[Federal Register Volume 66, Number 109 (Wednesday, June 6, 2001)]
[Proposed Rules]
[Pages 30372-30396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14171]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG99


Endangered and Threatened Wildlife and Plants; Proposed 
Determination of Critical Habitat for the O`ahu `Elepaio

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U. S. Fish and Wildlife Service (Service), propose 
designation of critical habitat for the O`ahu `elepaio, a bird, 
pursuant to the Endangered Species Act of 1973, as amended (Act). The 
proposed critical habitat consists of five units whose boundaries 
encompass a total area of approximately 26,853 hectares (ha) (66,354 
acres (ac)) on the island of O`ahu, Hawai`i.
    Critical habitat identifies specific areas, both occupied and 
unoccupied, that are essential to the conservation of a listed species 
and that may require special management considerations or protection. 
The primary constituent elements for the O`ahu `elepaio are those 
habitat components that are essential for the primary biological needs 
of foraging, nesting, rearing of young, intra-specific communication, 
roosting, dispersal, genetic exchange, or sheltering. All areas 
proposed as critical habitat for the O`ahu `elepaio contain one or more 
of the primary constituent elements.
    We solicit data and comments from the public on all aspects of this 
proposal, including data on economic and other impacts. We may revise 
this proposal to incorporate or address new information received during 
the comment period.

DATES:   

Comments

    We will consider comments from all interested parties received by 
August 6, 2001.

Public Hearings

    Requests for public hearing must be received by July 23, 2001.

ADDRESSES:

Comments

    Send written comments on this proposed rule to Paul Henson, Field 
Supervisor, Pacific Islands Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, Box 50088, 
Honolulu, Hawai`i 96850.

Availability of Documents

    Supporting documentation and references used in the preparation of 
this proposed rule and all comments and materials received will be 
available for public inspection, by appointment, during normal business 
hours in the Pacific Islands Fish and Wildlife Office in Honolulu at 
the above address.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Field Supervisor, or Eric 
VanderWerf, Biologist, U.S. Fish and Wildlife Service at the above 
address (telephone: 808/541-3441; facsimile: 808/541-3470).

SUPPLEMENTARY INFORMATION:

Background

    The Hawaiian archipelago consists of eight main islands and the 
numerous shoals and atolls of the northwestern Hawaiian Islands. The 
islands were formed sequentially by basaltic lava that emerged from a 
hot spot in the earth's crust located near the current southeastern 
coast of the island of Hawai`i (Stearns 1985). O`ahu, the third oldest 
main island, is 2.5 million to 3.5 million years old and is heavily 
weathered. O`ahu has two principal mountain ranges, the Ko`olau and the 
Wai`anae Mountains, separated by a gently sloping plateau. The Ko`olau 
Mountains extend 60 kilometers (km) (37 miles (mi)) from northwest to 
southeast along the eastern half of the island. The windward 
(northeastern) slope of these mountains is characterized by steep 
cliffs and short ridges less than 6 km (4 mi) long. The leeward 
(southwestern) slope is characterized by parallel ridges as long as 18 
km (11 mi), alternating with steep-sided stream valleys. The peak 
elevation in the Ko`olau Mountains occurs at Pu`u Konahua-nui (955 
meters (m); 3,105 feet (ft)). The drier Wai`anae Mountains run from 
northwest to southeast in a 32-km (20-mi) arc along the western half of 
O`ahu, in the rainshadow of the Ko`olau Range. Both the windward and 
leeward slopes of the Wai`anae Mountains are characterized by steep 
cliffs and ridges less than 5 km (3 mi) in length. The peak elevation 
occurs at Mt. Ka`ala (1,230 m; 4,025 ft). Approximately 36 percent 
(134,300 acres) of O`ahu is forested (Buck et al. 1988). Of these 
forested lands, approximately 49 percent is primarily native forest 
dominated by koa (Acacia koa) and `ohi`a (Metrosideros polymorpha), 
with the remainder, 51 percent, dominated by introduced species, e.g., 
common guava (Psidium guajava), strawberry guava (P. cattleianum), 
christmasberry (Schinus terebinthifolius), mango (Mangifera indica), 
and several species of eucalypts (Buck et al. 1988).
    The O`ahu `elepaio (Chasiempis sandwichensis ibidis) is a small 
forest-dwelling bird (12.5 grams (0.43 ounces)) average weight; 15 
centimeters (6 inches) total body length), and is a member of the 
monarch flycatcher family Monarchidae (VanderWerf 1998). It is dark 
brown above and white below, with light brown streaks on the breast. 
The tail is long (6.5 cm, 2.6 in.) and often held up at an angle. 
Adults have conspicuous white wing bars, a white rump, and white tips 
on the tail feathers. The throat is white with black markings in both 
sexes, but males tend to have more black than females, especially on 
the chin. Juveniles and subadults are rufous above and on the breast, 
with a white belly and rusty wing-bars. The bill is medium-length, 
straight, and black, with the base of the lower mandible bluish-gray in 
adults

[[Page 30373]]

and yellow in juveniles. The legs and feet are dark gray and the iris 
is dark brown. Males average approximately 10 percent larger than 
females in wing length, tarsus length, and weight, but bill length does 
not differ between the sexes (VanderWerf 1998).
    Three subspecies of `elepaio are recognized, each endemic to a 
single island: The O`ahu `elepaio; the Hawai`i `elepaio (Chasiempis 
sandwichensis sandwichensis); and the Kaua`i `elepaio (C. s. sclateri). 
The forms on different islands are similar in ecology and behavior, but 
differ somewhat in coloration and vocalizations (Conant 1977, van Riper 
1995, VanderWerf 1998). The taxonomy used in this rule follows Pratt et 
al. (1987) and Pyle (1997), in which all forms are regarded as 
subspecies, but the form on each island was originally described as a 
separate species. The O`ahu form was known as C. s. gayi (Wilson 1891) 
until Olson (1989) pointed out that the epithet ibidis (Stejneger 1887) 
has priority. The `elepaio comprises a monotypic genus that is endemic 
to the Hawaiian archipelago (VanderWerf 1998). Its closest relatives 
are other monarch flycatchers from the Pacific region (Pratt et al. 
1987, Sibley and Ahlquist 1985).
    O`ahu `elepaio occur in a variety of forest types, but are most 
common in riparian vegetation along streambeds and in mesic forest with 
a tall canopy and a well-developed understory (Shallenberger and Vaughn 
1978, VanderWerf et al. 1997). Population density is roughly 50 percent 
lower in shorter dry forest on ridges (VanderWerf et al. 1997). They 
are not currently found in very wet, stunted forest on windswept 
summits or in very dry shrub land, but these areas may be used by 
individuals dispersing among populations. Forest structure appears to 
be more important to `elepaio than plant species composition 
(VanderWerf et al. 1997), and unlike many Hawaiian forest birds, 
`elepaio have adapted well to disturbed forest composed of introduced 
plants (Conant 1977, VanderWerf et al. 1997, VanderWerf 1998). Fifty-
five percent of the current range is dominated by introduced plants and 
45 percent is dominated by native plants (Hawai`i Heritage Program 
1991). This observation does not imply that `elepaio prefer introduced 
plant species, but simply reflects a preference by `elepaio for 
riparian vegetation in valleys and the high degree of habitat 
disturbance and abundance of introduced plants in riparian areas 
(VanderWerf et al. 1997). Of the 45 percent dominated by native plants, 
23 percent is categorized as wet forest, 17 percent as mesic forest, 
and 5 percent as dry forest, shrub land, and cliffs (Hawai`i Heritage 
Program 1991).
    Plant species composition in `elepaio habitat varies considerably 
depending on location and elevation, but some of the most common native 
plants in areas where `elepaio occur are `ohi`a, papala kepau (Pisonia 
umbellifera), lama (Diospyros sandwicensis), mamaki (Pipturus albidus), 
kaulu (Sapindus Oahuensis), hame (Antidesma platyphyllum), and `ala 
Pouteria sandwicensis), and some of the most common introduced plants 
are guava, strawberry guava, kukui (Aleurites moluccana), mango, 
Christmasberry, and ti (Cordyline terminalis) (VanderWerf et al. 1997, 
VanderWerf 1998).
    The current population of O`ahu `elepaio is approximately 1,982 
birds distributed in six core subpopulations and several smaller 
subpopulations (Table 1, Figure 1; VanderWerf et al. in press). The 
only previous population estimate (200-500 birds; Ellis et al. 1992) 
was not accurate because little information was available when the 
estimate was made. The number of birds is divided about evenly between 
the Wai`anae Mountains in the west and the Ko`olau Mountains in the 
east, with three core subpopulations in each mountain range. At least 
10 tiny remnant subpopulations consisting mostly or entirely of males 
remain in both the Wai`anae and Ko`olau mountains (Table 1). These 
subpopulations were much larger or continuous with other subpopulations 
in the past, but because of their very small size, skewed sex ratio, 
and geographic isolation, these relicts likely will disappear in a few 
years as the last adults die.
    The breeding population, about 1,774 birds, is less than the total 
population because of a male-biased sex ratio; only 84 percent of 
territorial males have mates in large populations (n = 147, E. 
VanderWerf unpubl. data), and many small, declining populations contain 
mostly males (Table 1). The effective population size is probably even 
smaller than the breeding population because of the geographically 
fragmented distribution (Grant and Grant 1992). Natal dispersal 
distances in elepaio are usually less than one km (0.62 mi) and adults 
have high site fidelity (VanderWerf 1998), but most elepaio populations 
on O`ahu are separated by many kilometers of unsuitable urban or 
agricultural habitat. There may be some exchange among subpopulations 
within each mountain range, but dispersal across the extensive 
pineapple fields that separate the Wai`anae and Ko`olau mountains is 
unlikely. While the current distribution superficially appears to 
constitute a metapopulation, it is uncertain if dispersal occurs among 
subpopulations.

   Table 1.--Estimated Size and Area of O`ahu `Elepaio Subpopulations
      [Data from VanderWerf et al. (in press). Letters before each
             subpopulation correspond to those on Figure 1.]
------------------------------------------------------------------------
                                      Total       Breeding
          Subpopulation             population   population   Area  (ha)
                                       size         size
------------------------------------------------------------------------
Wai`anae Mountains:
    A. southern Wai`anae                   458          418        1,170
     (Honouliuli Preserve,
     Lualualei Naval Magazine)...
    B. Schofield Barracks West             340          310          532
     Range.......................
    C. Makaha, Wai`anae Kai                123          112          459
     Valleys.....................
    D. Pahole, Kahanahaiki.......           18            4          256
    E. Schofield Barracks South              6            0           20
     Range.......................
    F. Makua Valley..............            7            2           49
    G. Ka`ala Natural Area                   3            0           21
     Reserve.....................
    H. Makaleha Gulch............            2            0            7
    I. Kuaokala..................            3            2           14
    J. Kaluakauila Gulch.........            1            0            6
Ko`olau Mountains:
    K. southern Ko`olau (Pia,              475          432        1,063
     Wailupe, Kapakahi,
     Kuli`ou`ou, Wai`alae Nui)...
    L. Waikane, Kahana Valleys...          265          242          523
    M. central Ko`olau (Moanalua,          226          206        1,396
     north and south Halawa,
     `Aiea, Kalauao).............

[[Page 30374]]

 
    N. Palolo Valley.............           46           42           78
    O. Waihee Valley.............            5            4           32
    P. Manoa.....................            2            0           19
    Q. Hau`ula...................            1            0            4
    R. Waianu Valley.............            1            0            8
                                  --------------------------------------
      Total......................        1,982        1,774        5,657
------------------------------------------------------------------------

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    Before humans arrived, forest covered about 127,000 ha (313,690 ac) 
on O`ahu (Figure 2; Hawai`i Heritage Program 1991), and it is likely 
that `elepaio once inhabited much of that area (VanderWerf et al. in 
press). Reports by early naturalists indicate that `elepaio were once 
widespread and abundant on O`ahu. Bryan (1905) called the O`ahu 
`elepaio ``the most abundant Hawaiian species on the mountainside all 
the way from the sea to well up into the higher elevations.'' Perkins 
(1903) remarked on its ``universal distribution * * *, from the lowest 
bounds to the uppermost edge of continuous forest.'' Seale (1900) 
stated the `elepaio was ``the commonest native land bird to be found on 
the island,'' while MacCaughey (1919) described it as ``the most 
abundant representative of the native woodland avifauna'' and 
``abundant in all parts of its range.'' The historical range of the 
O`ahu `elepaio thus apparently included most forested parts of the 
island, and it was formerly abundant.
    Despite its adaptability, the O`ahu `elepaio has seriously declined 
since the arrival of humans, and it has disappeared from many areas 
where it was formerly common (Shallenberger 1977, Shallenberger and 
Vaughn 1978, Williams 1987, VanderWerf et al. 1997). The aggregate 
geographic area of all current subpopulations is approximately 5,657 ha 
(13,972 ac; Table 1). The O`ahu `elepaio thus currently occupies only 
about 4 percent of its original prehistoric range, and its range has 
declined by roughly 96 percent since humans arrived in Hawai`i 1,600 
years ago (Kirch 1982). In 1975, `elepaio inhabited approximately 
20,900 ha (51,623 ac) on O`ahu, almost four times the area of the 
current range (Figure 2; VanderWerf et al. in press). The range of the 
O`ahu `elepaio has thus declined by roughly 75 percent in the last 25 
years.
    Much of the historical decline of the O`ahu `elepaio can be 
attributed to habitat loss, especially at low elevations. Fifty-six 
percent of the original prehistoric range has been developed for urban 
or agricultural use, and practically no `elepaio remain in developed 
areas (VanderWerf et al. in press).

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    However, many areas of O`ahu that recently supported `elepaio and 
still contain apparently suitable forest habitat are currently 
unoccupied, demonstrating that habitat loss is not the only threat. 
Recent declines in O`ahu `elepaio populations are due to a combination 
of low adult survival and low reproductive success. Both annual adult 
survival and reproductive success are lower on O`ahu (0.76, 0.33, 
respectively) than in a large, stable population of another subspecies 
of `elepaio at Hakalau Forest National Wildlife Refuge on Hawai`i 
Island (0.85, 0.62; VanderWerf 1998). The main cause of reduced adult 
survival on O`ahu appears to be diseases, particularly avian pox 
(Poxvirus avium) and avian malaria (Plasmodium relictum), which are 
carried by the introduced southern house mosquito (Culex 
quinquefasciatus). Annual survival of birds with active avian pox 
lesions (60 percent) was lower than annual survival of healthy birds 
(80 percent; E. VanderWerf unpubl. data). Malaria is a serious threat 
to many Hawaiian forest birds (Warner 1968, van Riper et al. 1986, 
Atkinson et al. 1995), but its effect on `elepaio has not been 
investigated.
    The primary reason for low reproductive success is nest predation 
by the introduced black rat (Rattus rattus). An experiment in which 
automatic cameras were wired to artificial `elepaio nests containing 
quail eggs showed that a black rat was the predator in all 10 predation 
events documented (VanderWerf in press). Control of rats with snap 
traps and diphacinone (an anticoagulent rodenticide) bait stations was 
effective at improving `elepaio reproductive success, resulting in an 
85 percent increase in nest success and a 127 percent increase in 
fledglings per pair compared to control areas (VanderWerf 1999). 
Reproductive success of `elepaio is also affected by disease. Pairs in 
which at least one bird had pox lesions produced fewer fledglings than 
healthy pairs or those in which at least one bird had recovered from 
pox (E. VanderWerf, unpubl. data). Many birds with active pox did not 
even attempt to nest, and infected birds were sometimes deserted by 
their mate.
    A comprehensive treatment of the life history and ecology of the 
`elepaio is provided by VanderWerf (1998), from which much of the 
information below is taken. `Elepaio are non-migratory and defend all-
purpose territories year-round. The average territory size on O`ahu was 
2.0 ha (4.94 ac) in forest composed of introduced plant species (Conant 
1977), but territory size likely varies with vegetation structure. 
Population density on O`ahu was 50 percent lower in short forest on 
ridges than in tall riparian forest along streambeds (VanderWerf et al. 
1997), and for the related subspecies on Hawai`i, territory size was 50 
percent larger in more disturbed forest with an open canopy and grass 
understory.
    O`ahu `elepaio are socially monogamous, and approximately 63 
percent of pairs remain together each year (E. VanderWerf, unpubl. 
data). Site fidelity is high, with 96 percent of males and 67 percent 
of females remaining on the same territory from year to year. Annual 
survival of healthy adults is high, approximately 85 percent in males 
and 70 percent in females (E. VanderWerf, unpubl. data). Young birds 
wander (or float) while they attempt to acquire a territory and a mate.
    The nesting season usually extends from mid February-May, but 
active nests have been found from January-July (VanderWerf 1998). Nest 
site selection is not specialized, and nests have been found in a 
variety of plants, including 6 native species and 13 introduced species 
(E. VanderWerf, unpubl. data). The nest is a finely-woven, free-
standing cup made of rootlets, bark strips, leaf skeletons, lichen, and 
spider silk, and is placed in a fork or on top of a branch (Conant 
1977, VanderWerf 1998). Both sexes participate in all aspects of 
nesting, but the female plays a larger role in nest building and the 
male provides more food for the nestlings. Clutch size is 1 to 3 eggs, 
usually 2, and eggs hatch after 18 days. The nestling period is 16 
days. Fledglings are fed by their parents for more than a month after 
leaving the nest, and may remain in the natal territory for up to 9 
months, until the start of the next breeding season. Fecundity 
(reproductive rate) is low; even if nest predators are removed the mean 
number of fledglings per pair is 0.75 per year (VanderWerf 1999). O`ahu 
`elepaio will re-nest once or twice after failure, but they rarely 
attempt to re-nest if the first nest is successful. Other than 
introduced predators, storms with heavy rain and strong winds are the 
most common cause of nest failure.
    The diet and foraging behavior of `elepaio are extremely varied. 
The diet consists of a wide range of arthropods, particularly insects 
and spiders, and includes introduced species such as fruit flies 
(Tephritidae; VanderWerf 1998). Large prey, such as moths and 
caterpillars, are beaten against a branch before being eaten. In a 
study on Hawai`i Island, VanderWerf (1993, 1994) found that `elepaio 
foraged at all heights on all available plant species, and that they 
caught insects from a variety of substrates, including the ground and 
fallen logs (2 percent), trunks (5 percent), branches (24 percent), 
twigs (38 percent), foliage (20 percent), and in the air (11 percent). 
`Elepaio are versatile and agile in pursuit of prey, using a diversity 
of foraging behaviors that is among the highest recorded for any bird, 
including perch-gleaning (48 percent), several forms of flight-gleaning 
(30 percent), hanging (11 percent), aerial flycatching (7 percent), and 
active pursuit (4 percent) (VanderWerf 1994).

Previous Federal Action

    We were petitioned by Mr. Vaughn Sherwood on March 22, 1994, to 
list the O`ahu `elepaio as an endangered or threatened species with 
critical habitat. The November 15, 1994, Animal Notice of Review (59 FR 
58991) classified the O`ahu `elepaio (then Chasiempis sandwichensis 
gayi) as a category 1 candidate. Category 1 candidates were those 
species for which we had sufficient data in our possession to support a 
listing proposal. On June 12, 1995 (60 FR 30827), we published a 90-day 
petition finding stating that the petition presented substantial 
information that listing may be warranted. On February 28, 1996 (61 FR 
7596), and September 19, 1997 (62 FR 49398), we published notices 
discontinuing candidate category designations, and the O`ahu `elepaio 
was listed as a candidate species. Candidate species are those for 
which we have on file sufficient information on biological 
vulnerability and threats to support proposals to list as threatened or 
endangered. On October 6, 1998 (63 FR 53623), we published the proposed 
rule to list the O`ahu `elepaio as an endangered species. Because C. s. 
gayi is a synonym of C. s. ibidis, the proposed rule constituted the 
final 12-month finding for the petitioned action. On April 18, 2000 (65 
FR 20760), we published the final rule to list the O`ahu `elepaio as an 
endangered species.
    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 
a species is determined to be endangered or threatened. Our regulations 
(50 CFR 424.12(a)(1)) also 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 activity and the 
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

[[Page 30379]]

to the species. In the proposed listing rule we indicated that 
designation of critical habitat for the O`ahu `elepaio was not prudent 
because we believed a critical habitat designation would not provide 
any additional benefit beyond that provided through listing as 
endangered. Based partly on comments we received on the proposed 
listing rule and on recent court rulings which address the prudency 
standard, in the final listing rule we determined that a critical 
habitat designation for the O`ahu `elepaio was prudent because such a 
designation could benefit the species beyond listing as endangered by 
extending protection under section 7 of the Act to currently unoccupied 
habitat and by providing informational and educational benefits.
    Although we determined in the final listing rule that critical 
habitat designation for the O`ahu `elepaio would be prudent, we also 
indicated in the final listing rule that we were not able to develop a 
proposed critical habitat designation for the O`ahu `elepaio at that 
time due to budgetary and workload constraints. However, on June 28, 
2000, the United States District Court for the District of Hawai`i 
established, in the case of Conservation Council for Hawai`i v. 
Babbitt, CIV. NO. 00-00001 HG-BMK, a timetable to designate critical 
habitat for the O`ahu `elepaio, and ordered that the Service publish 
the final critical habitat designation by October 31, 2001. This 
proposed rule responds to the court's order.
    On November 9, 2000, we mailed letters to 32 landowners on O`ahu 
informing them that the Service was in the process of designating 
critical habitat for the O`ahu `elepaio and requesting from them 
information on management of lands that currently or recently (within 
the past 25 years) supported O`ahu `elepaio. The letters contained a 
fact sheet describing the O`ahu `elepaio and critical habitat, a map 
showing the historic and current range of the O`ahu `elepaio, and a 
questionnaire designed to gather information about land management 
practices, which we requested be returned to us by November 27, 2000. 
We received 11 responses to our landowner mailing with varying types 
and amounts of information on current land management activities. Some 
responses included detailed management plans, provided new information 
on locations where `elepaio have been observed recently, and described 
management activities such as fencing, hunting, public access, fire 
management, methods for controlling invasive weeds and introduced 
predators, and collaboration with conservation researchers. In 
addition, we met with several landowners and managers, including the 
U.S. Army and the Hawai`i State Division of Forestry and Wildlife, to 
obtain more specific information on management activities and 
suitability of certain habitat areas for `elepaio. The information 
provided in the responses and during meetings was considered and 
incorporated into this proposed rule.

Critical Habitat

    Critical habitat is defined in section 3, paragraph (5)(A) of the 
Act as--(i) the specific areas within the geographic 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 geographic 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,'' as defined by the Act, 
means the use of all methods and procedures that are necessary to bring 
an endangered or a threatened species to the point at which listing 
under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``the direct 
or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
adversely modifying any of those physical or biological features that 
were the basis for determining the habitat to be critical.'' Aside from 
the added protection that may be provided under section 7, the Act does 
not provide other forms of regulatory protection to lands designated as 
critical habitat. Because consultation under section 7 of the Act does 
not apply to activities on private or other non-Federal lands that do 
not involve a Federal nexus, critical habitat designation would not 
afford any additional protections under the Act against such 
activities.
    Critical habitat also provides non-regulatory benefits to the 
species by informing the public and private sectors of areas that are 
important for species recovery and where conservation actions would be 
most effective. Designation of critical habitat can help focus 
conservation activities for a listed species by identifying areas that 
contain the physical and biological features that are essential for 
conservation of that species, and can alert the public as well as land-
managing agencies to the importance of those areas. Critical habitat 
also identifies areas that may require special management 
considerations or protection, and may help provide protection to areas 
where significant threats to the species have been identified or help 
to avoid accidental damage to such areas.
    In order to be included in a critical habitat designation, the 
habitat must be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known and using 
the best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)). Section 3(5)(C) of the Act states that not all areas that 
can be occupied by a species be designated as critical habitat unless 
the Secretary determines that all such areas are essential to the 
conservation of the species. Our regulations (50 CFR 424.12(e)) also 
state that, ``The Secretary shall designate as critical habitat areas 
outside the geographic area presently occupied by the species only when 
a designation limited to its present range would be inadequate to 
ensure the conservation of the species.''
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude areas from critical 
habitat designation when the benefits of exclusion outweigh the 
benefits of including the areas within critical habitat, provided the 
exclusion will not result in extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published on July 1, 1994 (59 FR 34271), provides criteria, 
establishes procedures, and provides guidance to ensure that decisions 
made by the Service represent the best scientific and commercial data 
available. It requires that our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, use primary and original sources of information as the 
basis for

[[Page 30380]]

recommendations to designate critical habitat. When determining which 
areas are critical habitat, a primary source of information should be 
the listing rule for the species. Additional information may be 
obtained from a recovery plan, articles in peer-reviewed journals, 
conservation plans developed by states and counties, scientific status 
surveys and studies, and biological assessments or other unpublished 
materials (i.e., gray literature).
    Section 4 requires that we designate critical habitat based on what 
we know at the time of the designation. Habitat is often dynamic, 
however, and populations may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, all 
should understand that critical habitat designations do not signal that 
habitat outside the designation is unimportant or may not be required 
for recovery. Habitat areas outside the critical habitat designation 
will continue to be subject to conservation actions that may be 
implemented under section 7(a)(1) and to the regulatory protections 
afforded by the section 7(a)(2) jeopardy standard and the section 9 
take prohibition, as determined on the basis of the best available 
information at the time of the action. It is possible that federally 
funded or assisted projects affecting listed species outside their 
designated critical habitat areas could jeopardize those species. 
Similarly, critical habitat designations made on the basis of the best 
available information at the time of designation will not control the 
direction and substance of future recovery plans, habitat conservation 
plans, or other species conservation planning and recovery efforts if 
new information available to these planning efforts calls for a 
different outcome.

Methods

    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
Sec. 424.12), we used the best scientific information available to 
determine areas that contain the physical and biological features that 
are essential for the survival and recovery of the Oahu elepaio. This 
information included: peer-reviewed scientific publications (Conant 
1977; Banko 1981; VanderWerf 1993, 1994, 1998, in press; VanderWerf et 
al. 1997, in press); the final listing rule for the O`ahu `elepaio (65 
FR 20760); unpublished reports by the Hawaii State Division of Forestry 
and Wildlife (VanderWerf 1999); the Hawaii Natural Heritage Program 
database; the Sightings database from the Occurrence and Status of 
Birds in Hawaii project maintained at Bishop Museum in Honolulu; the 
Oahu Forest Bird Survey conducted in 1991 by the Hawaii State Division 
of Forestry and Wildlife; field trip reports in the Elepaio (journal of 
the Hawaii Audubon society); and responses to the Oahu elepaio critical 
habitat outreach package mailed to Federal, State, and private land 
managers and landowners.
    The distribution and abundance of the O`ahu `elepaio have declined 
seriously in the last few decades (Williams 1987; O`ahu `elepaio final 
listing rule, 65 FR 20760; VanderWerf et al. in press). The area 
currently occupied by the O`ahu `elepaio represents only about four 
percent of the species' original range, and the distribution has 
contracted into numerous small fragments (Figure 2). Moreover, the 
remaining elepaio subpopulations are small and isolated, comprising six 
core subpopulations that contain between 100 and 500 birds, and 
numerous small remnant subpopulations, most of which contain fewer than 
10 birds (Table 1). Even if the threats responsible for the decline of 
the elepaio were controlled, the existing subpopulations would be 
unlikely to persist because their small sizes make them vulnerable to 
extinction due to a variety of natural processes. Small populations are 
particularly vulnerable to reduced reproductive vigor caused by 
inbreeding depression, and they may suffer a loss of genetic 
variability over time due to random genetic drift, resulting in 
decreased evolutionary potential and ability to cope with environmental 
change (Lande 1988, IUCN 2001). Small populations are also 
demographically vulnerable to extinction caused by random fluctuations 
in population size and sex ratio and to catastrophes such as hurricanes 
(Lande 1988). Survival and reproduction of `elepaio are known to 
fluctuate among years in response to variation in disease prevalence 
and predator populations (VanderWerf 1998, 1999), possibly due to El 
Nino episodes and variation in rainfall, which may exacerbate the 
threats associated with small population size (Lande 1988).
    Elepaio are highly territorial; each pair defends an area of a 
certain size, depending on the forest type and structure, resulting in 
a maximum population density or carrying capacity (VanderWerf 1998). 
Although elepaio have declined island-wide and the range has 
contracted, density in the remaining core subpopulations is high, and 
much of the currently occupied land is at or near carrying capacity and 
cannot support many more `elepaio than it currently supports 
(VanderWerf et al. 1997, in press). Consequently, each of the currently 
occupied areas is too small to support an `elepaio population large 
enough to be considered safe from extinction. In order for the number 
of birds in each subpopulation to increase, additional land must be 
available for young birds to establish new territories and attract 
mates. The potential for expansion is especially important for the 
smallest subpopulations that currently contain only a few individuals. 
Because of their very small size and often skewed sex ratio, these tiny 
subpopulations are unlikely to persist more than a few generations if 
limited to the currently occupied area.
    Elepaio are also relatively sedentary; adults have high fidelity to 
their territory and juveniles rarely disperse more than one km (0.62 
mi) in search of a territory (VanderWerf 1998). Because the areas 
currently occupied by elepaio are separated from each other by many 
kilometers (Figure 1) and elepaio are unlikely to disperse long 
distances, the existing subpopulations probably are isolated 
(VanderWerf et al. in press). The O`ahu `elepaio evolved in an 
environment with large areas of continuous forest habitat covering much 
of the island (Figure 2), and their dispersal behavior is not adapted 
to a fragmented landscape. In the past, subpopulations were less 
isolated and dispersal and genetic exchange among different parts of 
the island probably was more frequent. Maintaining or restoring links 
among subpopulations by providing opportunities for dispersal would 
increase the overall effective population size through metapopulation 
interactions, thereby helping to alleviate the threats associated with 
small population size, and would better reflect the conditions under 
which the life history characteristics of dispersal evolved. In 
particular, enlargement of small subpopulations by expansion onto 
adjacent lands not only would increase the chances of their long-term 
survival, but also would improve connectivity among subpopulations by 
enhancing their value as ``stepping stones'' within the distribution of 
the entire population.
    Section 3(5)(A)(i) of the Act provides that areas outside the 
geographical area currently occupied by the species may meet the 
definition of critical habitat upon determination that they are 
essential for the conservation of the species. Because of the 
territorial nature of the O`ahu `elepaio, its small total population 
size, limited range, fragmented distribution, and resulting 
vulnerability to genetic, demographic,

[[Page 30381]]

and environmental threats, we find that inclusion of currently 
unoccupied areas identified as containing the primary constituent 
elements is essential to the conservation of the species. The final 
rule listing the O`ahu `elepaio as endangered emphasized that the 
``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'' (65 
FR 20760). Recovery will require restoration of `elepaio in areas that 
were formerly inhabited but that are not currently occupied, through 
natural dispersal, translocation, and/or release of captive birds. 
Unoccupied areas adjacent to currently occupied areas are needed for 
recovery to allow expansion of existing subpopulations and help 
alleviate the threats associated with small population size. Unoccupied 
lands linking subpopulations are needed for recovery to provide 
opportunities for dispersal among subpopulations and promote genetic 
exchange and metapopulation function. Specifically, each of the 
existing core populations in Pahole-Kahanahaiki, Makaha-Wai`anae Kai, 
Schofield Barracks West Range, the southern Wai`anae Mountains, the 
central leeward Ko`olau Mountains, Waikane-Kahana, and the southern 
leeward Ko`olau Mountains are small and isolated, and are unlikely to 
be viable on their own. The long-term chances for persistence of these 
subpopulations would increase if each subpopulation increased in size 
by expanding onto adjacent lands and if the connectivity among the 
subpopulations was enhanced by occasional dispersal of individuals 
across intervening lands.
    We determined the amount and spatial arrangement of critical 
habitat needed to support a viable population of O`ahu `elepaio. 
Because a recovery plan for the O`ahu `elepaio has not been completed 
yet, in making this determination we looked to the historical 
distribution of the O`ahu `elepaio for a model of a viable population. 
The best and most recent information available on the distribution of 
an apparently viable O`ahu `elepaio population is from 1975, when 
extensive surveys were conducted over much of the island (Shallenberger 
1977, Shallenberger and Vaughn 1978, Banko 1981). `Elepaio began 
declining on O`ahu before 1975 and had already disappeared from some 
parts of the island (Figure 2; Conant 1977, Williams 1987, VanderWerf 
et al. in press), but in 1975 the subpopulations were still relatively 
large and birds were distributed in two well-connected metapopulations, 
one in the Wai`anae Mountains and one in the Ko`olau Mountains. The 
areas occupied since 1975 also are likely to be most suitable for 
recovery because they supported `elepaio for a longer period. The 
number and distribution of O`ahu `elepaio in 1975 has allowed for the 
persistence of a population, albeit in a declining state, for more than 
25 years. We believe that active management of threats, including nest 
predation and disease, in areas reflecting the distribution in 1975 
would allow for long-term recovery. This approach is consistent with 
the approved recovery outline for the O`ahu `elepaio; if, after 
critical habitat for the O`ahu `elepaio is designated, a final approved 
recovery plan for Hawaiian forest birds calls for a different approach 
to the conservation of the O`ahu `elepaio, we will consider amending 
the critical habitat designation, subject to resource and workload 
priorities.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to consider those physical and biological 
features that are essential to the conservation of the species and that 
may require special management considerations and protection. Such 
features are termed Primary Constituent Elements, and include but are 
not limited to: space for individual and population growth and for 
normal behavior; food, water, air, light, minerals and other 
nutritional or physiological requirements; cover or shelter; sites for 
nesting and rearing of offspring; and habitats that are protected from 
disturbance and are representative of the historic geographical and 
ecological distributions of the species.
    `Elepaio are adaptable and able to forage and nest in a variety of 
forest types composed of both native and introduced plant species 
(Conant 1977, VanderWerf 1993, 1994, 1998). Nest site selection by 
`elepaio is non-specialized; nests have been found in seven native and 
13 introduced plant species (E. VanderWerf, unpubl. data). 
Shallenberger and Vaughn (1978) found the highest relative abundance of 
`elepaio in forest dominated by introduced guava and kukui trees, but 
they were also found in the following forest types (in order of 
decreasing abundance): mixed native-exotic; tall exotic; koa dominant; 
mixed koa-`hi'a; low exotic; `hi'a dominant; and `hi'a scrub. This 
distribution does not imply that `elepaio prefer introduced plant 
species, but probably reflects a preference by `elepaio for riparian 
vegetation in valleys and the high degree of habitat disturbance and 
abundance of introduced plants in riparian areas. VanderWerf et al. 
(1997) found that (1) forest structure was more important to `elepaio 
than plant species composition, (2) most birds occurred in areas with a 
continuous forest canopy and a dense understory, and (3) population 
density was roughly twice as high in tall riparian vegetation in 
valleys as in shorter forest on ridges. Fifty-five percent of the 
currently occupied area consists of forest dominated by introduced 
plant species, 23 percent is native wet forest, 17 percent is native 
mesic forest, and 5 percent is native dry forest and shrub land 
(VanderWerf et al. in press).
    The primary constituent elements required by the O`ahu `elepaio for 
foraging, sheltering, roosting, nesting, and rearing of young are found 
in undeveloped areas that support wet, mesic, and dry forest composed 
of both native and introduced plant species. Higher population density 
can be expected in tall, closed canopy riparian forest than in low 
scrubby forest on ridges and summits. In addition, the primary 
constituent elements associated with the biological needs of dispersal 
and genetic exchange among populations are found in undeveloped areas 
that support wet or dry shrub land and wet or dry cliff habitat. 
`Elepaio may not establish territories in shrub or cliff habitats and 
may use them only transiently, but areas containing these habitats are 
important for linking populations by facilitating dispersal and 
promoting genetic exchange.

Criteria Used To Identify Critical Habitat

    We used several criteria to identify and select lands proposed for 
designation as critical habitat. We began with all areas that are 
currently occupied by `elepaio, excluding one very small, isolated 
subpopulation at Hau`ula that contains only a single male (Figure 1; 
subpopulation Q). We then added unoccupied lands containing the primary 
constituent elements that were needed for conservation of the species. 
As discussed in greater detail in the Methods section, in deciding 
which unoccupied areas were needed for recovery we used the 
distribution of `elepaio in 1975 as a model of a viable population. 
Within this area of distribution in 1975 we gave preference to lands 
that (a) provided more preferred forest types, (b) were more recently 
occupied (since 1975), and (c) were contiguous and formed large

[[Page 30382]]

blocks of preferred habitat or provided links between areas of 
preferred habitat. We determined the boundaries of proposed critical 
habitat units by the extent of suitable forest containing the primary 
constituent elements, which in many areas coincided with the boundaries 
of State Forest Reserves, Natural Area Reserves, or other conservation 
lands. We did not include urban and agricultural lands because they 
generally do not contain the primary constituent elements and do not 
meet the definition of critical habitat. We included lower Wailupe 
Valley, however, which is zoned for urban use but has not yet been 
developed, because it contains the primary constituent elements and is 
currently occupied by `elepaio, and therefore meets the definition of 
critical habitat.
    We were unable to map the proposed critical habitat unit boundaries 
in sufficient detail to exclude all existing developed lands that do 
not contain the primary constituent elements. However, existing 
development features and structures within the boundaries of the mapped 
units, such as buildings, roads, aqueducts, antennas, water tanks, 
agricultural fields, paved areas, lawns, and other urban landscaped 
areas that do not contain the primary constituent elements are not 
proposed as critical habitat. Federal actions limited to those areas, 
therefore, would not trigger a section 7 consultation, unless they 
affect the species and/or primary constituent elements in adjacent 
critical habitat.

Proposed Critical Habitat Designation

    Lands proposed as critical habitat occur in five separate units and 
provide the full range of primary constituent elements needed by the 
O`ahu `elepaio, including: a variety of currently occupied undeveloped 
forested areas that are used for foraging, roosting, sheltering, 
nesting, and raising offspring; a variety of currently unoccupied 
undeveloped forested areas that are adjacent to occupied areas and 
provide for expansion of existing subpopulations; and shrub land and 
cliff habitats that link subpopulations and are used for dispersal. If 
`elepaio were restored throughout each of the proposed critical habitat 
units, the resulting distribution would closely resemble the 
distribution in 1975, when the subpopulations were larger and less 
isolated, the overall population appeared to be viable, and when the 
O`ahu `elepaio was not considered endangered. The area proposed as 
critical habitat (26,733 ha) is larger than the area occupied in 1975 
(20,900 ha) because the proposed critical habitat contains not only 
lands expected to support breeding `elepaio populations, but also 
intervening lands that provide for periodic dispersal and not permanent 
occupation.
    The potential `elepaio population in the area proposed as critical 
habitat is 10,104 birds, as estimated by multiplying the current 
density of `elepaio in different parts of the island by the area of 
each critical habitat unit (Table 2). These estimates are approximate, 
and the actual population in each unit may be larger if density can be 
increased beyond current levels, or lower if it proves difficult to 
establish dense populations in some currently unoccupied areas.

    Table 2.--Proposed Critical Habitat Units and Potential `Elepaio
                               Populations
  [Data on current density from VanderWerf et al. (in press). Unit 4 is
  not currently occupied by `elepaio; the density used to estimate the
     potential `elepaio population of this unit is an average of the
    densities in the two nearest units, central and southern Ko`lau.]
------------------------------------------------------------------------
                                                  `Elepaio
                                                 density in   Potential
                                                 currently     `elepaio
      Critical habitat unit            Area       occupied    population
                                                  parts of     in unit
                                                    unit
------------------------------------------------------------------------
1. Northern Wai`anae Mountains...     4,501 ha  0.45 per ha        2,025
                                     11,122 ac  0.18 per ac
2. Southern Wai`anae Mountains...     2,515 ha  0.39 per ha          981
                                      6,215 ac  0.16 per ac
3. Central Ko`olau Mountains.....       14,840  0.33 per ha        4,897
                                     36,669 ac  0.14 per ac
4. Kalihi-Kapalama...............       800 ha  0.39 per ha          312
                                      1,977 ac  0.16 per ac
5. Southern Ko`olau Mountains....     4,197 ha  0.45 per ha        1,889
                                     10,371 ac  0.18 per ac
All Units........................       26,853  0.38 per ha       10,104
                                     66,354 ac  0.15 per ac
------------------------------------------------------------------------

    The approximate area and land ownership within each proposed 
critical habitat unit are shown in Table 3. Proposed critical habitat 
includes land under Federal, State, and private ownership, with Federal 
lands being managed by the Department of Defense and the Department of 
the Interior. Proposed lands include most (99 percent) of the species' 
current range and encompass approximately 21 percent of the species' 
original range. Approximately 21 percent of proposed lands are 
currently occupied by `elepaio, and 79 percent are currently unoccupied 
but were recently occupied (since 1975). A detailed description of each 
unit and reasons for proposing each portion of the unit as critical 
habitat are presented below.

        Table 3.--Approximate Area (Hectares, Acres) of Proposed Critical Habitat Units by Land Ownership
----------------------------------------------------------------------------------------------------------------
                      Unit                       Federal \1\     State        County      Private       Total
----------------------------------------------------------------------------------------------------------------
1. Northern Wai`anae Mountains.................       822 ha     3,033 ha       646 ha  ...........     4,501 ha
                                                    2,031 ac     7,495 ac     1,596 ac  ...........    11,122 ac
2. Southern Wai`anae Mountains.................       616 ha       377 ha                  1,522 ha     2,515 ha
                                                    1,523 ac       932 ac                  3,760 ac     6,215 ac
3. Central Ko`olau Mountains...................     3,109 ha     3,789 ha       308 ha     7,634 ha    14,840 ha

[[Page 30383]]

 
                                                    7,681 ac     9,363 ac       762 ac    18,863 ac    36,669 ac
4. Kalihi-Kap`alama............................                    393 ha       179 ha       228 ha       800 ha
                                                                   971 ac       442 ac       564 ac     1,977 ac
5. Southern Ko`olau Mountains..................         3 ha     2,563 ha       480 ha     1,151 ha     4,197 ha
                                                        7 ac     6,334 ac     1,187 ac     2,843 ac    10,371 ac
Total..........................................     4,550 ha    10,155 ha     1,613 ha    10,535 ha    26,853 ha
                                                   11,242 ac    25,095 ac     3,987 ac    26,030 ac   66,354 ac
----------------------------------------------------------------------------------------------------------------
\1\ Federal lands include Department of Defense and U.S. Fish and Wildlife Service.

Unit 1: Northern Waianae Mountains

    Unit 1 consists of approximately 4,501 ha (11,122 ac) encompassing 
the higher elevations of the northern Waianae Mountains. It is bounded 
on the south by Kolekole pass, and on the north, east, and west by 
forest edge created by human actions. Natural features within the unit 
include Mt. Kaala, the highest peak on O`ahu at 1,227 m (4,025 feet), 
several other high peaks along the spine of the Waianae Range, the 
upper portions of large, broad valleys on the slopes of the Waianae 
Range, including Waianae Kai, Makaha, Makua, Kahanahaiki, and Kuaokala 
valleys on the west slope and Haleauau and Mohi`akea gulches on the 
east slope, and the higher portions of several narrow valleys on the 
north slope of the Waianae Range. Vegetation consists primarily of 
mixed-species wet, mesic, and dry forest communities composed of native 
and introduced plants, with smaller amounts of dry shrub land and cliff 
plant communities (Hawaii Heritage Program 1991).
    Unit 1 contains two important elepaio core subpopulations: one in 
upper Haleauau and Mohi`akea gulches above the firebreak road on U.S. 
Army Schofield Barracks West Range; the other in upper Makaha and 
Waianae Kai valleys on Waianae Kai State Forest Reserve and City and 
County of Honolulu land. The unit also includes small scattered elepaio 
subpopulations in Pahole and Kaala State Natural Area Reserves, 
Mokulaia, Makua-Keaau, and Kuaokala State Forest Reserves, and the 
upper portion of the U.S. Army Makua Military Reservation. In addition 
to protecting lands occupied by the two core `elepaio subpopulations 
and six smaller subpopulations, proposed lands in Unit 1 provide for 
expansion of these subpopulations by including currently unoccupied 
lands that were occupied within the past 30 years and contain the most 
preferred types of forest. Specifically, currently unoccupied lands in 
Pahole and Kaala State Natural Area Reserves, Mokulaia, Makua-Keaau, 
and Kuaokala State Forest Reserves, upper M`akua Valley, and upper 
Kahanahiki Valley are needed for recovery to allow the number of birds 
in existing subpopulations to increase. In addition, the current 
distribution of elepaio in Unit 1 represents a remnant of what was once 
a single large continuous elepaio population in the northern Waianae 
Mountains. Inclusion of currently unoccupied forested lands that 
provide for subpopulation expansion and shrub land and cliff habitats 
that provide for dispersal among subpopulations will promote needed 
linkage among subpopulations and help to restore the original 
metapopulation function that once existed in this area.

Unit 2: Southern Waianae Mountains

    Unit 2 consists of approximately 2,515 ha (6,215 ac) encompassing 
the higher elevations of the southern Waianae Mountains. It is bounded 
on the north by Kolekole Pass, and on the east, west, and south by 
forest edge created by human actions. Natural features of the unit 
include several high peaks along the spine of the southern Waianae 
Range, including Palikea, Kaua, Kanehoa, and Hapapa, the upper portions 
of Lualualei and Nanakuli valleys on the west side of the mountains, 
and the upper portions of numerous narrower valleys on the east side of 
the mountains. Vegetation consists primarily of mixed-species mesic and 
dry forest communities composed of native and introduced plants, with 
smaller amounts of dry shrub land and cliff communities (Hawaii 
Heritage Program 1991).
    Unit 2 contains the second largest O`ahu `elepaio subpopulation, 
encompassing several land parcels, including Honouliuli Preserve (which 
is managed by The Nature Conservancy of Hawaii), Naval Magazine Pearl 
Harbor Lualualei Branch, Nanakuli State Forest Reserve, and other 
unmanaged State lands. This unit also contains several scattered 
`elepaio territories north of the core subpopulation on U.S. Army 
Schofield Barracks South Range. In addition to protecting currently 
occupied habitat, proposed lands in Unit 2 include peripheral areas of 
currently unoccupied habitat in Honouliuli Preserve, Lualualei, and 
Schofield Barracks South Range that are needed for recovery to allow 
expansion of the core subpopulation, and dry shrub land and cliff 
habitats on unmanaged State land between Lualualei and Honouliuli and 
on Schofield Barracks South Range that provide for dispersal among 
parts of the southern Waianae subpopulation and between the northern 
and southern Waianae subpopulations.

Unit 3: Central Koolau Mountains

    Unit 3 is the largest unit, encompassing 14,840 ha (36,669 ac) of 
the higher elevations of the central Koolau Mountains. Natural features 
of the unit include the summit of the Koolau Range and the upper 
portions of numerous narrow valleys separated by steep ridges, 
including (from south to north) Manaikai, Moanalua, South Halawa, North 
Halawa, Kalauao, Waimalu, Waimano, Mnana, Waiawa, Kapapa, Kaukonahua, 
and Poamoho on the leeward (western) side, and Waihee, Kaalaea, 
Waiahole, Waikane, and Kahana on the windward (eastern) side. 
Vegetation consists primarily of montane and lowland wet and mesic 
forest, and smaller areas of shrub land and wet cliff plant communities 
(Hawaii Heritage Program 1991). The higher elevations of the unit are 
primarily native forest dominated by ohia and koa, but the lower 
elevations are more disturbed and dominated by a variety of introduced 
plant species.
    Unit 3 contains two important core `elepaio subpopulations: one 
located almost entirely on private land in Moanalua, North and South 
Halawa, Manaiki, and Kalauao valleys at the southern end of the unit; 
the other on the windward side in Kahana Valley State Park and on 
private lands in Waikane Valley. The unit also contains a few scattered 
`elepaio territories in Waihole State Forest Reserve. Proposed

[[Page 30384]]

lands include the existing subpopulations, and also provide for the 
expansion and recovery of existing subpopulations by including adjacent 
lands in Manaiki, Waimalu, Waimano, Manana, Waiawa, Kapapa, Kaukonahua, 
and Poamoho on the leeward (western) side, and in Waihee, Kaalaea, 
Waiahole, Waikane, and Kahana on the windward (eastern) side that are 
currently unoccupied but were occupied since 1975. Unit 3 also includes 
wet shrub land and cliff habitats along the Koolau summit that provide 
for dispersal of elepaio between the windward and leeward sides of the 
Koolau Mountains. The existing core subpopulations are geographically 
distant from each other and probably are isolated. Restoration of 
elepaio in intervening areas would increase the chances of dispersal 
and genetic exchange between subpopulations and restore metapopulation 
function. Currently unoccupied habitat lies on the Oahu Forest National 
Wildlife Refuge, U.S. Army Schofield Barracks East Range, U.S. Army 
Fort Shafter, Ewa and Waiahole State Forest Reserves, Kahana Valley 
State Park, and 9 privately owned parcels. The narrow indentation in 
the southern portion of Unit 3 reflects the H-3 freeway and adjacent 
cleared areas in North Halawa Valley.

Unit 4: Kalihi-Kapalama

    Unit 4 consists of approximately 800 ha (1,977 ac) encompassing the 
higher elevations of the leeward (western) side of the central K`oolau 
Mountains above Kalihi and Kapalama. It is bounded on the north by the 
Likelike Highway and on the south by the Pali Highway. Natural features 
of the unit include the upper portions of Kalihi, Kamanaiki, and 
Kapalama valleys. Vegetation consists primarily of mixed-species wet 
and mesic forest composed of native and introduced plant species 
(Hawaii Heritage Program 1991). The higher elevations are primarily 
native forest dominated by ohia and koa, but the lower elevations are 
more disturbed and are dominated by introduced plant species. This unit 
is not known to contain any `elepaio at present, but it was occupied 
within the last 20 years, still contains suitable forest habitat, and 
provides an important habitat stepping-stone that increases the chances 
of dispersal and genetic exchange between `elepaio subpopulations in 
the central and southern K`oolau units. This unit includes lands within 
the State of Hawaii Honolulu Watershed Forest Reserve, two parcels 
owned by the City and County of Honolulu, and 3 private parcels.
    Unit 5: Southern K`oolau Mountains
    Unit 5 consists of approximately 4,197 ha (10,371 ac) encompassing 
the higher elevations of the southern K`oolau Mountains. It is bounded 
on the west by the Pali Highway. Natural features of the unit include: 
the summit of the southern K`oolau Mountains, including Konahuanui, the 
highest peak in the K`oolau Range at 960 m (3,150 ft), the upper 
portion of Maunawili Valley on the windward (northern) side of the 
mountains, and the upper portions of numerous narrow valleys separated 
by steep ridges on the leeward side, including (from east to west) 
Kaalakei, Kuliouou, Kupaua, Pia, Kului, Wailupe, Kapakahi, Waialae Nui, 
Palolo, Manoa, Tantalus, and Pauoa. The vegetation consists primarily 
of mixed-species wet, mesic, and dry forest communities, with small 
areas of mesic shrub land and wet cliff plant communities (Hawaii 
Heritage Program 1991). The higher elevations are primarily native 
forest dominated by ohia and koa, but the lower elevations are more 
disturbed and are dominated by introduced plant species, particularly 
guava, kukui, christmasberry, and mango.
    Unit 5 contains the largest remaining elepaio subpopulation, 
located in Kuliouou, Kupaua, Pia, Kului, Wailupe, Kapakahi, and Waialae 
Nui valleys, and two smaller elepaio populations located nearby in 
Palolo and Manoa valleys. The current distribution of `elepaio in the 
southern K`oolau Mountains represents a remnant of what was once a 
single large continuous population. In addition to protecting the 
largest remaining subpopulation and two smaller subpopulations, 
proposed lands in Unit 5 provide for recovery through expansion of 
existing subpopulations by including currently unoccupied lands in 
Maunawili, Palolo, Manoa, Nuuanu, Tantalus, and Pauoa that were 
occupied since 1975 and contain the most preferred forest types. 
Proposed lands in Unit 5 also provide for recovery by including shrub 
land and wet cliff habitats along the Koolau summit that are used for 
dispersal and link subpopulations on the windward and leeward sides of 
the K`oolau Mountains, thereby helping to restore metapopulation 
function. Restoration of elepaio in unoccupied lands in Tantalus and 
Pauoa at the western end of Unit 5 would increase the chances of 
dispersal and genetic exchange between the southern K`oolau 
subpopulation and the central K`oolau subpopulation. Ownership within 
Unit 5 consists of the Honolulu Watershed, Maunawili, and Kuliouou 
State Forest Reserves, several parcels owned by the City and County of 
Honolulu, and nine private parcels.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
states, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding.
    Section 7(a) of the Act 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 designated or proposed. 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 us 
on any action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species nor to destroy or adversely 
modify its critical habitat. If a Federal action may affect a listed 
species or its critical habitat, the responsible Federal agency (action 
agency) must enter into consultation with us. Through this consultation 
the Federal action agency would ensure that

[[Page 30385]]

the permitted actions do not destroy or adversely modify critical 
habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid destruction or adverse modification of critical 
habitat. Reasonable and prudent alternatives can vary from slight 
project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed if those actions may affect designated critical habitat.
    Activities on Federal lands that may affect the elepaio or its 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, or some other Federal action, including funding 
(e.g., from the Federal Highway Administration, Federal Aviation 
Administration, Federal Emergency Management Agency, or Natural 
Resources Conservation Service) will also continue to be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat and actions on non-Federal lands that are 
not federally funded or permitted do not require section 7 
consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly in any 
proposed or final regulation that designates critical habitat those 
activities involving a Federal action that may adversely modify such 
habitat or that may be affected by such designation. Activities that 
may result in the destruction or adverse modification of critical 
habitat include those that alter the primary constituent elements to an 
extent that the value of critical habitat for the survival and recovery 
of the `elepaio is appreciably reduced. We note that such activities 
may also jeopardize the continued existence of the species. Activities 
that may directly or indirectly adversely affect critical habitat for 
the O`ahu `elepaio include, but are not limited to:
    (1) Removing, thinning, or destroying elepaio habitat (as defined 
in the primary constituent elements discussion), whether by burning, 
mechanical, chemical, or other means (e.g., woodcutting, grading, 
overgrazing, construction, road building, mining, herbicide 
application, etc.).
    (2) Appreciably decreasing habitat value or quality as an indirect 
effect of an action (e.g., introduction or promotion of potential nest 
predators, diseases or disease vectors, vertebrate or invertebrate food 
competitors, or invasive plant species; forest fragmentation; 
overgrazing; augmentation of feral ungulate populations; water 
diversion or impoundment, groundwater pumping, or other activities that 
alter water quality or quantity to an extent that affects vegetation 
structure or produces mosquito breeding habitat; and activities that 
increase the risk of fire).
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the survival and recovery of 
a listed species. Actions likely to result in the destruction or 
adverse modification of critical habitat are those that would 
appreciably reduce the value of critical habitat for the survival and 
recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to result in the destruction or 
adverse modification of critical habitat would almost always result in 
jeopardy to the species concerned, particularly when the area of the 
proposed action is occupied by the species concerned. In those cases, 
critical habitat provides little additional protection to a species, 
and the ramifications of its designation are few or none. However, 
critical habitat designation in unoccupied areas may trigger 
consultation under section 7 of the Act where it would not have 
otherwise occurred if critical habitat had not been designated.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
include, but are not limited to:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Development on private or State lands requiring permits from 
other Federal agencies, such as Housing and Urban Development;
    (4) Military training or similar activities of the U.S. Department 
of Defense (Army and Navy) on their lands or lands under their 
jurisdiction at Schofield Barracks, Makua Military Reservation, Fort 
Shafter, Kawailoa Training Area, and Pearl Harbor Naval Magazine 
Lualualei Branch;
    (5) Construction of communication sites licensed by the Federal 
Communications Commission;
    (6) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities be Federal agencies;
    (7) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency; and
    (8) Activities not previously mentioned that are funded or 
authorized by the U.S. Department of Agriculture (Forest Service, 
Natural Resources Conservation Service), Department of Defense, 
Department of Transportation, Department of Energy, Department of 
Interior (U.S. Geological Survey, National Park Service), Department of 
Commerce (National Oceanic and Atmospheric Administration), 
Environmental Protection Agency, or any other Federal agency.
    If you have questions regarding whether specific activities would 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Pacific Islands Ecological Services Field Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
wildlife and plants and inquiries about prohibitions and

[[Page 30386]]

permits should be directed to the U.S. Fish and Wildlife Service, 
Endangered Species Act Section 10 Program at the same address.

Application of the Section 3(5)(A) Criteria Regarding Special 
Management Considerations or Protection

    Critical habitat is defined in section 3, paragraph (5)(A) of the 
Act as--(i) the specific areas within the geographic 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 geographic 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. Special management and protection are not 
required if adequate management and protection are already in place. 
Adequate special management or protection is provided by a legally 
operative plan/agreement that addresses the maintenance and improvement 
of the primary constituent elements important to the species and 
manages for the long-term conservation of the species. If any areas 
containing the primary constituent elements are currently being managed 
to address the conservation needs of the O`ahu `elepaio and do not 
require special management or protection, these areas would not meet 
the definition of critical habitat in section 3(5)(A)(i) of the Act and 
would not be included in this proposed rule.
    To determine if a plan provides adequate management or protection 
we consider: (1) Whether there is a current plan specifying the 
management actions and whether such actions provide sufficient 
conservation benefit to the species; (2) whether the plan provides 
assurances that the conservation management strategies will be 
implemented; and (3) whether the plan provides assurances that the 
conservation management strategies will be effective. In determining if 
management strategies are likely to be implemented, we consider 
whether: (a) A management plan or agreement exists that specifies the 
management actions being implemented or to be implemented; (b) there is 
a timely schedule for implementation; (c) there is a high probability 
that the funding source(s) or other resources necessary to implement 
the actions will be available; and (d) the party(ies) have the 
authority and long-term commitment to implement the management actions, 
as demonstrated, for example, by a legal instrument providing enduring 
protection and management of the lands. In determining whether an 
action is likely to be effective, we consider whether: (a) The plan 
specifically addresses the management needs, including reduction of 
threats to the species; (b) such actions have been successful in the 
past; (c) there are provisions for monitoring and assessment of the 
effectiveness of the management actions; and (d) adaptive management 
principles have been incorporated into the plan.
    Based on information provided to us by landowners and managers to 
date, we find that no areas are adequately managed and protected to 
address the threats to `elepaio. Several areas are covered under 
current management plans and are being managed in a manner that meets 
some of the conservation needs of the O`ahu `elepaio, but in no areas 
does the management adequately reduce the primary threats to this 
species. Specifically, the threat from introduced nest predators, 
primarily rodents, has been successfully managed on a small scale in 
Honouliuli Preserve by The Nature Conservancy of Hawai`i, in Schofield 
Barracks West Range and M'kua Military Reservation by the U.S. Army, 
and in the Honolulu Watershed Forest Reserve by the Hawai`i State 
Division of Forestry and Wildlife, but in each case the management 
actions have affected only a small proportion of the `elepaio in the 
area. Adequate reduction of the threat from rodents will require larger 
scale management that protects more `elepaio. The other primary threat 
to the O`ahu `elepaio, introduced diseases carried by mosquitoes, has 
not been managed in any area.
    The O`ahu Forest National Wildlife Refuge does not meet these 
criteria because the refuge was created only recently (December 2000) 
and there is no current management that meets the recovery needs of the 
O`ahu `elepaio. Refuge lands have not been adequately surveyed yet, and 
even whether the area is currently occupied by `elepaio remains 
uncertain.
    The Sikes Act Improvements Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an Integrated Natural Resources Management Plan 
(INRMP). An INRMP integrates implementation of the military mission of 
the installation with stewardship of the natural resources found there. 
Each INRMP includes an assessment of the ecological needs on the 
installation, including needs to provide for the conservation of listed 
species; a statement of goals and priorities; a detailed description of 
management actions to be implemented to provide for these ecological 
needs; and a monitoring and adaptive management plan. We consult with 
the military on the development and implementation of INRMPs for 
installations with listed species. We believe that bases that have 
completed and approved INRMPs that address the needs of the species 
generally do not meet the definition of critical habitat discussed 
above, because they require no additional special management or 
protection. Therefore, we do not include these areas in critical 
habitat designations if they meet the following three criteria: (1) A 
current INRMP must be complete and provide a conservation benefit to 
the species; (2) the plan must provide assurances that the conservation 
management strategies will be implemented; and (3) the plan must 
provide assurances that the conservation management strategies will be 
effective, by providing for periodic monitoring and revisions as 
necessary. If all of these criteria are met, then the lands covered 
under the plan would not meet the definition of critical habitat. To 
date, no military installation on O`ahu has completed a final INRMP 
that provides sufficient management and protection for the `elepaio.

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available, and that we consider the economic and other relevant impacts 
of designating a particular area as critical habitat. We may exclude 
areas from critical habitat designation if the benefits of exclusion 
outweigh the benefits of designation, provided the exclusion will not 
result in the extinction of the species. We will conduct an analysis of 
the economic impacts of designating these areas as critical habitat 
prior to a final determination. When completed, we will announce the 
availability of the draft economic analysis with a notice in the 
Federal Register.
    Currently, there are no habitat conservation plans (HCPs) that 
include the O`ahu `elepaio as a covered species. However, we believe 
that in most instances the benefits of excluding HCPs from critical 
habitat designations will outweigh the benefits of including them. In 
the event that future HCPs are developed within the boundaries of 
proposed or designated critical habitat, we will work with applicants 
to ensure that the HCPs provide for protection and

[[Page 30387]]

management of habitat areas essential for the conservation of this 
species. This will be accomplished by either directing development and 
habitat modification to nonessential areas, or appropriately modifying 
activities within essential habitat areas so that such activities will 
not adversely modify the critical habitat.
    We will provide technical assistance and work closely with 
applicants throughout the development of any future HCPs to identify 
lands essential for the long-term conservation of the O`ahu `elepaio 
and appropriate management for those lands. The take minimization and 
mitigation measures provided under such HCPs would be expected to 
protect the essential habitat lands proposed as critical habitat in 
this rule and provide for the conservation of the covered species. 
Furthermore, we will complete intra-Service consultation on our 
issuance of section 10(a)(1)(B) permits for these HCPs to ensure permit 
issuance will not destroy or adversely modify critical habitat. If an 
HCP that includes the O'ahu `elepaio is ultimately approved after this 
critical habitat designation is finalized, we will reassess the 
critical habitat boundaries in light of the HCP. We will seek to 
undertake this review when the HCP is approved, but funding constraints 
may influence the timing of such a review.

Public Comments Solicited

    We intend that any final action resulting from this proposal be as 
accurate and as effective as possible. Therefore, we solicit comments 
or suggestions from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. We are particularly interested in 
comments concerning:
    (1) The reasons why any area should or should not be determined to 
be critical habitat as provided by section 4 of the Act and 50 CFR 
424.12(a)(1), including whether the benefits of designation will 
outweigh any threats to the species due to designation;
    (2) Specific information on the number and distribution of O`ahu 
`elepaio and what habitat is essential to the conservation of this 
species and why;
    (3) Whether lands within proposed critical habitat are currently 
being managed to address conservation needs of the O`ahu `elepaio;
    (4) Land use practices and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (5) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (6) Whether future development and approval of conservation 
measures (e.g., Conservation Agreements, Safe Harbor Agreements, etc.) 
should be excluded from critical habitat and, if so, by what mechanism; 
and,
    (7) Economic and other values associated with designating critical 
habitat for the O`ahu `elepaio, such as those derived from non-
consumptive uses (e.g., hiking, camping, bird-watching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs).
    If we receive information that any of the areas proposed as 
critical habitat are currently being managed to address the 
conservation needs of the O`ahu `elepaio and provide adequate 
management and protection, these areas would not meet the definition of 
critical habitat in section 3(5)(A)(i) of the Act and would not be 
included in the final critical habitat designation for the O`ahu 
`elepaio. If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to Paul Henson, 
Field Supervisor, Pacific Islands Fish and Wildlife Office, U.S. Fish 
and Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, Box 50088, 
Honolulu, HI 96850.
    2. You may hand deliver written comments to our Pacific Islands 
Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, 
Honolulu, Hawai`i.
    3. You may send comments by electronic mail (e-mail) to 
[email protected]. If you are sending comments by 
electronic mail (e-mail), please submit them in ASCII file format or 
embedded in the text of the e-mail message, and avoid the use of 
special characters and encryption. Please include ``Attn: 1018-AG99'' 
and your name and return address in your e-mail message. If you do not 
receive a confirmation from the system that we have received your e-
mail message, contact us directly by calling our Pacific Islands Fish 
and Wildlife Service Office at phone number 808/541-3441. Please note 
that the e-mail address ([email protected]) will be 
closed at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Respondents may request that we withhold their home 
address, which we will honor to the extent allowable by law. There also 
may be circumstances in which we would withhold a respondent's 
identity, as allowable by law. If you wish us to withhold your name 
and/or address, you must state this request prominently at the 
beginning of your comment. To the extent consistent with applicable 
law, we will make all submissions from organizations or businesses, and 
from individuals identifying themselves as representatives or officials 
of organizations or businesses, available for public inspection in 
their entirety. Comments and materials received will be available for 
public inspection, by appointment, during normal business hours at the 
Pacific Islands Fish and Wildlife Office in Honolulu.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed rule. The purpose 
of such review is to ensure listing and critical habitat decisions are 
based on scientifically sound data, assumptions, and analyses. We will 
send copies of this proposed rule to these peer reviewers immediately 
following publication in the Federal Register. We will invite the peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed designations of 
critical habitat. We will consider all comments and data received 
during the 60-day comment period on this proposed rule during 
preparation of a final rulemaking. Accordingly, the final decision may 
differ from this proposal.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical language or jargon that interferes with the clarity? (3) Does 
the format of the proposed rule (grouping and order of sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the proposed rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the document? (5) Is 
the background information useful

[[Page 30388]]

and is the amount appropriate? (6) What else could we do to make the 
proposed rule easier to understand? Send a copy of any comments that 
concern how we could make this notice easier to understand to: Office 
of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C 
Street, NW, Washington, DC 20240. You may e-mail your comments to this 
address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB). We are preparing a draft analysis of this proposed 
action, which will be available for public comment, to determine the 
economic consequences of designating the specific areas as critical 
habitat. The availability of the draft economic analysis will be 
announced in the Federal Register so that it is available for public 
review and comments.
    (a) While we will prepare an economic analysis to assist us in 
considering whether areas should be excluded pursuant to section 4 of 
the Act, we do not believe this rule will have an annual economic 
effect of $100 million or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. 
Therefore, we do not believe a cost benefit and economic analysis 
pursuant to EO 12866 is required.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored, authorized, or permitted by a 
Federal agency (see Table 4 below). Section 7 requires Federal agencies 
to ensure that they do not jeopardize the continued existence of this 
species. Based upon our experience with this species and its needs, we 
conclude that any Federal action or authorized action that could 
potentially cause adverse modification of proposed critical habitat 
would currently be considered as ``jeopardy'' under the Act in areas 
occupied by the species. Accordingly, the designation of currently 
occupied areas as critical habitat does not have any incremental 
impacts on what actions may or may not be conducted by Federal agencies 
or non-Federal persons that receive Federal authorization or funding. 
The designation of areas as critical habitat where section 7 
consultations would not have occurred but for the critical habitat 
designation may have impacts on what actions may or may not be 
conducted by Federal agencies or non-Federal persons who receive 
Federal authorization or funding that are not attributable to the 
species listing. We will evaluate any impact through our economic 
analysis (under section 4 of the Act; see Economic Analysis section of 
this rule). Non-Federal persons that do not have Federal involvement in 
their actions are not restricted by the designation of critical 
habitat.

                  Table 4.--Impacts of O`ahu `Elepaio Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                         Additional activities
                                        Activities potentially affected by species      potentially affected by
      Categories of activities                         listing only                        critical habitat
                                                                                            designation\1\
----------------------------------------------------------------------------------------------------------------
Federal activities potentially       Activities the Federal Government carries out     These same activities
 affected.\2\                         that result in removing, thinning, or            carried out by Federal
                                      destroying `elepaio habitat (as defined in the   Agencies in designated
                                      primary constituent elements discussion),        areas where section 7
                                      whether by burning, mechanical, chemical, or     consultations would not
                                      other means (e.g., woodcutting, grading,         have occurred but for the
                                      overgrazing, construction, road building,        critical habitat
                                      mining, herbicide application, etc.) and         designation.
                                      appreciably decreasing habitat value or
                                      quality through indirect effects (e.g.,
                                      introduction or promotion of potential nest
                                      predators, diseases or disease vectors,
                                      vertebrate or invertebrate food competitors,
                                      or invasive plant species, forest
                                      fragmentation, overgrazing, augmentation of
                                      feral ungulate populations, water diversion or
                                      impoundment, groundwater pumping, or other
                                      activities that alter water quality or
                                      quantity to an extent that affects vegetation
                                      structure or produces mosquito breeding
                                      habitat, and activities that increase the risk
                                      of fire).
Private or other non-Federal         Activities funded, authorized, or permitted by   These same activities
 activities potentially               the Federal Government that results in           funded, authorized, or
 affected.\3\                         removing, thinning, or destroying `elepaio       permitted by Federal
                                      habitat (as defined in the primary constituent   Agencies in a designated
                                      elements discussion), whether by burning,        area where section 7
                                      mechanical, chemical, or other means (e.g.,      consultations would not
                                      woodcutting, grading, overgrazing,               have occurred but for the
                                      construction, road building, mining, herbicide   critical habitat
                                      application, etc.) and appreciably decreasing    designation.
                                      habitat value or quality through indirect
                                      effects (.e.g., introduction or promotion of
                                      potential nest predators, diseases or disease
                                      vectors, vertebrate or invertebrate food
                                      competitors, or invasive plant species, forest
                                      fragmentation, overgrazing, augmentation of
                                      feral ungulate populations, water diversion or
                                      impoundment, groundwater pumping, or other
                                      activities that alter water quality or
                                      quantity to an extent that affects vegetation
                                      structure or produces mosquito breeding
                                      habitat, and activities that increase the risk
                                      of fire).
----------------------------------------------------------------------------------------------------------------
\1\ This column represents activities potentially affected by the critical habitat designation in addition to
  those activities potentially affected by listing the species.
\2\ Activities initiated by a Federal agency.
\3\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
  funding.

    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions not jeopardize the continued existence of the 
O`ahu `elepaio since its listing in May 2000. The prohibition against 
adverse modification of critical habitat would

[[Page 30389]]

not be expected to impose any additional restrictions to those that 
currently exist in the proposed critical habitat on currently occupied 
lands. We will evaluate any impact of designating areas where section 7 
consultations would not have occurred but for the critical habitat 
designation through our economic analysis. Because of the potential for 
impacts on other Federal agency activities, we will continue to review 
this proposed action for any inconsistencies with other Federal agency 
actions.
    (c) This rule, if made final, will not materially affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. Federal agencies are currently 
required to ensure that their activities do not jeopardize the 
continued existence of a listed species, and, as discussed above, we do 
not anticipate that the adverse modification prohibition resulting from 
critical habitat designation will have any incremental effects in areas 
of occupied habitat.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Act.

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

    In the economic analysis (required under section 4 of the Act), we 
will determine whether designation of critical habitat will have a 
significant effect on a substantial number of small entities. As 
discussed under Regulatory Planning and Review above, this rule is not 
expected to result in any restrictions in addition to those currently 
in existence for areas where section 7 consultations would have 
occurred as result of the species being listed under the Act. We will 
also evaluate whether designation includes any areas where section 7 
consultations would occur only as result of the critical habitat 
designation, and in such cases determine if it will significantly 
affect a substantial number of small entities. As indicated in Table 3 
(see Proposed Critical Habitat Designation section), we propose 
designation on property owned by local governments and private 
property. Within these areas, the types of Federal actions or 
authorized activities that we have identified as potential concerns 
are:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Development on private or State lands requiring permits from 
other Federal agencies, such as Housing and Urban Development;
    (4) Military training or similar activities of the U.S. Department 
of Defense (Army and Navy) on their lands or lands under their 
jurisdiction at Schofield Barracks, Makua Military Reservation, Fort 
Shafter, Kawailoa Training Area, and Pearl Harbor Naval Magazine 
Lualualei Branch;
    (5) Construction of communication sites licensed by the Federal 
Communications Commission;
    (6) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities by Federal agencies;
    (7) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency; and
    (8) Activities funded by the U. S. Environmental Protection Agency, 
Department of Energy, or any other Federal agency.
    Potentially some of these activities sponsored by Federal agencies 
within the proposed critical habitat areas are carried out by small 
entities (as defined by the Regulatory Flexibility Act) through 
contract, grant, permit, or other Federal authorization. For actions on 
non-Federal property that do not have a Federal connection (such as 
funding or authorization), the current restrictions concerning take of 
the species remain in effect, and this rule will have no additional 
restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 
804(2))

    In the economic analysis, we will determine whether designation of 
critical habitat will cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. As discussed above, we anticipate that the designation of 
critical habitat will not have any additional effects on these 
activities in areas where section 7 consultations would occur 
regardless of the critical habitat designation. We will evaluate any 
impact of designating areas where section 7 consultations would not 
have occurred but for the critical habitat designation through our 
economic analysis.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order EO 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. As this final rule is 
not expected to significantly affect energy supplies, distribution, or 
use, this action is not a significant energy action and no Statement of 
Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
August 25, 2000 et seq.):
    (a) We believe this rule will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. Small governments will be affected only to the extent that 
any programs having Federal funds, permits, or other authorized 
activities must ensure that their actions will not adversely affect the 
critical habitat. However, as discussed above, these actions are 
currently subject to equivalent restrictions through the listing 
protections of the species, and no further restrictions are anticipated 
to result from critical habitat designation of occupied areas. In our 
economic analysis, we will evaluate any impact of designating areas 
where section 7 consultations would not have occurred but for the 
critical habitat designation.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year; that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. The rule will not increase or 
decrease the current restrictions on private property concerning take 
of the species. The rule will not increase or decrease the current 
restrictions on private property concerning take of this species. We do 
not anticipate that property values will be affected by the critical 
habitat designation. Landowners in areas that are included in the 
designated critical habitat will continue to have opportunity to 
utilize their property in

[[Page 30390]]

ways consistent with State law and with the continued survival of the 
species.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. As discussed above, the designation of critical habitat in 
areas currently occupied by the Oahu `elepaio would have little 
incremental impact on State and local governments and their activities. 
The designations may have some benefit to these governments in that the 
areas essential to the conservation of these species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are identified. While this definition 
and identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long 
range planning rather than waiting for case-by-case section 7 
consultation to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We designate critical habitat 
in accordance with the provisions of the Act. The proposed rule uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of the O`ahu `elepaio.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act

    We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement as defined by 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. A 
notice outlining our reason for this determination was published in the 
Federal Register on October 25, 1983 (48 FR 49244). This proposed rule 
does not constitute a major Federal action significantly affecting the 
quality of the human environment.

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) Executive Order 13175 and the Department of 
the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis. The proposed designation of 
critical habitat for the O`ahu `elepaio does not contain any Tribal 
lands or lands that we have identified as impacting Tribal trust 
resources.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Pacific Islands Fish and Wildlife 
Office (see ADDRESSES section).

Author

    The primary author of this document is Eric A. VanderWerf, Pacific 
Islands Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose 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. In Sec. 17.11(h) revise the entry for `` `Elepaio, O`ahu'' under 
``BIRDS'' 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, O`ahu..................  Chasiempis            U.S.A. (HI)........  Entire.............  E                               17.95(b)
                                    sandwichensis
                                    ibidis (Chasiempis
                                    sandwichensis gayi).
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95(b) by adding critical habitat for the O`ahu 
`Elepaio (Chasiempis sandwichensis ibidis) under paragraph (b) in the 
same alphabetical order as this species occurs in Sec. 17.11(h), to 
read as follows:


Sec. 17.95   Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
    O`ahu `elepaio (Chasiempis sandwichensis ibidis)
    1. Critical Habitat Units are depicted for the City and County of 
Honolulu on the maps following.
    2. Within these areas, the primary constituent elements required by 
the O`ahu `elepaio are those habitat components that are essential for 
the biological needs of foraging, sheltering, roosting, nesting, and 
rearing of young. The primary constituent elements are provided in 
undeveloped areas that support various types of wet, mesic, and dry 
forest with a generally continuous canopy and a dense understory and 
that

[[Page 30391]]

are composed of native or introduced plant species. Such forests are 
found in valleys and on mountain slopes and ridges. The primary 
constituent elements associated with the biological needs of dispersal 
and genetic exchange are found in undeveloped areas that separate 
`elepaio populations and support wet or dry shrub land and wet or dry 
cliff habitat composed of native or introduced species. `Elepaio may 
not establish territories in shrub or cliff habitats and may use them 
only transiently, but undeveloped areas containing these habitats are 
important for linking populations by providing dispersal corridors and 
promoting genetic exchange among populations.
    Within the forests and shrub lands providing the primary 
constituent elements, plant species composition varies with rainfall, 
elevation, and degree of habitat disturbance and plant species occur in 
a variety of assemblages. Dominant native and introduced species within 
these plant assemblages include, but are not limited to, `ohi`a 
(Metrosideros polymorpha), koa (Acacia koa), papala kepau (Pisonia 
umbellifera), lama (Diospyros sandwicensis), mamaki (Pipturus albidus), 
kaulu (Sapindus Oahuensis), hame (Antidesma platyphyllum), `ala`a 
(Pouteria sandwicensis), `a`ali`i (Dodonaea viscosa), naupaka kuahiwi 
(Scaevola spp.), pukiawe (Styphelia tameiameiae), uluhe (Dicranopteris 
linearis), guava (Psidium guajava), strawberry guava (P. cattleianum), 
mango (Mangifera indica), kukui (Aleurites moluccana), christmasberry 
(Schinus terebinthifolius), ti (Cordyline terminalis), rose apple 
(Syzygium jambos), mountain apple (S. malaccense), and Java plum (S. 
cumini).
    3. Existing developed features and structures, such as buildings, 
roads, aqueducts, antennas, water tanks, agricultural fields, paved 
areas, lawns, and other urban landscaped areas that do not contain one 
or more of the primary constituent elements, are not included as 
critical habitat.

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Unit 1 (4,502 ha; 11,122 ac)

    Unit 1 consists of one hundred and one boundary points with the 
following coordinates in UTM Zone 4 with the units in meters using 
North American Datum of 1983 (NAD83): 588465, 2375750; 587846, 2376228; 
587213, 2376416; 586946, 2376176; 586675, 2376658; 586672, 2377028; 
586468, 2377154; 586672, 2377219; 586430, 2377462; 586532, 2377741; 
586464, 2377863; 586261, 2377727; 585895, 2377915; 585242, 2377801; 
584907, 2377864; 584433, 2377671; 584139, 2377961; 583974, 2378388; 
584099, 2378414; 584016, 2378599; 584207, 2378563; 583425, 2379849; 
583801, 2379814; 583831, 2380171; 584075, 2380122; 584324, 2379841; 
584526, 2380031; 584181, 2381150; 584078, 2381295; 583938, 2381385; 
583738, 2381388; 583402, 2381505; 583315, 2381668; 582998, 2381518; 
582785, 2381368; 582566, 2381369; 582561, 2381485; 582694, 2381702; 
582685, 2381865; 582566, 2382005; 582651, 2382112; 583122, 2382432; 
582768, 2382529; 582445, 2382889; 581998, 2383075; 581881, 2383019; 
581546, 2383276; 581387, 2383071; 581221, 2383069; 581023, 2383019; 
580811, 2382809; 580192, 2382557; 580070, 2382662; 579894, 2382772; 
580060, 2383144; 580151, 2383425; 580526, 2383690; 580750, 2383802; 
581314, 2383901; 581353, 2383719; 587168, 2382252; 586876, 2381574; 
587645, 2381564; 587539, 2382159; 590187, 2381495; 590131, 2381324; 
590955, 2381123; 591938, 2379504; 592106, 2379316; 592575, 2379032; 
592871, 2378937; 592520, 2378940; 592213, 2379019; 592100, 2378936; 
592014, 2378940; 591993, 2379074; 591950, 2379089; 591765, 2378955; 
591393, 2378631; 591229, 2378138; 591294,

[[Page 30392]]

2377905; 590979, 2377773; 590984, 2377387; 590770, 2377109; 590760, 
2377063; 590999, 2376896; 590945, 2376772; 591176, 2376297; 591268, 
2376320; 591426, 2376305; 591624, 2376158; 591620, 2375793; 591334, 
2375340; 590950, 2375570; 590580, 2375400; 589956, 2375632; 589799, 
2375555; 589539, 2375014; 589285, 2375190; 588919, 2375824; 588465, 
2375750.

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Unit 2 (2,515 ha; 6,215 ac)

    Unit 2 consists of fifty-six boundary points with the following 
coordinates in UTM Zone 4 with the units in meters using North American 
Datum of 1983 (NAD83): 592373, 2366709; 592345, 2367091; 592171, 
2367271; 592449, 2367406; 591970, 2368628; 592530, 2369066; 592575, 
2369415; 593190, 2369759; 593231, 2369971; 592864, 2370362; 593156, 
2370385; 593368, 2370513; 593249, 2370991; 592348, 2370899; 592469, 
2371381; 592374, 2371861; 592582, 2372284; 592295, 2372774; 592100, 
2373836; 591816, 2374384; 592053, 2374764; 592045, 2375115; 592504, 
2375529; 593245, 2375497; 594056, 2374659; 594299, 2374644; 594081, 
2374253; 593970, 2373860; 594207, 2373793; 594437, 2374070; 594578, 
2374412; 594867, 2374406; 594965, 2374331; 594978, 2374067; 595140, 
2374463; 595431, 2374602; 595604, 2374352; 595772, 2374351; 595782, 
2374020; 596005, 2373471; 595754, 2373256; 595960, 2372960; 595678, 
2372709; 595531, 2372434; 595485, 2371908; 595272, 2371337; 595489, 
2370340; 595296, 2369703; 595561, 2369694; 595565, 2369178; 595390, 
2368213; 595117, 2368245; 594830, 2366778; 593114, 2366319; 592309, 
2366563; 592373, 2366709.

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Unit 3 (14,840 ha; 36,669 ac)

    Unit 3 consists of one hundred and six boundary points with 
following coordinates in UTM Zone 4 with the units in meters using 
North American Datum of 1983 (NAD83): 615481, 2366443; 613829, 2366084; 
612845, 2367394; 612829, 2367639; 612488, 2368140; 611561, 2368027; 
611448, 2368566; 611117, 2369088; 610523, 2369387; 610693, 2369643; 
610226, 2370083; 611040, 2370565; 609681, 2371985; 609025, 2371951; 
609034, 2373100; 608391, 2373401; 608469, 2373609; 608065, 2373567; 
607941, 2373859; 608199, 2373978; 608109, 2374925; 607637, 2375635; 
607869, 2375817; 607456, 2375780; 607136, 2375598; 607046, 2375977; 
607565, 2376766; 606428, 2378568; 605381, 2378725; 606026, 2379972; 
604900, 2380551; 605708, 2381032; 607698, 2381439; 609468, 2381214; 
610319, 2381573; 611728, 2381425; 611797, 2380904; 612201, 2380506; 
613364, 2381362; 615459, 2380980; 616152, 2380161; 616780, 2378903; 
616513, 2378013; 616873, 2376632; 616699, 2375737; 617180, 2375933; 
617356, 2375158; 617664, 2375259; 617994, 2375029; 617757, 2373739; 
618311, 2372859; 618082, 2372506; 618563, 2371385; 617894, 2370668; 
618022, 2370181; 618247, 2370148; 618043, 2370014; 619043, 2369685; 
618878, 2369509; 619381, 2369376; 619182, 2369040; 619525, 2368805; 
619611, 2368922; 619747, 2368829; 619588, 2368664; 619928, 2368585; 
619650, 2368496; 619614, 2368284; 620097, 2368401; 619967, 2368174; 
620164, 2368022; 620005, 2367870; 620257, 2367795; 619954, 2367590; 
620341, 2367572; 620055, 2367214; 621150, 2366779; 621549, 2366388; 
621302, 2366064; 621511, 2365913; 621381, 2365424; 621553, 2365265; 
621489, 2364827; 620880, 2364530; 620469, 2364040; 619115, 2363338; 
617176, 2363590; 616868, 2363761; 616638, 2364642; 615913, 2365439; 
615777, 2365575; 615420, 2365753; 615767, 2365918; 615684, 2366361; 
616156, 2366495; 616990, 2367187; 617469, 2367398; 618312, 2367466; 
619282, 2367250; 619336, 2367460; 618293, 2367672; 617426, 2367594; 
616876, 2367352; 616189, 2366748; 615713, 2366555; 615481, 2366443.

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BILLING CODE 4310-55-C

Unit 4 (800 ha; 1,977 ac)

    Unit 4 consists of thirty-five boundary points with the following 
coordinates in UTM Zone 4 with the units in meters using North American 
Datum of 1983 (NAD83): 619449, 2361897; 619967, 2362184; 619999, 
2362473; 620286, 2362404; 620537, 2362773; 621409, 2363520; 621660, 
2363584; 622719, 2364191; 622901, 2364348; 623091, 2364242; 623209, 
2363699; 623046, 2363507; 623201, 2363403; 623106, 2363264; 623391, 
2363271; 623404, 2363073; 623634, 2363216; 623976, 2362864; 623238, 
2362105; 621688, 2361633; 621467, 2361418; 621345, 2361518; 620954, 
2360860; 620598, 2360514; 620700, 2360831; 620572, 2360908; 619869, 
2360908; 619670, 2360852; 619064, 2360661; 618935, 2360886; 619170, 
2361072; 619199, 2361402; 619163, 2361470; 618977, 2361595; 619449, 
2361897.

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Unit 5 (4,197 ha; 10,371 ac)

    Unit 5 consists of seventy-eight boundary points with the following 
coordinates in UTM Zone 4 with the units in meters using North American 
Datum of 1983 (NAD83): 626915, 2356759; 626560, 2357502; 626675, 
2357669; 626333, 2357906; 626359, 2358234; 626110, 2358313; 626031, 
2357725; 625623, 2357254; 625538, 2357354; 625351, 2357186; 625091, 
2357420; 625118, 2357617; 625085, 2358039; 624568, 2358236; 624821, 
2358624; 624568, 2358859; 625059, 2359019; 625083, 2359182; 624607, 
2359469; 624378, 2359605; 624247, 2359627; 623768, 2359261; 623004, 
2359366; 622941, 2359584; 622499, 2359435; 621968, 2359088; 621864, 
2359256; 621335, 2359722; 622127, 2360488; 621920, 2360603; 623746, 
2361359; 625281, 2363179; 625896, 2363475; 626109, 2363219; 626146, 
2363135; 626234, 2362910; 626392, 2362857; 626871, 2362399; 626986, 
2361859; 627500, 2361686; 626946, 2361095; 627268, 2360638; 627548, 
2360727; 627690, 2360077; 628361, 2360895; 628839, 2360922; 629079, 
2360676; 629519, 2360722; 629341, 2360070; 630776, 2359069; 631754, 
2358982; 632440, 2358108; 632959, 2357815; 633019, 2357425; 632769, 
2356517; 632191, 2356385; 630620, 2355286; 630491, 2355266; 630104, 
2355644; 630041, 2355624; 629732, 2355117; 629510, 2355214; 629279, 
2356032; 629033, 2356130; 628836, 2356015; 628378, 2356236; 628317, 
2355841; 628209, 2355703; 627673, 2354542; 627125, 2354591; 627125, 
2355143; 627381, 2355990; 627200, 2356033; 626832, 2355846; 626399, 
2355498; 626215, 2355823; 626806, 2356493; 626915, 2356759.

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[[Page 30396]]


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    Dated: May 30, 2001.
Marshall P. Jones Jr.,
Acting Assistant Secretary for Fish and Wildlife and Parks.
    (Proposed: Designation of critical habitat for the Oahu elepaio 
(Chasiempis sandwichensis ibidis))
[FR Doc. 01-14171 Filed 6-5-01; 8:45 am]
BILLING CODE 4310-55-M