[Federal Register Volume 66, Number 237 (Monday, December 10, 2001)]
[Rules and Regulations]
[Pages 63752-63782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29475]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Determination of 
Critical Habitat for the Oahu Elepaio (Chasiempis sandwichensis 
ibidis); Final Rule

  Federal Register / Vol. 66, No. 237 / Monday, December 10, 2001 / 
Rules and Regulations  

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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; Determination of 
Critical Habitat for the Oahu Elepaio (Chasiempis sandwichensis ibidis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Oahu elepaio pursuant to the Endangered 
Species Act of 1973, as amended (Act). The Oahu elepaio is a forest 
bird found only on the island of Oahu and is listed as endangered under 
the Act. The critical habitat consists of five units whose boundaries 
encompass a total area of approximately 26,661 hectares (ha) (65,879 
acres (ac)) in the Koolau and Waianae mountains on the island of Oahu, 
Hawaii. Critical habitat identifies specific areas that are essential 
to the conservation of a listed species and that may require special 
management considerations or protection. As required by section 4 of 
the Act, we considered economic and other relevant impacts prior to 
making a final decision on what areas to designate as critical habitat.

DATES: This rule is effective January 9, 2002.

FOR FURTHER INFORMATION CONTACT: Marilet A. Zablan, Vertebrate 
Conservation Coordinator, or Eric VanderWerf, Biologist, Pacific 
Islands Fish and Wildlife Office, U.S. Fish and Wildlife Service, 300 
Ala Moana Boulevard, Room 3-122, Box 50088, Honolulu, Hawaii 96850 
(telephone: 808/541-3441; facsimile: 808/541-3470).

SUPPLEMENTARY INFORMATION:

Background

    The Oahu elepaio (Chasiempis sandwichensis ibidis) is a small 
forest-dwelling bird approximately 12.5 grams (0.43 ounces) in weight 
and 15 centimeters (cm) (6 inches (in)) in 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 on the chin than females. Juveniles 
and subadults are reddish above, 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 and yellow in juveniles. The 
legs and feet are dark gray and the iris is dark brown (VanderWerf 
1998).
    Three subspecies of elepaio are recognized, each found only on a 
single island: the Oahu elepaio; the Hawaii elepaio (Chasiempis s. 
sandwichensis); and the Kauai 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 Oahu 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 found only in 
the Hawaiian Islands (VanderWerf 1998). Its closest relatives are other 
monarch flycatchers from the Pacific region (Pratt et al. 1987, Sibley 
and Ahlquist 1985).
    The Oahu elepaio occurs in a variety of forest types, but is 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). Elepaio 
currently are not 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 subpopulations. 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 relatively 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 
(VanderWerf et al. 2001). This observation 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). 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 (Hawaii 
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 ohia (Metrosideros polymorpha), 
papala kepau (Pisonia umbellifera), lama (Diospyros sandwicensis), 
mamaki (Pipturus albidus), kaulu (Sapindus oahuensis), hame (Antidesma 
platyphyllum), and alaa (Pouteria sandwicensis), and some of the most 
common introduced plants are guava (Psidium guajava), strawberry guava 
(P. cattleianum), kukui (Aleurites moluccana), mango (Mangifer indica), 
Christmasberry (Schinus terebinthifolius), and ti (Cordyline 
terminalis) (VanderWerf et al. 1997, VanderWerf 1998).
    The current population of Oahu elepaio is approximately 1,982 birds 
distributed in six core subpopulations and several smaller 
subpopulations (Table 1, Figure 1; VanderWerf et al. 2001).

    Table 1.--Estimated Size and Area of Oahu Elepaio Subpopulations
 [Data from VanderWerf et al. (2001). Letters before each subpopulation
                    correspond to those on Figure 1]
------------------------------------------------------------------------
                                      Total       Breeding
          Subpopulation             population   population   Area  (ha)
                                       size         size
------------------------------------------------------------------------
Waianae Mountains:
    A. Southern Waianae                    458          418        1,170
     (Honouliuli Preserve,
     Lualualei Naval Magazine)...
    B. Schofield Barracks West             340          310          538
     Range.......................
    C. Makaha, Waianae Kai                 123          112          459
     Valleys.....................

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    D. Pahole, Kahanahaiki.......           18            4          256
    E. Schofield Barracks South              6            0           20
     Range.......................
    F. Makua Valley..............            7            2           49
    G. Kaala Natural Area Reserve            3            0           21
    H. Makaleha Gulch............            2            0            7
    I. Kuaokala..................            3            2           14
    J. Kaluakauila Gulch.........            1            0            6
Koolau Mountains:
    K. Southern Koolau (Pia,               475          432        1,063
     Wailupe, Kapakahi, Kuliouou,
     Waialae Nui)................
    L. Waikane, Kahana Valleys...          265          242          523
    M. Central Koolau (Moanalua,           226          206        1,396
     North and South Halawa,
     Aiea, Kalauao)..............
    N. Palolo Valley.............           46           42           78
    O. Waihee Valley.............            5            4           32
    P. Manoa.....................            2            0           19
    Q. Hauula....................            1            0            4
    R. Waianu Valley.............            1            0            8
                                  --------------------------------------
      Total......................        1,982        1,774        5,663
------------------------------------------------------------------------


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    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 Waianae Mountains in the west and the Koolau 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 Waianae and Koolau mountains (Table 1). These 
remnant 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 (VanderWerf et al. 
2001), and many small, declining populations contain mostly males 
(Table 1). The genetically effective population size, a measure that 
takes into account genetic population structure and variation in number 
of individuals over time, is probably even smaller than the breeding 
population because of the geographically fragmented distribution (Grant 
and Grant 1992). Offspring dispersal distances in elepaio are usually 
less than one kilometer (km) (0.62 mile (mi)) and adults have high site 
fidelity (VanderWerf 1998), but most elepaio populations on Oahu 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 Waianae and Koolau mountains is unlikely. While the 
current distribution superficially appears to constitute a 
metapopulation, it is uncertain if dispersal occurs among 
subpopulations.
    Before humans arrived, forest covered about 127,000 ha (313,690 ac) 
on Oahu (Figure 2; Hawaii Heritage Program 1991), and it is likely that 
elepaio once inhabited much of that area (VanderWerf et al. 2001). 
Reports by early naturalists indicate that elepaio were once widespread 
and abundant on Oahu. Bryan (1905) called the Oahu 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 Oahu elepaio apparently included 
most forested parts of the island, and it was formerly abundant.
    Despite its adaptability, the Oahu 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 5,660 ha 
(13,980 ac) (see Table 1) (VanderWerf et al. 2001). The Oahu 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 Hawaii 1,600 years ago (Kirch 1982). In 1975, 
elepaio inhabited approximately 20,900 ha (51,623 ac) on Oahu, almost 
four times the area of the current range (Figure 2; VanderWerf et al. 
2001). The range of the Oahu elepaio has thus declined by roughly 75 
percent in the last 25 years. Much of the historical decline of the 
Oahu 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. 2001).
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    However, many areas of Oahu that recently supported elepaio and 
still contain suitable forest habitat are currently unoccupied, 
demonstrating that habitat loss is not the only threat. Recent declines 
in Oahu 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 Oahu (0.76, 0.33, respectively) than 
in a large, stable population of another subspecies of elepaio at 
Hakalau Forest National Wildlife Refuge on Hawaii Island (0.85, 0.62; 
VanderWerf 1998). The two main causes of low survival and low 
reproduction on Oahu are nest predation by alien black rats (Rattus 
rattus) and alien diseases, particularly avian pox (Poxvirus avium) and 
avian malaria (Plasmodium relictum), which are carried by the alien 
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). 
Pairs in which at least one bird had pox lesions produced fewer 
fledglings than healthy pair. (E. VanderWerf, unpubl. data). Many birds 
with active pox did not even attempt to nest, and infected birds were 
sometimes deserted by their mate. 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.
    Nest predation by black rats causes many nests to fail, and rats 
also probably take adult female elepaio on the nest at night. 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 2001). Control of rats 
with snap traps and diphacinone (an anticoagulant 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).
    A comprehensive description 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 Oahu 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 Oahu 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 Hawaii, territory size was 50 
percent larger in more disturbed forest with an open canopy and grass 
understory.
    Oahu 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 through May, 
but active nests have been found from January through 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 home 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 reproductive rate is 0.75 fledglings per pair per year (VanderWerf 
1999). Oahu 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 behaviors 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 Hawaii 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 Oahu elepaio as an endangered or threatened species with 
critical habitat. The November 15, 1994, Animal Candidate Notice of 
Review (59 FR 58991) classified the Oahu 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 Oahu 
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 Oahu 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 Oahu 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 to the species. In the proposed listing 
rule we indicated that designation of

[[Page 63758]]

critical habitat for the Oahu 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 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 
Oahu 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 Oahu 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 Oahu elepaio at that time 
due to budgetary and workload constraints. However, on June 28, 2000, 
the United States District Court for the District of Hawaii 
established, in the case of Conservation Council for Hawaii v. Babbitt, 
CIV. NO. 00-00001 HG-BMK, a timetable to designate critical habitat for 
the Oahu elepaio, and ordered that the Service publish the final 
critical habitat designation by October 31, 2001. That date was 
extended to November 21, 2001. This final rule responds to the court's 
order.
    On November 9, 2000, we mailed letters to 32 landowners on Oahu 
informing them that the Service was in the process of designating 
critical habitat for the Oahu elepaio and requesting from them 
information on management of lands that currently or recently (within 
the past 25 years) supported Oahu elepaio. The letters contained a fact 
sheet describing the Oahu elepaio and critical habitat, a map showing 
the historic and current range of the Oahu 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 Hawaii State Division of Forestry and Wildlife, to 
obtain more specific information on management activities and 
suitability of certain habitat areas for the elepaio. The information 
provided in the responses and during meetings was considered and 
incorporated into this final rule.
    On June 6, 2001, we published a proposed rule to designate critical 
habitat for the Oahu elepaio (66 FR 30372). The proposed critical 
habitat consisted of five units whose boundaries encompassed a total 
area of approximately 26,661 hectares (ha) (65,879 acres (ac)) in the 
Koolau and Waianae mountains on the island of Oahu, Hawaii. The public 
comment period was open for 60 days until August 6, 2001. We did not 
receive any requests for public hearings during the comment period and 
we did not hold any public hearings. On August 6, 2001, we published a 
notice announcing the reopening of the public comment period and the 
availability of the draft economic analysis for the proposed critical 
habitat designation for the Oahu elepaio (66 FR 40960). The comment 
period was open for an additional 30 days until September 6, 2001. On 
August 28, 2001, we held a public meeting in Honolulu to provide 
information and promote discussion about the critical habitat 
designation for the Oahu elepaio. The meeting was attended by 11 
people, not including Service staff. During this meeting the Service 
presented a brief introduction to the biology of the Oahu elepaio, a 
summary of previous federal actions regarding the elepaio, information 
about critical habitat, and the methods used to identify critical 
habitat for the Oahu elepaio. The presentation was followed by a 
question and answer session and general discussion, and we made 
available information including maps, fact sheets, news releases, 
reprints of scientific papers, copies of the proposed rule and draft 
economic analysis, and instructions for submitting public comments. On 
September 5, 2001, we published a correction to the proposed rule (66 
FR 46428). The proposed rule contained the correct maps and legal 
descriptions of the proposed critical habitat units, but figure 2 in 
the background section of the proposed rule, which showed the proposed 
critical habitat units in relation to the current, recent historical, 
and presumed prehistoric distribution of the Oahu elepaio, showed the 
proposed critical habitat units incorrectly. The correction provided an 
accurate version of figure 2 that matched the critical habitat units 
depicted in the legal description of the original proposed rule. Page 
30377 of the proposed rule was replaced with page 46429 of the 
correction.

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. Destruction or adverse 
modification is direct or indirect alteration that appreciably 
diminishes the value of critical habitat for the conservation 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 regulatory 
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

[[Page 63759]]

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 should 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 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, 
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) of the Act 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 
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, 2001; VanderWerf et al. 
1997, 2001); the final listing rule for the Oahu 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); responses to the Oahu elepaio 
critical habitat outreach package mailed to Federal, State, and private 
land managers and landowners; and comments received during the comment 
period.
    The distribution and abundance of the Oahu elepaio have declined 
seriously in the last few decades (Williams 1987; Oahu elepaio final 
listing rule, 65 FR 20760; VanderWerf et al. 2001). The area currently 
occupied by the Oahu 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 2000). 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 across years in response to variation in disease prevalence 
and predator populations (VanderWerf 1998, 1999), possibly due to El 
Ninno 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, 2001). 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,

[[Page 63760]]

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 
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 1 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. 2001). 
The Oahu 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. Providing links among subpopulations via dispersal would 
increase the overall effective population size through genetic exchange 
and equalization of sex ratios and breeding opportunities, thereby 
helping to alleviate the threats associated with small population size, 
and would better reflect the conditions under which the elepaio 
dispersal behavior 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 Oahu elepaio, its small total population 
size, limited range, fragmented distribution, and resulting 
vulnerability to genetic, demographic, 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 Oahu 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, 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, 
promote genetic exchange, and facilitate finding of mates. 
Specifically, each of the existing core populations in Pahole-
Kahanahaiki, Makaha-Waianae Kai, Schofield Barracks West Range, the 
southern Waianae Mountains, the central leeward Koolau Mountains, 
Waikane-Kahana, and the southern leeward Koolau 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 Oahu elepaio. Because 
a recovery plan for the Oahu elepaio has not been completed yet, in 
making this determination we looked to the historical distribution of 
the Oahu elepaio for a model of a viable population. The best and most 
recent information available on the distribution of an apparently 
viable Oahu 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 
Oahu before 1975 and already had disappeared from some parts of the 
island (Figure 2; Conant 1977, Williams 1987, VanderWerf et al. 2001), 
but in 1975 the subpopulations were still relatively large and birds 
were distributed in two well-connected population clusters, one in the 
Waianae Mountains and one in the Koolau 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 Oahu 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 Oahu elepaio; if, after critical habitat for 
the Oahu elepaio is designated, a final approved recovery plan for 
Hawaiian forest birds calls for a different approach to the 
conservation of the Oahu 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 7 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 also 
found elepaio in the following forest types (in order of decreasing 
abundance): mixed native-exotic; tall exotic; koa dominant; mixed koa-
ohia; low exotic; ohia dominant; and ohia 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

[[Page 63761]]

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. 2001).
    The primary constituent elements required by the Oahu elepaio for 
foraging, sheltering, roosting, nesting, and rearing of young are 
undeveloped wet, mesic, and dry forest habitats composed of native or 
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 undeveloped wet or dry shrub land and wet or dry 
cliff habitats. 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 providing the 
opportunities for dispersal and genetic exchange.
    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. Common native and introduced species 
within these plant assemblages include, but are not limited to, ohia 
(Metrosideros polymorpha), koa (Acacia koa), papala kepau (Pisonia 
umbellifera), lama (Diospyros sandwicensis), mamaki (Pipturus albidus), 
kaulu (Sapindus oahuensis), hame (Antidesma platyphyllum), alaa 
(Pouteria sandwicensis), aalii (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).

Criteria Used To Identify Critical Habitat

    We used several criteria to identify and select lands for 
designation as critical habitat. We began with areas that are currently 
occupied by elepaio, excluding a few very small, isolated 
subpopulations that contain only a single male. We then added 
unoccupied lands containing the primary constituent elements that were 
needed for recovery of the species. As discussed in greater detail in 
the Methods section, in deciding which unoccupied areas were essential 
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 blocks of preferred habitat or provided links between 
areas of preferred habitat. We determined the boundaries of 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 are not 
suitable for elepaio. We included lower Wailupe Valley because it 
contains the primary constituent elements, is currently occupied by 
elepaio, and is contiguous with a large subpopulation. Although this 
area is zoned for urban use, the topography and unstable soil 
conditions make it unsuitable for development.
    We were unable to map the 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 generally 
do not contain the primary constituent elements and are not critical 
habitat. Federal actions limited to those areas, therefore, would not 
trigger a section 7 consultation, unless they affect the species or 
primary constituent elements in adjacent critical habitat.

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 or 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 currently were 
being managed to address the conservation needs of the Oahu elepaio and 
did 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 the designation.
    To determine if a plan provides adequate management or protection 
we consider 3 criteria: (1) Whether the plan is current and specifies 
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 in determining this we consider whether: (a) A 
management plan or agreement exists that specifies the management 
actions being implemented or to be implemented; (b) the schedule for 
implementation is timely; (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, and (3) whether the plan provides assurances 
that the conservation management strategies will be effective. 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

[[Page 63762]]

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 Oahu 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 Hawaii, in Schofield Barracks 
West Range and Makua Military Reservation by the U.S. Army, and in the 
Honolulu Watershed Forest Reserve by the Hawaii 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 
Oahu elepaio, introduced diseases carried by mosquitoes, has not been 
managed in any area. In several areas, such as Schofield Barracks, the 
threat from fire also has not been managed adequately.
    The Oahu Forest National Wildlife Refuge does not meet these 
criteria because the refuge was created only recently (December 2000) 
and current management does not yet provide adequate management for the 
Oahu elepaio. Refuge lands have not been adequately surveyed yet, and 
it remains uncertain whether the area is currently occupied by elepaio.
    The Sikes Act Improvements Amendment 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 is to include 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 Oahu has completed a final INRMP that 
provides sufficient management and protection for the elepaio. The 
Service received information from the Army indicating they understand 
and agree that the current INRMP for Army installations on Oahu does 
not obviate the need for critical habitat designations because it does 
not meet criteria for special management or protection necessary to 
ensure long-term conservation of the species (Department of the Army, 
in litt. 2001).

Critical Habitat Designation

    Lands designated as critical habitat occur in five separate units 
and provide the full range of primary constituent elements needed by 
the Oahu 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 can be used for 
dispersal. If elepaio were restored throughout each of the critical 
habitat units, the resulting distribution would resemble the 
distribution in 1975, when the subpopulations were larger and less 
isolated, the overall population appeared to be viable, and the Oahu 
elepaio was not considered endangered. The area designated as critical 
habitat (26,661 ha) is larger than the area occupied in 1975 (20,900 
ha) because the critical habitat contains not only lands expected to 
support breeding elepaio populations, but also intervening lands that 
provide for periodic dispersal, which is a primary biological need, but 
not for permanent occupation.

                       Table 2.--Critical Habitat Units and Potential Elepaio Populations
[Data on current density from VanderWerf et al. (2001). 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 Koolau.]
----------------------------------------------------------------------------------------------------------------
                                                                                                       Potential
                                                                              Elepaio density in        elepaio
          Critical habitat unit                        Area              currently occupied parts of  population
                                                                                     unit               in unit
----------------------------------------------------------------------------------------------------------------
1. Northern Waianae Mountains............  4,454 ha....................  0.45 per ha................       2,004
                                           11,005 ac...................  0.18 per ac................
2. Southern Waianae Mountains............  2,422 ha....................  0.39 per ha................         945
                                           5,985 ac....................  0.16 per ac................
3. Central Koolau Mountains..............  14,801 ha...................  0.33 per ha................       4,884
                                           36,573 ac...................  0.14 per ac................
4. Kalihi-Kapalama.......................  804 ha......................  0.39 per ha................         314
                                            1,987 ac...................   0.16 per ac...............
5. Southern Koolau Mountains.............  4,180 ha....................  0.45 per ha................       1,881
                                           10,329 ac...................   0.18 per ac...............
All units................................  26,661 ha...................  0.37 per ha................      10,028
                                           65,879 ac...................  0.15 per ac................
----------------------------------------------------------------------------------------------------------------


[[Page 63763]]

    The potential elepaio population in the area designated as critical 
habitat is approximately 10,028 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). Although population density 
varies somewhat among locations depending on the habitat quality, we 
believe the current overall density of elepaio on Oahu, 37.6 birds per 
square kilometer, is a reasonable estimate of the potential population 
density throughout the entire area designated as critical habitat. It 
may be possible to restore elepaio to higher densities in some large 
blocks of dense forest, but in other areas, such as steep slopes and 
ridges, it likely will be difficult to establish dense populations. The 
densities used to calculate these potential populations are average 
values and the estimates are approximate.
    Critical habitat for the Oahu elepaio includes land under Federal, 
State, and private ownership, with Federal lands being managed by the 
Department of Defense and the Department of the Interior. Designated 
lands include most (99 percent) of the species' current range and 
encompass approximately 21 percent of the species' original range. 
Approximately 22 percent of designated lands are currently occupied by 
elepaio, and 78 percent are currently unoccupied but were recently 
occupied (since 1975). A detailed description of each unit and reasons 
for designating each portion of the unit as critical habitat are 
presented below. The approximate area and land ownership within each 
critical habitat unit are shown in Table 3.

                                Table 3.--Approximate Area (Hectares, Acres) of Critical Habitat Units by Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Unit                       Federal \1\                State                  County                Private                 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Northern Waianae Mountains......  774 ha................  3,033 ha..............  646 ha...............  0.7 ha...............  4,454 ha.
                                     1,913 ac..............  7,494 ac..............  1,596 ac.............  2 ac.................  11,005 ac.
2. Southern Waianae Mountains......  616 ha................  308 ha................    ...................  1,498 ha.............  2,422 ha.
                                     1,522 ac..............  761 ac................                         3,702 ac.............  5,985 ac.
3. Central Koolau Mountains........  2,852 ha..............  3,754 ha..............  308 ha...............  7,887 ha.............  14,801 ha
                                     7,047 ac..............  9,276 ac..............  761 ac...............   19,489 ac...........  36,573 ac.
4. Kalihi-Kapalama.................  ......................  397 ha................  179 ha...............  228 ha...............  804 ha.
                                                             981 ac................  442 ac...............   564 ac..............  1,987 ac.
5. Southern Koolau Mountains.......  3 ha..................  2,553 ha..............  476 ha...............  1,148 ha.............  4,180 ha.
                                     7 ac..................  6,309 ac..............  1,176 ac.............  2,837 ac.............  10,329 ac.
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................  4,245 ha..............  10,045 ha.............  1,609 ha.............  10,762 ha............  26,661 ha.
                                     10,489 ac.............  24,821 ac.............  3,975 ac.............  26,594 ac............  65,879 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 4,454 ha (11,005 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 Oahu at 1,227 m (4,025 feet), 
several other high peaks along the spine of the Waianae Range, and the 
upper portions of valleys and slopes, including Waianae Kai, Makaha, 
Makua, Kahanahaiki, and Kuaokala valleys on the west slope, Haleauau 
and Mohiakea gulches on the east slope, and several narrow valleys on 
the north slope. 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 Mohiakea gulches above the firebreak road on U.S. 
Army Schofield Barracks West Range, and 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, 
Mokuleia, Makua-Keaau, and Kuaokala State Forest Reserves, and the 
upper portion of the U.S. Army Makua Military Reservation. Thirty 
percent of Unit 1 is currently occupied by elepaio. Of critical habitat 
lands on the West Range of Schofield Barracks, approximately 70 percent 
are currently occupied by elepaio. The subpopulation on Schofield 
Barracks is of particular importance to the conservation of the species 
because it is the densest and third largest subpopulation on the 
island, contains the majority of birds remaining in the northern 
Waianae Mountains, and may serve as a source that supports smaller 
subpopulations nearby. Elepaio in the northern Waianae Mountains are 
morphologically and behaviorally distinct from elepaio in other parts 
of the island, and conservation of this population segment would not be 
possible without the core subpopulation on Schofield Barracks.
    In addition to protecting lands occupied by the two core elepaio 
subpopulations and six smaller subpopulations, designated 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 types of forest most preferred by elepaio. Specifically, 
currently unoccupied lands in Pahole and Kaala State Natural Area 
Reserves, Mokuleia, Makua-Keaau, and Kuaokala State Forest Reserves, 
upper Makua Valley, and upper Kahanahaiki Valley are needed for 
recovery to allow the number of birds in existing subpopulations to 
increase. 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 expansion and shrub land and cliff 
habitats that provide for dispersal among subpopulations will provide 
linkage needed to approximate the original genetic and demographic 
conditions that once existed in this area.

Unit 2: Southern Waianae Mountains

    Unit 2 consists of approximately 2,422 ha (5,985 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

[[Page 63764]]

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 Oahu elepaio subpopulation, 
encompassing several land parcels, including Honouliuli Preserve 
(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. Fifty percent of Unit 2 is currently 
occupied by elepaio. In addition to protecting currently occupied 
habitat, designated 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 14,801 ha (36,573 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) Manaiki, Moanalua, South Halawa, North 
Halawa, Kalauao, Waimalu, Waimano, Manana, Waiawa, Kipapa, 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 Waiahole State Forest Reserve. Thirteen percent 
of Unit 3 is currently occupied by elepaio. Designated 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, Kipapa, 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. 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 804 ha (1,987 ac) encompassing the 
higher elevations of the leeward (western) side of the central Koolau 
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 Koolau 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 Koolau Mountains

    Unit 5 consists of approximately 4,180 ha (10,329 ac) encompassing 
the higher elevations of the southern Koolau Mountains. It is bounded 
on the west by the Pali Highway. Natural features of the unit include: 
the summit of the southern Koolau Mountains, including Konahuanui, the 
highest peak in the Koolau 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. Twenty-nine percent of Unit 5 is currently 
occupied by elepaio. The current distribution of elepaio in the 
southern Koolau 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, 
designated 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. 
Designated 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 Koolau Mountains, thereby increasing the potential genetic exchange 
and maintenance of optimal sex ratios. 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 Koolau

[[Page 63765]]

subpopulation and the central Koolau 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. Destruction or 
adverse modification occurs when a Federal action directly or 
indirectly alters critical habitat to the extent it appreciably 
diminishes the value of critical habitat for the conservation 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) of the Act requires Federal agencies to 
confer with us on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. 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 was designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat is 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) of the Act 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 or 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 the permitted actions do not 
destroy or adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we would 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 
also may jeopardize the continued existence of the species. Activities 
that may directly or indirectly adversely affect critical habitat for 
the Oahu 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 these activities 
affect vegetation structure or produce 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 result in the destruction or adverse modification 
of critical habitat would almost always result in jeopardy to the 
species concerned, particularly when the area affected by 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

[[Page 63766]]

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

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 conducted an analysis of 
the economic impacts of designating these areas as critical habitat 
prior to a final determination. We find that in no area do the benefits 
of exclusion outweigh the benefits of inclusion, and we did not exclude 
any areas under Section 4(b)(2).
    Currently, no habitat conservation plans (HCPs) include the Oahu 
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 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 Oahu 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 designated 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.

Summary of Comments and Recommendations

    In the proposed rule published on June 6, 2001 (66 FR 30372), we 
requested that all interested parties submit comments on the proposal. 
We also contacted all appropriate State and Federal agencies, county 
governments, landowners, and other interested parties and invited them 
to comment. In addition, we requested three expert ornithologists and 
conservation biologists to provide peer review of the proposed critical 
habitat designation. The first comment period closed on August 6, 2001 
(66 FR 30372). The comment period was reopened from August 6 to 
September 6, 2001, to allow for comments on the draft economic analysis 
of the proposed critical habitat and additional comments on the 
proposed rule (66 FR 40960).
    We received a total of 22 written comments during the two comment 
periods. Comments were received from 2 Federal agencies, 5 State 
agencies, 8 private organizations or individuals, and 3 peer reviewers. 
Four commenters provided comments in both comment periods. We reviewed 
all comments received for substantive issues and new data regarding 
critical habitat and the Oahu elepaio. Peer reviewer comments are 
summarized separately in the next paragraph. Public comments are 
grouped into 4 general issues relating to the proposed critical habitat 
determination and draft economic analysis, and are addressed in the 
following summary.
    All three peer reviewers thought our methods for designating 
critical habitat were sound, the best available scientific information 
was used, and the relevant scientific literature, reports, and recent 
research were summarized adequately. All three also felt that inclusion 
of currently unoccupied areas was justified and well supported, and 
that the definition of primary constituent elements and the criteria 
used to identify critical habitat were comprehensive, valid, and 
justified. One reviewer commented that the short dispersal distances of 
elepaio offspring justify the inclusion of large tracts of contiguous 
forest. Two reviewers felt that the size and distribution of the units 
would allow for development of sustainable populations, but one 
reviewer expressed some doubt whether the amount of critical habitat 
proposed, which is similar to the area occupied in 1975, was sufficient 
to ensure the survival of the species, because the distribution in 1975 
was unstable. Finally, one reviewer suggested that the importance of 
wet stunted forest and dry shrubland for dispersal should be more 
clearly demonstrated if possible. None of the reviewers provided new 
information about the biology or distribution of elepaio or about areas 
that should be considered essential to its conservation.

[[Page 63767]]

Issue 1: Biological Justification and Methodology

    (1) Comment: Several commenters supported the CH designation and 
felt that critical habitat is needed because habitat loss is one of the 
primary causes in the decline of the Oahu elepaio.
    Service Response: Habitat loss has been an important factor in the 
decline of the Oahu elepaio; 56 percent of the former range has been 
lost to urban and agricultural development.
    (2) Comment: Several commenters supported the inclusion of 
unoccupied habitat due to the clear need for the elepaio to expand 
outside currently occupied areas if it is to recover.
    Service Response: As stated in both the proposed rule and this 
final rule, the small population size and fragmented distribution of 
the Oahu elepaio make it vulnerable to extinction. Each of the 
currently occupied areas is too small to support a viable long-term 
population, and recovery will require restoration of elepaio in areas 
that were formerly inhabited.
    (3) Comment: The area proposed as critical habitat is larger than 
necessary. One commenter stated that a smaller area than that proposed 
would meet all legal requirements and lessen the regulatory burden. 
Based on the area of the proposed critical habitat (26,853 ha, 66,354 
ac) and the current population density of elepaio on Oahu (37.6 birds 
per square kilometer), the area proposed would provide habitat for 
10,100 elepaio. The commenter asserted that elepaio occur at densities 
over 200 birds per square kilometer on other islands, that it is 
possible to attain densities of 50-100 elepaio per square kilometer on 
Oahu, so that less land is needed to support the same number of 
elepaio.
    Service Response: The critical habitat designation was based on the 
distribution of lands required to support a viable population of 
elepaio, not on the amount of land required to support a certain number 
of elepaio. The viability of a population depends not only on the 
number of birds, but also on their distribution. We feel the 
distribution of lands in the designation, in large blocks of contiguous 
habitat, is necessary for the long-term conservation of elepaio on 
Oahu, as a large number of birds distributed in many tiny habitat 
fragments is less likely to persist than birds in a single large 
population or in several well-connected populations. We also believe 
the current density of elepaio on Oahu, 37.6 birds per square 
kilometer, is a reasonable estimate of the overall potential population 
density throughout the entire area designated as critical habitat. It 
probably will be possible to restore elepaio to densities of 50-100 
birds per square kilometer in some large blocks of dense forest, but in 
other areas density probably will be lower than 37.6 birds per square 
kilometer because it will be difficult to establish populations in 
other portions of the former range. The density we used to estimate the 
potential population is an average value.
    (4) Comment: Several commenters supported the designation of 
critical habitat on military lands, citing the threats from military 
training, particularly fire, to the elepaio.
    Service Response: We included all areas containing the primary 
constituent elements that are essential to the conservation of the 
elepaio, regardless of ownership. We determined that no areas, 
including military lands, were sufficiently protected so as not to meet 
the definition of critical habitat under section 3(5)(A)(i)(II) of the 
Act, or qualified for exclusion from critical habitat under Section 
4(b)(2) of the Act. Also see comments 6 and 7.
    (5) Comment: Critical habitat designation is not appropriate in 
particular areas. One commenter stated it was not appropriate to 
designate critical habitat in areas that are not occupied by the 
elepaio, and that none of the physical or biological features necessary 
to the conservation of the species are present in unoccupied areas. The 
Army requested that an area southeast of Puu Pane be removed from Unit 
1 because it is marginal habitat for the elepaio and has limited 
potential for recovery.
    Service Response: All currently unoccupied areas designated as 
critical habitat were occupied by elepaio within the past 25 years, and 
these areas still contain the primary constituent elements needed by 
the elepaio. 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 and isolation make them vulnerable 
to extinction due to a variety of natural processes, such as inbreeding 
depression, loss of genetic variability due to genetic drift, decreased 
evolutionary potential and ability to cope with environmental change, 
random fluctuations in population size and sex ratio, and catastrophes 
such as hurricanes. Unoccupied areas that still contain the primary 
constituent elements are needed for recovery to allow the number of 
elepaio to increase. (Also see comment 2 and summary of reviewer's 
comments).
    Since the proposed rule was published we visited the area southeast 
of Puu Pane with Army biologists, and we agree with the Army that it is 
marginal habitat for the elepaio and should not have been included in 
the proposed designation. Much of this area consists of exposed ridges 
and steep slopes that support dry shrubland, and most of the remainder 
is dominated by Eucalyptus robusta, an alien tree that is not favored 
by elepaio. The small forested areas in the dry gulches southeast of 
Puu Pane could support at most a few pairs of elepaio, and they are 
isolated from other forested areas and would not serve as habitat 
stepping stones between other subpopulations. In this final rule we 
removed 48 ha (119 ac) from the proposed rule that should not be 
designated as critical habitat.
    (6) Comment: The U.S. Navy requested that lands in NAVMAG Pearl 
Harbor Lualualei Branch be excluded from the critical habitat 
designation because existing protections and management are sufficient, 
thereby resulting in their lands not requiring special management or 
protection and not meeting the definition of critical habitat under 
Section 3(5)(A) of the Act. The Navy also stated that it has prepared a 
full management strategy for the Oahu elepaio in the pending INRMP for 
NAVMAG Pearl Harbor Lualualei Branch, which includes an evaluation of 
population distribution, quality and quantity of nesting habitat, 
threats, and management needs for recovery. The Navy maintains that the 
management strategy in the INRMP provides adequate management and 
protection and should exempt NAVMAG Pearl Harbor Lualualei Branch from 
critical habitat.
    Service Response: The primary threats to the elepaio, predation by 
alien rats and diseases carried by alien mosquitoes, have not been 
addressed on Navy lands. The Navy conducts predator control in a small 
wetland in Lualualei to protect endangered waterbirds, but this site is 
several kilometers from elepaio critical habitat and provides no 
benefit to elepaio. After reviewing the draft INRMP for NAVMAG Pearl 
Harbor Lualualei Branch, we have determined that it does not provide 
for adequate protection or management for the Oahu elepaio. The draft 
INRMP does not include a management strategy for the Oahu elepaio and 
does not provide an evaluation of population distribution, quality and 
quantity of nesting habitat, threats, and management needs for 
recovery.
    We agree that INRMPs can provide adequate management and protection 
of military lands such that they no longer require critical habitat 
designation. To determine if an INRMP provides

[[Page 63768]]

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, i.e., provide 
for periodic monitoring and revisions as necessary. If all of these 
criteria are met, then under current Service policy the lands covered 
under the plan would no longer meet the definition of critical habitat.
    (7) Comment: The U.S. Army stated that current management actions 
for the Oahu elepaio at Schofield Barracks and Makua Military 
Reservation and existing wildfire management programs afford adequate 
protection for the elepaio, suggesting these areas should be excluded 
from critical habitat.
    Service Response: We agree that the Army has conducted some 
valuable management for the elepaio, but thus far only a small fraction 
of elepaio on Army lands have benefited from management activities such 
as rodent control, and the threat to elepaio at Schofield Barracks of 
wildfires resulting from training activities has not been managed 
adequately. Larger scale rodent control and improved fire management 
will be necessary to meet the long-term conservation needs of the 
elepaio. We have determined that current management does not adequately 
address the conservation needs of the Oahu elepaio, and that Army lands 
cannot be excluded from critical habitat under Section 3(5)(A)(i)(II).
    (8) Comment: Before final designation, the Service should ground-
truth all suitable habitat and the known range of elepaio to maximize 
the area available for recovery.
    Service Response: The critical habitat designation was based on the 
best information available at the time, and included data from numerous 
surveys by university, State, military, and private biologists. We 
recognize that more information on habitat suitability and distribution 
of the elepaio would be useful, and the Service recently ground-truthed 
several areas. If new scientific information shows that there is a need 
to add or remove lands from the critical habitat, an amendment or 
correction to the designation could be considered.

Issue 2: Policy and Regulations

    (9) Comment: Efforts by the Service to protect elepaio habitat must 
include incentives and support for landowners to manage habitat. 
Several commenters mentioned that they have ongoing management for 
elepaio, and four commenters urged the Service to provide financial and 
technical support to private landowners to implement additional 
voluntary predator control and habitat management.
    Service Response: The Service agrees there is a need to provide 
financial and technical support to private landowners who would like to 
help recover listed species. Since the proposed rule was published, the 
Partners for Fish and Wildlife Program of the Service has provided a 
private land manager with money to manage elepaio habitat through the 
Hawaii Community-Based Endangered Species Conservation Initiative. The 
Service also is working, in collaboration with the State Department of 
Land and Natural Resources, to design potential Safe Harbor Agreements 
with private landowners under section 10 of the Act, in which the 
Service would provide technical support and up to 75 percent of the 
cost of managing habitat for elepaio recovery. One Safe Harbor 
Agreement is approved and funded, and there is potential to develop 
more. (see also comments 13 and 22).
    (10) Comment: Several commenters questioned whether critical 
habitat designation would provide any benefit to the elepaio, 
particularly on privately owned lands with no Federal nexus. One 
commenter requested that, since there are no discernible benefits to 
including private lands in the designation, such lands be excluded 
under Section 4(b)(2) of the Act. Another commenter stated that the 
majority of land proposed as critical habitat already is protected by 
State conservation zoning, Natural Area Reserves, Forest Reserves, and 
watershed partnerships, and that critical habitat designation is not 
necessary and would duplicate existing zoning and land use protection.
    Service Response: It is true that most (99.6%) of the critical 
habitat for the Oahu elepaio is in areas that already receive 
protection from State regulations, zoning restrictions, private 
preserves, and partnerships, but the critical habitat designation 
provides an additional type of protection that only affects actions 
carried out, funded, or permitted by the Federal Government. If actions 
with a Federal nexus occur on State, County, or private lands, then 
critical habitat designation will ensure that those actions do not 
adversely modify the habitat elements important to the elepaio. Over 
39,000 acres of the critical habitat are in the Resource Subzone of the 
State Conservation District, which allows such actions as commercial 
forestry, mining, and extraction of any material or natural resource. 
An additional 1,136 acres are in the General Subzone of the 
Conservation District, which in addition to the activities listed 
above, allows farming, nurseries, orchards, and grazing. Critical 
habitat designation ensures that any of these actions on State 
conservation lands that involve a Federal nexus will not adversely 
modify critical habitat. Because State Conservation zoning already 
places limitations on land use, we expect very few if any economic 
impacts from the designation of critical habitat.
    Critical habitat designation provides educational as well as 
regulatory benefits. Attention brought by critical habitat designation 
can help educate the public about the conservation needs of a species, 
aid landowners and managers in focusing and concerting management 
efforts, and can even result in increased funding opportunities (see 
response to comment 9).
    (11) Comment: Critical habitat designation will result in expensive 
additional land management requirements for private landowners. There 
is no benefit to designating critical habitat on the property of a 
small landowner if they do not have the resources to manage the area 
and government agencies do not have access for management.
    Service Response: Critical habitat designation does not require any 
additional management to be done by private landowners, State agencies, 
or the Federal Government. Critical habitat designation does not create 
a wilderness area or preserve; it does not require fencing, control of 
rodents, ungulates, or weeds; and it does not close an area to hunting 
or hiking. It requires only that actions carried out, funded, or 
permitted by the Federal Government must not destroy or adversely 
modify critical habitat. The decision to manage land to control threats 
to the elepaio, such as nest predation or disease, is separate from 
critical habitat designation and at the discretion of the landowner.
    (12) Comment: Designation of critical habitat may discourage 
private landowners from entering cooperative management programs such 
as watershed partnerships, particularly if a landowner is concerned or 
uncertain about Federal regulations.
    Service Response: The goals of watershed partnerships are 
compatible with the conservation needs of the Oahu elepaio and with the 
objectives of critical habitat. There is no reason that critical 
habitat designation should discourage private landowners from entering 
watershed partnerships. We

[[Page 63769]]

welcome the opportunity to discuss concerns or uncertainties about 
critical habitat regulations with any such partnership. Our 
Partnerships Program is actively involved in cooperative management 
programs, such as watershed partnerships, and helps guide and fund 
partnerships toward good land stewardship practices.
    (13) Comment: Money spent on this and future regulatory processes 
to enforce critical habitat could be much better spent on management 
activities. More management, not more regulations, can best address the 
decline of the elepaio.
    Service Response: We agree that greater management of threats such 
as predation and disease is needed for recovery of the elepaio, but 
habitat protection also is essential to the recovery of the elepaio, 
and critical habitat is a method of habitat protection. The Service 
provides financial and technical support for several elepaio recovery 
actions, and critical habitat designation can lead to increased funding 
opportunities for recovery actions (see comments 9 and 22).
    (14) Comment: One commenter questioned the Service's policy not to 
include existing structures within the boundaries of the mapped 
critical habitat units because doing so could create confusion as to 
whether a given area contains the primary constituent elements and thus 
whether section 7 consultation is necessary.
    Service Response: Within the critical habitat units there are 
numerous small structures that do not contain the primary constituent 
elements required by the elepaio, such as buildings, roads, aqueducts, 
water tanks, and antennas. Including such structures in the critical 
habitat designation would imply that they are required by the elepaio 
and therefore must be present for the elepaio to survive, which is not 
true and easily could be misinterpreted. In the text of the proposed 
rule we therefore stated that any such features within the critical 
habitat units are not included in the critical habitat designation. The 
alternative to describing such features in the text is to depict each 
one as a ``hole'' in the critical habitat. However, these structures 
are too small to be visible on a map and it was impossible to map every 
existing structure that does not contain the primary constituent 
elements. A few structures, such as the H-3 freeway and the Palehua 
Road, are large enough to be mapped.
    (15) Comment: One commenter objected to the suggestion in the 
proposed rule that habitat cannot be ``critical'' unless it contains 
the primary constituent elements, and stated that for unoccupied areas 
the only relevant consideration is whether the area is essential for 
the conservation of the species. Some unoccupied areas may be degraded, 
but that does not mean they do not require protection from further 
adverse modification for the elepaio to have a chance at recovery.
    Service Response: We recognize that areas outside the boundaries of 
the critical habitat may be suitable for elepaio recovery, and that it 
is possible, although perhaps expensive, to restore degraded areas that 
do not currently contain the primary constituent elements. The focus of 
critical habitat, however, is the area essential to the conservation of 
the species. For some species there may not be sufficient land 
available that contains the primary constituent elements, and it may be 
necessary to restore additional habitat in order to provide for the 
conservation of the species. In the case of the Oahu elepaio, we 
believe that the designated critical habitat does contain the areas 
essential to the conservation of the species, and that these lands 
alone are sufficient to provide for its recovery. This does not mean 
that areas outside the designated critical habitat units are not 
suitable and cannot be used for elepaio recovery, nor does it imply 
that they should not be protected or restored. It simply reflects our 
conclusions that sufficient lands are available that already contain 
the primary constituent elements.
    (16) Comment: One commenter urged the Service not to exclude any 
areas containing the primary constituent elements, including areas 
covered by Conservation Agreements and Safe Harbor Agreements, that are 
being managed to address the conservation needs of the species and 
therefore allegedly do not meet the definition of critical habitat in 
Section 3(5)(A) of the Act because they do not require special 
management or protection.
    Service Response: No areas were excluded from the designation on 
the basis that current management was adequate and special management 
or protection was not required. Currently there are no Conservation 
Agreements or Safe Harbor Agreements that include the Oahu elepaio.
    (17) Comment: The inability to use flares and tracer ammunition at 
Schofield Barracks would require that the Army conduct all such 
training elsewhere, which would have tremendous economic impact and 
would adversely affect training readiness.
    Service Response: Designation of critical habitat for the Oahu 
elepaio on Army lands would not necessarily prohibit any training 
activities or the use of any type of ammunition at Schofield Barracks. 
The critical habitat does not contain any lands used for training, but 
an impact area for live-fire training is adjacent to critical habitat. 
The primary potential effect on elepaio from military training at 
Schofield Barracks is the risk of wildfires that cross the firebreak 
road and burn forested areas comprising the critical habitat. If an 
adequate fire management plan is implemented and fires that affect 
critical habitat are controlled, there should be no effect on elepaio 
from military training and no changes needed to the types of training 
conducted at Schofield Barracks.
    Although it would be possible, but more expensive, to conduct 
training with flares and tracer ammunition at an alternate site, we 
believe that moving such training is not necessary if the risk of fires 
resulting from use of such munitions at Schofield Barracks is 
adequately controlled. A detailed fire management plan has been 
prepared for nearby Makua Military Installation, but the draft INRMP 
for Schofield Barracks does not contain a full fire management plan and 
currently there are no specific procedures to control wildfires at 
Schofield Barracks. Because most of the critical habitat at Schofield 
Barracks is occupied by elepaio, the effect of military training on 
elepaio would require consultation under Section 7 of the Act even if 
critical habitat were not designated. Since the area is occupied by 
elepaio, consultations will point to a need for a fire management plan 
regardless of any CH designation, which, if adequately done, will moot 
any impact to the Army from the critical habitat designation. The 
Service expects to work with the Army on the development of a sound 
fire management plan for Schofield Barracks and on minimizing or 
mitigating potential impacts of training on the elepaio in ways that 
will not compromise training readiness.

Issue 3: Economic Issues

    (18) Comment: Several commenters stated that critical habitat 
designation will have an adverse economic impact to private landowners, 
and requested that a particular area be excluded from designation under 
Section 4(b)(2) because costs outweigh benefits. One commenter pointed 
out that the draft economic analysis found that the area along Palehua 
Road might experience a large economic impact, and that exclusion of 
the area would not compromise conservation objectives, would maximize 
efficiency of private land use for commercial purposes, and

[[Page 63770]]

would not result in extinction of the species.
    Service Response: Critical habitat designation would not affect any 
uses of private land unless actions on the land were carried out, 
funded, or somehow permitted by the Federal Government. The economic 
analysis showed that the economic impact of the proposed critical 
habitat designation would be minimal in most areas, and that only a few 
locations potentially could experience a moderate impact. Some of the 
areas where the economic impact might be moderate also are of high 
value to the elepaio, and we feel that the benefits of inclusion 
outweigh the benefits of exclusion.
    Since publication of the proposed rule, we have re-evaluated the 
Palehua Road area and decided that for biological reasons it should not 
have been included in the proposed designation, and we removed it from 
the final designation (see Summary of Changes From the Proposed Rule).
    (19) Comment: One commenter expressed concern about the impact of 
critical habitat designation on agricultural resources, particularly 
the water catchment and distribution facilities of the Waiahole Ditch 
(which is within the boundaries of Unit 3), and recommended that a 
corridor be established around the ditch excluding it from critical 
habitat. This ditch is the sole source of irrigation water for several 
thousand acres of agricultural land in south-central Oahu, and it will 
require periodic maintenance.
    Service Response: Existing features and structures within the 
boundaries of the critical habitat units, such as the Waiahole Ditch, 
are not included in the critical habitat because they do not contain 
the primary constituent elements needed by the elepaio. Maintenance of 
these features and structures would only be affected by the critical 
habitat designation and would only require section 7 consultation if 
the maintenance is federally funded or permitted and if the action 
affected the species or the primary constituent elements in adjacent 
areas of critical habitat. It was not practical to create a corridor in 
the critical habitat around the Waiahole Ditch because the ditch is too 
small.
    (20) Comment: One commenter objected to the draft Economic Analysis 
because it does not meet the requirements of the Tenth Circuit Court's 
opinion in New Mexico Cattle Growers Association v. U.S. Fish and 
Wildlife Service, No. 00-2050, May 11, 2001, which requires a full 
analysis of all economic impacts of a critical habitat designation, 
regardless of whether those impacts are attributable co-extensively to 
other causes.
    Service Response: On May 11, 2001, the U.S. Court of Appeals for 
the Tenth Circuit issued a ruling that addressed the analytical 
approach used by the Service to estimate the economic impacts 
associated with the critical habitat designation for the southwestern 
willow flycatcher. New Mexico Cattle Growers Association v. U.S. Fish 
and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). Specifically, the 
court rejected the approach used by the Service to define and 
characterize baseline conditions. Defining the baseline is a critical 
step in an economic analysis, as the baseline in turn identifies the 
type and magnitude of incremental impacts that are attributed to the 
policy or change under scrutiny. In the flycatcher analysis, the 
Service defined baseline conditions to include the effects associated 
with the listing of the flycatcher and presented only the incremental 
effects of the rule.
    We have revised the economic analysis for the Oahu elepaio through 
the Addendum to specifically address the Tenth Circuit Court's 
instructions. Specifically, the economic analysis quantifies, to the 
extent possible, the effects of section 7 in its entirety on current 
and planned activities that are reasonably expected to occur in the 
near future within proposed critical habitat. For these reasons we 
believe the economic analysis of the critical habitat designation for 
the Oahu elepaio meets the requirements of the Tenth Circuit Court's 
opinion.

Issue 4: Other Relevant Issues

    (21) Comment: The Service and other agencies should work together 
in a cooperative fashion to benefit endangered species. The U.S. Navy 
commented that, although this critical habitat designation was 
generated as a result of litigation, that fact should not limit the 
ability of the Navy and the Service to work together. A State agency 
commended the Service for the process used in developing the critical 
habitat designation for the Oahu elepaio, and commented that State and 
Service biologists have worked together to identify and manage 
important habitat for the Oahu elepaio.
    Service Response: We fully agree, and we expect to continue working 
closely with all Federal and State agencies and private landowners and 
managers in developing effective management for the elepaio and other 
endangered species. We see no reason that this designation, or any 
other action that results from litigation, should affect existing 
positive working relationships.
    (22) Comment: Current management efforts fall short of meeting the 
conservation needs of the Oahu elepaio. Recovery of the elepaio will 
require larger, landscape-scale management, more funding, and possibly 
different methods, such as aerial broadcast of rodenticide to control 
rodents.
    Service Response: We agree that current management is not 
sufficient and that recovery of the elepaio will require not just 
habitat protection but large-scale active habitat management. Both the 
proposed rule and this final rule clearly state that additional 
management will be necessary for recovery of the elepaio. The Service 
has provided technical assistance with rodent control to the U.S. Army, 
the U.S. Navy, the State, and private land managers, and financial 
support for rodent control to the State and private managers. We also 
are actively involved in obtaining EPA registration for aerial 
broadcast of rodenticide, which will be an important tool in reducing 
the threat from nest predation by rats.
    (23) Comment: The critical habitat designation for the Oahu elepaio 
directly conflicts with approved Federal recovery plans for 12 
endangered plant species, which identify control of introduced plant 
species as a needed recovery action. The proposed rule identifies the 
primary constituent elements for the elepaio as wet, mesic, and dry 
forest composed of both native and introduced plant species. 
Preservation of a native forest ecosystem should be emphasized and 
protected over a mixed or introduced forest. Mixed or introduced forest 
should be excluded as a primary constituent element of elepaio habitat.
    Service Response: Elepaio are generalized in habitat use and are 
able to occupy a variety of forest types composed of many different 
plants, including native and introduced species. Many areas currently 
occupied by elepaio contain mostly introduced plants, but this does not 
mean that elepaio must have those introduced plants to survive. The 
structure of the forest is more important to elepaio than the species 
of plants present. The plant species listed in the description of 
primary constituent elements are examples of common plants in areas 
suitable for elepaio; it is not necessary for all those species to be 
present. The critical habitat designation for the Oahu elepaio does not 
require or advocate the preservation of introduced forests over native 
forests. Recovery actions for endangered native plant species that 
involve removal of alien plants do not conflict with recovery of the 
elepaio, as long as the alien plant species are

[[Page 63771]]

replaced with native plant species and the vegetative cover is retained 
in the long term. To avoid this misconception in the final rule, the 
description of the primary constituent elements has been changed to 
wet, mesic, and dry forest composed of native or introduced plant 
species.
    (24) Comment: Several commenters supported the critical habitat 
designation for the Oahu elepaio, citing the species cultural 
significance to the Hawaiian people, its uniqueness and value to the 
Hawaiian ecosystem, its intangible existence value, and the benefits it 
provides to human communities that cannot be measured.
    Service Response: We recognize the cultural and natural 
significance of the Oahu elepaio. The elepaio is familiar to many 
people in Hawaii, and it has served as a symbol not only for the 
natural environment, but also for conservation and collaborative 
management. In addition to being a guardian spirit of Hawaiian canoe 
makers, the elepaio was prominent in legends and folklore. Elepaio are 
often the first birds to sing in the morning, and their songs were 
thought to warn spirits of the night that their work must end because 
dawn was approaching.
    (25) Comment: Hunting for various mammals and game birds currently 
is authorized in portions of all five critical habitat units. Because 
nothing in the proposed rule indicates there will be a curtailment or 
cessation of hunting, it must be assumed that current authorized 
hunting programs will continue. A well-designed hunting program is a 
vital element of game management and overall conservation. If hunting 
is considered to have negative impacts, or a hunting program is 
considered for expansion or improvement, hunter groups should be 
involved in any discussions or planning.
    Service Response: Alteration of native ecosystems by feral mammals 
is not one of the primary threats to the Oahu elepaio, and no changes 
in authorized hunting programs are expected as a result of critical 
habitat designation for the Oahu elepaio. The Service agrees that in 
many circumstances a well-designed hunting program can be an important 
component in the conservation of native ecosystems in Hawaii by helping 
to control excessive damage caused by large populations of feral 
mammals. Should a change in authorized hunting programs result from 
this critical habitat designation, the Service would work with State 
agencies and hunting groups to address any concerns.

Summary of Changes From the Proposed Rule

    In the proposed rule we attempted to use Hawaiian language 
diacritical marks in the spelling of Hawaiian words, but there were 
numerous conversion errors and the marks were not printed correctly. We 
published a correction to the proposed rule (66 FR 46428) in which we 
said we would ensure that the marks are either used correctly or 
eliminated. In this final rule we eliminated the diacritical marks 
because we cannot ensure they will be printed properly in the short 
time before the court-ordered publication deadline. We recognize the 
importance of using the marks to accurately portray the pronunciation 
of Hawaiian words and we regret not being able to use them, but we feel 
that printing the marks incorrectly would be worse than not using them.
    Based partly on public comments received on the proposed 
determination of critical habitat for the Oahu elepaio and partly on 
additional biological examination of several areas, we re-evaluated our 
proposed designation of critical habitat for the Oahu elepaio. This 
resulted in the removal for biological reasons of five relatively small 
areas totaling 207 ha (513 ac) in this final determination, including: 
(1) 48 ha (119 ac) in Unit 1 on Schofield Barracks West Range; (2) 31 
ha (77 ac) in Unit 2 around the Palehua-Mauna Kapu road; (3) 63 ha (156 
ac) in Unit 2 in Nanakuli Valley; (4) 49 ha (121 ac) in Unit 3 in 
Keaiwa Heiau State Recreation Area; and (5) 16 ha (40 ac) in Unit 5 in 
and around Lyon Arboretum in Manoa Valley. These areas comprise less 
than 1 percent of the area originally proposed. The designation is 
based on the distribution of lands needed to support a viable 
population, not on the amount of land required to support a certain 
number of birds. The lands in question were all located on the edge of 
one of the habitat units and were unlikely to serve as habitat stepping 
stones between other forested areas. A more detailed discussion and 
justification for removal of each of these areas is provided below.
    On Schofield Barracks West Range we removed 48 ha (119 ac) in the 
area southeast of Puu Pane, which was the easternmost portion of Unit 
1, because it is less suitable for elepaio than we realized. This area 
consists largely of exposed ridges, steep dry slopes that support dry 
shrub land, and open forest dominated by Eucalyptus robusta, an 
introduced tree not favored by elepaio. The gulches contain small areas 
of more mesic forest that could support a few pairs of elepaio, but 
these areas are isolated from other suitable forest and would not 
provide habitat stepping stones between other elepaio subpopulations.
    As a result of the economic analysis and information provided to us 
during the public comment period on the proposed rule, we learned that 
the area along the Palehua Road at the southern edge of Unit 2 contains 
a large concentration of telecommunication antennas and associated 
facilities, several houses, and other structures. The forest has been 
largely removed due to the extensive development, and the existing 
vegetation is dominated by ironwood (Casuarina spp.) and Eucalyptus 
robusta, introduced trees that are not favored by elepaio. The existing 
structures in this area were not included in the proposed designation 
because they are developed features that do not contain the primary 
constituent elements required by elepaio, but to make this more 
explicit and clear, we removed a total of 31 ha (77 ac) in a corridor 
roughly 200 meters wide centered on the road between Palehua and Mauna 
Kapu. Of this area, 24 ha (60 ac) is privately owned and 7 ha (17 ac) 
is owned by the State.
    In Nanakuli Valley we removed 63 ha (156 ac) from the southwest 
corner of Unit 2 because it is does not contain forest with the primary 
constituent elements needed by elepaio and is unlikely to be useful for 
dispersal. This valley is much drier than we previously realized and 
contains mostly dry shrubland and grassland. Portions of the valley are 
very steep and contain almost no vegetation. This area is on the very 
edge of the potential elepaio distribution and is unlikely to serve as 
a link to other subpopulations because of its location.
    In Unit 3, we removed 49 ha (121 ac) that contained developed areas 
of the Keaiwa Heiau State Recreation Area, including roads, parking 
areas, campsites, picnic areas, and restrooms. These are developed 
features and do not contain the primary constituent elements needed by 
the elepaio, and as such were not included in the proposed critical 
habitat. To clarify this, in this final rule we have moved the boundary 
so it does not include the developed section of the recreation area, 
but the higher, undeveloped section of the recreation area is retained.
    Finally, we removed 16 ha (40 ac) on the edge of Unit 5 that 
consisted of landscaped areas in and near Lyon Arboretum in Manoa 
Valley. The landscaped gardens in Lyon Arboretum are developed features 
that do not contain the primary constituent

[[Page 63772]]

elements needed by the elepaio, and as such were not included in the 
proposed designation. To clarify this, in this final rule we moved the 
boundary so it does not include the lower, developed section of the 
arboretum, but it still contains the higher, undeveloped section.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat, but we cannot exclude such areas from critical habitat if the 
exclusion will result in the extinction of the species.
    In the addendum, the methodology was modified to more fully 
describe and explore the baseline conditions attributable to the 
listing of the elepaio. This change in methodology is consistent with 
the planned modification discussed in the Foreword to the DEA, and is 
consistent with the ruling of the Tenth Circuit Court concerning the 
analytical approach used by the Service to estimate economic impacts. 
The results of the analysis cover economic impacts that are 
attributable to (1) both the listing of the elepaio as an endangered 
species and its critical habitat designation and (2) just the critical 
habitat designation. In general, cost and benefit estimates were not 
developed for projects and activities in cases where: (1) The economic 
impacts attributable to both the listing and the critical habitat are 
expected to be small, (2) the probability of the impacts occurring is 
small, (3) the impacts are highly speculative, or (4) data needed to 
quantify the impacts are not reasonably available.
    An analysis of the economic impacts of critical habitat designation 
for the Oahu elepaio was prepared by Decision Analysts Hawaii, 
Incorporated, under subcontract to the Service through Industrial 
Economics, Incorporated, and was made available for public review from 
August 6 through September 6, 2001 (66 FR 40960). The final analysis, 
which reviewed and incorporated public comments, concluded that no 
significant economic impacts are expected from critical habitat 
designation. Few new developments, land uses, or other activities are 
expected in the critical habitat units because of the mountainous 
terrain, poor access, and existing conservation zoning. Most current 
and planned projects and land uses in the critical habitat areas have 
no Federal involvement, and thus would not be affected by critical 
habitat designation. Most activities with a Federal nexus involve the 
operation and management of existing facilities, and also would not be 
affected by critical habitat designation. The primary economic impact 
on most activities would be a small cost associated with an increased 
number of section 7 consultations and an increased length of time 
required for consultations resulting from critical habitat. There may 
be a modest economic impact of critical habitat designation on lands 
owned or controlled by the Department of Defense.
    A copy of the final economic analysis and supporting documents are 
included in our administrative record and may be obtained by contacting 
the Pacific Islands Field Office (see ADDRESSES section). Copies of the 
final economic analysis also are available on the Internet at http://pacificislands.fws.gov/wesa/endspindex.html.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document has been 
reviewed by the Office of Management and Budget (OMB). OMB makes the 
final determination of significance under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis therefore is not required. The Oahu elepaio was listed as an 
endangered species in April 2000. In fiscal years 2000 through 2001 we 
have conducted two informal section 7 consultations with other Federal 
agencies to ensure that their actions would not jeopardize the 
continued existence of the Oahu elepaio. We have not issued any section 
10(a)(1)(B) incidental take permits for the elepaio.
    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 or agencies unless they are 
conducting activities funded or otherwise sponsored, authorized, or 
permitted by a Federal agency. 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 impacts on what 
actions may or may not be conducted by Federal agencies or non-Federal 
persons that receive Federal authorization or funding beyond the 
existing impacts. 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. These impacts were evaluated in our economic analysis 
(under section 4 of the Act; see Economic Analysis section of this 
rule). Non-Federal persons or agencies that do not have Federal 
involvement in their actions are not restricted by the designation of 
critical habitat.
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the Oahu elepaio since its listing in April 2000. We evaluated the 
impact of designating areas where section 7 consultations would not 
have occurred but for the critical habitat designation in our economic 
analysis (see Economic Analysis section of this rule). The prohibition 
against adverse modification of critical habitat is not expected to 
impose any additional restrictions to those that currently exist on 
currently occupied lands and will not create inconsistencies with other 
agencies' actions on unoccupied lands. Specifically, construction and 
land management activities carried out by the Service on the newly 
created Oahu Forest National Wildlife Refuge are expected to benefit 
the elepaio and other listed species in the long term, and those 
actions therefore will not be affected by this designation. Storage of 
munitions by the U.S. Navy at NAVMAG Pearl Harbor Lualualei Branch is 
not expected to be affected by this designation because the lands used 
for munitions storage and those designated as critical habitat do not 
overlap, and storage of munitions on adjacent lands does not affect the 
elepaio. Training by the U.S. Army at Makua Military Reservation and 
Schofield Barracks is not expected to be affected by this designation 
because

[[Page 63773]]

wildfires caused by training exercises are the only means by which 
training may affect the elepaio, and the Army has implemented a 
detailed fire management plan for Makua and soon plans to implement a 
fire management plan for Schofield Barracks.
    (c) This rule 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 result in 
additional restrictions.
    (d) OMB has determined that this rule raises novel legal or policy 
issues. Therefore, this rule is significant under E.O. 12866, and, as a 
result, has undergone OMB review.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Act (SBREFA) of 
1996), whenever an agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic effect on a substantial number of small entities. 
The SBREFA also amended the Regulatory Flexibility Act to require a 
certification statement. In this rule, we are certifying that the 
critical habitat designation for the Oahu elepaio will not have a 
significant effect on a substantial number of small entities. The 
following discussion explains our rationale.
    Small entities include small organizations, such as independent 
non-profit organizations, small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule as 
well as the types of project modifications that may result. In general, 
the term significant economic impact is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule would affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting, etc.). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. In some circumstances, especially with 
critical habitat designations of limited extent, we may aggregate 
across all industries and consider whether the total number of small 
entities affected is substantial. In estimating the numbers of small 
entities potentially affected, we also consider whether their 
activities have any Federal involvement. Designation of critical 
habitat only affects activities conducted, funded, or permitted by 
Federal agencies. Some kinds of activities are unlikely to have any 
Federal involvement and so will not be affected by critical habitat 
designation.
    In areas where the species is present, Federal agencies already are 
required to consult with us under section 7 of the Act on activities 
that they fund, permit, or implement that may affect the Oahu elepaio. 
Federal agencies also must consult with us if their activities may 
affect critical habitat. Designation of critical habitat therefore 
could result in an additional economic impact on small entities due to 
the requirement to reinitiate consultation for ongoing Federal 
activities. However, since the Oahu elepaio was proposed for listing in 
October 1998, we have conducted only two informal consultations and one 
formal consultation, involving the Oahu Forest National Wildlife Refuge 
and the U.S. Army. As a result, the requirement to reinitiate 
consultation for ongoing projects will not affect any small entities.
    In areas where the species clearly is not present, designation of 
critical habitat could trigger additional review of Federal activities 
under section 7 of the Act. We are aware of relatively few activities 
in the critical habitat for the Oahu elepaio that have Federal 
involvement and thus would require consultation or reinitiation of 
already-completed consultations for ongoing projects. Moreover, no 
activities currently undertaken by small entities in the critical 
habitat units have Federal involvement, nor, for the reasons explained 
herein, would Federal involvement be expected in the future, and thus 
we do not anticipate that this designation of critical habitat will 
result in any additional regulatory impacts to small entities.
    Current activities with Federal involvement that will require 
consultation are; training by the U.S. Army; storage of munitions by 
the U.S. Navy; Federally funded land management and wildlife 
restoration and game-hunting projects; and improvements to 
communications facilities that require approval from the FCC. We are 
not aware of any additional projects that have been proposed, but 
potential future activities that might have Federal involvement 
include; maintenance of water diversion and flood control facilities 
that may require authorization from the Army Corps of Engineers under 
Section 404 of the Clean Water Act; watershed and restoration 
management projects sponsored by NRCS; projects to improve access and 
management for the Oahu Forest National Wildlife Refuge. The 
requirement in section 7(a)(2) to avoid jeopardizing listed species and 
destroying or adversely modifying designated critical habitat may 
result in Federal agencies requiring certain modifications to proposed 
projects.
    The five critical habitat units identified in this rule consist of 
15, 6, 37, 12, and 43 parcels, of which 0, 1, 16, 3, and 12 parcels are 
owned by 0, 1, 11, 3, and 9 different small entities, respectively. The 
majority of parcels are owned by the Federal government, the State of 
Hawaii, and the City and County of Honolulu, which are not small 
entities.
    Of the lands designated as critical habitat for the Oahu elepaio, 
99.6% are zoned for conservation. Projected uses of these lands consist 
of; recreation (hiking, camping, hunting, and fishing); protection of 
natural and cultural resources, including threatened and endangered 
species; watershed protection and management; ecotourism; and in 
certain areas, harvesting of natural resources under an approved 
management plan. As discussed in the economic analysis,

[[Page 63774]]

most of the critical habitat lands are in mountainous areas where 
access is difficult due to the steep terrain, and these lands are not 
suited to development or agriculture. Because use of the vast majority 
of lands designated as critical habitat already is limited by existing 
zoning regulations and mountainous terrain with difficult access, we do 
not anticipate a significant decline in property values as a result of 
this critical habitat designation.
    Unit 5 includes a portion of one parcel in Wailupe Valley that is 
zoned for urban use and is occupied by elepaio. Residential development 
of this parcel was considered before 1970, but was abandoned due to the 
unstable nature of the soil in this area. The parcel recently was 
purchased by the City and County of Honolulu, and future development is 
unlikely. Unit 2 includes one parcel owned by the U.S. Navy that is 
partially zoned for agriculture, but this area is very dry and access 
is restricted by the Naval installation, making agriculture unlikely.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements. First, if we 
conclude, in a biological opinion, that a proposed action is likely to 
jeopardize the continued existence of a species or adversely modify its 
critical habitat, we can offer ``reasonable and prudent alternatives.'' 
Reasonable and prudent alternatives are alternative actions that can be 
implemented in a manner consistent with the scope of the Federal 
agency's legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid jeopardizing the 
continued existence of listed species or resulting in adverse 
modification of critical habitat. A Federal agency and an applicant may 
elect to implement a reasonable and prudent alternative associated with 
a biological opinion that has found jeopardy or adverse modification of 
critical habitat. An agency or applicant could alternatively choose to 
seek an exemption from the requirements of the Act or proceed without 
implementing the reasonable and prudent alternative. However, unless an 
exemption were obtained, the Federal agency or applicant would be at 
risk of violating section 7(a)(2) of the Act if it chose to proceed 
without implementing the reasonable and prudent alternatives. Secondly, 
if we find that a proposed action is not likely to jeopardize the 
continued existence of a listed animal species, we may identify 
reasonable and prudent measures designed to minimize the amount or 
extent of take and require the Federal agency or applicant to implement 
such measures through non-discretionary terms and conditions. We may 
also identify discretionary conservation recommendations designed to 
minimize or avoid the adverse effects of a proposed action on listed 
species or critical habitat, help implement recovery plans, or to 
develop information that could contribute to the recovery of the 
species.
    Based on our experience with section 7 consultations for all listed 
species, virtually all projects-including those that, in their initial 
proposed form, would result in jeopardy or adverse modification 
determinations in section 7 consultations-can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures, by definition, must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation. As we have a very limited consultation 
history for the Oahu elepaio, we can only describe the general kinds of 
actions that may be identified in future reasonable and prudent 
alternatives. These are based on our understanding of the needs of the 
species and the threats it faces, as described in the final listing 
rule and this critical habitat designation. The kinds of actions that 
may be included in future reasonable and prudent alternatives include; 
conservation set-asides; management of non-native predators, 
particularly black rats; management of non-native mosquitoes that carry 
non-native avian diseases; restoration of degraded habitat; and regular 
monitoring. These measures are not likely to result in a significant 
economic impact to project proponents.
    As required under section 4(b)(2) of the Act, we conducted an 
analysis of the potential economic impacts of this critical habitat 
designation, and that analysis was made available for public review and 
comment before finalization of this designation. Based on estimates 
provided in the economic analysis, the potential economic impact of 
critical habitat designation for the Oahu elepaio over the next 10 
years ranged from $296,000 to $1,347,000, of which the cost to small 
entities ranged from $40,000 to $60,000. The high estimate of the total 
potential impact includes control of alien rodents in all Army and navy 
installations, which probably will not be required as a result of 
critical habitat designation, and implementation of a fire management 
plan at Schofield Barracks, which also is attributable to other 
purposes, so the lower estimate of $296,000 is a more realistic 
estimate of the impact attributable to the critical habitat 
designation. The estimate of the potential impact to small entities 
varied depending on the number of small entities attempting to 
investigate the implications of critical habitat designation on their 
land.
    In summary, we have considered whether this rule would result in a 
significant economic effect on a substantial number of small entities. 
It would not affect a substantial number of small entities. The entire 
critical habitat designation involves fewer than 120 parcels, only 32 
of which are owned by 23 different small entities. All of these parcels 
are zoned for conservation, and most of these parcels are located in 
mountainous areas where access is limited. Future uses of these lands 
are already limited, and are not expected to have Federal involvement 
or result or section 7 consultations. This rule would result in project 
modifications only when proposed Federal activities would destroy or 
adversely modify critical habitat. While this may occur, it is not 
expected frequently enough to affect a substantial number of small 
entities. Even when it does occur, we do not expect it to result in a 
significant economic impact, as the measures included in reasonable and 
prudent alternatives must be economically feasible and consistent with 
the proposed action. The kinds of measures we anticipate we would 
provide can usually be implemented at very low cost. Therefore, we are 
certifying that the designation of critical habitat for the Oahu 
elepaio will not have a significant economic impact on a substantial 
number of small entities. A regulatory flexibility analysis is not 
required.

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

    In the economic analysis, we determined whether designation of 
critical habitat would 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. Refer to the final economic analysis for a discussion of 
the effects of this determination.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A

[[Page 63775]]

Small Government Agency Plan is not required. Small governments will 
only be affected to the extent that they must ensure that any programs 
involving Federal funds, permits or other authorized activities will 
not adversely affect the critical habitat.
    (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.

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. Although this is a 
significant regulatory action under Executive Order 12866, this final 
rule is not expected to significantly affect energy supplies, 
distribution, or use, therefore this action is not a significant energy 
action and no Statement of Energy Effects is required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Oahu elepaio in a takings 
implication assessment. The takings implications assessment concludes 
that this final rule does not pose significant takings implications.

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 Oahu 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 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 designation of critical 
habitat for the Oahu 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.

Regulation Promulgation

    Accordingly, we 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, Oahu'' under 
``BIRDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Species                                             Vertebrate
--------------------------------------------------                    population where                                                           Special
                                                    Historic range     endangered or          Status          When listed      Critical habitat   rules
          Common name            Scientific name                         threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                  *                  *                   *                   *                *                   *                   *
Birds
 

[[Page 63776]]

 
                  *                  *                   *                   *                *                   *                   *
Elepaio, Oahu.................  Chasiempis         U.S.A. (HI).....  Entire             E                  696                17.95(b)             NA
                                 sandwichensis
                                 ibidis
                                 (Chasiempis
                                 sandwichensis
                                 gayi).
 
                  *                  *                   *                   *                *                   *                   *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95(b) by adding critical habitat for the Oahu 
elepaio (Chasiempis sandwichensis ibidis) 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.
* * * * *
    Oahu elepaio (Chasiempis sandwichensis ibidis)
    (1) Critical Habitat Units are depicted for the City and County of 
Honolulu on the maps below.
    (2) (i) Within these areas, the primary constituent elements 
required by the Oahu elepaio are those habitat components that are 
essential for the biological needs of foraging, sheltering, roosting, 
nesting, and rearing of young. These primary constituent elements are 
undeveloped wet, mesic, and dry forest habitats with a generally 
continuous canopy and a dense understory and that are composed of 
native and/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 undeveloped wet or dry shrub land and wet or dry cliff 
habitats composed of native and/or introduced plant species that 
separate elepaio populations. 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.
    (ii) 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. Common native and introduced species 
within these plant assemblages include, but are not limited to, ohia 
(Metrosideros polymorpha), koa (Acacia koa), papala kepau (Pisonia 
umbellifera), lama (Diospyros sandwicensis), mamaki (Pipturus albidus), 
kaulu (Sapindus oahuensis), hame (Antidesma platyphyllum), alaa 
(Pouteria sandwicensis), aalii (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.
    (4) Map of critical habitat units for the Oahu elepaio follows.

[[Page 63777]]

[GRAPHIC] [TIFF OMITTED] TR10DE01.002

    (5) Unit 1 (4,454 ha; 11,005 ac)
    (i) Unit 1 consists of 94 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; 591864, 2379621; 591408, 2379439; 591501, 2379125; 591510, 
2378867; 591393, 2378631; 591229, 2378138; 591294, 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.
    (ii) Map of Unit 1 follows.

[[Page 63778]]

[GRAPHIC] [TIFF OMITTED] TR10DE01.003

    (6) Unit 2 ( 2,422 ha; 5,985 ac)
    (i) Unit 2 consists of 78 boundary points with the following 
coordinates in UTM Zone 4 with the units in meters using North American 
Datum of 1983 (NAD83): 592645, 2367498; 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; 594015, 
2366560; 593884, 2366525; 593756, 2366491; 593635, 2366570; 593574, 
2366695; 593629, 2366713; 593594, 2366869; 593651, 2366917; 593639, 
2367019; 593682, 2367104; 593591, 2367228; 593472, 2367265; 593388, 
2367176; 593425, 2367112; 593379, 2367045; 593395, 2367010; 593413, 
2366861; 593391, 2366809; 593307, 2366826; 593203, 2366792; 593207, 
2366684; 593121, 2366632; 593137, 2366521; 593030, 2366348; 592668, 
2366451; 592945, 2366998; 592852, 2367332; 592645, 2367498.
    (ii) Map of Unit 2 follows.

[[Page 63779]]

[GRAPHIC] [TIFF OMITTED] TR10DE01.004

    (7) Unit 3 ( 14,801 ha; 36,573 ac)
    (i) Unit 3 consists of 108 boundary points with the following 
coordinates in UTM Zone 4 with the units in meters using North American 
Datum of 1983 (NAD83): 615481, 2366443; 614313, 2366190; 614232, 
2366761; 613262, 2366836; 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.
    (ii) Map of Unit 3 follows.

[[Page 63780]]

[GRAPHIC] [TIFF OMITTED] TR10DE01.005

    (8) Unit 4 (804 ha; 1,987 ac)
    (i) Unit 4 consists of 35 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.
    (ii) Map of Unit 4 follows.

[[Page 63781]]

[GRAPHIC] [TIFF OMITTED] TR10DE01.006

    (9) Unit 5 ( 4,180 ha; 10,329 ac)
    (i) Unit 5 consists of 78 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; 624612, 2358850; 625059, 2359019; 625083, 2359182; 624571, 
2359489; 624430, 2359798; 624013, 2359828; 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.
    (ii) Map of Unit 5 follows.

[[Page 63782]]

[GRAPHIC] [TIFF OMITTED] TR10DE01.007


    Dated: November 20, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-29475 Filed 12-7-01; 8:45 am]
BILLING CODE 4310-55-P