since the 
effective date of the listing moratorium.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal lists. A species may be determined to 
be an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1). These factors and their 
application to the Oahu elepaio are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Threats to the Oahu elepaio's habitat include habitat loss from 
development, habitat modification resulting from human activities, 
habitat damage by pigs and the spread of certain alien plants, such as 
the velvet tree (Miconia calvescens), which dramatically alter forest 
structure and/or diversity.
    Alteration of areas covered by forests, including changes in forest 
composition and forest structure and the resulting habitat loss has 
impacted the Oahu elepaio. Early Hawaiians significantly altered the 
native vegetation of Oahu, particularly in valleys used for taro 
cultivation. In uncultivated areas, trees were cut for firewood and 
construction, and fire was used to encourage the growth of grasses used 
for thatch (Kirch 1982). Destruction of the low-elevation forest 
resulted in the extinctions of numerous birds and land snails on Oahu 
(Olson and James 1982, Kirch 1982). After European contact in 1778, 
habitat loss accelerated and began to occur at higher elevations. The 
sandalwood trade, which played a key role for Oahu, required firewood, 
which completely eliminated native forests in the vicinity of Honolulu 
(Cuddihy and Stone 1990). From 1840 to about 1920, vast areas of low- 
and mid-elevation forest in Hawaii were cleared for sugarcane 
cultivation. By the 1970's, more than 100,000 ha (274,000 acres) were 
under sugarcane cultivation. In contrast to early Hawaiian cultivation 
that was largely concentrated in mesic valleys and plains, sugarcane 
cultivation displaced native forest in dry leeward areas and wide 
ridges and slopes such as the Leilehua Plateau between the Koolau and 
Waianae Mountains on Oahu. Between 1900 and 1950, pineapple cultivation 
on Oahu also resulted in a significant loss of native forests (Cuddihy 
and Stone 1990). While some of the areas cleared of native forest have 
either been replanted with exotic trees or regrown in alien vegetation, 
Gagne (1988) estimated that less than 20 percent of the land area on 
Oahu is now covered by forest, and less than 20 percent of that forest 
is native vegetation.
    Oahu is the population center of the Hawaiian Islands, with about 
40 percent of the State's population residing in Honolulu alone. The 
fastest growing areas on Oahu, however, are suburban areas and ``second 
cities.'' Development can have significant impacts on Oahu elepaio 
habitat through modification of forest structure and diversity. 
Although the majority of lands within the elepaio's range are within 
Conservation Districts and State Forest reserves, designation as such 
offers varying degrees of protection and may allow activities, such as 
construction of individual houses, forestry-related activities, hunting 
and recreational uses, which can be detrimental to the elepaio. Other 
types of development can also eliminate habitat. A portion of the H-3 
freeway completed in 1997 runs through Halawa Valley, the north ridge 
of which supports one population of the Oahu elepaio, and amenities 
such as golf courses may displace non-native forests used by the Oahu 
elepaio, particularly if the forest structure consists of tall canopy 
trees and dense, diverse understory vegetation.
    Military activities and related impacts on federally owned and 
leased lands also affect the Ohau elepaio. Oahu elepaio presently 
occupy the upper slopes of Makua Valley in and adjacent to the U.S. 
Army's Makua Military Reservation. The lower section of Makua Valley is 
used as a live firing range and the facility has a history of ordnance-
induced fires (Hawaii Heritage Program, 1994a). Prescribed burning 
occasionally results in large fires and along with construction of 
firebreaks, destroys elepaio habitat and potentially threatens the 
birds. A large part of the elepaio range in the eastern Waianae 
Mountains occurs on Schofield Barracks Military Reservation. Live 
firing also occurs in several areas of Schofield Barracks Military 
Reservation, and ordnance-induced fires pose a significant threat to 
the habitat of the Oahu elepaio (Hawaii Heritage Program, 1994b).
    Sus scrofa (pigs), originally native to Europe, Africa, and Asia, 
were first introduced to Hawaii by the Polynesian ancestors of 
Hawaiians, and later by western immigrants. The Hawaiian strain of pig 
was comparatively small, and seems to have had a minimal impact on the 
native forests. The European strain of pig escaped domestication and 
invaded primarily wet and mesic forests on Kauai, Oahu, Molokai, Maui, 
and Hawaii. These pigs

[[Page 53627]]

are large animals that threaten the continued existence of native 
plants and animals within these forest habitats. While foraging, pigs 
root and trample the forest floor, which promotes the establishment of 
alien plants in the newly disturbed soil. Pigs also disperse alien 
plant seeds through their feces and on their bodies, accelerating the 
spread of alien plants through native forest (Cuddihy and Stone 1990, 
Stone 1985), which may subsequently alter the structure and diversity 
of the forest necessary for the survival of the Oahu elepaio. Both a 
forest canopy and a diverse understory are important habitat components 
for the elepaio.
    Miconia calvescens (velvet tree) is a recently naturalized species 
native to tropical America. This species has become established on the 
islands of Hawaii, Maui, Oahu, and Kauai. This plant species has the 
potential to greatly disrupt forest canopy and understory structure and 
significantly alter biological diversity. Miconia calvescens is 
potentially the most invasive and damaging weed of rainforests of 
Pacific islands (Medeiros et al. 1997). In moist conditions, this plant 
grows rapidly (up to 15 m (49 ft) tall), tolerates shade, produces 
abundant seed that is effectively dispersed by birds and accumulates in 
a large, persistent seed-bank, and develops monospecific stands that 
eliminate understory plant species and subcanopy structure by shading 
and crowding (Medeiros et al. 1997). In Tahiti, it has become a 
dominant plant species in habitats similar to those of Hawaii (Almeda 
1990; Cuddihy and Stone, 1990.) Medeiros et al. (1997) states that 
Miconia calvescens now dominates the forest composition in 65 percent 
of the island through the establishment of large, monospecific stands. 
This plant is now naturalized on Oahu at three locations in the 
southeastern Koolau Mountain range, including Manoa Valley (Medeiros et 
al. 1997), where one population of the Oahu elepaio is located.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization is not known to threaten the Oahu elepaio.

C. Disease and Predation

    Disease and predation may have contributed to the decline of the 
Oahu elepaio (Sheila Conant, University of Hawaii, pers. comm., 1995). 
Although there is some indication that nests and eggs may be destroyed 
by rats (Rattus exulans, R. norwegicus, R. rattus) (Conant 1977), 
studies have yet to document the extent to which the Oahu elepaio is 
affected by predation by any of the small, ground-dwelling and/or 
arboreal predators, including the small Indian mongoose (Herpestes 
auropunctatus), feral cats (Felis domesticus), and rats. All of these 
predators were established long before the recent decline of the Oahu 
elepaio (Tomich 1986), but may have had a significant impact at the 
time of their initial introduction.
    Avian diseases have had a devastating effect on many endemic 
Hawaiian forest birds that seem to have little or no resistance to 
disease. Avian pox (Poxvirus avium) causes lesions on the feet, legs, 
and bills, and is transmitted by physical contact or through 
mosquitoes. Avian malaria (Plasmodium relictum capistranoae) is 
transmitted by the southern house mosquito (Culex quinquefasciatus) and 
clearly limits the lower elevational distribution of many Hawaiian 
forest birds (U.S. Fish and Wildlife Service 1984, Atkinson et al. 
1993). While the Oahu elepaio appears to be less affected than other 
species, the effect on this taxon could possibly contribute to the 
observed declines in range and abundance.

D. The Inadequacy of Existing Regulatory Mechanisms

    Currently, the Oahu elepaio is protected from taking by both State 
(Hawaii Revised Statutes (HRS), Sect. 13-124-3A) and Federal law 
(Migratory Bird Treaty Act of 1918, 16 U.S.C 703-712, 40 Stat. 755, as 
amended). These regulations protect the taxon from capture and 
collection (without appropriate permits) of individuals, nests and 
eggs. However, these regulations afford no protection to the habitat of 
the taxon.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Naturally occurring events, such as hurricanes, may affect the 
continued existence of the Oahu elepaio. Because the subspecies now 
exists as six small isolated populations, rather than one large, 
continuous, interbreeding population, a population decline could be 
exacerbated by random genetic, environmental, and demographic events. 
Small population size can reduce reproductive rates, increase rates of 
inbreeding and may result in the expression of deleterious recessive 
genes occurring in the population (inbreeding depression) and less 
future plasticity. Loss of genetic variability through genetic drift 
reduces the ability of small populations to cope with ecological and 
environmental stresses such as habitat modification, and alien species. 
If disease is a factor in the decline of the Oahu elepaio, the 
reproduction of any genetically-resistant individuals could be 
important to the survival of this taxon.
    If populations continue to decline and become extremely small, 
demographic events take on greater significance. For example, if 
weather events (e.g., El Nino episodes) cause reproductive failure for 
one or more years, and is followed by a period of high predation, a 
small population has less resiliency and may be extirpated. Another 
environmental factor that could cause large or total population loss is 
hurricanes, which may cause direct mortality, habitat destruction or 
modification, and promote the spread of invasive alien plants. Birds in 
the Hawaiian Islands have long endured hurricanes, but major hurricanes 
in concert with low population numbers and other factors could severely 
affect the Oahu elepaio.
    Introduction of alien species of plants and animals into Hawaii is 
a major continuing threat to all native flora and fauna. Competition, 
predation, and disease associated with alien introductions could 
significantly and negatively affect the remaining populations of Oahu 
elepaio. The threat of the accidental introduction of the brown tree 
snake (Boiga irregularis) from Guam, Saipan, or the Solomon Islands is 
of particular concern. The brown tree snake is an aggressive predator 
of birds that has caused a significant decline in avifauna on Pacific 
islands where this snake has been introduced. In December 1994, a live 
brown tree snake was found in a Schofield Barracks warehouse on the 
island of Oahu. This snake was associated with a shipment of U.S. Army 
materials from Tinian via Guam.
    A likely factor contributing to the decline of the Oahu elepaio is 
competition with recently introduced birds. The Japanese white-eye 
(Zosterops japonicus) was introduced to Hawaii in the 1930's. It was 
still expanding its range into remote areas within the last two decades 
and is now probably the most abundant bird in Hawaii (Pratt et al. 
1987). Scott et al. (1986) demonstrated that the Japanese white-eye was 
the primary factor contributing to negative correlations between the 
distributions of native and introduced birds, including elepaio. 
Elepaio have frequently been known to defend territories against 
Japanese white-eye (Conant 1975). Japanese bush-warblers (Cettia 
diphone) were also introduced to Oahu in the 1930's (Pratt et al. 1987) 
but for many years were uncommon and restricted to the Waianae 
Mountains (Bob Pyle, Bishop

[[Page 53628]]

Museum, pers. comm., 1995). In recent decades, however, the Japanese 
bush-warbler has expanded its range to occupy most of Oahu's forested 
areas and is now very abundant. Thus, the expansion of the bush-warbler 
also roughly corresponds with the recent decline of the elepaio (Pyle, 
pers. comm., 1995). The bush warbler is also an insectivore that 
forages in the understory and is a likely competitor of the Oahu 
elepaio. The red-vented bulbul (Pycnonotus cafer) was introduced to 
Oahu in 1965, greatly increasing in numbers after 1970 (Williams 1987) 
and is now extremely abundant in forested habitats. While primarily a 
fruit-eater, red-vented bulbuls take insect prey (Sheila Conant, pers. 
comm., 1995) and are a particularly aggressive species, known to chase 
other birds (Berger 1981).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this taxon in determining to propose this rule. 
Based on this evaluation, the preferred action is to list the Oahu 
elepaio as endangered. The most recent estimates indicate that the Oahu 
elepaio numbers no more than 200 to 500 individuals, occurring in six 
small and geographically isolated populations (Ellis et al. 1992). This 
bird is threatened by--habitat degradation and loss, including habitat 
fragmentation due primarily to human impacts; competition with 
introduced birds; disease, including avian pox and malaria; and 
possible predation by non-indigenous mammals. Small total population 
size, limited distribution, and population fragmentation make this 
taxon particularly vulnerable to reduced reproductive vigor and the 
effects of naturally occurring events. Because the Oahu elepaio is in 
danger of extinction throughout all or a significant portion of its 
range, it fits the definition of endangered as defined in the Act. 
Therefore, the determination of endangered status for the Oahu elepaio 
is appropriate.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) 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 (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection and; (ii) 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. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for C. s. 
ibidis. Service regulations (50 CFR 424.12(a)(1)) state that 
designation of critical habitat is not prudent when one or both of the 
following situations exist--(1) the species is threatened by taking or 
other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    Critical habitat designation for C. s. ibidis is not prudent due to 
lack of benefit. There are only 200-500 of these birds remaining, all 
of which are restricted to six geographically isolated populations 
occupying a total area of about 80 sq km (30 sq mi). As discussed in 
the ``Background'' section of this rule, within this restricted range, 
the Oahu elepaio has a preference for certain elevations and forest 
structure. These forest birds are located on one island with less than 
20 percent of the land area now covered by forest, and less than 20 
percent of that forest is comprised of native vegetation. Therefore, 
the destruction or adverse modification of habitat within the 
restricted range of the Oahu elepaio would cause further reduction in 
the area available for this bird to feed, nest, breed, and rear young. 
In light of these facts, any action that would adversely modify 
critical habitat also would be likely to jeopardize the continued 
existence of the the Oahu elepaio. The designation of critical habitat 
therefore would not provide additional benefit for the Oahu elepaio 
beyond the protection afforded by listing.
    Critical habitat receives consideration under section 7 of the Act 
with regard to actions carried out, authorized, or funded by a Federal 
agency. Federal agencies are required to ensure that their actions do 
not jeopardize the continued existence of a species or result in 
destruction or adverse modification of critical habitat. However, both 
jeopardizing the continued existence of a species and adverse 
modification of critical habitat have similar standards and thus 
similar thresholds for violation of section 7 of the Act. Federal 
involvement is most likely in two situations--(1) where the species 
occurs on Federal lands and (2) when a Federal agency is involved in 
authorizing or funding actions on non-Federal lands. One quarter of the 
current range of the Oahu elepaios' range is Federally owned or leased. 
Furthermore, designation of critical habitat may affect non-Federal 
lands only where a Federal nexus exists. The designation of critical 
habitat on private or State lands provides no additional benefit for 
the Oahu elepaio over that provided as a result of listing when there 
are no Federal nexus actions taking place. Designating critical habitat 
does not create a management plan for the areas where the listed 
species occurs; does not establish numerical population goals or 
prescribe specific management actions (inside or outside of critical 
habitat); and does not have a direct effect on areas not designated as 
critical habitat.
    All involved Federal, State, City, County and private landowners 
have been notified of the importance of protecting the habitat of the 
remaining populations of the Oahu elepaio. The Service believes that 
Federal involvement in the areas where this bird occurs can be 
identified without the designation of critical habitat. Where Oahu 
elepaio are found on Federal lands, the agencies are aware of the 
species and are addressing conservation efforts (see ``Available 
Conservation Measures'' section below). Non-Federal landowners have 
also been appraised of the population locations and importance of 
protecting the bird and its habitat. Protection of the Oahu elepaio 
will be addressed through the section 4 recovery process and the 
section 7 consultation process. For the reasons discussed above, the 
Service finds that the designation of critical habitat for the C. s. 
ibidis is not prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. Recognition through listing encourages 
public awareness and results in conservation actions by Federal, State 
and private agencies, groups, and individuals. The Act provides for 
possible land acquisition and cooperation with states and requires that 
recovery actions be carried out for all listed species. The protection 
required of Federal agencies

[[Page 53629]]

and the prohibitions against certain activities involving listed 
animals are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify its critical habitat if any is designated. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency must enter into formal 
consultation with the Service.
    Federal agency actions that may require conference and/or 
consultation as described in the preceding paragraph includes--military 
activities, such as military training, troop movements, or fire 
resulting from the military's use of live ammunition during training, 
which take place on federally owned or leased lands; the involvement of 
the Army Corps of Engineers in projects subject to section 404 of the 
Clean Water Act and section 10 of the Rivers and Harbors Act of 1899 
such as the construction of roads, bridges, and dredging projects ; 
U.S. Environmental Protection Agency-authorized discharges under the 
National Pollutant Discharge Elimination System; U.S. Department of 
Agriculture/Natural Resources Conservation Service and U.S. Department 
of Housing and Urban Development projects; and other activities with a 
possible Federal nexus, such as golf course and firebreak construction.
    Several of the remaining populations of this bird are located on 
State land leased by the Federal government and utilized for military 
training, particularly by the U.S. Army. In the Waianae Mountains, 
those populations are found in the following areas--Pahole to Makaha, 
including both leeward and windward sides; Schofield to Palehua, on the 
windward side. In the Koolau Mountains, only a fraction of one elepaio 
population area (Aiea ridge south to the Kahauiki Stream) is under 
military control. Therefore, section 7 consultation will be required 
before any military activities, such as military training, troop 
movements, or use of live ammunition during training, that may impact 
the Oahu elepaio may take place.
    The Act and its implementing regulations set forth a series of 
general trade prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions, codified at 50 CFR 17.21, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect; or to attempt any of these), import or export, 
ship in interstate or commerce in the course of a commercial activity, 
or sell or offer for sale in interstate or foreign commerce any listed 
species. It is also illegal to possess, sell, deliver, carry, 
transport, or ship any such wildlife that has been taken illegally. 
Certain exceptions apply to agents of the Service and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22 and 17.23. Such permits 
are available for scientific purposes, to enhance the propagation or 
survival of the species, and/or for incidental take in the course of 
otherwise lawful activities. Requests for copies of the regulations 
regarding listed wildlife and inquiries about permits and prohibitions 
may be addressed to the U.S. Fish and Wildlife Service, Endangered 
Species Permits, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181 
(telephone 503-231-6241; facsimile 503-231-6243).
    At the time a species is proposed, it is the policy of the Service 
(59 FR 34272) to identify to the maximum extent practicable those 
activities that would or would not constitute a violation of section 9 
of the Act. The intent of this policy is to increase public awareness 
of the effect of the listing on proposed and ongoing activities within 
a species' range. Likely activities that the Service believes could 
potentially result in a violation of section 9 of the Act include, but 
are not limited to, the following: Road or firebreak construction, 
military troop training or other activities that disturb the normal 
behavior (e.g., breeding, nesting, feeding) of Oahu elepaio, or damage 
habitat used by the species. Activities that the Service believes would 
not likely result in a violation of section 9 of the Act include, but 
are not limited to, non-destructive activities in areas occupied by 
Oahu elepaio such as hiking, collecting plants for cultural usage 
(e.g., hula halau), and hunting game animals. Activities that occur 
under a valid incidental take permit issued through a section 7 
consultation or section 10 HCP permit would not violate section 9.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Act should be directed to the Manager of 
the Pacific Islands Ecoregion (see ADDRESSES section).
    If the Oahu elepaio were given Federal protection under the Act, 
the State of Hawaii Endangered Species Act (HRS, Sect. 195D-4(a)) would 
be automatically invoked, prohibiting taking and encouraging 
conservation by State government agencies. State regulations prohibit 
the removal, destruction, or damage of any federally listed animals 
found on State lands. Hawaii's Endangered Species Act states, ``Any 
species of aquatic life, wildlife, or land plant that has been 
determined to be an endangered species pursuant to the Act shall be 
deemed to be an endangered species under the provisions of this chapter 
and any indigenous species of aquatic life, wildlife, or land plant 
that has been determined to be a threatened species pursuant to the Act 
shall be deemed to be a threatened species under the provisions of this 
chapter.'' Further, the State may enter into agreements with Federal 
agencies to administer and manage any area required for the 
conservation, management, enhancement, or protection of endangered 
species (HRS, Sect. 195D-5(c)). Funds for these activities could be 
made available under section 6 of the Act (State Cooperative 
Agreements). Thus, the Federal protection afforded to the Oahu elepaio 
by listing as an endangered species will be reinforced and supplemented 
by protection under State law.

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments are 
particularly sought concerning:
    (1) biological, commercial, or other relevant data concerning any 
threat (or lack thereof) to this taxon;
    (2) the location of any additional populations of this species and 
the reasons why habitat should or should not be determined to be 
critical habitat pursuant to section 4 of the Act;

[[Page 53630]]

    (3) additional information concerning the range, distribution, and 
population size of this species; and
    (4) current or planned activities in the subject area and their 
possible impacts on this species.
    Final promulgation of the regulation(s) on this species will take 
into consideration the comments and any additional information received 
by the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of this proposal in the Federal Register. Such requests 
must be made in writing and be addressed to the Pacific Islands 
Ecoregion Manager (see ADDRESSES section).
    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain technical language or jargon that 
interferes with its clarity? (3) Does the format of the notice 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Is the description of the notice in the 
Supplementary Information section of the preamble helpful in 
understanding the notice? What else could we do to make the notice 
easier to understand?
    Send a copy of any comments that concern how we could make this 
regulation easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may also e-mail the comments to this address: 
E[email protected]

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, as defined under the 
authority of the National Environmental Policy Act of 1969, need not be 
prepared in connection with regulations adopted pursuant to section 
4(a) of the Endangered Species Act of 1973, as amended. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. For additional information concerning 
permit and associated requirements for threatened species, see 50 CFR 
17.32.

References Cited

    A complete list of all references and data cited herein, is 
available upon request from the Pacific Islands Ecoregion (see 
ADDRESSES section).
    Author. The primary author of this proposed rule is Loyal A. 
Mehrhoff, Pacific Islands Ecoregion (see ADDRESSES section). Recent 
data on the distribution and status of the Oahu elepaio were compiled 
by Dr. Sheila Conant of the University of Hawaii.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend Sec. 17.11(h) by adding the following, in alphabetical 
order under BIRDS, to the List of Endangered and Threatened Wildlife to 
read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                     Vertebrate
--------------------------------------------------------                         population where                                   Critical    Special
                                                            Historic range         endangered or         Status      When listed    habitat      rules
           Common name                Scientific name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   *                  *                  *                  *                  *                  *                  *
              Birds
                   *                  *                  *                  *                  *                  *                  *
Elepaio, Oahu....................  Chasiempis            U.S.A.(HI)..........  Entire..............  E                                     NA         NA
                                    sandwichensis
                                    ibidis.
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 53631]]

    Dated: September 29, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-26736 Filed 10-5-98; 8:45 am]
BILLING CODE 4310-55-P