[Federal Register Volume 68, Number 111 (Tuesday, June 10, 2003)]
[Rules and Regulations]
[Pages 34710-34766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14144]



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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; Designation of Critical 
Habitat for the Blackburn's Sphinx Moth; Final Rule

  Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH94


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Blackburn's Sphinx Moth

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 Blackburn's sphinx moth (Manduca blackburni), 
pursuant to the Endangered Species Act of 1973, as amended (Act). A 
total of approximately 22,440 hectares (55,451 acres) fall within the 
boundaries of the 9 critical habitat units designated on the Hawaiian 
islands of Hawaii, Kahoolawe, Maui, and Molokai for Blackburn's sphinx 
moth. This critical habitat designation requires the Service to consult 
under section 7 of the Act with regard to actions carried out, funded, 
or authorized by a Federal agency. Section 4 of the Act requires us to 
consider economic and other relevant impacts when specifying any 
particular area as critical habitat. We solicited data and comments 
from the public on all aspects of our proposal, including data on 
economic and other impacts of the designation.

DATES: This rule becomes effective on July 10, 2003.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at U.S. Fish and Wildlife Service, Pacific Islands Office, 300 
Ala Moana Blvd., Room 3-122, P.O. Box 50088, Honolulu, HI 96850-0001.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Field Supervisor, Pacific 
Islands Office, at the above address (telephone 808/541-3441; facsimile 
808/541-3470).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the ESA, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.''
    Currently, only 306 species or 25% of the 1,211 listed species in 
the U. S. under the jurisdiction of the Service have designated 
critical habitat. We address the habitat needs of all 1,211 listed 
species through conservation mechanisms such as listing, section 7 
consultations, the Section 4 recovery planning process, the Section 9 
protective prohibitions of unauthorized take, Section 6 funding to the 
States, and the Section 10 incidental take permit process. The Service 
believes that it is these measures that may make the difference between 
extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with NEPA, 
all are part of the cost of critical habitat designation. None of these 
costs result in any benefit to the species that is not already afforded 
by the protections of the Act enumerated earlier, and they directly 
reduce the funds available for direct and tangible conservation 
actions. Sidle, J.G. 1987. Critical Habitat Designation: Is it Prudent? 
Environmental Management 11(4):429-437.

Background

    Blackburn's sphinx moth (moth) (Manduca blackburni) is one of 
Hawaii's largest native insects. We provided a detailed species 
description as well as a biogeographical overview of the Hawaiian 
islands in the proposed rule (67 FR 40633), we incorporate that 
information by reference in this final designation.

Blackburn's Sphinx Moth Biology and Status

    Very few specimens of the moth have been seen since 1940, and after 
a concerted effort by staff at the Bishop Museum to relocate this 
species in the late 1970s, it was considered to be extinct 
(Gagn[eacute] and Howarth 1985). In

[[Page 34711]]

1984, a single population was rediscovered on Maui (Riotte 1986), and 
subsequently, populations on two other islands were rediscovered. 
Currently, the moth is known only from populations on Maui, Kahoolawe, 
and Hawaii. Moth population numbers are known to be small based upon 
past sampling results; however, no reasonably accurate estimate of 
population sizes has been determinable at this point because of the 
adult moth's wide-ranging behavior and overall rarity (Arthur Medeiros, 
U.S. Geological Survey-Biological Resources Division (USGS-BRD), pers. 
comm. 1998; Van Gelder and Conant 1998). Before humans arrived, dry and 
mesic shrubland and forest covered about 823,283 hectares (ha) 
(2,034,369 acres (ac)) on all the main islands (Hawaii Natural Heritage 
Program (HHP) 2000), and it is likely that the Blackburn's sphinx moth 
inhabited much of that area (Riotte 1986). Reports by early naturalists 
indicate the species was once widespread and abundant, at least during 
early European settlement on nearly all the main Hawaiian islands 
(Riotte 1986).
    The moth has been recorded from the islands of Kauai, Kahoolawe, 
Oahu, Molokai, Maui, and Hawaii, and has been observed from sea level 
to 1,525 m (5,000 ft) elevation. Most historical records were from 
coastal or lowland dry forest habitats in areas receiving less than 127 
cm (50 in) of annual rainfall. On the island of Kauai, the moth was 
recorded only from the coastal area of Nawiliwili. Populations were 
known from Honolulu, Honouliuli, and Makua on leeward Oahu, and Kamalo, 
Mapulehu, and Keopu on Molokai. On Hawaii, it was known from Hilo, 
Pahala, Kalaoa, Kona, and Hamakua. It appears that this moth was 
historically most common on Maui, where it was recorded on Kahului, 
Spreckelsville, Makena, Wailuku, Kula, Lahaina, and West Maui.
    Blackburn's sphinx moth larvae feed on plants in the nightshade 
family (Solanaceae). The natural host plants are native trees within 
the genus Nothocestrum (aiea), on which the larvae consume leaves, 
stems, flowers, and buds. However, many of the plants recorded for this 
species are not native to the Hawaiian Islands, and include Nicotiana 
tabacum (commercial tobacco), Nicotiana glauca (tree tobacco), Solanum 
melongena (eggplant), Lycopersicon esculentum (tomato), and possibly 
Datura stramonium (Jimson weed). Sphingid moths are known to exploit 
nutritious but low-density, low-apparency host plants such as vines and 
sapling trees. Development from egg to adult can take as little as 56 
days, but pupae may remain in a state of torpor (inactivity) in the 
soil for up to a year. The growth rates of larvae for many closely 
related sphingid species are reported to decrease when their host 
plants lack suitable water content. In fact, suitable host plant water 
content can improve the later fecundity of the adult stage (Murugan and 
George 1992).
    Adult moths have been found throughout the year, and have been 
observed feeding on nectar from Ipomoea indica (koaliawa). Other likely 
native nectar-providing plants for the moth are other Ipomea species 
(spp.), Capparis sandwichiana (maiapilo), and Plubago zeylancia 
(iliee). Many sphingid studies have shown that air temperature 
restricts adult feeding activity above a certain temperature (usually 
30 degrees Celsius (86 degrees Fahrenheit)) (Herrera 1992). During Van 
Gelder and Conant's captive-rearing study (1998), adult moth feeding 
was not observed and captive-reared adult moths lived no longer than 12 
days. In general, sphingids are known to live longer than most moths 
because of their ability to feed and take in water from a variety of 
sources, rather than relying only upon stored fat reserves. Because 
they live longer than most moths, female sphingid moths have less time 
pressure to mate and lay eggs, and often will take more time in 
locating the best host plants for egg laying (B. Gagn[eacute], pers. 
comm. 1994; David Hopper, Service, in litt. 2000, 2002; Williams 1931, 
1947; Riotte 1986; Van Gelder and Conant 1998; Kitching and Cadiou 
2000). Because there are no studies showing any sphingid-species adults 
being short-lived, we believe that some unknown factor contributed to 
the brief adulthood of the Blackburn's sphinx moths observed during Van 
Gelder and Conant's (1998) study.

Blackburn's Sphinx Moth Habitat and Range

    Plant species composition in the moth's habitat varies considerably 
depending on location and elevation, but some of the most common native 
plants in areas where the moth occurs are the trees Diospyros 
sandwicensis (lama), Rauvolfia sandwicensis (hao), Reynoldsia 
sandwicensis (ohe), Pouteria sandwicensis (alaa), the shrubs Erythrina 
sandwicensis (wiliwili), Dodonaea viscosa (aalii), and Myoporum 
sandwicense (naio) (Roderick and Gillespie 1997; Van Gelder and Conant 
1998; Wagner et al. 1999; Cabin et al. 2000; Wood 2001a, 2001b).
    The largest populations of Blackburn's sphinx moths, on Maui and 
Hawaii, are associated with trees in the genus Nothocestrum (Van Gelder 
and Conant 1998). For example, the large stand of Nothocestrum trees 
within the Ka naio Natural Area Reserve (NAR), Maui, is likely the 
largest in the State (Medeiros et al. 1993), and this fact may explain 
why the moth occurs with such regularity in the Ka naio area (A. 
Medeiros, pers. comm. 1994). Nothocestrum is a genus of four species 
endemic to the Hawaiian Islands (Simon 1999) which currently occur on 
Kauai, Oahu, Molokai, Lanai, Hawaii, and Maui. One species, N. 
longifolium, primarily occurs in wet forests, but can occur in mesic 
forests as well. Three species, N. latifolium, N. brevifolium, and N. 
peltatum, occur in dry to mesic forests, the habitat in which the moth 
has been most frequently recorded. Moth larvae have been documented 
feeding on two Nothocestrum spp., N. latifolium, and N. brevifolium; it 
is likely that N. peltatum and N. longifolium are suitable host plants 
for larval moths as well. This is supported not only by the fact that 
these two species are closely related to known larval hosts, but also 
because past historical records document the moth as occurring on the 
islands of Kauai and Oahu, where N. latifolium is not abundant and N. 
brevifolium does not occur. Furthermore, the species is known to feed 
on a variety of native and nonnative Solanaceae.
    On Molokai, moth habitat includes vegetation consisting primarily 
of mixed-species mesic and dry forest communities composed of native 
and introduced plants (HHP 2000). Although Molokai is not known to 
currently contain a moth population, past moth sightings on Molokai 
have been reported. The island does contain native Nothocestrum larval 
host plants, including N. longifolium and N. latifolium, as well as 
adult host plants and restorable, manageable areas associated with 
these existing host plants (Wood 2001a). Because of its proximity to 
Maui (currently and historically home to the most persistent and 
largest population) and the fact that Molokai has in the past and 
presently supports N. latifolium, many researchers believe the moth 
could re-establish itself on the island and become a viable 
population(s) in the future (Frank Howarth, Bishop Museum, pers. comm. 
2001).
    The endangered larval host plant, Nothocestrum brevifolium, as well 
as adult host plants, occur in the areas on Hawaii Island that support 
populations of the moth (Marie Bruegmann, Service,

[[Page 34712]]

pers. comm. 1998), where there are many recorded associations of eggs, 
larvae, and adult moths with this plant species. This tree species is 
primarily threatened by habitat conversion associated with development; 
competition from nonnative species such as Schinus terebinthifolius 
(Christmas berry), Pennisetum setaceum (fountain grass), Lantana camera 
(lantana), and Leucaena leucocephala (Kona hao le); browsing by cattle; 
fire; random environmental events such as prolonged drought; and 
reduced reproductive potential resulting from the small number of 
existing individuals (59 FR 10325).
    Although Nothocestrum spp. are not currently reported from 
Kahoolawe, there were very few surveys of this island prior to the 
intense ranching activities, which began in the middle of the last 
century, and the subsequent use of the island as a weapons range for 50 
years. Prior to their removal, goats also played a major role in the 
destruction of vegetation on Kahoolawe (Cheetah and Stone 1990). It is 
likely that the reappearance of some vegetation as a result of the 
removal of the goats and the cessation of military bombing activities 
have allowed the moth to inhabit the island. On Kahoolawe, moth larvae 
feed on the nonnative Nicotiana glauca, which appears to adequately 
support production and growth of the larval stage during nondrought 
years. However, the native Nothocestrum are more stable and drought-
resistant than the Nicotiana glauca, which dies back significantly 
during especially dry years (A. Medeiros, pers. comm. 2001). Therefore, 
it appears likely that long-term survival of the moth on Kahoolawe will 
require the planting of Nothocestrum latifolium (A. Medeiros, pers. 
comm. 1998).

Threats to the Conservation of Blackburn's Sphinx Moth

Habitat Loss and Degradation

    Dry to mesic forest habitats in Hawaii have been severely degraded 
by past and present land management practices, including ranching, the 
impacts of introduced plants and animals, wildfire, and agricultural 
development (Cheetah and Stone 1990). Because of these factors, 
Nothocestrum peltatum on Kauai and N. brevifolium on Hawaii are now 
federally listed as endangered species (59 FR 9327; 59 FR 10325). 
Although all Nothocestrum spp. are not presently listed as endangered 
or threatened, the entire genus is declining and considered uncommon 
(Medeiros et al. 1993; HHP 2000). For example, while N. latifolium 
presently occurs at moderate densities at Ka naio NEAR (HHP 1993), 
there has been a complete lack of seedling survival and the stand is 
being degraded by goats (F. Howarth, pers. comm. 1994; Steven 
Montgomery, pers. comm. 1994; Medeiros et al. 1993). Goats have played 
a major role in the destruction of dryland and mesic forests throughout 
the Hawaiian Islands (Van Riper and Van Riper 1982; Stone 1985).
    Because the moth was once so widespread and sphinx moths are known 
to be strong fliers, we believe it is likely that inter-island 
dispersal of the species occurred to some degree prior to the loss of 
much of its historical habitat. Currently, the areas of dry to mesic 
shrub and forest habitats below 1,525 m (5,000 ft) elevation that are 
suitable for Blackburn's sphinx moth are approximately 148,585 ha 
(367,161 ac).

Localized Extirpation

    In addition to, or perhaps because of, habitat loss and 
fragmentation, Blackburn's sphinx moths are also susceptible to 
seasonal variations and weather fluctuations affecting their quality 
and quantity of available habitat and food. For example, during times 
of drought, nectar availability for adult moths are expected to 
decrease. During times of decreased nectar availability, life spans of 
individuals may not be affected, but studies with butterflies have 
shown marked decreases in reproductive capacity for many species 
(Center for Conservation Biology 1994). In another study, Jansen (1984) 
reported that host plant availability directly affected sphingid 
reproductive activity. In fact, for some lepidopteran (butterflies and 
moths) species, if nectar intake is cut in half, reproduction is also 
cut approximately in half. Such resource stress may occur on any time 
scale, ranging from a few days to an entire season, and a pattern of 
continuous long-term adult feeding stress could affect the future 
viability of a population (Center for Conservation Biology 1994).
    Often, habitat suitability for herbivorous insects is determined by 
factors other than host plant occurrence or density. Microclimatic 
conditions (Thomas 1991; Solbreck 1995) and predator pressure (Roland 
1993; Roland and Taylor 1995; Walde 1995) are two such widely reported 
factors. In a study of moth population structure, habitat patch size 
and the level of sun exposure were shown to affect species occupancy, 
while patch size and the distance from the ocean coast were reported to 
affect moth density. Moth populations in small habitat patches were 
more likely to become extinct (Forare and Solbreck 1997).

Nonnative Arthropods

    The geographic isolation of the Hawaiian Islands restricted the 
number of original successful colonizing arthropods and resulted in the 
development of an unusual fauna. Only 15 percent of the known insect 
families are represented by the native insects of Hawaii (Howarth 
1990). Some groups that often dominate continental arthropod faunas, 
such as social Hymenoptera (group-nesting ants, bees, and wasps), are 
entirely absent from the native Hawaiian fauna. Accidental 
introductions from commercial shipping and air cargo to Hawaii have now 
resulted in the establishment of over 2,500 species of alien arthropods 
(Howarth 1990; Howarth et al. 1994), with a continuing establishment 
rate of 10 to 20 new arthropod species per year (Nishida 1997). In 
addition to the accidental establishment of nonnative species, private 
individuals and government agencies began importing and releasing 
nonnative predators and parasites for biological control of pests as 
early as 1865. This resulted in the introduction of 243 nonnative 
species between 1890 and 1985, in some cases with the specific intent 
of reducing populations of native Hawaiian insects (Funasaki et al. 
1988; Lai 1988). Alien arthropods, whether purposefully or accidentally 
introduced, pose a serious threat to Hawaii's native insects, through 
direct predation, parasitism, and competition for food or space 
(Howarth and Medeiros 1989; Howarth and Ramsay 1991).

Ants

    Ants are not a natural component of Hawaii's arthropod fauna, and 
native species evolved in the absence of predation pressure from ants. 
Ants can be particularly destructive predators because of their high 
densities, recruitment behavior, aggressiveness, and broad range of 
diet (Reimer 1993). Because they are often generalist feeders, ants may 
affect prey populations independent of prey density, and may locate and 
destroy isolated individuals and populations (Nafus 1993a). At least 36 
species of ants have become established in the Hawaiian Islands, and 
three particularly aggressive species have severely affected the native 
insect fauna (Zimmerman 1948).
    For example, in areas where the big-headed ant (Pheidole 
megacephala) is present, native insects, including most moths, have 
been eliminated (Perkins 1913; Gagn[eacute] 1979; Gillespie and Reimer 
1993). The big-headed ant generally does not occur at elevations higher 
than

[[Page 34713]]

610 m (2,000 ft), and is also restricted by rainfall, rarely being 
found in particularly dry (less than 35 to 50 cm (15 to 20 in) 
annually) or wet (more than 250 cm (100 in) annually) areas (Reimer et 
al. 1990). The big-headed ant is also known to be a predator of eggs 
and caterpillars of native Lepidoptera, and can completely exterminate 
populations (Zimmerman 1958). This ant occurs on all the major Hawaiian 
Islands, including those currently inhabited by Blackburn's sphinx moth 
and is a direct threat to these populations (Neil Reimer, Hawaii 
Department of Agriculture (HDOA), pers. comm. 2001; Medeiros et al. 
1993; Nishida 1997).
    Several additional ant species threaten the conservation of 
Blackburn's sphinx moth. The Argentine ant (Linepithema humilis) has 
been reported on several islands, including Maui, Kahoolawe, and Hawaii 
(Adam Asquith, Service, pers. comm. 1998; A. Medeiros, pers. comm. 
1998; Nishida 1997). The long-legged ant (Anoplolepis longipes) is 
reported on several islands, including Hawaii and Maui (Hardy 1979). At 
least two species of fire ants, Solenopsis geminata and S. papuana, are 
also important threats (Reagan 1986; Gillespie and Reimer 1993) and 
occur on many of the major islands (Reimer et al. 1990; Nishida 1997). 
Ochetellus glaber, a recently reported ant introduction, occurs on 
Maui, Hawaii, and Kahoolawe (A. Medeiros, pers. comm. 1998; N. Reimer, 
pers. comm. 2001; Nishida 1997).

Parasitic Wasps

    Hawaii also has a limited fauna of native Hymenopteran wasp 
species, with only two native species in the family Braconidae 
(Beardsley 1961), neither of which is known to parasitize Blackburn's 
sphinx moth. In contrast, other species of Braconidae are common 
predators (parasitoids) on the larvae of the tobacco hornworm and the 
tomato hornworm in North America (Gilmore 1938). There are now at least 
74 nonnative species, in 41 genera, of braconid wasps established in 
Hawaii, of which at least 35 species were purposefully introduced as 
biological control agents (Nishida 1997). Most species of alien 
braconid and ichneumonid wasps that parasitize moths are not host-
specific, but attack the caterpillars or pupae of a variety of moths 
and have become the dominant larval parasitoids even in intact, high-
elevation, native forest areas of the Hawaiian Islands (Zimmerman 1948, 
1978; Funasaki et al. 1988; Howarth et al. 1994). These wasps lay their 
eggs within the eggs or caterpillars of Lepidoptera. Upon hatching, the 
wasp larvae consume internal tissues, eventually killing the host. At 
least one species established in Hawaii, Hyposeter exiguae, is known to 
attack the tobacco hornworm and the related tomato hornworm in North 
America (Carlson 1979). This wasp is recorded from all of the main 
islands except Kahoolawe and Lanai (Nishida 1997) and is a recorded 
parasitoid of the lawn armyworm (Spodoptera maurita) on tree tobacco on 
Maui (Swezey 1927). Because of the rarity of Blackburn's sphinx moths, 
no documentation exists of alien braconid and ichneumonid wasps 
parasitizing the species. However, given the abundance and the breadth 
of available hosts of these wasps, they are considered significant 
threats to the moth (F. Howarth, pers. comm. 1994; Howarth 1983; 
Gagn[eacute] and Howarth 1985; Howarth et al. 1994).
    Small wasps in the family Trichogrammatidae parasitize insect eggs, 
with numerous adults sometimes developing within a single host egg. The 
taxonomy of this group is confusing, and it is unclear if Hawaii has 
any native species (John Beardsley, University of Hawaii, pers. comm. 
1994; Nishida 1997). Several alien species are established in Hawaii 
(Nishida 1997), including Trichogramma minutum, which is known to 
attack the sweet potato hornworm in Hawaii (Fullaway and Krauss 1945). 
In 1929, the wasp Trichogramma chilonis was purposefully introduced 
into Hawaii as a biological control agent for the Asiatic rice borer 
(Chilo suppressalis). This wasp parasitizes the eggs of a variety of 
Lepidoptera in Hawaii, including sphinx moths (Funasaki et al. 1988). 
Williams (1947) found 70 percent of the eggs of Blackburn's sphinx moth 
to be parasitized by a Trichogramma wasp that was probably T. chilonis. 
Over 80 percent of the eggs of the alien grasswebworm (Herpetogramma 
licarsisalis) in Hawaii are parasitized by these wasps (Davis 1969). In 
Guam, Trichogramma chilonis effectively limits populations of the sweet 
potato hornworm (Nafus and Schreiner 1986), and is considered under 
complete biological control by this wasp in Hawaii (Lai 1988). While 
this wasp probably affects Blackburn's sphinx moth in a density-
dependent manner (Nafus 1993a), and theoretically is unlikely to 
directly cause extinction of a population or the species, the 
availability of more abundant alternate hosts (any other lepidopteran 
eggs) may allow for the extirpation of Blackburn's sphinx moth by this 
or other egg parasites as part of a broader host base (Tothill et al. 
1930; Howarth 1991; Nafus 1993b).

Parasitic Flies

    Hawaii has no native parasitic flies in the family Tachinidae 
(Nishida 1997). Two species of tachinid flies, Lespesia archippivora 
and Chaetogaedia monticola, were purposefully introduced to Hawaii for 
control of army worms (Funasaki et al. 1988; Nishida 1997). These flies 
lay their eggs externally on caterpillars, and upon hatching, the 
larvae burrow into the host, attach to the inside surface of the 
cuticle, and consume the soft tissues (Etchegaray and Nishida 1975b). 
In North America, C. monticola is known to attack at least 36 species 
of Lepidoptera in eight families, including sphinx moths; L. 
archippivora is known to attack over 60 species of Lepidoptera in 13 
families, including sphinx moths (Arnaud 1978). These species are on 
record as parasites of a variety of Lepidoptera in Hawaii and are 
believed to depress populations of at least two native species of moths 
(Lai 1988). Over 40 percent of the caterpillars of the monarch 
butterfly (Danaus plexippus) on Oahu are parasitized by Lespesia 
archippivora (Etchegaray and Nishida 1975a), and the introduction of a 
related species to Fiji resulted in the extinction of a native moth 
there (Tothill et al. 1930; Howarth 1991). Both of these species occur 
on Maui and Hawaii (Nishida 1997) and are direct threats to the 
Blackburn's sphinx moth.
    Based on the findings discussed above, nonnative predatory and 
parasitic insects are considered important factors contributing to the 
reduction in range and abundance of the Blackburn's sphinx moth, and in 
combination with habitat loss and fragmentation, are a serious threat 
to its continued existence. Some of these nonnative species were 
intentionally introduced by HDOA or other agricultural agencies 
(Funasaki et al. 1988) and importations and augmentations of 
lepidopteran parasitoids continues. Although the State of Hawaii 
requires new introductions to be reviewed before release (HDOA 1994), 
post-release biology and host range cannot be predicted from laboratory 
studies (Gonzalez and Gilstrap 1992; Roderick 1992), and the purposeful 
release or augmentation of any lepidopteran parasitoid is a potential 
threat to the conservation of the Blackburn's sphinx moth (Gagn[eacute] 
and Howarth 1985; Simberloff 1992).
    As Table 1 indicates, the assemblage of potential alien predators 
and parasites on each island may differ.

[[Page 34714]]



             Table 1.--Potential Nonnative Insect Predators and Parasites of Blackburn's Sphinx Moth
----------------------------------------------------------------------------------------------------------------
                                                                   Major island(s) on       Major island(s) on
             Order/family                   Genus/species        which the species has    which the species has
                                                                     been reported          not been reported
----------------------------------------------------------------------------------------------------------------
Diptera/Tachinidae...................  Chaetogaedia monticola   Hawaii, Kauai, Lanai,    Kahoolawe.
                                        (fly).                   Maui, Molokai, Oahu.
Diptera/Tachinidae...................  Lespesia archippivora    Hawaii, Kauai, Maui,     Kahoolawe, Lanai.
                                        (fly).                   Molokai, Oahu.
Hymenoptera/Formicidae...............  Anoplolepis longipes     Hawaii, Kauai, Maui,     Kahoolawe, Lanai,
                                        (long-legged ant).       Oahu.                    Molokai.
Hymenoptera/Formicidae...............  Linepithema humilis      Hawaii, Kahoolawe,       Molokai, Oahu.
                                        (Argentine ant).         Kauai, Lanai, Maui.
Hymenoptera/Formicidae...............  Ochetellus glaber (ant)  Hawaii, Kahoolawe,       Lanai, Molokai.
                                                                 Kauai, Maui, Oahu.
Hymenoptera/Formicidae...............  Pheidole megacephala     Hawaii, Kahoolawe,       none.
                                        (big-headed ant).        Kauai, Lanai, Maui,
                                                                 Molokai, Oahu.
Hymenoptera/Formicidae...............  Solenopsis geminita      Hawaii, Kauai, Lanai,    Kahoolawe.
                                        (fire ant).              Maui, Molokai, Oahu.
Hymenoptera/Formicidae...............  Solenopsis papuana       Hawaii, Kauai, Lanai,    Kahoolawe.
                                        (fire ant).              Maui, Molokai, Oahu.
Hymenoptera/Vespidae.................  Vespula pennsylvanica    Hawaii, Kauai, Maui,     Kahoolawe, Molokai.
                                        (yellow jacket wasp).    Oahu.
Hymenoptera/Ichneumonidae............  Hyposeter exiguae        Hawaii, Kauai, Maui,     Kahoolawe, Lanai.
                                        (wasp).                  Molokai, Oahu.
Hymenoptera/Trichogrammatidae........  Trichogramma chilonis    Kauai, Oahu............  Hawaii, Maui,
                                        (wasp).                                           Kahoolawe, Lanai,
                                                                                          Molokai.
Hymenoptera/Trichogrammatidae........  Trichogramma minutum     Hawaii, Lanai, Molokai,  Kauai, Kahoolawe, Maui.
                                        (wasp).                  Oahu.
----------------------------------------------------------------------------------------------------------------

    Furthermore, the arthropod community may differ from one area to 
another, even on the same island, based upon elevation, temperature, 
prevailing wind pattern, precipitation, or other factors (Nishida 
1997). Conserving and restoring Blackburn's sphinx moth populations in 
multiple locations should decrease the likelihood that the effect of 
any single alien parasite or predator, or the combined pressure of such 
species, could result in the diminished vigor or extinction of the 
moth.
    Because of the threats discussed above, we do not believe the 
existing habitats containing Blackburn's sphinx moth populations are 
sufficient to ensure the long-term survival of the species. A diverse 
set of habitats and climates within its former range is necessary to 
remove the long-term risk of rangewide extinction of the species. 
Threats to the moth identified in the final listing rule include 
vandalism and collection, predation/parasitism by alien arthropods, and 
habitat alteration and loss from nonnative plant and ungulate invasion 
(65 FR 4770; February 1, 2000). Considering the rarity of the moth, 
small population size is also believed to be a factor that threatens 
the long-term survival of the species, since random population 
fluctuations and catastrophic events are more likely to result in the 
extirpation of local populations. Wildfire and feral ungulate pressure 
on the moth's habitat, along with direct pressure of alien predators 
and parasites, are important factors currently reducing the moth's 
range and abundance and threatening the species' continued existence 
(Funasaki et al. 1988).

Previous Federal Action

    A summary of previous Federal actions on this species up to the 
time we proposed this critical habitat designation is found in the 
Federal Register notice proposing designation of this critical habitat 
(67 FR beginning page 40638).
    On June 13, 2002, we published a proposed rule for designation of 
critical habitat for Blackburn's sphinx moth on approximately 40,240 ha 
(99,433 ac) of land on the islands of Hawaii, Kahoolawe, Maui, and 
Molokai (67 FR 40633). The publication of the proposed rule opened a 
60-day public comment period, which closed on August 12, 2002.
    Subsequently, we determined that an additional extension of time 
was needed to complete this designation process. On August 21, 2002, 
the District Court in Hawaii approved another joint stipulation 
extending the date for the final rule designating critical habitat for 
Blackburn's sphinx moth to May 30, 2003.
    On August 26, 2002, we published a notice (67 FR 54763) announcing 
the reopening of the comment period until December 30, 2002, and notice 
of a public hearing on the proposed rule to be held on the island of 
Maui. On September 12, 2002, we held a public hearing at the Maui Arts 
and Cultural Center Meeting Room, Kahului.
    On October 10, 2002, we published a notice of a public hearing on 
the proposed rule to be held on the island of Hawaii (67 FR 63064). On 
October 29, 2002, we held a public hearing in Kailua-Kona, Hawaii.
    On November 15, 2002, we published a notice of the availability of, 
and invitation for, comments on the draft economic analysis (DEA) for 
the proposed rule (67 FR 69179). The second public comment period 
closed on December 30, 2002.

Summary of Comments and Recommendations

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited, during a prepublication peer review process, 
independent opinions from 15 knowledgeable individuals with expertise 
in one or several fields, including familiarity with the species, the 
geographic region that the species occurs in, and the principles of 
conservation biology. We received comments from five reviewers. After 
publication of the proposed rule, we solicited independent opinions 
from 27 knowledgeable individuals with similar expertise. We received 8 
written responses from those 27 individuals. All eight reviewers 
generally supported our methodology and conclusion, and supported the 
proposed critical habitat designation, although they recognized the 
limitations of scientific knowledge of life history and population 
characteristics of the Blackburn's sphinx moth. All of the reviewers 
supported including currently unoccupied habitat

[[Page 34715]]

within the designation. Several reviewers suggested specific locations 
where critical habitat should have been expanded; in most cases this 
was to include additional mesic habitat areas for the moth. Several 
reviewers specifically expressed concern with the identified primary 
constituent elements, particularly pertaining to the fact that 
nonnative tree tobacco (Nicotiana glauca) was not identified as such. 
We summarize and address comments received from the peer reviewers in 
the following section. We considered all reviewers' comments in 
developing the final rule.
    In the June 13, 2002, proposed critical habitat designation (67 FR 
40633), we requested all interested parties submit comments on the 
specifics of the proposal, including information related to biological 
justification, policy, economics, and proposed critical habitat 
boundaries. We also contacted all appropriate Federal, State, and local 
agencies, scientific organizations, and other interested parties and 
invited them to comment. The comment period was scheduled to close on 
August 12, 2002. To allow for additional comments on the proposed 
designation and to allow for comments on the DEA of the proposed 
critical habitat, we extended the comment period until December 30, 
2002 (67 FR 54763). We received 30 individually written letters, from 
10 designated peer reviewers, 4 State agencies, and 16 individuals or 
organizations. Approximately 715 additional letters were submitted as 
part of a mailing campaign, all of which supported the proposed 
designation.
    We received three requests for a public hearing. We announced the 
date and time of the public hearings and invited comments in letters to 
appropriate elected officials; Federal, State, and local agencies; 
scientific organizations; and other interested parties. We also 
published notices in several news sources, including the Federal 
Register, Star Bulletin, West Hawaii Today, Hawaii Tribune Herald, 
Honolulu Advertiser, Molokai Advertiser News, and the Maui News. Five 
individuals at the October 2002 Kahului, Maui, public hearing and 5 
individuals at the November 2002 Kailua-Kona, Hawaii, public hearing, 
gave testimony on the Blackburn's sphinx moth critical habitat 
proposal.
    We provided notification of the DEA through letters and news 
releases faxed and/or mailed to affected elected officials, media 
outlets, local jurisdictions, and interest groups. We also published 
notice of its availability in the Federal Register (67 FR 69179; 
November 15, 2002), and the DEA and associated material were made 
available on our Region 1 Fish and Wildlife Office Internet site 
following its release on November 15, 2002.
    We reviewed all comments received for substantive issues and new 
information regarding the Blackburn's sphinx moth. Similar comments 
were grouped into six general issue categories relating specifically to 
the proposed critical habitat determination and DEA on the proposed 
determination. Comments have been incorporated directly into the final 
rule or final addendum to the economic analysis, and/or they have been 
addressed in the following summary.

Issue 1: Biological Justification and Methodology

    (1) Comment: Multiple commenters, including one official with HDOA, 
stated that the Service should not designate unoccupied habitat for the 
moth, and that unoccupied areas should be excluded from the 
designation. However, all peer reviewers of the proposed rule, 
including one with the Hawaii Division of Forestry and Wildlife (DOFAW) 
and one with HDOA, were in support of the designation of unoccupied 
habitat. Many of the peer reviewers stated that unoccupied habitat is 
essential since currently occupied areas would be inadequate for 
conservation of the species.
    Our Response: Because of the comparatively limited current range of 
this species, designating only occupied areas would not meet the 
conservation requirements of the species. Many peer reviewers agreed 
with this and stated that currently occupied areas, as well as the 
similar habitat around them within the designated units of critical 
habitat that may be occupied in the future, cannot provide all of the 
essential life-cycle needs of the species, nor provide all of the 
habitat components essential for the conservation (primary constituent 
elements) of this species. Therefore, providing the opportunity for 
expansion of this species to areas that were known to have been 
historically occupied (i.e., Molokai) is essential to its conservation, 
and should help to prevent the possibility of the species' extinction 
in the event that some populations are extirpated by catastrophes such 
as large wildfires or hurricanes.
    When designating currently unoccupied habitat for this species, we 
first evaluated lands that are suitable. Of this suitable habitat, we 
then identified those areas essential for the conservation of the 
species if they contained one or more of the primary constituent 
elements; were either in acceptable condition for conservation efforts, 
or could be made acceptable through appropriate management actions; and 
would provide the space and distribution needed by the moth to sustain 
itself in the future.
    The one unoccupied area designated in this final rule is located on 
the island of Molokai. Although currently unoccupied by the moth, the 
area contains both larval stage and adult moth native host plants. The 
area is close enough in proximity to the Maui moth population that many 
peer reviewers stated it is feasible that the area may again be 
repopulated by the moth on its own. However, because it is a separate 
island, some additional protection from a potential natural catastrophe 
affecting, for example, the Maui population, may be afforded a future 
moth population on Molokai. Furthermore, as Molokai is the closest 
island to Oahu, we believe that allowing for a future moth population 
on Molokai may facilitate the species' dispersal and provide a flight 
corridor for moths eventually dispersing to the island of Oahu, which 
is also part of its historical range.
    Molokai was designated as critical habitat in lieu of, or rather 
than, other suitable unoccupied areas, because we determined, to the 
best of our abilities, that it is the highest quality unoccupied 
habitat essential to the conservation of the moth. Lastly, the 
designated unoccupied area on Molokai may lack some of the serious 
potential threats to the moth (see Table 1). Conserving and restoring 
Blackburn's sphinx moth populations in multiple locations decreases the 
likelihood that the effect of any single alien parasite or predator, or 
the combined pressure of such species and other threats, could result 
in the diminished vigor or extinction of the species.
    (2) Comment: Critical habitat designation should consider the 
following: (1) The importance of designating the best remaining 
elements of ecosystems for multispecies conservation; (2) the 
practicality of managing and protecting scattered units without 
apparent physical boundaries; and (3) the importance of public/private 
partnerships for species conservation.
    Our Response: We agree that all these factors are important for the 
conservation of listed species. We have designated only areas that are 
essential for the conservation of the Blackburn's sphinx moth, and 
which contain primary constituent elements within the highest quality 
remaining habitats. We also agree that public/private partnerships are 
often essential for species conservation. As an example,

[[Page 34716]]

we are excluding portions of proposed Units 1 and 2 because some 
private landowners are managing portions of their lands for the 
conservation benefit of the moth and numerous other listed species. We 
believe that the benefits of exclusion outweigh the benefits of 
including these areas as critical habitat because there is a higher 
likelihood of beneficial conservation activities occurring in those two 
areas without designated critical habitat. See- Exclusions Under 
Section 4(b)(2) for a more detailed discussion of the excluded areas.
    (3) Comment: The majority of peer reviewers noted the lack of 
knowledge regarding basic biology of the species. They noted that 
little peer-reviewed biological and ecological information is available 
for the Blackburn's sphinx moth, and that much of the technical 
information used for the critical habitat designation is based on 
unpublished reports and field observations by Service staff, State 
biologists, and university researchers. One peer reviewer with DOFAW 
stated that the use of information from studies of other sphinx moths 
or butterflies is probably not valid for Blackburn's sphinx moth. 
Another peer reviewer suggested the use of studies for other 
lepidopterans could be problematic. However, other peer reviewers 
agreed that it was acceptable and appropriate for the Service to use 
studies and information on other lepidopterans, especially since there 
is limited information on the moth.
    Our Response: As noted in the Background section of this rule, we 
recognize the limited amount of scientific data available for this 
species, especially the very limited amount of information that is 
available in a peer-reviewed format. However, the Act requires us to 
use the best available scientific and commercial information in 
undertaking species listing and conservation actions, including the 
designation of critical habitat as set forth in this rule.
    Prior to the rulemaking process associated with listing the 
Blackburn's sphinx moth as endangered, we participated in, led, or 
sponsored a number of surveys and studies in numerous habitat areas on 
several islands to document the presence or absence of the moth or its 
essential host plant species at these locations. In addition, other 
natural resource agencies and organizations, including the University 
of Hawaii, USGS-BRD, DLNR, and the National Botanical Garden, provided 
us with reports of field observations at many sites on several islands. 
While we acknowledge the limited amount of peer-reviewed published 
information regarding the Blackburn's sphinx moth, as required by law 
we have used the best scientific and commercial data available to 
identify and delineate the critical habitat boundaries. Furthermore, we 
believe that we have been cautious in using information from studies of 
other, similar lepidoptera in identifying critical habitat for this 
moth species. For example, throughout this rule, we have explicitly 
identified where we were making comparisons between Blackburn's sphinx 
moth and related taxa rather than making assumptions outright about the 
moth. We have also acknowledged throughout the rule that additional 
studies are needed to confirm certain aspects of the species's biology, 
including, but not limited to, its host plant co-interactions.
    (4) Comment: Some commenters stated that the Service did not 
adequately consider recovery science and management in its proposed 
critical habitat designation.
    Our Response: When developing the rule to designate critical 
habitat for the moth, we have used the best scientific and commercial 
data available. This included, but is not limited to, documented 
locations of known Blackburn's sphinx moth populations and locations of 
the primary constituent elements, including peer-reviewed scientific 
publications; unpublished reports by researchers; the rule listing the 
species (65 FR 4770); the Blackburn's sphinx moth Recovery Outline 
(Service 2000); the HHP's current database; island-wide Geographic 
Information System (GIS) coverages (e.g., vegetation, soils, annual 
rainfall, elevation contours, landownership); information received 
during the public comment periods and public hearings; recent 
biological surveys and reports; information received in response to 
outreach materials and requests for species and management information 
that we sent to all landowners, land managers, and interested parties; 
responses to the published Blackburn's sphinx moth critical habitat 
proposed rule; and the DEA.
    The critical habitat unit approach in this rule addresses the 
numerous risks to the long-term survival and conservation of 
Blackburn's sphinx moth by employing two widely recognized and 
scientifically accepted methods for promoting viable populations of 
imperiled species--(1) creation or maintenance of multiple populations 
to reduce the possibility that a single or series of catastrophic 
events could threaten to extirpate the species; and (2) increasing the 
size of each population in the respective critical habitat units to a 
level where the threats of genetic, demographic, and normal 
environmental uncertainties are diminished (Tear et al. 1995; Meffe and 
Carroll 1996; Service 1997a).
    In general, the larger the number of populations and the larger the 
size of each population, the lower the probability of extinction (Raup 
1991; Meffe and Carroll 1996). This basic conservation principle of 
redundancy applies to Blackburn's sphinx moth. By maintaining viable 
populations in the designated critical habitat units, the threats 
represented by a fluctuating environment are reduced and the species 
has a greater likelihood of achieving conservation. Conversely, loss of 
a Blackburn's sphinx moth critical habitat unit will result in an 
appreciable increase in the risk that the species may not recover and 
survive.
    Re-establishing the species to a diverse set of habitats and 
climates within its former range is necessary to remove the long-term 
risk of rangewide extinction due to catastrophic events and the 
numerous direct threats to the species and its habitat (Service 1997a). 
We are keenly aware that simply designating an area as critical habitat 
will not ensure its long-term conservation and recovery and, in fact, 
we know and recognize that active management actions and proven 
recovery science methods will be far more important in the long run for 
the moth. In accordance with our policy on peer review published on 
July 1, 1994 (59 FR 34270), we also solicited the expert opinions of 
appropriate and independent specialists regarding the proposed rule. 
The purpose of this peer review was to ensure that our designation 
methodology of critical habitat for the Blackburn's sphinx moth was 
based on scientifically sound data, assumptions, and analysis, and 
recovery science. The comments of all of the peer reviewers were taken 
into consideration in the development of this final designation. 
Furthermore, we are in the process of developing a draft recovery plan 
for the moth, and all peer reviewers, stakeholders, and other 
interested parties will have an opportunity to provide input to ensure 
that the best recovery science is outlined for the moth's long-term 
conservation and recovery.
    (5) Comment: Numerous comments were submitted regarding the 
Service's identification of the Blackburn's sphinx moth's primary 
constituent elements. Most peer reviewers stated that the Service had 
properly identified the primary constituent elements for this species. 
However, several reviewers,

[[Page 34717]]

including one with HDOA and one with DOFAW, expressed concern with the 
Service's decision not to include tree tobacco (Nicotiana glauca) as a 
primary constituent element because the adult moth often lays eggs on 
this plant species, and the moth's larval stage appears to feed readily 
and successfully on it. In addition, N. glauca is believed to be the 
only larval stage host plant that the Kahoolawe island Blackburn's 
sphinx moth population is utilizing.
    Our Response: Although Blackburn's sphinx moth larvae feed on the 
nonnative Nicotiana glauca, we do not consider this plant to be a 
primary constituent element for the designation of critical habitat. As 
previously discussed, the native Nothocestrum spp. are more stable and 
persistent components of dry-to-mesic forest habitats than N. glauca. 
Nicotiana glauca is a short-lived species that may disappear from areas 
during prolonged drought (A. Medeiros, pers. comm. 1998) or during 
successional changes in the plant community (F. Howarth, pers. comm. 
2001; Simon 1999). Many studies have shown that insects, and 
particularly lepidopteran larvae, consume more food when the food has a 
relatively high water content (Murugan and George 1992). Relative 
consumption rate and growth have been reported to decrease for many 
sphingids closely related to the Blackburn's sphinx moth when raised on 
host plants or diets with a relatively low water content (Murugan and 
George 1992). The vulnerability of N. glauca to drought conditions 
suggests that its water content frequently may not be suitable for 
optimal growth of Blackburn's sphinx moth larvae.
    Numerous conservation and restoration plans for particular areas 
throughout the State of Hawaii have identified as primary goals the 
restoration of native plants, including the native host plants for the 
Blackburn's sphinx moth and other endangered species. Achieving these 
restoration goals may also require the control or elimination of 
nonnative vegetation, potentially including Nicotiana spp. (See also 
Comment 22).
    Additionally, unlike the Nothocestrum spp., Nicotiana glauca is 
more likely to occur in habitats less suitable because of their 
occupation by alien insect predators (D. Hopper, in litt. 2000, 2002; 
Simon 1999). Therefore, in comparison with N. glauca, the native 
Nothocestrum spp. better fulfill the primary biological needs of the 
moth larvae. For all of these reasons, we are not considering N. glauca 
as a primary constituent element for the designation of critical 
habitat.
    (6) Comment: Several reviewers stated that the native Nothocestrum 
spp. host plant populations are currently very rare and most of them 
are not demonstrating regeneration, so that reviewers questioned the 
likelihood of the Blackburn's sphinx moth's eventual recovery. Several 
reviewers also pointed out that the few existing Nothocestrum 
populations are highly vulnerable to extirpation by catastrophic events 
such as large wild fires or hurricanes. Reviewers recommended that 
Nothocestrum populations be aggressively managed using techniques that 
include fencing and weed and feral ungulate control; otherwise, the 
decline of Nothocestrum populations would continue. Furthermore, it was 
suggested that existing Nothocestrum populations be augmented and new 
populations be established with techniques including outplanting and 
propagation.
    Our Response: We agree that active management of the remaining 
Nothocestrum spp. populations will be necessary to prevent their 
continued decline and thereby facilitate the moth's long-term 
conservation. This critical habitat designation and the draft recovery 
plan, which we are currently preparing, identify these needs.
    (7) Comment: One peer reviewer questioned whether it was prudent to 
identify nectar food source plants for the adult Blackburn's sphinx 
moths as primary constituent elements because these plants, especially 
Ipomea spp., are more widespread than the native larval stage host 
plants identified as primary constituent elements, and they are found 
outside of the boundaries of proposed critical habitat. The reviewer 
noted that some areas proposed as critical habitat, i.e., proposed Unit 
2, were selected partly because the areas are known to contain adult 
moth primary constituent elements, even if currently devoid of native 
Nothocestrum spp.
    Our Response: We agree that known and likely native nectar food 
sources for adult Blackburn's sphinx moths are more widespread and 
abundant than known native food sources for larval moths. We included 
native nectar food sources as primary constituent elements for the moth 
to identify the specific habitat components needed for the species to 
complete its entire life cycle. We determined that identifying critical 
habitat based solely on the existing locations of larval stage primary 
constituent elements, i.e., Nothocestrum spp., would not meet the 
species' needs essential for its conservation. Some critical habitat 
areas were selected because they are known to contain adult moth 
primary constituent elements, even if currently devoid of native 
Nothocestrum spp. We included such areas when we determined that the 
areas were: (1) Within the moth's current or historic range; and/or (2) 
known or believed to have been occupied by Nothocestrum spp. in the 
past and capable of supporting Nothocestrum spp. again if properly 
protected or restored.
    (8) Comment: One peer reviewer suggested that some areas currently 
occupied by the Blackburn's sphinx moth and proposed as critical 
habitat may actually be suboptimal habitat for the species. It was 
hypothesized that these same areas are occupied currently only because 
some threats, such as ants or certain Trichogramma parasitic wasp 
species, are either lacking or present in sufficiently low levels to 
allow the moth to persist there. The same peer reviewer also suggested 
that soil substrate is an important habitat component that may have 
been overlooked in the proposed rule. It was noted that the moth has 
often been found in areas with rocky, cinderlike, and relatively barren 
substrate. It was hypothesized that the moth may prefer such a loose, 
uncompacted substrate for the purpose of burrowing to complete 
pupation. However, it was also noted that moth occurrences in these 
areas may be due to the fact that such substrates are somewhat 
comparatively abiotic and sparsely vegetated, and may thus yield lower 
moth parasite and predator populations.
    Our Response: The best available information, both historic and 
current, was used from a variety of sources (see Methods section) to 
determine the primary constituent elements for the Blackburn's sphinx 
moth and its current and former range. As pointed out by reviewers, 
historic information is extremely scant for the species, but the only 
information currently available indicates the species is restricted to 
somewhat dry and leeward areas. While we acknowledge that additional 
studies are needed to better understand the moth's long-term 
conservation needs, the designated lands represent, to the best of our 
current knowledge, the areas essential to the species' conservation. We 
are currently preparing a draft recovery plan for the moth, and this 
plan identifies several priority research tasks such as the 
investigation of substrate preferences and effects of various predators 
and parasites on the species. We may revise this critical habitat 
designation in the future if new information indicates revisions are 
warranted.
    (9) Comment: One peer reviewer recommended that the Service conduct

[[Page 34718]]

a genetic analysis of moth populations from both Kahoolawe and Maui to 
determine if the moth has perhaps evolved either a preference for, or 
an adaptation to, feeding on Nicotiana glauca. It was suggested that 
the Service might learn whether the Kahoolawe moth population is 
dependent upon Maui moth populations for recruitment. Furthermore, 
genetic analysis might reveal that Nicotiana glauca raised moth 
populations are dependent upon Nothocestrum spp. plants or that such 
moth populations are genetically distinct from those moth populations 
that appear to be Nothocestrum spp. dependent.
    Our Response: We agree that a greater understanding of the moth's 
genetics is needed to better address its long-term conservation needs. 
However, researching this aspect of the moth's biology is beyond the 
scope of this document. We are currently preparing a draft recovery 
plan for the moth that will identify a genetics study, in addition to 
other priority research objectives.
    (10) Comment: Most of the peer reviewers stated that the proposed 
critical habitat areas seem suitable in size and that they are 
ecologically appropriate, provided that: (1) The proposed areas are 
protected from their primary threats, and (2) the excluded lands are 
properly managed and of large enough size to be ecologically 
sustainable.
    Our Response: We believe the core area of suitable habitat has been 
demarcated by the critical habitat boundaries as presented in this 
final rule. Moreover, the designated critical habitat units were chosen 
to create an array of multiple discrete populations across the four 
islands to reduce the risk of extinction resulting from catastrophic 
natural events, such as hurricanes, and to enhance the likelihood of 
conservation. Furthermore, the units were chosen because they are the 
highest quality native habitats essential to the moth's conservation 
and all are identified as manageable, restorable, and sufficient in 
size to capably support self-sustaining moth populations. Our 
conclusion is that 9 sites located within historic range on four 
islands are sufficient to achieve these goals. If provided with new 
information, we may revise the critical habitat designation in the 
future.
    (11a) Comment: Three peer reviewers and one commenter noted that 
the proposed rule did not contain a great deal of information about the 
distribution of the mesic habitat plant, Nothocestrum longifolium nor 
its potential as a host plant for the larval stage of the moth. It was 
recommended that the Service map the distribution of N. longifolium by 
island. (11b) Comment: Two reviewers and one commenter, including one 
with HDOA, noted that very little mesic habitat, other than on Molokai, 
was proposed as critical habitat for the Blackburn's sphinx moth. They 
recommended that the Service include more mesic habitat in the final 
designation, especially in light of the fact that the islands have 
undergone, and often undergo, long periods of drought. (11c) Comment: 
One peer reviewer with HDOA provided additional observational data for 
the moth at light traps located near Olinda, East Maui, and suggested 
that the moths were either flying long distances from known habitat 
areas, or represented adults from an undocumented population 
potentially utilizing N. longifolium plants in mesic forests of 
northwest Haleakala. (11d) Comment: Another peer reviewer with DOFAW 
provided additional observational data for the moth on Maui that may 
indicate a distinct seasonal pattern to its appearances on that island. 
It was suggested that these respective periods of moth appearance 
coincided with annual regional precipitation patterns, and might 
indicate the moth was taking advantage of appropriate opportunities for 
larval development and flower (e.g., nectar) foraging. (11e) Comment: 
The same reviewer recommended the inclusion of an altogether new unit 
on West Maui that was not proposed as critical habitat. The unit was 
justified since it would include additional mesic habitat and was 
persistently and strongly occupied by the moth. Additionally, the area 
contained adult Blackburn's sphinx moth primary constituent elements, 
specifically Plumbago spp. and Ipomea spp., as well as other potential 
larval stage host plants (not identified as primary constituent 
elements) such as Solanum nelsoni and Scaevola sericea. Lastly, it was 
suggested that the new unit might provide an important corridor for 
adult moths migrating toward the proposed Unit 7 on Molokai because of 
its proximity to Molokai and the area's relative lack of strong winds 
like those found in the isthmus area of Maui between West Maui and 
Haleakala.
    Our Response: We did not designate additional mesic land on East or 
West Maui because those lands are not essential for the conservation of 
the moth. This conclusion is based on available information concerning 
the status of the Blackburn's sphinx species in specific areas and/or 
the level of habitat degradation. We agree that some mesic forest areas 
not designated as critical habitat, especially on Maui, may potentially 
harbor undocumented populations of Blackburn's sphinx moth. We also 
acknowledge that additional survey efforts are needed to ascertain the 
existence of these moth populations or potential host plant 
populations. In preparation of this rule, we did fund three surveys for 
moth host plants within mesic habitats (Perry 2001; Wood 2001a; 2001b). 
While new reports of moth sightings provided by reviewers will be 
useful in focusing future survey efforts and research needs, the fact 
remains that too little is known about the moth's potential mesic 
habitat requirements. For example, the potential host plant suitability 
of mesic habitat plants such as Nothocestrum longifolium, to warrant 
the designation of additional mesic habitat for the moth beyond what we 
have designated. Furthermore, the mesic habitat we designated on the 
island of Molokai was identified as the best quality mesic habitat 
essential for the conservation of the moth. Lastly, the two designated 
units within the Maui isthmus, Units 5 and 6 are expected to adequately 
serve as a corridor for moths migrating to the designated unit on 
Molokai (Unit 9).
    (12) Comment: Two peer reviewers noted that the quality of 
`darkness' (i.e., absence of artificial lighting) could be an important 
factor in the Blackburn's sphinx moth's biology, and suggested this 
habitat quality be considered a primary constituent element. It was 
stated that `darkness' may be important for the normal nocturnal 
foraging, biology, and movement behavior of the adult Blackburn's 
sphinx moth. Furthermore, it was noted that most of the proposed 
critical habitat units are still in relatively dark areas, with the 
exception of proposed Units 3, 5a, and 5b. One commenter provided 
information about two occasions in which the moth was observed flying 
to bright lights at the State Forestry Baseyard in Kahului, Maui. 
During one of the occasions, the moth became disoriented and was killed 
by a feral cat. Two reviewers and one commenter suggested that 
management for darkness may be an important issue for Blackburn's 
sphinx moth conservation, especially if specific critical habitat units 
became more developed, such as in proposed Units 3, 5a, and 5b. One 
reviewer suggested that low-intensity and/or shielded lighting 
strategies might help reduce attraction and disorientation of 
nocturnally migrating adult moths. One commenter recommended that 
proposed Unit 3 not be included in the designation because

[[Page 34719]]

of the absence of `darkness.' Another reviewer with DOFAW questioned 
whether future development within the two proposed Kailua-Kona units, 
and the subsequent reduction of darkness, might negatively impact moth 
behavior within that area.
    Our Response: We agree that the quality of darkness might be an 
important factor in the adult Blackburn's sphinx moth's behavior. 
However, at this time the we are unaware of prior studies on this 
issue. In the draft recovery plan for this species that we are 
currently preparing, we will include a research objective to explore 
the importance of the `darkness' habitat quality to the moth. If 
provided with new information, we may revise the critical habitat 
designation in the future.
    (13) Comment: One peer reviewer recommended the identification of 
additional primary constituent elements for the adult Blackburn's 
sphinx moth, Scaevola sericea and S. coriacea, located within coastal 
areas, and other Scaevola spp. located within montane areas. The 
reviewer had documented several observations of similar sphingid 
species taking nectar from Scaevola spp., although no Blackburn's 
sphinx moths were observed feeding upon these species. Furthermore, 
within coastal areas of proposed Unit 3, sphingid moths had been 
documented foraging during crepuscular (twilight) hours on Scaevola 
spp. within less than 50 m (164 ft) of Nicotiana glauca host plants 
containing Blackburn's sphinx moth larvae. It was suggested it was 
highly likely that some of the observed foraging adult moths could have 
been Blackburn's sphinx moth adults.
    Our Response: We agree that Scaevola spp. could potentially serve 
as a nectar food source for foraging adult moths. Flowers produced by 
this plant group share many of the characteristics of the flowers of 
plants described as primary constituent elements in this rule. We will 
include a research objective to explore the suitability of Scaevola 
spp. as a moth nectar resource in the draft recovery plan for this 
species that is currently being prepared.

Issue 2: Effects of Designation

    (14) Comment: Multiple commenters stated that the designation of 
critical habitat alone will not prevent the loss of remaining natural 
habitats, and that funds would be better spent on natural resource 
management activities. Additionally, some reviewers, including one with 
DOFAW, stated that if management is not realistic, it makes little 
sense to designate critical habitat.
    Our Response: We are required under the Act to designate critical 
habitat on the basis of best available information. Management needs 
for the species will be addressed in the draft recovery plan that we 
are currently preparing.
    (15) Comment: Multiple commenters expressed concern about the 
potential impacts to hunting activities and traditional gathering 
rights of native Hawaiians as a result of the proposed critical habitat 
designation. One commenter suggested the Service should involve hunter 
groups in any relevant discussions should it be determined that game 
animal management or hunting activities may be affected by the 
designation.
    Our Response: We agree 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. In preparation of this 
rule, we did conduct public information meetings with State agencies 
and hunting groups to address these kinds of concerns.
    Unless there is Federal nexus to the activity, an activity by the 
State or private landowner or individual, such as farming, grazing, 
logging, and gathering, generally is not affected by a critical habitat 
designation, even if the property is within the geographical boundaries 
of the critical habitat. Recreational, commercial, and subsistence 
activities on non-Federal lands, including hunting, are not regulated 
by this critical habitat designation. These activities may be impacted 
only where there is Federal involvement in the action and the action is 
likely to destroy or adversely modify critical habitat.
    (16) Comment: Some commenters stated that critical habitat should 
be consistent with current and ongoing conservation efforts in priority 
areas so that resources are not directed elsewhere in an uncoordinated 
manner. It was suggested that the Service and landowners and managers 
work together to develop approaches that are more likely to lead to 
species conservation, rather than a passive designation lacking 
management.
    Our Response: We agree and recognize that the ultimate purpose of 
critical habitat is to contribute to the conservation of listed 
species, a purpose that can be best reached by cooperation between 
ourselves and the community. As an example, we are excluding portions 
of proposed Units 1 and 2 because some private landowners are managing 
portions of their lands for the conservation benefit of Blackburn's 
sphinx moth and numerous other listed species. We believe there is a 
higher likelihood of beneficial conservation activities occurring in 
those two areas without designated critical habitat than there would be 
with designated critical habitat in those locations. See Exclusions 
Under Section 4(b)(2) for a more detailed discussion of the excluded 
areas.

Issue 3: Site-Specific Biological Comments

    (17) Comment: One peer reviewer with DOFAW commented that the two 
proposed Kailua-Kona Units (5a and 5b) may be too small and urbanized 
to be effective for the long-term conservation of the Blackburn's 
sphinx moth. One commenter with the Housing and Development Corporation 
of Hawaii (HCDCH), a State agency, provided more recent survey data 
that indicated the proposed Unit 5b no longer contained living 
Nothocestrum brevifolium host plants. Another commenter questioned 
whether the proposed Unit 5a was actually essential to the species. It 
was suggested that the 1992 data used to indicate presence of the N. 
brevifolium host plants was outdated, and at any rate, the presence of 
only two known N. brevifolium host plants failed to prove the area 
would be capable of supporting a viable moth population. Furthermore, 
it was questioned whether inclusion of the area would actually 
facilitate dispersal of the moth to other proposed areas, and 
ultimately whether the unit would contribute to genetic exchange 
between moth populations on the island of Hawaii. The commenter 
inquired as to the number of past moth sightings within the unit. One 
commenter requested that the proposed Units 5a and 5b be excluded from 
the designation since the rule did not demonstrate that exclusion would 
result in extinction of the moth.
    Our Response: We have excluded proposed Units 5a and 5b from the 
final designation. See the Summary of Changes from the Proposed Rule 
section for additional detail concerning the exclusion of these units.
    (18) Comment: One peer reviewer suggested that it may be difficult 
to defend the inclusion of the Kahului Airport runway safety zone 
within Unit 3 because the area does not currently support native 
Nothocestrum spp. host plants. It is also unlikely to do so in the 
future since any potentially outplanted Nothocestrum spp. may not 
survive the strong winds and salt spray prevalent within the area. 
However, it was noted that the area could possibly support other native 
solanaceous plants such as

[[Page 34720]]

Solanum nelsoni, which may be suitable larval stage host plants.
    Our Response: We were provided with additional information in the 
form of recently completed surveys for portions of the proposed Unit 3. 
The study, conducted by the Hawaii Biological Survey and the Bishop 
Museum, showed that areas on the western edge of the proposed Unit 3, 
encompassing and bordering some Kahului Airport lands, were in fact 
relatively devoid of identified primary constituent elements, and the 
area would therefore not appear to provide suitable long-term habitat 
for the moth. As a result of receiving the additional information on 
the proposed Unit 3, critical habitat in the area is now designated in 
the form of two smaller units that do not encompass the Kahului Airport 
runway safety zone, nor any other Kahului Airport lands other than that 
contained within the Kanaha Pond Wildlife Sanctuary boundaries. See the 
Summary of Changes from the Proposed Rule section for additional detail 
on the changes that were made to this unit.
    We agree that Solanum nelsoni could potentially serve as an 
alternate coastal host plant food source for the moth's larval stage. 
We will include a research objective to explore the suitability of 
Solanum nelsoni as larval stage host plant in the draft recovery plan 
for this species, currently under preparation.
    (19) Comment: One commenter pointed out that approximately 4 ha (10 
ac) of proposed Unit 3 overlapped with a private parcel under a grazing 
lease. It was requested that the area in question be removed from the 
designation if the primary constituent elements were not present, or if 
the area did not warrant special management considerations.
    Our Response: As a result of receiving additional information on 
proposed Unit 3, we excluded several portions of this proposed unit, 
including the area in question from critical habitat because we 
determined that those areas lacked the moth's primary constituent 
elements. See the Summary of Changes from the Proposed Rule section for 
additional detail on the changes we made to this unit.
    (20) Comment: One peer reviewer with HDOA suggested that the lack 
of collection records for certain potential parasites and predators on 
Molokai does not mean those organisms are not present on the island. 
Rather it is possible that the lack of records is, in fact, an artifact 
of limited prior collecting work there. It was recommended that 
searches for these potential parasites and predators should be 
conducted on Molokai before special effort is put forth to utilize the 
island as a restoration site for the Blackburn's sphinx moth.
    Our Response: We agree. The need to better document the presence of 
potential predator and parasites within identified habitat conservation 
areas for the Blackburn's sphinx moth will be addressed in the draft 
recovery plan currently being prepared for the species.
    (21) Comment: One peer reviewer with DOFAW suggested that the 
proposed Units 1, 2, 6, and 7 would require fencing and large scale 
feral ungulate management to ensure conservation of the moth and its 
host plants in those areas. On a related note, one reviewer and one 
commenter suggested that the use of managed grazing could potentially 
aid moth habitat restoration through the suppression of invasive weeds 
and fire fuels.
    Our Response: We agree with the reviewer regarding the identified 
fencing needs, yet we also acknowledge that managed grazing, and even 
highly managed game animal populations, may potentially serve as tools 
in the suppression of invasive weeds and fire fuels. Many of these 
concepts are explored in greater detail within the draft recovery plan 
currently being prepared for the moth. Furthermore, we look forward to 
developing and implementing innovative strategies to restore identified 
Blackburn's sphinx moth habitat conservation areas with our public and 
private partners involved in the management of game or livestock.
    (22) Comment: One peer reviewer with DOFAW stated that a potential, 
but resolvable, conflict in land management could occur within proposed 
Unit 3, specifically within the boundaries of the Kanaha Pond Wildlife 
Sanctuary, based on current management plans to ultimately restore the 
95 ha (235 ac) of sanctuary lands as much as possible to native pre-
contact conditions. The planned removal of all alien plant species may 
entail the removal of all existing Nicotiana glauca plants, the 
nonnative host plant for the moth. It was suggested that planned 
experimental outplanting of native Nothocestrum spp. may be attempted 
within the sanctuary. However, it was noted that if the attempts were 
unsuccessful, there may then be a need to retain the N. glauca for the 
moth, an important change in both the sanctuary's management and 
management plans.
    Our Response: We agree that the restoration of the Kanaha Pond area 
to a more native and pre-contact condition will benefit the remaining 
native components of that ecosystem, and that it should benefit the 
Blackburn's sphinx moth as well. We look forward to developing and 
implementing an innovative restoration strategy for this area with 
DOFAW. Determining if there are suitable, native coastal host plants 
that could be outflanked for the moth's larval stage is a research need 
that we will address in the draft recovery plan.
    (23) Comment: One commenter provided additional information about 
the extent of grazing activities within proposed Unit 7 on Molokai, and 
questioned whether the area actually contained the Blackburn's sphinx 
moth's primary constituent elements. It was requested that the area be 
excluded from the designation.
    Our Response: As a result of receiving the additional information 
on proposed Unit 7, several portions of the proposed unit were excluded 
from critical habitat because new information revealed some lands in 
that unit did not contain the primary constituent elements, or were 
more seriously degraded than previously ascertained, and are therefore 
not essential for the conservation of the species. See the Summary of 
Changes from the Proposed Rule section for additional detail on the 
changes that were made to this unit.
    (24a) Comment: It was recommended by two commenters that some of 
the areas within proposed Unit 1 be excluded since they did not contain 
the moth's primary constituent elements. One peer reviewer suggested 
that proposed Unit 1 could be extended eastward of the southern 
Haleakala boundary to Kaupo, especially along the coast (e.g., Nui 
coastline), to include additional areas containing the primary 
constituent elements. (24b) Comment: Another peer reviewer with DOFAW 
recommended that the boundaries of proposed Unit 3 be expanded by 
extending the unit to the south and southeast to include the area 
demarcated by Highway 36, and east along Highway 36 to the three-way 
intersection of Highway 37 with Old Haleakala Highway and Hana Highway. 
The reviewer noted that both Blackburn's sphinx moth adults and larvae 
had been observed on numerous occasions, often in good numbers within 
the area. Furthermore, the reviewer suggested that this expansion of 
proposed Unit 3 would provide additional windward and mesic habitat for 
the moth, a habitat type not highly represented in the proposed areas.
    Our Response: As a result of receiving the additional information 
on proposed Unit 1, critical habitat in the area is now designated in 
the form of four smaller units. See the Summary of Changes from the 
Proposed Rule section for additional detail on the changes that were 
made to

[[Page 34721]]

this unit. In this final rule, several portions of proposed Unit 1 were 
excluded from critical habitat it was determined that these areas 
lacked the moth's primary constituent elements. Other portions of 
proposed Unit 1 were excluded because we decided that the benefits of 
excluding critical habitat outweighed the benefits of including 
critical habitat. See Exclusions Under Section 4(b)(2) for a more 
detailed discussion of the excluded areas.
    We did not include these additional lands in critical habitat Units 
1 and 3 because we concluded that they were not essential for the 
conservation of the Blackburn's sphinx moth. This was based on 
available information concerning the status of the species in specific 
areas and the level of habitat degradation. We agree that some of these 
additional lands may potentially harbor undocumented populations of 
Blackburn's sphinx moth, and we also acknowledge that additional survey 
efforts are needed to ascertain the existence of potential moth or host 
plant populations in these areas and likely in other areas as well. 
While new reports of moth sightings or other observations of 
potentially suitable habitat provided by reviewers will be useful in 
focusing future survey efforts and research needs, we believe we have 
identified for designation, the best quality habitat essential for the 
conservation of the moth.

Issue 4: Mapping

    (25) Comment: Two commenters stated that greater precision is 
needed to identify manmade structures and features such as roads, 
houses, and buildings already present within the proposed critical 
habitat designation areas. The DEA conceded that a lack of clarity 
regarding excluded features and structures could force landowners to 
incur costs to investigate the implications of the regulations.
    Our Response: The maps in the Federal Register are meant to provide 
a general location and shape of critical habitat. The legal 
descriptions are readily plotted and transferable to a variety of 
mapping formats, and are available electronically upon request for use 
with GIS programs. At the two public hearings, the maps were expanded 
to wall size to assist the public in better understanding the proposal. 
These larger scale maps were also provided to individuals upon request. 
Furthermore, we provided direct assistance in response to written or 
telephone questions with regard to mapping and landownership within the 
proposed designation.
    As stated in the proposed rule and this final rule, existing 
manmade features and structures within the boundaries of the mapped 
areas. This includes features such as the following that do not contain 
one or more of the primary constituent elements, and therefore, are not 
included in the critical habitat designations: Buildings; roads; 
aqueducts and other water system features, including but not limited to 
pumping stations, irrigation ditches, pipelines, siphons, tunnels, 
water tanks, gauging stations (section in a stream channel equipped 
with facilities for obtaining streamflow data), intakes, and wells; 
telecommunications towers and associated structures and equipment; 
electrical power transmission lines and associated rights-of-way; 
radars; telemetry antennas; missile launch sites; arboreta and gardens; 
heiau (indigenous places of worship or shrines); airports; other paved 
areas; lawns; and other rural residential landscaped areas.
    To further address concerns with the potential costs of identifying 
nondesignated areas, the Economic Analysis Addendum (Addendum) 
revisited the hour estimates presented in the DEA. Chapter VI, section 
4.I of the DEA indicated that the landowners may want to learn how the 
designation may affect: (1) the use of their land (either through 
restrictions or new obligations), and (2) the value of their land. 
Since no commenters provided an estimate of time or cost incurred in 
order to investigate implications of critical habitat, and because of 
the reduction in acreage from proposed to designated, the Addendum 
revised the number of landowners downward, which resulted in a cost for 
landowners of $173,000 to $618,000 to investigate the implication of 
critical habitat.
    While some landowners may expend time and money to investigate the 
implications of critical habitat on their land during the designation 
process, many landowners may not do so until after final designation is 
complete. Thus, the DEA and the Addendum treated these costs as a cost 
attributable to the final designation.

Issue 5: Policy and Regulations

    (26) Comment: One commenter stated that excluding any areas from 
designation based on current management would violate 16 U.S.C. 
1533(a)(3), and further stated that conservation efforts do not alter 
the habitat's critical nature or the need to ensure its protection. 
Multiple commenters stated that areas already subject to conservation 
measures, or which may be the subject of conservation agreements in the 
future, should not be excluded from critical habitat.
    Our Response: 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 base critical habitat 
determinations on the best scientific data available and to consider 
those physical and biological features (primary constituent elements) 
that are essential to the conservation of the species and that may 
require special management considerations or protection. If an area is 
covered by a plan that already provides adequate management, we believe 
it does not constitute critical habitat as defined by the Act because 
the primary constituent elements found there are not considered to be 
in need of special management or protection. We considered a plan to be 
adequate when it provides: (1) A conservation benefit to the species, 
i.e., the plan must maintain or provide for an increase in the species' 
population, or the enhancement or restoration of its habitat within the 
area covered by the plan; (2) assurances that the management plan will 
be implemented, i.e., those responsible for implementing the plan are 
capable of accomplishing the objectives, have an implementation 
schedule in place, and/or have adequate funding for the management 
plan; and (3) assurances that the conservation plan will be effective, 
i.e., it identifies biological goals, has provisions for reporting 
progress, and is of a duration sufficient to implement the plan and 
achieve the plan's goals and objectives. Therefore, if an area provides 
physical and biological features essential to the conservation of the 
species, and also is covered by a plan that meets these criteria, then 
such an area would not have constituted critical habitat, as defined by 
the Act, because the physical and biological features found there do 
not require special management. However, in the case of the moth no 
areas were found currently to be adequately managed, and therefore no 
areas have been excluded on that basis.
    As to future conservation agreement, several owners have indicated 
that including their lands in a critical habitat designation would have 
a negative impact on their existing and future voluntary conservation 
efforts for the moth and other species. After weighing the benefits of 
including these areas as critical habitat with the benefits of 
excluding them, we concluded that the designation of critical habitat 
would have a net negative conservation effect in some situations, and 
we excluded some of these areas from the final designation of critical 
habitat. See our

[[Page 34722]]

discussion under the Exclusions Under Section 4(b)(2) section.
    (27) Comment: Multiple commenters, including DLNR, a State agency, 
noted that the Service has stated critical habitat affects only 
activities that require Federal permits or funding, and does not 
require landowners to carry out special management or restrict use of 
their land. However, the commenters stated that this fails to address 
the breadth of Federal activities that affect private property in 
Hawaii, and the extent to which private landowners are required to 
obtain Federal approval before they can develop their property. Such 
requirements extend to all State agencies using Federal funds in 
connection with a proposed action, and community actions for which 
Federal approval or review is necessary. The requirements also extend 
to loan and grant programs such as Natural Resources Conservation 
Service (NRCS) loans and grants.
    Our Response: Under section 7 of the Act, all Federal agencies must 
consult with the Service to insure that any action that they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of any endangered or threatened species or result in the destruction or 
adverse modification of critical habitat. We have provided our best 
assessment of what may be the effects of this consultation requirement 
on private landowners as well as for State agencies. However, not every 
project, land use, and activity that has a Federal involvement has 
historically been subject to a formal or informal section 7 
consultation with the Service. The draft economic analysis and Addendum 
were confined to those projects, land uses, and activities that are, in 
practice, likely to be subject to consultation and are based on review 
of past consultations, current practices, and the professional 
judgments of Service staff and other Federal agency staff.
    If the Service finds that the proposed actions are likely to 
jeopardize the continued existence of an endangered or threatened 
species or result in destruction or adverse modification of critical 
habitat, we suggest reasonable and prudent alternatives that would 
allow the Federal agency to implement their proposed action without 
such adverse consequences. Again, we have provided our best assessment 
for what this may mean in terms of management actions or land uses and 
any associated costs in the draft economic analysis and Addendum.
    (28) Comment: Two commenters, including the Hawaii Department of 
Transportation, Airports Division (DATA), stated that prudence cannot 
be determined without an analysis of the economic impacts of critical 
habitat. The prudence of critical habitat designation is a final 
conclusion based on weighing all relevant factors, including economic 
factors. While the Service promised to complete its economic impact 
analysis before it promulgates its final determination of critical 
habitat, it risks putting the decision before the analysis. The prior 
determination that critical habitat is prudent and is therefore 
required, is treated as a given, even though it ignored economic 
factors. The Service should revisit (Sierra Club v. U.S. Fish and 
Wildlife Service, 245 F.3d 434, 440-443 (5th Cir. 2001).
    Our Response: We determine whether critical habitat designation is 
prudent according to regulations found at 50 CFR 424.12(a)(1). In 
accordance with these regulations and recent case law, critical habitat 
designation is not prudent only when the species is threatened by 
taking or other human activity, and identification of critical habitat 
can be expected to increase the degree of such threat to the species. 
To determine whether critical habitat would be prudent for the species, 
we analyzed the potential threats and benefits to the species. The 
economic analysis is conducted after critical habitat has been proposed 
in a given area, as set forth in regulations found at 50 CFR 424.19. If 
designation of critical habitat is prudent, we look at all of the 
impacts of designating specific areas as critical habitat to see if the 
benefits of designation outweigh the benefits of excluding it from 
critical habitat. If we find that economic or other impacts outweigh 
the benefit of designating critical habitat in a given area, that area 
will be excluded. We concluded in the final rule listing the 
Blackburn's sphinx moth as endangered that there may be benefits of 
critical habitat designation that may outweigh the risks. Therefore, 
critical habitat is prudent for the species.
    (29a) Comment: Multiple commenters stated that the DEA fails to 
consider economic impacts of critical habitat that result through 
interaction with Hawaii Land Use Law. Critical habitat could result in 
changes to zoning under State law.
    Our Response: Chapter VI, section 4.e. of the DEA and section 4.b. 
of the Addendum address costs involved in redistricting lands from the 
Urban, Rural and Agricultural Districts to the Conservation District. 
About 50,772 acres of Agricultural land, one acre of Rural land, and 
430 acres of Urban land are included in the intended designation. Of 
this, approximately 12,352 acres of Agricultural land is owned by 
private landowners; one acre of Rural land is owned by private 
landowners; and 32 acres of Urban land is owned by private landowners. 
In the event that all of these private lands were redistricted to the 
Conservation District, the total economic cost could range from $80 
million to $249 million. However, as discussed in the economic 
analysis, the redistricting of all lands to Conservation is not 
envisioned for several reasons.
    HRS section 195D-5.1 states that the Department of Land and Natural 
Resources (DLNR) ``shall initiate amendments to the conservation 
district boundaries consistent with section 205-4 in order to include 
high quality native forests and the habitat of rare native species of 
flora and fauna within the conservation district.'' HRS section 205-
2(e) specifies that ``conservation districts shall include areas 
necessary for * * * conserving indigenous or endemic plants, fish and 
wildlife, including those which are threatened or endangered * * *.'' 
Unlike the automatic conferral of State law protection for all 
federally listed species (see HRS 195D-4(a)), these provisions do not 
explicitly reference federally designated critical habitat and, to our 
knowledge, DLNR has not proposed amendments in the past to include all 
designated critical habitat in the Conservation District. Nevertheless, 
according to the Land Division of DLNR, DLNR is required by HRS 195D-
5.1 to initiate amendments to reclassify critical habitat lands to the 
Conservation District (Deirdre Mamiya, Administrator, Land Division, in 
litt. 2002).
    State law only permits other State departments or agencies, the 
county in which the land is situated, and any person with a property 
interest in the land to petition the State Land Use Commission (LUC) 
for a change in the boundary of a district. HRS section 205-4. The 
Hawaii Department of Business, Economic Development & Tourism's (DBEDT) 
Office of Planning also conducts a periodic review of district 
boundaries taking into account current land uses, environmental 
concerns and other factors and may propose changes to the LUC.
    The State Land Use Commission determines whether changes proposed 
by DLNR, DBEDT, other state agencies, counties or landowners should be 
enacted. In doing so, State law requires LUC to take into account 
specific criteria, set forth at HRS 205-17. While the LUC is 
specifically directed to consider the impact of the proposed

[[Page 34723]]

reclassification on ``the preservation or maintenance of important 
natural systems or habitats,'' it is also specifically directed to 
consider five other impacts in its decision: (1) ``Maintenance of 
valued cultural, historical, or natural resources;'' (2) ``maintenance 
of other natural resources relevant to Hawaii's economy, including, but 
not limited to, agricultural resources;'' (3) ``commitment of state 
funds and resources;'' (4) ``provision for employment opportunities and 
economic development;'' and (5) ``provision for housing opportunities 
for all income groups, particularly the low, low-moderate, and gap 
groups.'' HRS 205.17. Approval of redistricting requires six 
affirmative votes from the nine commissioners, with the decision based 
on a ``clear preponderance of the evidence that the proposed boundary 
is reasonable.'' HRS 205-4.
    Thus, even if all federally designated critical habitat is 
petitioned for redistricting, the likelihood of redistricting will vary 
parcel by parcel. While the LUC may redistrict some parcels, it is 
unlikely that lands with a high economic value to the community, such 
as lands with significant State investments, prime agricultural land, 
land planned for the economic and community development, and land 
planned for the provision of housing, would be redistricted. By way of 
illustration, in the last State district boundary review only five 
privately owned parcels were redistricted to Conservation even though 
several hundred parcels were proposed for redistricting. While concern 
has been expressed that a third party would challenge a decision by the 
LUC not to redistrict a critical habitat parcel in State court, State 
courts have been deferential to the LUC decisions if they are supported 
by the record, consistent with statutory provisions, and not affected 
by errors. See, e.g., Kilauea Neighborhood Ass'n. v. Land Use Comm'n. 
751 P.2d 1031, 1035 (Haw. Ct. App. 1988) (finding that, although LUC's 
findings were poorly drawn, the record provided sufficient support for 
the decision); Outdoor Circle v. Harold K.L. Castle Trust Estate, 675 
P.2d 784, 793 (Haw. Ct. App. 1983) (upholding LUC's decision as 
consistent with statutory provisions and not affected by errors).
    In summary, while it is possible that the designation of critical 
habitat could trigger a petition to redistrict land designated as 
critical habitat to the Conservation District, the likelihood appears 
small, absent litigation, that these lands would be redistricted.
    (29b) Comment: Multiple commenters stated that the Service did not 
adequately address the direct or indirect ``takings'' of private 
property as a result of designating critical habitat for the 
Blackburn's sphinx moth. If the proposed designation of critical 
habitat precipitates conversion of agricultural lands to conservation 
land that has no economically beneficial use, then the Federal and 
State governments will have taken private property. Also, the 
incremental impact of designating critical habitat, over and above the 
original listing, is that it creates a presumption that modification of 
the land will ``take'' members of the species. The Service is obliged 
to calculate the impact of deterring landowners use of their land. If 
any economic use of the land not already developed is prevented, the 
Service is liable to compensate the private landowner for such losses.
    Our Response: Any redistricting of land to Conservation and any 
corresponding loss of economically beneficial use would be decided by 
the State Land Use Commission, not the Service, based on an array of 
state laws and other factors, including the extent to which the 
proposed reclassification conforms to the applicable goals, objectives, 
and policies of the Hawaii state plan (see our response to comment 
29a); the extent to which the proposed reclassification conforms to the 
applicable district standards; and the impacts of the proposed 
reclassification on the following: preservation or maintenance of 
important natural systems or habitats; maintenance of valued cultural, 
historical, or natural resources; maintenance of other natural 
resources relevant to Hawaii's economy; commitment of state funds and 
resources; provision for employment opportunities and economic 
development; and provision for housing opportunities for all income 
groups; and the representations and commitments made by the petitioner 
in securing a boundary change.
    In chapter VI, section 4 of the November 2002 DEA under indirect 
costs and in section 4 of the Addendum, they examined the indirect 
costs of critical habitat designation, such as where critical habitat 
triggers the applicability of a State or local statute. The economic 
analysis did not conclude that designation of critical habitat on 
Agricultural lands would prevent a rancher from using those lands. 
Rather, the economic analysis recognized that many areas within the 
critical habitat designation have been grazed for tens or hundreds of 
years, yet still contain the primary constituent elements for 
Blackburn's sphinx moth. The DEA concluded that sustainable grazing 
does not adversely affect the moth, and in fact, may indirectly benefit 
the species by reducing fire danger and controlling nonnative weeds. 
Moreover, the DEA concluded that areas historically subject to grazing 
were unlikely to meet the standards of a natural ecosystem required to 
be put in the Protective Subzone (HAR Sec.  13-5-11). As a result, even 
if Agricultural land within the critical habitat designation were 
redistricted to Conservation, the DEA anticipated that agricultural 
activities could continue because typical agricultural activities are 
allowed in all subzones, except the Protective Subzone, with permission 
of the State Board of Land and Natural Resources (BLNR).
    (30) Comment: Multiple commenters stated the proposal fails to 
properly consider the importance of cooperation and goodwill between 
the Service and private landowners, and the impact critical habitat 
designations will have in discouraging voluntary partnerships on 
private lands.
    Our Response: We recognize the importance of landowner cooperation 
for conservation of listed species. This is true for many of the lands 
designated for the Blackburn's sphinx moth that are under private 
ownership. We also recognize that critical habitat designations could 
potentially have a negative impact on voluntary partnerships with 
private landowners. Conservation of the moth requires control of 
threats from alien species and fire, and outplanting of host plant 
species that have been extirpated from the wild. Several owners have 
indicated that including their lands in a critical habitat designation 
would have a negative impact on their existing and future voluntary 
conservation efforts for the moth and other species. After weighing the 
benefits of including these areas as critical habitat with the benefits 
of excluding them, we concluded that the designation of critical 
habitat would have a net negative conservation effect in some 
situations, and we excluded some of these areas from the final 
designation of critical habitat. See our discussion under the 
Exclusions Under Section 4(b)(2) section.
    (31) Comment: One commenter stated that although they support 
protection for endangered species, they are also concerned about 
protecting nonnative species. The current interpretation of critical 
habitat allows the Federal government and its partners to utilize any 
methodology they wish in dealing with feral animals, even though such

[[Page 34724]]

methods may be cruel and environmentally unsound.
    Our Response: The designation of critical habitat does not give the 
Federal government and its partners the authority to utilize any 
methodology they wish in dealing with feral animals. Any potential 
animal control program would be subject to all applicable State, 
Federal, and local laws.
    (32) Comment: DATA commented that the Service has provided 
inadequate support for its decision to reverse its prior determination 
that designation of critical habitat for the Blackburn's sphinx moth is 
not ``prudent.''
    Our Response: Our reasoning for determining that the designation of 
critical habitat for the Blackburn's sphinx moth is prudent is 
thoroughly discussed in the final rule listing the moth as an 
endangered species (65 FR 4770), which was published in the Federal 
Register on February 1, 2000, and is consistent with recent case law.
    (33) Comment: DATA stated that the proposed rule does not contain 
an analysis of the potential impacts to aviation safety that might 
result from the designation of certain areas contained within proposed 
Unit 3. The Service is required by law to analyze any relevant 
potential impacts when proposing a specific area as critical habitat. 
The commenter recommended that the proposed rule be withdrawn until an 
analysis of the potential impacts to aviation safety has been 
conducted.
    Our Response: As discussed in the DEA (Chapter VI, section 3.h. 
Hawaii Department of Transportation, Airports Division expressed 
concern about designating critical habitat within the boundaries of 
Kahului Airport, due to possible conflicts with safety requirements. In 
this final rule, we have not included Kahului Airport lands from 
critical habitat designation due to a lack of primary constituent 
elements or because the areas were not essential to the moth's 
conservation (see Summary of Changes from the Proposed Rule section). 
We are unaware of any other areas in which aviation safety may be an 
issue as a result of the designation of critical habitat for the 
Blackburn's sphinx moth.
    (34) Comment: The Service has misinterpreted the intent of the Act 
with exclusion of areas under 3(5)(A)(I). If a specific area of 
Blackburn's sphinx moth habitat is recognized to be critical to the 
extent that management is already taking place, the notion that such 
management renders designation unnecessary does not make sense. In 
fact, designation of these areas would seem more urgent.
    Our Response: Although we disagree with the commenter, we have not 
found any areas that are currently adequately managed for the moth. 
Therefore, we have not excluded areas on that basis. Please also refer 
to our response to Comment 26.
    (35) Comment: The proposal violates the ``commerce clause'' because 
the Blackburn's sphinx moth is not related to interstate commerce. 
Critical habitat designation, and the underlying decision to list the 
species as endangered, are the subject of the designation and exceed 
the constitutional limits of the Service's delegated authority. 
Congress enacted the Act as an exercise of its Commerce Clause power 
and delegated exercise of that Commerce Clause power to the Service to 
apply the Act by regulation. The listed species exists only in Hawaii 
and does not cross State lines. Nor is it in commerce as the subject of 
any economic endeavor and it lacks any commercial value. Therefore, the 
Service's regulations listing this species and designating critical 
habitat for it within Hawaii exceed the Federal power to regulate 
interstate commerce under the governing precedents interpreting the 
Commerce Clause.
    Our Response: The Federal government has the authority under the 
Commerce Clause of the U.S. Constitution to apply the protections of 
the Act to species that occur within a single State. A number of court 
cases have specifically addressed this issue. The National Association 
of Homebuilders v. Babbitt, 130 F. 3d 1041 (D.C. Cir. 1997), cert. 
denied, 1185 S.Ct, 2340 (1998), involved a challenge to application of 
Act's prohibitions to protect the listed Delhi Sands flower-loving fly 
(Rhaphiomidas terminatus abdominalis). As with the species at issue 
here, the Delhi Sands flower-loving fly is endemic to only one State. 
The court held that application of the ESA to this fly was a proper 
exercise of Commerce Clause power because it prevented loss of 
biodiversity and destructive interstate competition. Similar 
conclusions have been reached in other cases, see Gibbs v. Babbitt, No. 
99-1218 (4th Cir. 2000) and Rancho Viejo v. Norton, No. 01-5373 (D.C. 
Cir. 2003).

Issue 6: Economic Issues

    (36) Comment: HDOA suggested that the Service is required to 
conduct a cumulative impacts analysis to determine the economic impacts 
resulting from all critical habitat designations on all the islands.
    Our Response: The commenter appears to be using the term 
``cumulative impacts'' in the context of the National Environmental 
Policy Act (NEPA). We are required to consider only the effect of the 
designation of critical habitat for Blackburn's sphinx moth. The 
appropriate baseline for use in this analysis is the regulatory 
environment without this regulation. Against this baseline, we attempt 
to identify and measure the incremental costs and benefits associated 
with this designation of critical habitat. When critical habitat for 
other species has already been designated, it is properly considered 
part of the baseline for this analysis. Proposed and future critical 
habitat designations for other species in the area will be part of 
separate rulemaking, and consequently, their economic effects will be 
considered separately.
    We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act, which includes critical habitat designations. A notice outlining 
our reason for this determination was published in the Federal Register 
on October 25, 1983 (48 FR 49244).
    (37) Comment: The DEA lists economic impacts; however, there is no 
indication that the Service has identified appropriate critical habitat 
boundaries or modified the critical habitat boundaries in consideration 
of these economic impacts.
    Our Response: We considered the economic impacts that were analyzed 
and summarized in the DEA, and addendum, and excluded two units 
(proposed Units 5a and 5b) from critical habitat (see Exclusions Under 
Section 4(b)(2)).
    (38) Comment: The DEA fails to distinguish potential costs 
resulting from the designation from those costs resulting from listing 
the moth as endangered. Nowhere does the draft provide any analysis of 
what impacts, if any, designating critical habitat for the moth would 
impose above and beyond those associated with the species' listing. 
Because the DEA does not distinguish between these costs, it cannot 
exclude proposed critical habitat from a final critical habitat 
designation pursuant to section 4(b)(2).
    Our Response: Our draft economic analysis evaluated potential 
future effects associated with the listing of Blackburn's sphinx moth 
as an endangered species under the Act, as

[[Page 34725]]

well as any potential effect of the critical habitat designation above 
and beyond those regulatory and economic impacts associated with 
listing. To quantify the proportion of total potential economic impacts 
attributable to section 7 implementation, including both the section 7 
listing provisions and the proposed critical habitat designation, the 
analysis evaluated a ``without section 7'' baseline and compared it to 
a ``with section 7'' scenario. The ``without section 7'' baseline 
represented the current and expected economic activity under all 
modifications except those associated with section 7, including 
protections afforded the species under Federal and State laws. The 
difference between the two scenarios measured the net change in 
economic activity attributable to the implementation of section 7 for 
the Blackburn's sphinx moth. The categories of potential direct and 
indirect costs considered in the analysis included the costs associated 
with: (1) Conducting section 7 consultations associated with the 
listing or with the critical habitat, including incremental 
consultations and technical assistance; (2) modifications to projects, 
activities, or land uses resulting from the section 7 consultations; 
(3) potential delays associated with reinitiating completed 
consultations after critical habitat is finalized; (4) uncertainty and 
public perceptions resulting in loss of land value from the designation 
of critical habitat; (5) potential effects on property values including 
potential indirect costs resulting from the loss of hunting 
opportunities and increased regulation related costs due to the 
interaction of State and local laws; and (6) potential offsetting 
benefits associated with critical habitat, including educational 
benefits.
    The majority of consultations resulting from the critical habitat 
designation for the Blackburn's sphinx moth are likely to address land 
development and road construction or road expansion activities. The 
planned road projects (proposed Ane Keohokalole Highway) within 
proposed Unit 5A is not in this designation. The final economic 
analysis estimates that, over the next 10 years, the designation may 
result in potential direct economic costs ranging from approximately 
$1,183,800 to $1,739,000, and concludes that economic impacts from the 
designation of critical habitat would not be significant.
    A more detailed discussion of our analyses are contained in the 
November 15, 2002, DEA and the Addendum to the DEA. Both documents are 
available for inspection at the Pacific Islands Office (see ADDRESSES 
section).
    (39) Comment: The Service has failed to consider the cascading 
impacts resulting from State-led regulatory activities that must, by 
law, be implemented as a result of critical habitat designation. 
Additional concerns include the broad interpretation of ``take'' under 
Hawaii's Endangered Species Act (ESA) (HRS Ch. 195D); mandatary 
``downzoning'' of private lands under Hawaii's Land Use Law (HRS Ch. 
205); unreasonably frequent requirements for full environmental impact 
statements for minor actions under Hawaii's Environmental Impact 
Statement Law (HRS Ch. 343); unreasonable permit delays for County-
regulated Special Management Area permits under Hawaii's Coastal Zone 
Management Law (HRS Ch. 205A); and uncertainty of interpretation of the 
reach and extent of State regulatory authority under Hawaii's State 
Water Code (HRS Ch. 174C) and implications for water quality standards 
under Hawaii Administrative Rules Ch. 11-54, Water Quality Standards.
    Our Response: Possible costs resulting from interplay of the Act 
and Hawaii State laws were discussed in Chapter VI, section 4 of the 
November 2002 DEA under indirect costs and in section 4 of the 
Addendum. They examine the indirect costs of critical habitat 
designation, such as where critical habitat triggers the applicability 
of a State or local statute. Take prohibitions under Hawaii law are 
attributable to a listing decision and they are not coextensively costs 
of critical habitat designations. Where it is the listing of a species 
that prompts action at the State or local level, the impacts are not 
attributable to critical habitat designation and are not considered in 
the economic analysis of critical habitat designation. Other possible 
indirect impacts, such as the loss of development or loss in property 
values due to State redistricting of land from agricultural or rural to 
conservation were analyzed (see also our response to Comment 29a). 
However, there is considerable uncertainty as to whether any or all of 
these indirect impacts may occur since they depend on actions and 
decisions other than the source statute, and there is only limited 
history to serve as guidance.
    (40) Comment: A commenter stated the following: The narrative 
exclusion of areas underlying currently developed areas such as 
buildings and driveways (``unmapped holes'') is too vague considering 
the cryptic nature of the moth and its habitat. Although the DEA 
concedes that the lack of clarity can force landowners to incur costs 
to investigate the implications of the regulations, it fails to fully 
consider the economic impacts of landowners' costs to properly 
demarcate ``unmapped holes'' in the process of obtaining necessary 
permits for development projects. The estimate that this will only take 
15 to 40 hours is too low given the size of the designated areas, the 
vagueness of the regulatory exclusion, and the real costs of obtaining 
development approvals.
    Another commenter also stated that the DEA's analysis of potential 
costs expected to be incurred by private landowners to investigate the 
implications of critical habitat on their lands was flawed, because the 
analysis failed to recognize that the costs to investigate the 
implications of critical habitat are associated with the designation 
process, not additional costs that the final designation would impose. 
The commenter further stated that any concerned party investigating the 
proposed designation of critical habitat on their lands would have 
already hired lawyers and consultants, and would have incurred the 
costs associated with figuring out the implications of designation on 
their lands. Moreover, were the private landowners' lands ultimately 
excluded from the final critical habitat designation, the landowners 
would still not recoup those costs; the money has already been spent. 
Thus, the commenter concluded that these costs should not be included 
in the analysis of future potential costs from designation since they 
have already been incurred, and were incurred, regardless of the final 
designation decision.
    Our Response: Chapter VI, section 4.I of the DEA indicated that 
landowners may want to learn how the designation may affect (1) the use 
of their land (either through restrictions or new obligations), and (2) 
the value of their land. It is recognized that some landowners may 
spend a great deal of time investigating, while other landowners may 
not conduct any investigation. The estimate contained in the DEA is a 
range that reflects the total cost for all landowners based on an 
average cost per landowner. Public comment did not provide an 
alternative estimate of time or cost incurred in order to investigate 
implications of critical habitat sufficient to require changes to the 
estimated average cost per landowner. Thus, the Addendum does not 
revise the number of hours that the DEA estimated the landowner and/or 
his attorneys or professional staff would spend on investigating the 
issues.

[[Page 34726]]

However, the Addendum does revise the number of affected landowners to 
65 because of the intended modifications to the critical habitat 
indicated by us. As described in section 4.e. of the Addendum, an 
estimate of the costs involved with investigation for the intended 
designation ranges from roughly $173,000 to $618,000.
    While some landowners may expend time and money to investigate the 
implications of critical habitat on their land during the designation 
process, many landowners may not do so until after final designation is 
complete. Thus, the DEA and the Addendum conservatively treat these 
costs as costs attributable to the final designation.
    (41) Comment: DOTA stated that project modification costs, such as 
those to roads, are underestimated, particularly the cascading effect 
of project realignment with the purpose of avoiding critical habitat.
    Our Response: The project modification cost estimates were 
developed considering a wide array of projects, locations, and 
contingencies, as well as by examining the limited historical record of 
project modifications regarding the Blackburn's sphinx moth. The 
planned road project (proposed Ane Keohokalole Highway) within proposed 
Unit 5A is not in this designation.
    (42) Comment: HCDCH stated the following: The DEA only partially 
considers the ``indirect impacts'' of critical habitat designation, and 
instead focuses on ``direct impacts'' resulting primarily from 
consultations under section 7 of the Act because of precedent set by 
New Mexico Cattle Growers, the Service must fully consider both types 
of impacts, and the DEA must present a thorough analysis of these 
economic effects. Several other commenters stated the DEA 
overemphasizes the direct costs attributable to critical habitat 
designation and ignores or omits other indirect impacts, such as: 
Impacts to housing supply, including affordable housing; decreases in 
public revenues as a result of lost construction and reduced economic 
activity; impacts to subsistence activities and their role in the local 
economy; and impacts to public infrastructure such as roads and water 
systems.
    Our Response: An analysis of both direct and indirect impacts was 
presented in chapter VI of the DEA and sections 3 and 4 of the 
Addendum. With respect to indirect effects, there is considerable 
uncertainty regarding whether any or all of the indirect impacts may 
actually occur, because they depend upon actions and decisions by 
entities other than the Service under circumstances for which there is 
limited or no history that can be used to determine the likelihood of 
different outcomes. Thus, based on the available information, indirect 
impacts were discussed qualitatively in the DEA and Addendum. In 
addition, where possible, estimates were given of worst-case scenarios 
for illustrative purposes and a sense of the likelihood of occurrence 
was provided.
    The impact to the supply of affordable housing was discussed in the 
DEA in chapter VI, section 4.e. The DEA recognized that some landowners 
feared the possibility of redistricting land within the critical 
habitat designation to the Conservation District, and discussed the 
impact to the affordable housing supply should redistricting occur and 
prevent planned development. Specifically, in regards to the planned 
Villages at Laiopua (VOLA), affordable housing development planned by 
the State in proposed Unit 5b (island of Hawaii), the DEA noted that 
the County of Hawaii requires developers to provide a certain number of 
affordable housing units, or pay $4,720 to the County for each unit not 
built. Using this value as a proxy for the social value of affordable 
housing, the DEA estimated that the loss of 570 affordable units in the 
VOLA development equates to a loss of almost $2.7 million to the 
community. We did not include this area in this designation (see 
Exclusions Under Section 4(b)(2)).
    Further, the DEA also addressed the potential impact on public 
revenues as a result of lost construction. In chapter VI, section 4.e., 
the DEA recognized that a loss in development can lead to economic 
losses due to the ``ripple-effect.'' For example, if a home cannot be 
built, both the developer and construction company who would have built 
the home would have reduced revenues. In addition, the lumber company 
and other companies supplying the construction company would have 
reduced revenues, an impact that would ``ripple'' through the regional 
economy and could result in reduced public revenues. However, due to 
the availability of suitable land outside the critical habitat 
designation, the DEA concluded that any economic activity displaced 
within critical habitat for the moth due to redistricting of land to 
the Conservation District would still be expected to occur, just in 
other locations. Thus, the DEA implicitly concluded that there would be 
no appreciable impact on public revenues.
    The DEA addressed the impacts to subsistence and their role in the 
local economy in chapter VI, section 4.d. The DEA recognized that 
subsistence not only plays an important role in community life, but 
also provides important sustenance to many residents in communities on 
Maui, the island of Hawaii, and Molokai. The DEA estimated that 
restriction of access and prohibition of subsistence activities in all 
areas proposed for critical habitat designation was extremely unlikely, 
and that more likely to occur were restrictions in small, localized 
areas of significant biological importance. Because of the strong 
stewardship and conservation values associated with those practicing 
subsistence activities within the proposed critical habitat, as well as 
the traditional recognition of the value of protecting certain areas 
through the kapu system, the DEA concluded that the impact of critical 
habitat designation on subsistence activities would be minimal.
    Finally, the economic analysis addressed impacts to public 
infrastructure such as roads and water systems in chapter VI, sections 
3.I and 3.j. of the DEA, and section 3.j. of the Addendum. These 
sections addressed projects planned within the critical habitat 
designation. Final estimated potential section 7 costs for planned road 
projects are $32,600 for consultations and $985,000 to $1,230,000 for 
project modifications. Final estimated potential section 7 costs for 
planned water projects are $20,600 to $61,200 for consultations and up 
to $6,200 for project modifications.
    (43) Comment: A commenter stated that the DEA acknowledges some or 
all lands designated as critical habitat may be redistricted/rezoned at 
the State or county level to preclude further development, and that the 
actual economic costs of redistricting could be very high. The 
commenter noted that while these estimates are mentioned in the text, 
they are not included in the summaries of the economic impacts.
    Our Response: Tables ES-1 and VI-3 (``Summary Tables'') of the DEA 
and Table Add-2 of the Addendum summarize the economic impacts 
associated with the Blackburn's sphinx moth critical habitat 
designation are also discussed in detail in the response to Comment 
29a. Although chapter VI, section 4 of the DEA, and section 4 of the 
Addendum provided general estimates of some of the potential indirect 
costs, including costs associated with State redistricting of land 
(chapter VI, section 4.e. of the DEA, section 4.b. of the Addendum), 
these estimates were not totaled in the Summary Tables because the 
probability that many of the indirect costs will occur is unknown. As 
noted on each of

[[Page 34727]]

the Summary Tables, the Tables instead reported qualitatively on the 
likelihood and the potential magnitude of each of the indirect costs. 
Moreover, the Summary Tables referred the reader to the narrative 
analyses for additional information on any of the indirect impacts.
    (44) Comment: A commenter stated the following: The DEA does not 
account for investments and other expenditures already made on lands 
with the expectation that rezoning and redistricting will allow future 
development and hence a return on investment, nor does it account for 
the potential lost recapture of investment yields that may be foregone 
due to lost development potential for lands that have successfully been 
rezoned and permitted for development at a very high cost.
    Our Response: Chapter VI, section 4.e.(6) of the DEA and section 
4.b. of the Addendum specifically considered the investments and 
expenditures already made on lands within the critical habitat 
designation to facilitate future planned development, as well as the 
future profits that may be foregone due to lost development potential 
as a result of redistricting. The total cost associated with previous 
expenditures and estimated future profits for planned projects within 
the intended critical habitat designation ranges from $62.4 million to 
$74.4 million. Please refer to our response to Comment 29a for a 
detailed discussion of rezoning and redistricting.
    (45) Comment: HDOA stated the following: The DEA underestimated 
economic costs because the costs are limited to what is likely to occur 
within 10 years. Critical habitat designation is permanent and not 
automatically revised if there is new evidence of the benefits of 
nondesignation, or if the species is delisted.
    Our Response: A listed species is delisted when it is recovered or 
has gone extinct. Recovery is defined as no longer needing the 
protections provided by the Act, including critical habitat. Thus, when 
a species is delisted, critical habitat for that species would no 
longer be in effect.
    Furthermore, a 10-year time horizon is used because many landowners 
and managers do not have specific plans for projects beyond 10 years, 
and timeframes beyond 10 years greatly increases the subjectivity of 
estimating potential economic impacts. In addition, the forecasts in 
the analysis of future economic activity are based on current 
socioeconomic trends and the current level of technology, both of which 
are likely to change over the long term.
    (46) Comment: A commenter stated the following: The level of effort 
to document and analyze the potential economic impacts resulting from 
critical habitat designation greatly exceeded the level of effort to 
document and analyze the potential economic benefits due to 
designation, such as the benefits of watershed protection and 
improvement, protection of other stream and riparian biota, the value 
of the species as an indicator of ecological health, the value of 
protecting culturally significant species, the value that Hawaiians 
place on conservation of Hawaiian species, the benefit of keeping other 
native species off the endangered species list, of maintaining water 
quality and quantity, of promoting ground water recharge, and of 
preventing siltation of the marine environment, thus protecting coral 
reefs. The Service cannot exclude land from critical habitat 
designation if it considers only the costs, and not the benefits, of 
critical habitat designation. In failing to discuss these benefits, the 
Service missed an opportunity to educate the public regarding the value 
of protecting native species and native ecosystems. The Service must 
use the tools available, such as a study by the University of Hawaii 
(UH) Secretariat for Conservation Biology that estimated the value of 
ecosystem services, to quantify the benefits of critical habitat. The 
DEA results in an unbalanced overestimation of detrimental economic 
impacts, and an unfair under-estimation of economic benefits due to 
designation of critical habitat.
    However, multiple other commenters stated the following: The 
benefits of species protection are overstated and speculative. The DEA 
does not present the expected circumstances or timeline for delisting 
the species, nor is there a quantifiable estimate of the economic 
benefits of delisting. Additionally, multiple commenters stated that 
the species themselves have no economic value. Any estimate of economic 
benefit derived from not fully developing lands proposed for critical 
habitat are speculative and unquantifiable, and the likelihood of new 
conservation dollars entering the State is speculative. Furthermore, in 
the DEA summary of costs and benefits, the benefits of designating 
critical habitat are ``difficult to estimate'' and are exceeded by the 
costs.
    Our Response: The DEA discussed the benefits mentioned above. There 
is little disagreement in the published economic literature that real 
social welfare benefits can result from the conservation and recovery 
of endangered and threatened species. Such benefits have also been 
ascribed to preservation of open space, general biodiversity, and 
ecosystem function, all of which are associated with species 
conservation. Likewise, a regional economy can benefit from the 
preservation of healthy populations of endangered and threatened 
species, and the habitat on which these species depend.
    It is not feasible, however, to fully describe and accurately 
quantify these benefits in the specific context of the proposed 
critical habitat for Blackburn's sphinx moth because of the scarcity of 
available studies and information relating to the size and value of 
beneficial changes that area likely to occur as a result of listing the 
moth or designating critical habitat. In particular, the following 
information is not currently available: (1) Quantified data on the 
value of the moth or its critical habitat; and (2) quantified data on 
the change in the quality of the ecosystem and the species as a result 
of the designation.
    Although the UH study does value ecosystem services, it has limited 
applicability for valuing the benefits of the critical habitat 
designation for the moth for a number of reasons. First, the UH study 
had a different purpose, which was to estimate the total value of 
environmental benefits provided by the entire Koolau Mountains on the 
island of Oahu. Consistent with its purpose, the UH study provides no 
estimates of the changes in environmental conditions resulting from 
changes in land and stream management due to critical habitat 
designation. Furthermore, many of the assumptions and much of the 
analysis in the UH study are not transferable to the economic analysis 
for the critical habitat of the moth. For example, the Koolau Mountains 
were evaluated as a contiguous area, whereas the moth critical habitat 
is composed of separate areas on four different islands.
    The value of water recharge in the UH study reflects projected 
water supply and demand conditions on Oahu--conditions that are not 
applicable to Maui, Molokai, Kahoolawe, or the island of Hawaii due to 
the differences in size and population. Also, the UH benefit analysis 
of reducing soil runoff is unique to three valleys that drain through 
partially channelized streams in urban areas into the manmade Ala Wai 
Canal. Since this canal was designed with inadequate flushing from 
stream or ocean currents, it functions as an unintended settling basin, 
so must be dredged periodically. In addition, the recreational and 
ecotourism values provided in the UH study apply to areas that are 
accessible to most hikers, which

[[Page 34728]]

is not necessarily the case with the moth critical habitat. Delisting 
of the moth is not anticipated within the 10-year time horizon of this 
economic analysis, and it is beyond the scope of the economic analysis 
to forecast when delisting may occur beyond this period. The economic 
analysis does not conclude that the moth or critical habitat for the 
moth has no economic value; rather, it simply states that the value of 
the species cannot be quantified at this time. The economic analysis 
does not attempt to quantify the economic benefit derived from not 
fully developing lands proposed for critical habitat. Rather, the 
economic analysis acknowledges there may be benefits resulting from the 
preservation of open lands that might otherwise be developed, but 
concludes that because much of the critical habitat designation is 
already kept as open space and governed by existing State and local 
land use laws and county plans, these benefits may be insignificant. 
Finally, while the economic analysis concludes that many of the 
benefits of critical habitat designation are ``difficult to estimate,'' 
it does not necessarily lead to a conclusion that the benefits are 
exceeded by the costs. We believe that the benefits of the species and 
of critical habitat designation are best expressed in biological terms 
that can be weighed against the expected costs of the rulemaking.
    (47) Comment: One commenter pointed out that critical habitat does 
not benefit ecotourism by creating new special places for people to 
visit, as the DEA suggested. Rather, it helps to protect the special 
places that already exist from degradation, ensuring that they will be 
around in the future to attract future ecotourists.
    Our Response: Chapter VI, section 6.b.(1) of the DEA indicated that 
the proposed critical habitat may enhance the appeal of ecotourism by 
providing a marketing dimension. However, the DEA also stated that this 
benefit may be slight since these places may already be regarded as 
special due to the existing natural and cultural resources in the area.
    (48) Comment: A commenter stated that assigning an economic value 
to preservation of ecosystem functions that may result from the 
designation of critical habitat (such as groundwater recharge, 
protection of coastal marine waters and fisheries, and other ecosystem 
services) is now an acceptable method of economic analysis, and that 
the dollar value of these services is high. The commenter noted that 
this analysis was done in a qualitative, narrative manner in the DEA 
and questioned why it was not done in a quantitative manner.
    Our Response: The economic analysis recognized that the 
preservation of ecosystem functions may result from the designation of 
critical habitat for the Blackburn's sphinx moth. It was not feasible, 
however, to fully describe and accurately quantify these benefits in 
the specific context of the proposed critical habitat for the moth 
because of the scarcity of available studies and information relating 
to the size and value of beneficial changes that are likely to occur as 
a result of listing the moth or designating critical habitat. In 
particular, the following information is not currently available: (1) 
Quantified data on the value of the moth or the moth's critical 
habitat; and (2) quantified data on the change in the quality of the 
ecosystem and the species as a result of the designation.
    (49) Comment: A commenter stated that there was no attempt in the 
DEA to quantify the value of open space (parks, preserves, even golf 
courses) surrounding real estate. The commenter noted that such 
increased property values are acknowledged but there was no attempt to 
estimate the corresponding increases in property values. Also, the 
commenter noted that some tourists prefer less developed areas.
    Our Response: As discussed in the DEA and in the Addendum, there 
are only two areas where Blackburn's sphinx moth critical habitat could 
potentially increase the amount of open space. These areas include 
approximately 89 ha (220 ac) planned for single-family and multi-family 
homes in the Kaloko Properties development in proposed Unit 5a (island 
of Hawaii), and approximately 30 ha (75 ac) planned single-family and 
multi-family homes in the State VOLA project in proposed Unit 5b 
(island of Hawaii). (Note: this area was not included in this 
designation.) If these areas are redistricted to the Conservation 
District, the likelihood of which, as discussed in the Addendum, is 
considered small, they may remain open spaces but they will not 
necessarily be converted into golf courses and parks. Most golf courses 
and parks are not consistent with the regulations associated with the 
Conservation District. If the areas are left in the natural state or as 
preserves, the positive impact on surrounding real estate is likely to 
be minimal because much of the area is currently open and likely remain 
open over the next 10 years.
    (50) Comment: Multiple commenters, including HDOA, opposed the 
designation of Agricultural land and lands needed to support 
agriculture and ranching. Commenters were concerned that designation 
would reduce property values and the ability to develop lands that were 
previously planned for development and also stated the following: 
Thirty-three percent of the proposed designated land is within the 
State Conservation District, which includes irrigation water essential 
to agriculture. The rest of the lands proposed for designation are 
primarily in the State Agricultural District. Designation of 
Agricultural lands could prevent a farmer or rancher from using those 
lands since the very nature of those uses would in all likelihood 
entail cutting, uprooting, or injuring plants to a certain extent. The 
DEA failed to examine the economic impact of a landowner not being able 
to use his own land for fear of injuring a species he doesn't even 
recognize. No protection is afforded to farmers who unwittingly 
``harm'' the designated critical habitat.
    Our Response: Chapter VI, section 4.e. of the DEA discussed 
potential indirect impacts to Agricultural land, including the 
potential reduction in property values and the impact of redistricting 
Agricultural land to the Conservation. Section 4.b. of the Addendum 
revised these estimates based upon the intended modifications to the 
critical habitat designation to remove areas for biological reasons. 
The Addendum estimated the loss in property value associated with an 
extreme scenario--that of all unplanned Agricultural land on Maui, 
Molokai, and the island of Hawaii being redistricted to Conservation--
at $17 million to $169 million. The loss of development potential on 
the Agricultural land in proposed Unit 5a (island of Hawaii) is 
estimated at $13 million to $25 million. We did not include this area 
in this designation (see Exclusions Under Section 4(b)(2)). Please 
refer to our responses to comment 29a for a detailed discussion of this 
issue. Additionally, it is important to note that the Land Use 
Commission considers the ``maintenance of other resources relevant to 
Hawaii's economy, including, but not limited to, agricultural 
resources'' as well as ``the preservation or maintenance of important 
natural systems or habitats'' when considering a petition for 
redistricting.
    In addition, the economic analysis did not conclude that 
designation of critical habitat on Agricultural lands would prevent a 
rancher from using those lands. Rather, the economic analysis 
recognized that many areas within the critical habitat designation have 
been

[[Page 34729]]

grazed for tens or hundreds of years, yet still contain the primary 
constituent elements for Blackburn's sphinx moth. The DEA concluded 
that sustainable grazing does not adversely affect the moth, and in 
fact, may indirectly benefit the species by reducing fire danger and 
controlling nonnative weeds. Moreover, the DEA concluded that areas 
historically subject to grazing were unlikely to meet the standards of 
a natural ecosystem required to be put in the Protective Subzone (HAR 
Sec.  13-5-11). As a result, even if Agricultural land within the 
critical habitat designation were redistricted to Conservation, the DEA 
anticipated that agricultural activities could continue because typical 
agricultural activities are allowed in all subzones, except the 
Protective Subzone, with permission of the State Board of Land and 
Natural Resources (BLNR).
    (51) Comment: Several commenters were concerned about the potential 
for critical habitat to decrease the amount of available hunting lands 
and game animals. Frustration was expressed that governmental officials 
value plants and insects more than hunting, an important family and 
cultural tradition, means of subsistence, and way of life. In addition, 
commenters stated the following: Members of all ethnic groups hunt and 
depend on subsistence activities as a real part of their income. 
Hunting also contributes to the economy via money spent on pet foods, 
interisland trips, gasoline, supplies, etc. Additionally, DLNR will 
lose money as the demand for hunting licenses and tag fees dwindles. 
The DEA does not adequately reflect the costs associated with 
management of game mammals and loss of hunting lands.
    Our Response: Chapter VI, section 4.b. of the DEA discussed the 
potential indirect impact of critical habitat on the management of game 
mammals on Molokai and the island of Hawaii, the only areas where the 
critical habitat designation overlaps with State-managed hunting units. 
The DEA noted that section 7 of the Act by itself does not require DLNR 
to manage State hunting lands to protect critical habitat; assure the 
survival and conservation of listed species; or participate in projects 
to recover species for which critical habitat has been established. 
Moreover, the DEA noted that critical habitat designation does not 
require: (1) Creating any reserve, refuge, or wilderness areas; (2) 
fencing for any reason; (3) removing ungulates; or (4) closing areas to 
hunters.
    However, the DEA recognized that a change in game-management 
strategy as a result of a lawsuit or as a voluntary decision by DLNR is 
possible, but not likely.
    Nonetheless, for illustration purposes, chapter VI, section 4.b. of 
the DEA presented potential costs that could result if DLNR removed 
areas within the intended designation from the State-managed hunting 
units. To illustrate the magnitude of the impacts on Molokai, if about 
half of those who hunt game mammals on the affected lands were to give 
up hunting, then hunting activity could drop by about 8 percent (half 
of 16 percent, which is the estimated percentage of the accessible 
State-managed hunting lands on Molokai proposed for designation). This 
translates into an annual decrease in economic activity related to 
hunting on Molokai of about $25,000 in direct sales; $45,000 in total 
direct and indirect sales; one job; and $15,000 in income. To 
illustrate the magnitude of the impacts on the island of Hawaii, if 
about half of those who hunt game mammals on the affected lands were to 
give up hunting, then hunting activity could drop by about 12.5 
percent. While the proposed critical habitat covers only 3 percent of 
the total hunting area on the island of Hawaii, the actual hunting 
activity within the area proposed for designation is much higher than 3 
percent. Based on information provided by DLNR regarding the popularity 
and the number of hunting trips in the Puu Waawaa area, it is assumed 
the area included in critical habitat supports approximately 25 percent 
of the hunting activity on the island of Hawaii. A reduction in hunting 
activity by half in this area would translate into an annual decrease 
in economic activity related to hunting on the island of Hawaii of 
about $425,000 in direct sales; $750,000 in total direct and indirect 
sales; 13 jobs; and $250,000 in income. However, the $450,000 ($25,000 
+ $425,000) decrease in expenditures by the displaced hunters would 
probably be spent on other activities, goods and services, so these 
figures are likely to overstate economic costs.
    In addition to the change in economic activity discussed above, a 
reduction in hunting activity would also result in a loss in value or 
benefit to hunters (consumers' surplus). Chapter VI, section 4.b. of 
the DEA estimates this potential loss in value at $238,000 ($13,000 for 
hunting on Molokai and $225,000 for hunting on the island of Hawaii) 
annually and recognizes that benefits derived from recreational 
activities that replace game mammal hunting would partially offset this 
loss. Because the intended revisions did not significantly reduce the 
amount of overlap between State-managed hunting units and the intended 
designation, the Addendum made no changes to the conclusions reported 
in the DEA regarding hunting.
    (52) Comment: DOTA stated that the proposed rule fails to 
adequately consider potential economic impacts to the Kahului Airport 
as a result of the designated airport lands.
    Our Response: Chapter VI, section 3.h. of the DEA and section 3.i. 
of the Addendum discussed direct economic impacts associated with 
activity by DATA at Kahului Airport. Specifically, the DEA recognized 
that DOTA opposes designation of critical habitat in this area due to a 
possible conflict with safety requirements. In addition, the DEA noted 
that while DOTA receives Federal funding for transportation 
improvements, the Federal funds were not likely to be used for 
activities within the proposed critical habitat designation. Thus, 
while the possibility of a future Federal nexus was recognized, the DEA 
concluded that no section 7 consultations or project modifications were 
anticipated because there was no known Federal involvement for the 
existing activities.
    During public comment, DOTA objected to designation of Kahului 
Airport and stated that the proposed designation failed to adequately 
consider the potential economic impacts to the Kahului Airport. As 
noted in the DEA, activities within the critical habitat designation 
primarily involve the clearance and cutting back of vegetation. These 
activities are not typically supported through Federal funds. However, 
based on discussions with DOTA, it is assumed that DOTA would avoid 
utilizing Federal funds, if they were available, to support activities 
within the area designated for critical habitat in order to avoid 
Federal involvement and section 7 consultation. As DOTA does not 
currently use or anticipate using Federal funds to support activities 
within the critical habitat designation, the economic impact of 
forgoing Federal funding sources is estimated to be zero.
    DOTA did not provide any specific information demonstrating 
economic impact, identify any other activities that would be impacted 
by the designation, or raise any other Federal nexus. As discussed 
above, there is no anticipated Federal involvement for activities at 
Kahului Airport. Thus, no section 7 consultations or project 
modifications relating to Kahului Airport are anticipated.
    (53) Comment: The MID Corporation and TSA Corporation (MID/TSA) 
stated that the DEA vastly understated potential economic impacts to 
its

[[Page 34730]]

various projects as a result of designation of lands in proposed 
proposed Unit 5a. The commenters suggested indirect costs approximating 
$415 million. Furthermore, the commenters stated that the DEA fails to 
address broader economic impacts to the community of Kailua-Kona and 
the State such as costs approximating $24 million as a result of 
potential loss of land development.
    Our Response: We did not include this area in this designation (see 
Exclusions Under Section 4(b)(2)).
    (54) Comment: Table ES-1: Under ``Residential Development,'' needs 
to add reference to Kaloko Properties Development.
    Our Response: The Kaloko Properties development is referenced in 
section 3.e. of the Addendum and it is included in the heading ``Other 
Residential Development, Agricultural District'' in Table Add-1.
    (55) Comment: Page VI-11, second to last paragraph: Based on maps 
supplied by the Service, MID/TSA estimates that 15 ha (37 ac) are in 
the Urban District (Kaloko Industrial Park, Phases III & IV). Assuming 
the referenced 5 ha (13 ac) refers to lands north of Hina Lani Street, 
the second sentence should be revised to reflect that there are plans 
to develop golf course and residential uses on Urban lands proposed for 
critical habitat designation. Page VI-13, 2nd paragraph: The second 
sentence should be revised to reflect that as part of the Kaloko 
Properties development, there are plans to develop golf course and 
residential uses on lands proposed for critical habitat designation. 
Development is planned within the next 10 years. Page VI-14, 2nd 
paragraph under 3.c: The paragraph should be revised to reflect that: 
(1) The developer is TSA Corporation, and (2) county zone change 
allowing for commercial-industrial mixed use development was granted. 
Page VI-28, section 3.i.(2) New Roads: In the first paragraph, the 
County of Hawaii no longer plans to extend Olowalu Street. As such, 
this paragraph should be deleted. Page VI-39, section 3.m.(2) Planned 
Golf Courses: The discussion should add the planned Kaloko Golf Course 
in proposed Unit 5a that has Urban zoning and is planned to be 
constructed on approximately 78 ha (194 ac) in TMK Parcel 7-3-09: 25.
    Our Response: This information is included in section 3.l. of the 
Addendum; however, there is no change in the DEA cost estimate.
    (56) Comments: Page VI-64, last paragraph: Need to also add 
reference to the Kaloko Properties development; Page VI-65, Previous 
Expenditures and Future Profits: Need to add reference to the economic 
impacts from Kaloko Properties development; Page VI-65, 7th paragraph 
regarding Kaloko Industrial Park: We estimate up to 33 lots would be 
affected, with an economic loss of $15 million based on property sales 
in the latest phase; Page VI-69, 3rd paragraph, Potential Redistricting 
Costs: The potential economic cost range of $255 million to $550 
million appears to be grossly understated given our own estimate of the 
loss of $415 million on our Properties in proposed Unit 5a, but even 
then, this cost range (including Kaloko Properties costs) should be 
included in the summary tables, rather than being dismissed as 
``speculative.''
    Our Response: All of this information is included in section 4.b. 
of the Addendum. The potential economic impacts to the Kaloko 
Industrial Park expansion in proposed Unit 5a (island of Hawaii) 
include a loss of $500,000 in previous expenditures and $12 million in 
future profits. The potential impacts to the Kaloko Properties 
development in proposed Unit 5a (island of Hawaii) include $4.2 million 
in previous expenditures and $13 million to $25 million in future 
profits. We did not include this area in this designation (see 
Exclusions Under Section 4(b)(2)).
    (57) Comment: HCDCH commented that the DEA incorrectly concluded 
that economic impacts to the VOLA project would be moderate or modest 
because there is not likely to be any Federal involvement. The VOLA 
project may in the future request Federal funding to assist with 
development of affordable housing. The State would then lose money due 
to the direct impacts of various required consultations. Furthermore, 
the DEA does not acknowledge the cost of developing affordable housing 
at VOLA in lieu of Federal funding assistance.
    Our Response: Section 3.c. of the Addendum specifically addresses 
HCDCH concerns. We did not include this area in this designation (see 
Exclusions Under Section 4(b)(2)).
    (58) Comment: The DLNR identified five parcels (TMK (2) 1-8-
001:005; TMK (2) 2-1-004:049; TMK (2) 2-1-006:076; TMK (2) 2-1-006:077; 
and TMK (2) 2-1-006:078) that should be excluded from designation 
because the DEA failed to establish that the benefits of including 
these parcels in the designation outweigh the costs of including these 
parcels in the designation.
    Our Response: Two of the five parcels (TMK (2) 1-8-001:005 and TMK 
(2) 2-1-004:049) are leased for pasture purposes. The other three 
parcels (TMK (2) 2-1-006:076, TMK (2) 2-1-006:077, and TMK (2) 2-1-
006:078) are identified as lands with either high land values or with 
development potential.
    Section 3.g. of the Addendum evaluated the direct economic impact 
of critical habitat designation on these two parcels under lease for 
pasture purposes and concluded that no direct section 7 costs involving 
these leases are anticipated because there is no known Federal 
involvement.
    Sections 4.a. and 4.b. of the Addendum discussed indirect costs, 
specifically the possibility of mandated conservation management 
measures that would interfere with the ability to lease these lands for 
pasture purposes, and the possibility of restrictions on the State's 
ability to develop the land in the future as a result of redistricting.
    As discussed in section 4.a., mandated conservation management of 
all of the land in critical habitat is not reasonably foreseeable. The 
concern expressed by some is that the prohibition on taking endangered 
and threatened species could be triggered by designation of critical 
habitat if courts apply the principles of Palila v. Hawaii Department 
of Land and Natural Resources 471 F. Supp. 985 (D. Haw. 1979), aff'd 
639 F.2d 495 (9th Cir. 1981) and Palila v. Hawaii Department of Land 
and Natural Resources 649 F. Supp. 1070 (D. Haw. 1986) aff'd 852 F.2d 
1106 (9th Cir. 1988). While the circumstances considered by these cases 
happened to occur in the palila's critical habitat, the legal issues 
involved interpretation of ``harm'' in the Act's definition of ``take'' 
affirming that habitat degradation can constitute ``harm'' to a listed 
species. They did not announce a rule that degradation of designated 
critical habitat automatically constitutes take. While critical habitat 
may provide information to help a landowner identify where take through 
habitat modification may occur, the Federal and State take prohibitions 
are triggered by the listing of a species. These prohibitions apply 
whether or not critical habitat has been designated. In addition, there 
is legal interpretation Federal, State, or county law or regulation 
that mandates conservation management for critical habitat. As such, 
this analysis concludes that mandated conservation management based on 
critical habitat designation is not likely.
    Section 4.b. of the Addendum discussed the possible impact on 
future development on the three parcels identified by DLNR. The 
Addendum recognized that while it is possible that redistricting of 
these parcels (should it occur) could restrict the ability of DLNR to 
develop these lands in the future, the economic impact of such a 
restriction

[[Page 34731]]

was impossible to estimate due to the speculative nature of such 
development at this time in light of the fact that there were no 
current plans for development of these parcels. In addition, section 
4.b. concluded that while it is possible that the designation of 
critical habitat could trigger a petition to redistrict land designated 
as critical habitat to the Conservation District, the likelihood is 
small that the petition would actually result in redistricting any 
particular parcel of land into the Conservation District. This 
conclusion was based on the requirements for redistricting, including 
the requirement that the Land Use Commission consider the ``commitment 
of State funds and resources'' as well as ``the preservation or 
maintenance of important natural systems or habitats'' when considering 
a petition for redistricting.
    (59) Comment: DOTA stated that the proposed designations on the 
islands of Maui and Hawaii would greatly increase costs to maintain and 
repair State Highway facilities. Specifically, the proposed Kanaha 
Pond-Spreckelsville unit would impact costs to the planned widening 
project for Route 36. The proposed Kailua-Kona Unit 5b will impact 
planned widening for Route 197, and the proposed Puu Waawaa Unit will 
impact planned improvements for Route 190. DOTA recommends that a 
buffer zone of 30 m (100 ft) on the sides of the State highway right of 
way lines be excluded from critical habitat units to eliminate or 
minimize designation-related additional costs for improvements, 
maintenance, and repair.
    Our Response: Section 3.j. of the Addendum evaluated the impact of 
critical habitat designation on these three identified road projects. 
While the existing roadway of Route 36 (Hana Highway) is located 
outside of the Blackburn sphinx moth critical habitat designation, 
future widening of the roadway could possibly involve use of land 
inside the critical habitat designation. The widening of the area 
adjacent to the critical habitat designation was planned for 
construction between 1996 and 2000 in the 1997 Maui Long Range 
Transportation Plan. However, in the January 2002 Final Joint County/
State Maui Interim Transportation Plan, the project is designated as a 
long-term project with no anticipated date of construction. Given the 
circumstances and the number of other priority projects listed before 
it, it is deemed unlikely that widening of Hana Highway will occur 
within the next 10 years.
    The Mamalahoa Highway (Route 190) safety improvements in proposed 
Unit 6 (Unit 8, island of Hawaii) involve simple reading and 
resurfacing of the existing roadway. As mentioned in the DEA, the 
critical habitat provisions of section 7 do not apply to the operation 
and maintenance of existing manmade features and structures because 
these features are excluded from the designation. Although we are 
unable to individually map out every road and other manmade features 
and structures, they have been excluded in narrative form. Thus, the 
reading and resurfacing of the existing roadway planned for Mamalahoa 
Highway in proposed Unit 6 (Unit 8, island of Hawaii) would not be 
subject to section 7 consultation for critical habitat because they 
would not occur within designated critical habitat.
    Finally, because proposed Kailua-Kona Unit 5b is not included the 
proposed widening of Kealakehe Parkway (Route 197) will not be affected 
by this critical habitat designation.
    (60) Comment: Multiple commenters stated the following: The DEA 
failed to consider economic impacts of critical habitat that result 
through interaction with Hawaii's Land Use Law. Critical habitat could 
result in changes to zoning under State law. There is an overriding 
directive under State law that endangered plant species are to be 
protected in the State's planning and zoning process. HRS Sec.  205-
2(e) states that Conservation Districts shall include areas necessary 
for conserving endangered species. HRS 195D-5.1 states that DLNR shall 
initiate amendments in order to include the habitat of rare species. 
Even if DLNR does not act, the Land Use Commission may initiate such 
changes, or they may be forced by citizen lawsuits. Areas for 
endangered species are placed in the protected Subzone with the most 
severe restrictions. While existing uses can be grandfathered in, 
downzoning will prevent landowners from being able to shift uses in the 
future, will reduce market value, increase property tax, and make the 
land unmortgageable. Although the Service acknowledges that there could 
be substantial indirect costs relating to redistricting of land to the 
Conservation District, several commentators disagreed with the 
characterization of these costs as ``minor'' and with the statement 
that the probabilities of redistricting as ``slight to small.''
    Our Response: As indicated in the section 4.b. of the Addendum, 
about 20,547 ha (50,772 ac) of Agricultural land, 0.4 ha (1 ac) of 
Rural land, and 174 ha (430 ac) of Urban land are included in the 
intended designation. Of this, approximately 5,099 ha (12,600 ac) of 
Agricultural land is owned by private landowners; 0.4 ha (1 ac) of 
Rural land is owned by private landowners; and 18 ha (45 ac) of Urban 
land is owned by private landowners. Assuming a most extreme scenario, 
the potential cost to agricultural activities could range from $250,000 
to $3 million. Reduction in land values for unplanned land due to 
redistricting from the Agricultural, Rural, or Urban District to 
Conservation District could range from $17 million to $169 million, and 
the cost of contesting redistricting could reach $2.5 million. Under 
this scenario, even if a landowner has no plans to sell the land, the 
loss in land value could reduce potential mortgage financing. However, 
as discussed more fully in section 4.b., while it is possible that the 
designation of critical habitat could trigger a petition to redistrict 
land designated as critical habitat to the Conservation District, the 
likelihood is small that the petition would actually result in 
redistricting any particular parcel of land into the Conservation 
District.
    In addition, under a most extreme scenario, planned development on 
the privately owned Agricultural and Urban land would be stopped. The 
economic impact to the developer would include the amount of money 
already invested in the project plus the expected profits that would 
not be realized due to redistricting. The potential cost associated 
with such a scenario is approximately $62.4 million to $74.4 million. 
Combined with the impacts mentioned above, the total economic cost 
associated with redistricting could range from $80 million to $249 
million. Again, and as discussed more fully in section 4.b., while it 
is possible that the designation of critical habitat could trigger a 
petition to redistrict land designated as critical habitat to the 
Conservation District, the likelihood is small that the petition would 
actually result in redistricting any particular parcel of land into the 
Conservation District.
    (61) Comment: Multiple commenters stated that the DEA fails to 
consider economic impacts of critical habitat that result through 
interaction with State law, specifically Hawaii's Environmental Impact 
Statement Law. HRS 343-5 applies to any use of conservation land, and a 
full Environmental Impact Statement is required if any of the 
significance criteria listed in HAR 11-200-12 apply. One of these 
criteria is that an action is significant if it ``substantially affects 
a rare, threatened or endangered species or its habitat.'' This will 
result in costly procedural requirements and delays.
    Our Response: Chapter VI, section 4.f. of the DEA discussed the 
concern that

[[Page 34732]]

critical habitat will result in more expensive environmental studies. 
The DEA noted that subject to certain exemptions, a State Environmental 
Assessment (EA) or Environmental Impact Statement (EIS) is required for 
projects that: (1) Use State or county lands or funds; (2) are in the 
Conservation District; (3) are in the Shoreline Setback Area (usually 
12 m (40 ft) inland from the certified shoreline); (4) require an 
amendment to a county plan that would designate land to some category 
other than Agriculture, Conservation or preservation; or (5) involve 
reclassification of State Conservation District lands. If a project 
``substantially affects a rare, threatened, or endangered species, or 
its habitat,'' then a State EIS might be required instead of the 
simpler and less expensive EA.
    Based on a review of projects planned within the critical habitat 
designation, the DEA concluded that five projects could be affected: 
Makena State Park; Kanaha Beach Park improvements; Kahoolawe Island 
Reserve Commission projects; and water tank installation and fire 
control at Puu Waawaa. The DEA reported that if all these projects 
subsequently require EISs, the additional cost to prepare them could be 
between $125,000 and $375,000. However, the DEA also recognized that 
this estimate may overstate costs, because other aspects of these 
projects may compel the preparation of an EIS rather than an EA. 
Because the areas surrounding these five projects remain within the 
intended designation, the Addendum made no changes to the conclusions 
reported in the DEA.
    (62) Comment: Multiple commenters stated that the DEA fails to 
evaluate the practical effect critical habitat designation will have on 
development. One commenter speculated that Special Management Area 
permits administered by Maui County as required by Hawaii's Coastal 
Zone Management Act will be harder to get, will result in delays, will 
cause a decline in property values, and may make it impossible to 
develop. This economic impact disappears because the DEA's bottom line 
erroneously counts only so-called ``direct'' costs of consultation.
    Another commenter expressed concern that the Service may get 
involved in county permitting processes, stating: ``[r]egardless of 
whether there is a Federal nexus for a proposed action, State and local 
agencies can and will require consultations with the Service (whether 
formal or informal) on actions that they approve in areas within or 
near critical habitat, and are likely to place restrictions on those 
actions as a result of such consultations. For example, a recent 
informal consultation between the County of Maui and the Service, 
pursuant to issuance of a County Special Management Area Permit for a 
proposed A & B project near BSM habitat in Kahului, resulted in the 
incorporation of permit conditions requiring the planting of three 
native Nothocestrum latifolium trees for every tree tobacco plant 
removed from the project area. The proposed project would not have 
impacted any BSM critical habitat, nor would it have resulted in the 
take of any BSM. Mandatory compensatory measures therefore do not 
appear to have been warranted for this project under any provisions of 
the Endangered Species Act.''
    Finally, another commenter stated the following: The Service has 
taken the position in other states that it has a right to intervene in 
local land use proceedings if they affect endangered species on private 
property. For example, the Service petitioned the local zoning board in 
Arizona to postpone approval of a rezoning petition pending a survey to 
determine the extent to which an endangered plant was present on the 
property even though no Federal approval was being sought. The failure 
of the Service to address this type of activity in the DEA is a 
fundamental error of the analysis.
    Our Response: The DEA acknowledged that if a proposed project 
requires major State or county approvals and is within critical 
habitat, developers are likely to be required by State and county 
agencies to request comments from us on the project. If we indicate 
that the project would have a negative impact on the habitat of listed 
species, then State and county agencies may require project mitigation 
to address our concerns. This would be expected even with no Federal 
involvement. The DEA concluded that the cost of the potential 
mitigation would depend upon the circumstances. Because there were no 
anticipated projects within the proposed critical habitat for the moth 
that would require major discretionary approvals by the State or 
county, there was no specific discussion in the DEA of what mitigation 
measures might be required by the State or county as a condition of 
receiving the discretionary approvals for projects within the critical 
habitat designation.
    During public comment, a landowner in proposed Unit 5a (island of 
Hawaii) indicated that the Kaloko Properties development in critical 
habitat will require major discretionary approvals from the State and 
county, including Land Use District Boundary Amendment and a county 
zone change. (Note: this area was not included in this designation.) 
Section 4.c. of the Addendum addresses the costs of potential State and 
county mitigation measures that could be associated with approvals for 
this project. For example, as a mitigation measure for this project, 
the State or county may require the landowner to use native vegetation 
that is beneficial to the moth in the residential and golf course 
construction. The cost of this mitigation measure is estimated at 
$720,000 to $750,000. In a most extreme scenario, if the State or 
county did not grant the discretionary approvals as a result of the 
moth critical habitat designation, the landowner may not be able to 
continue with the current plans for residential and golf course 
development. In this case, the total cost for the Kaloko Properties 
development would be $4.2 million in previous expenditures and $13 
million to $25 million in the potential loss of future profits. The 
specific likelihood of either occurrence is unknown, as it depends upon 
the actions of the State or county agency with permit approval under 
circumstances for which there is no prior history. In addition, the 
State or county may develop their own mitigation measures based on the 
particular circumstances before them when reviewing the permit. Based 
on the professional judgment of the team of economists preparing the 
economic analysis, it is not deemed likely that discretionary approval 
for the Kaloko Properties project would be denied solely on the basis 
of moth critical habitat designation. However, for illustrative 
purposes, costs associated with this most extreme scenario are 
reported.
    (63) Comment: Multiple commenters stated that the DEA fails to 
consider economic impacts of critical habitat that result through 
interaction with State law, specifically the State Water Code. HRS 
174C-2 states ``adequate provision shall be made for protection of fish 
and wildlife.'' HRS 174C-71 instructs the Commission of Water Resource 
Management to establish an instream use protection program to protect 
fish and wildlife. Multiple commenters were concerned that water 
resource development would be greatly restricted leading to many 
indirect costs. The proposed rule states that activities such as 
watershed alteration or water diversion may trigger section 7 
consultations if there is Federal involvement. If the ability to divert 
or take water from these sources or systems is restricted or limited, 
the impact

[[Page 34733]]

would be far reaching and affect all lands served by such water sources 
or systems. The Service has an obligation to thoroughly investigate 
this issue, and refrain from designating critical habitat until it has 
determined whether its actions will affect water use and balance this 
against any benefit to the species. One commenter stated that opponents 
of water diversions may use critical habitat as a tool to delay, and 
effectively stop, many worthwhile water diversion projects.
    Our Response: Future (i.e., currently unplanned) water diversion 
projects are most likely to be planned in mountainous areas with 
significant rainfall or existing water resources. In other words, they 
are most likely to occur in areas already in the Conservation District 
and thus, would be subject to discretionary approval by the BLNR. While 
development is already limited within the Conservation District, the 
designation of critical habitat would be relevant to BLNR's 
determination of whether to grant a permit. More specifically, the 
designation of critical habitat could make it more likely that BLNR 
would find that a proposed land use would cause substantial adverse 
impact to existing natural resources within the surrounding area 
(Hawaii Administrative Rules 13-5-30). Therefore, it is possible that 
critical habitat designation could result in additional environmental 
studies, project delays, project modifications, and potential project 
denials (as discussed generally in chapter VI, section 4.f. of the 
DEA). However, without more specific information on the scope and 
location of a future (and currently unplanned) water diversion project, 
it is not possible to meaningfully estimate the potential indirect 
costs associated with these events.
    Moreover, no costs would be expected to occur from such impacts to 
water systems, because neither the Blackburn's sphinx moth nor the host 
plants on which it relies are stream-dependent for their survival and, 
therefore, would not cause a reduction in existing water diversions.
    (64) Comment: A commenter stated the following: The DEA failed to 
consider the more restrictive Habitat Conservation Plan (HCP) 
guidelines under the Hawaii Endangered Species Law (HRS 195D-4, HRS 
195D-21) that required the State HCP permittee show a net benefit to 
the species. The DEA failed to analyze impacts due to the circumstance 
in which a landowner qualifies for a Federal HCP but is unable to 
obtain a State HCP.
    Our Response: As discussed in chapter III of the DEA, the Act 
allows us to permit take by private applicants that would otherwise be 
prohibited, provided such taking is ``incidental to, and not [for] the 
purpose of, the carrying out of an otherwise lawful activity.'' Section 
10(a)(1)(B) of the Act allows non-Federal parties planning activities 
that have no Federal involvement, but which could result in the 
incidental taking of listed animals, to apply for an incidental take 
permit. The application must include an HCP laying out the proposed 
actions, determining the effects of those actions on affected fish and 
wildlife species and their habitats (often including proposed or 
candidate species), and defining measures to minimize and mitigate 
adverse effects. We must issue an incidental take permit if the 
incidental take is to be minimized by reasonable and prudent measures 
and implementing terms and conditions that are stipulated in the 
permit. The HESA has a comparable incidental take provision that also 
requires the permittee to show a net benefit to the species to receive 
the permit.
    The economic analysis considers the economic impacts of section 7 
consultations related to critical habitat, even if they are 
attributable co-extensively to the listed status of the species. In 
addition, the economic analysis examines any indirect costs of critical 
habitat designation, such as where critical habitat triggers the 
applicability of a State or local statute. However, where it is the 
listing of a species that prompts action at the State or local level 
(e.g., further regulating the take of federally listed species), the 
impacts are not attributable to critical habitat designation and are 
not appropriately considered in the economic analysis of critical 
habitat designation. Take prohibitions under Hawaii law are tied to the 
Federal listing of the species and do not co-extensively occur because 
of critical habitat designation. Thus, the circumstance in which a 
landowner qualifies for a Federal HCP but is unable to obtain a State 
HCP is outside the scope of the economic analysis and was not addressed 
by it.

Summary of Changes From the Proposed Rule

    Based on a review of public comments received on the proposed 
critical habitat determination, we have reevaluated our proposed 
designations and included several changes to the final designation of 
critical habitat. These changes include the following:
    (1) We revised the list of manmade features that are excluded from 
the designation in order to exclude additional features based on 
information received during the public comment periods. The revised 
list is described in the Criteria Used to Identify Critical Habitat 
section, and in regulatory language for section 17.95, ``Critical 
habitat-- fish and wildlife,'' described at the end of this document.
    (2) We made revisions to the unit boundaries based on information 
supplied by commenters, as well as information gained from field visits 
to some of the sites, which indicated: (1) The primary constituent 
elements were not present in certain portions of the proposed units; 
(2) certain changes in land use had occurred on lands within the 
proposed critical habitat that would preclude those areas from 
supporting the primary constituent elements; or (3) the areas were not 
essential to the conservation of the species. Specifically, private 
landowners on the islands of Molokai, Maui, and Hawaii provided us with 
new information regarding current land uses or prior land changes to 
some to the proposed areas that allowed us to identify certain lands as 
not essential or unsuitable for the long-term conservation of the 
Blackburn's sphinx moth. Likewise, the State provided us with new 
information regarding current land uses or prior land changes to some 
proposed areas on islands of Maui, Kahoolawe, and Hawaii that allowed 
us to identify portions of some proposed units as not essential or 
unsuitable for the long-term conservation of the moth. In addition, 
information obtained during the process of finalizing critical habitat 
designations for plants on the islands of Maui, Molokai, and Hawaii 
helped us to identify some proposed areas on those islands that are 
lacking the primary constituent elements, or are unsuitable for the 
long-term conservation of the moth. Lastly, some areas were excluded 
based on weighing the benefits of inclusion versus exclusion pursuant 
to section 4(b)(2) of the Act (see Economic Analysis section). A brief 
summary of the modifications made to each unit is given below (see also 
Figures 1-4).
BILLING CODE 4310-55-P

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BILLING CODE 4310-55-C

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Former Unit 1. Ahihi-Kinau NEAR--Ulupalakua--Auwahi--Ka naio Maui Meta 
Unit (Formerly 15,216 ha (37,599 ac))

    This unit has been subdivided into three smaller separate units 
(Unit 2, Cape Kinau; Unit 3, Ka naio; and Unit 4, Kahikinui) (see Table 
2 and 3), which resulted in a total net decrease of 7,393 ha (18,269 
ac).

 Table 2.--Approximate Critical Habitat Area Designated by Unit, Island and Landownership in Hectares and Acres
----------------------------------------------------------------------------------------------------------------
      Critical habitat unit               Island               State             Private             Total
----------------------------------------------------------------------------------------------------------------
1. Puu O Kali....................  Maui................  1,503 ha           101 ha             1,604 ha
                                                         3,715 ac           250 ac             3,965 ac
2. Cape Kinau....................  Maui................  597 ha             6 ha               603 ha
                                                         1,475 ac           15 ac              1,490 ac
3. Ka naio.......................  Maui................  2,416 ha           4 ha               2,420 ha
                                                         5,971 ac           10 ac              5,981 ac
4. Kahikinui.....................  Maui................  4,783 ha           16 ha              4,799 ha
                                                         11,820 ac          39 ac              11,859 ac
5. Kanaha Pond...................  Maui................  56 ha              0 ha               56 ha
                                                         139 ac             0 ac               139 ac
6. Kanaha Park...................  Maui................  25 ha              0 ha               25 ha
                                                         62 ac              0 ac               62 ac
7. Upper Kahoolawe...............  Kahoolawe...........  1,721 ha           0 ha               1,721 ha
                                                         4,252 ac           0 ac               4,252 ac
8. Puuwaawaa--Hualalai...........  Hawaii..............  9,120 ha           835 ha             9,954 ha
                                                         22,535 ac          2,063 ac           24,598 ac
9 Kamoko Flats--Puukolekole......  Molokai.............  331 ha             926 ha             1,256 ha
                                                         817 ac             2,288 ac           3,105 ac
                                  -----------------------
    Total........................  ....................  20,552 ha          1,888 ha           22,440 ha
                                                         50,786 a           4,665 ac           55,451 ac
----------------------------------------------------------------------------------------------------------------


 Table 3.--Approximate Final Critical Habitat Area in Hectares (Acres),
    Essential Area, and Excluded Area on Hawaii, Kahoolawe, Maui, and
                                 Molokai
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Area considered essential on Hawaii, Kahoolawe,  27,366 ha
 Maui, and Molokai.                              (67,625 ac)
Area considered essential on Maui..............  14,226 ha
                                                 (35,152 ac)
Maui Area excluded under 4(b)(2) (Haleakala and  4,717 ha
 Ulupalakua Ranches).                            (11,656 ac)
Final Critical Habitat on Maui.................  9,509 ha
                                                 (23,496 ac)
Area considered essential on Hawaii............  10,164 ha
                                                 (25,115 ac)
Hawaii Area excluded under 4(b)(2) (MID/TSA      210 ha
 Corp, and State).                               (518 ac)
Final Critical Habitat on Hawaii...............  9,954 ha
                                                 (24,597) ac)
Final Critical Habitat on Hawaii, Kahoolawe,     22,440 ha
 Maui, and Molokai.                              (55,451 ac)
------------------------------------------------------------------------

    Some areas from the original unit were excluded under section 
4(b)(2) because the benefits of designation of critical habitat are 
outweighed by the negative effect on the landowners' voluntary 
conservation activities on their property. Additional area was excluded 
because new information revealed that some lands in question did not 
contain moth's adult or larval stage primary constituent elements, or 
were more seriously degraded than previously ascertained, and are 
therefore not essential for the conservation of the species.

Former Unit 2. Puu O Kali Unit (formerly 2,750 ha (6,794 ac))

    This unit was renamed Unit 1 Puu O Kali, and is now 1,604 ha (3,965 
ac) in size (see Table 2). This unit's boundary was adjusted with a 
total net decrease of 1,145 ha (2,829 ac). Some areas from the original 
unit were excluded under section 4(b)(2) because designation of 
critical habitat would have had a negative effect on the landowners' 
voluntary conservation activities on their property. Additional area 
was excluded because new information revealed that some lands in 
question did not contain the moth's adult or larval stage primary 
constituent elements, or were more seriously degraded than previously 
ascertained, and are therefore not essential for the conservation of 
the species.

[[Page 34739]]

Former Unit 3. Kanaha Pond--Spreckelsville Unit (formerly 226 ha (559 
ac))

    This unit has been subdivided into two smaller, separate units 
(Unit 5 Kanaha Pond and Unit 6 Kanaha Park) (see Table 2), which 
resulted in a total net decrease of 145 ha (358 ac). Some areas from 
the original unit were excluded because new information revealed that 
some lands in question did not contain the moth's adult or larval stage 
primary constituent elements, or were more seriously degraded than 
previously ascertained, and are therefore not essential for the 
conservation of the species.

Former Unit 4. Upper Kahoolawe Unit (formerly 1,878 ha (4,641 ac))

    This unit was renamed Unit 7 Upper Kahoolawe, and is now 1,721 ha 
(4,252 ac) in size (see Table 2). This unit's boundary was adjusted 
with a total net decrease of 157 ha (389 ac). Some areas from the 
original unit were excluded because new information revealed that some 
lands in question did not contain the moth's adult or larval stage 
primary constituent elements, or were more seriously degraded than 
previously ascertained, and are therefore not essential for the 
conservation of the species (PBR Hawaii et al. 1995).

Former Unit 6. Puuwaawaa--Hualalai Meta Unit (formerly 18,111 ha 
(44,753 ac))

    This unit was renamed Unit 8 Puuwaawaa--Hualalai, and is now 9,954 
ha (24,598 ac) in size (see Table 2). This unit's boundary was adjusted 
with a total net decrease of 8,156 ha (20,155 ac). Some areas from the 
original unit were excluded because new information revealed that some 
lands in question did not contain the moth's adult or larval stage 
primary constituent elements, or were more seriously degraded than 
previously ascertained, and are therefore not essential for the 
conservation of the species.

Former Unit 7. Kamoko Flats--Puukolekole Unit (formerly 1,829 ha (4,520 
ac))

    This unit was renamed Unit 9 Kamoko Flats--Puukolekole, and is now 
1,256 ha (3,105 ac) in size (see Table 2). This unit's boundary was 
adjusted with a total net decrease of 573 ha (1,415 ac). Some areas 
from the original unit were excluded because new information revealed 
that some lands in question did not contain the moth's adult or larval 
stage primary constituent elements, or were more seriously degraded 
than previously ascertained, and are therefore not essential for the 
conservation of the species.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species, and (II) that may require special management 
considerations or protection; and, (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation,'' as defined by the Act, means the use of all 
methods and procedures that are necessary to bring an endangered or a 
threatened species to the point at which listing under the Act is no 
longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat.
    In our regulations at 50 CFR 402.02, we define destruction or 
adverse modification as ``* * * the direct or indirect alteration that 
appreciably diminishes the value of critical habitat for both the 
survival and 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.'' However, in a March 15, 2001, 
decision of the United States Court of Appeals for the Fifth Circuit 
(Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434), 
the court found our definition of destruction or adverse modification 
as currently contained in 50 CFR 402.02 to be invalid. In response to 
this decision, we are reviewing the regulatory definition of adverse 
modification in relation to the conservation of the species.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known, using the 
best scientific and commercial data available, habitat areas that 
provide at least one of the physical or biological features essential 
to the conservation of the species (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. Section 4 
requires that we designate critical habitat for a species, to the 
extent such habitat is determinable, at the time of listing. When we 
designate critical habitat at the time of listing or under short court-
ordered deadlines, we may not have sufficient information to identify 
all the areas essential for the conservation of the species or 
alternatively, we may inadvertently include areas that later will be 
shown to be nonessential. Nevertheless, we are required to designate 
those areas we believe to be critical habitat, using the best 
information available to us.
    Our regulations state that ``The Secretary shall designate critical 
habitat outside the geographic areas presently occupied by the species 
only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not indicate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by 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 our 
decisions represent the best scientific and commercial data available. 
It requires our biologists, to the extent consistent with the Act and 
with the use of the best scientific and commercial data available, to 
use primary and original sources of information as the basis for

[[Page 34740]]

recommendations to designate critical habitat. When determining which 
areas are critical habitat, a primary source of information should be 
the listing package for the species. Additional information may be 
obtained from recovery plans, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, and biological assessments or other unpublished 
materials.
    It is important to clearly understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for conservation. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the Act's 7(a)(2) jeopardy 
standard and section 9 prohibitions, as determined on the basis of the 
best available information at the time of the action. We specifically 
anticipate that federally funded or assisted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. 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 efforts if new information available to these 
planning efforts calls for a different outcome. 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 conservation of the species.

Methods

    As required by section 4(b)(2) of the Act and regulations 50 CFR 
424.12, we used the best scientific information available to determine 
areas containing the physical and biological features that are 
essential for the conservation of Blackburn's sphinx moth. We evaluated 
areas containing dry and mesic habitats as well as data on known moth 
occurrence. The best scientific information we analyzed included peer-
reviewed scientific publications; unpublished reports by researchers; 
the final rule listing the species (65 FR 4770); the Blackburn's sphinx 
moth Recovery Outline (Service 2000); the HHP database; island-wide GIS 
coverages (e.g., vegetation, soils, annual rainfall, elevation 
contours, landownership); information received during the public 
comment periods and public hearings; recent biological surveys and 
reports; and information received in response to outreach materials and 
from landowners, land managers, and interested parties.
    The critical habitat unit approach in this rule addresses the 
numerous risks to the long-term survival and conservation of 
Blackburn's sphinx moth by employing two widely recognized and 
scientifically accepted methods for promoting viable populations of 
imperiled species--(1) creation or maintenance of multiple populations 
to reduce the possibility that a single or series of catastrophic 
events could threaten to extirpate the species; and (2) increasing the 
size of each population in the respective critical habitat units to a 
level where the threats of genetic, demographic, and normal 
environmental uncertainties are diminished (Tear et al. 1995; Meffe and 
Carroll 1996; Service 1997a).
    In general, the larger the number of populations and the larger the 
size of each population, the lower the probability of extinction (Raup 
1991; Meffe and Carroll 1996). This basic conservation principle of 
redundancy applies to Blackburn's sphinx moth. By maintaining viable 
populations in the designated critical habitat units, the threats 
represented by a fluctuating environment are reduced and the species 
has a greater likelihood of achieving conservation. Conversely, loss of 
a Blackburn's sphinx moth critical habitat unit will result in an 
appreciable increase in the risk that the species may not recover and 
survive.
    The Blackburn's sphinx moth is short-lived, extremely mobile, and 
rare; hence population densities are not easily determined (A. 
Medeiros, pers comm., 1998; Janzen 1984; Roderick and Gillespie 1997; 
Van Gelder and Conant 1998). Even if the threats responsible for the 
decline of the moth were controlled, the persistence of existing 
populations is hampered by the small number of extant populations and 
the small number of individuals in known populations. These 
circumstances make the species more vulnerable to extinction resulting 
from 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 decreased ability to cope with environmental change 
(Lande 1988; International Union for Conservation of Nature and Natural 
Resources 1994).
    Populations small in size are also demographically vulnerable to 
extinction caused by random fluctuations in population size and sex 
ratio, and to catastrophes such as hurricanes (Lande 1988). We believe 
the existing Blackburn's sphinx moth populations on Kahoolawe, Hawaii, 
and Maui are insufficient in size and too limited in range to ensure 
the conservation of the species. While Blackburn's sphinx moth 
population sizes may be naturally small, establishing the species to a 
diverse set of habitats and climates within its former range is 
necessary to remove the long-term risk of rangewide extinction due to 
catastrophic events and the numerous direct threats to the species and 
its habitat (Service 1997a).
    Janzen (1984) described the characteristics of tropical sphingid 
moths found in a Costa Rican National Park. In general, adult sphingids 
are nocturnal or crepuscular (dusk-flying) and regularly drink with a 
long proboscis from many kinds of sphingophilous flowers while hovering 
in front of them. Sphingophilus flowers are characterized by lightly 
colored tubular corollas, evening anthesis (opening), and nocturnal 
nectar and scent production (Haber and Frankie 1989). Fecundity was 
unknown, but estimated in the hundreds if the female can feed freely.
    Particularly helpful in understanding the conservation needs of 
sphingids is Janzen's (1984) description of the adult moth biological 
characteristics, including that they have large latitudinal ranges, 
feed heavily over a long period of time and extensively at spatially 
particulate resources relatively fixed in location, i.e., they feed on 
specific resources spread throughout the landscape, live for weeks to 
months, lay few eggs per night, probably oviposit (deposit eggs) on 
many host plant individuals and repeatedly visit many of them, have 
less synchronous eclosion (emergence from the pupa) during the rainy 
season than other moths, migrate, and are highly mobile, repeatedly 
returning to the same food plants. In another study of sphingids, 
adults were reported to travel greater distances to pollinate and visit 
flowers than those distances traveled by other insect pollinators or 
even hummingbirds (Linhart and Mendenhall 1977).
    Sphingid caterpillars are known to feed heavily over a long time 
period and eat limited types of foliage, typically plants rich in toxic 
small molecules (e.g., in the family Solanaceae). They also have less 
synchronous eclosion than other moths. Since sphingids search widely 
for good local conditions, Janzen (1984) concluded that isolated 
habitats may have difficulty supporting

[[Page 34741]]

sphingid populations, i.e., connectivity between habitat areas is 
necessary to support wide-ranging sphingid species.
    Ehrlich and Murphy (1987) noted that populations of herbivorous 
insects such as lepidopterans are often regulated by environmental 
factors, such as weather conditions, and thus small populations can be 
particularly at risk of extinction. Ehrlich and Murphy (1987) 
identified a number of principles important for the conservation of 
herbivorous insects. First, in most cases, a series of diverse 
demographic units will typically be needed to conserve a species. 
Second, where possible, corridors among the sites should be established 
to promote re-colonizations in areas where the species once occurred. 
Lastly, they noted that when populations are very sensitive to 
environmental changes and limited information is available on the 
species' population biology, it is easy to underestimate the 
conservation needs of such insects.
    Murphy et al. (1990) also noted that reviews of butterfly 
population ecology demonstrate that environmental factors play 
important roles in determining butterfly population dynamics. They 
stated that most documented population extinctions have resulted from 
habitat deterioration combined with extreme weather events. Decreases 
in the quality or abundance of larval host plants and adult nectar 
sources are caused by changes in plant community composition, 
particularly changes associated with succession, disturbance, and 
grazing regimes. But, because many butterfly species are especially 
sensitive to thermal conditions, habitat changes that disrupt micro-
climatic regimes can cause habitat deterioration without elimination of 
plant resources. Ehrlich and Murphy (1987) noted several patterns 
within typical butterfly populations: A number of subpopulations within 
a given specie's metapopulation (a set of local populations or breeding 
sites within an area, where typically migration from one local 
population or breeding site to other areas containing suitable habitat 
is possible, but not routine) are often extirpated and later re-
colonized; and a given species may not be present in many of its 
habitat remnants, including within those containing the highest host 
plant diversity.
    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. Although our knowledge 
of the Blackburn's sphinx moth's historical range is incomplete, we 
believe the existing natural habitats needed to support viable 
populations of the moth are too small, isolated, and seriously 
threatened to ensure its long-term conservation, particularly in light 
of the foraging needs of adult sphingid moths (Janzen 1984) and the 
apparent wide-ranging Blackburn's sphinx moth foraging habits (Fern 
Duvall, DOFAW, pers. comm. 2001; B. Gagne, pers. comm. 2001; D. Hopper, 
in litt. 2000, 2002; HHP 2000).
    Long-term conservation of the species will require the protection 
and subsequent restoration of additional and larger areas of dry and 
mesic habitat that include the larval and adult primary constituent 
elements at different elevational and rainfall gradients, in order to 
improve the likelihood of successful larval development and adult moth 
foraging (A. Medeiros, pers. comm. 1998; Roderick and Gillespie 1997; 
Van Gelder and Conant 1998). The long-term persistence of the existing 
populations will likely improve if they could be increased in size, and 
if the connectivity among the populations was enhanced, thus promoting 
dispersal of individuals across intervening lands. Restoring moth 
populations in multiple locations would decrease the likelihood that 
the effect of any single alien parasite, predator, or combined pressure 
of such species could result in the diminished vigor or extinction of 
the moth.
    Small habitats tend to support small populations, which frequently 
are extirpated by events that are part of normal environmental 
variation. The continued existence of such satellite populations 
requires the presence of one or more large reservoir populations, which 
may provide colonists to smaller, outlying habitat patches (Ehrlich and 
Murphy 1987). Based on recent field observations of the Blackburn's 
sphinx moth, we believe the species likely occurs within two regional 
populations on separate islands, one centered in the area of leeward 
East Maui (Units 1-4 (see Unit Descriptions below)), and one centered 
near Puuwaawaa (Unit 8) on Hawaii Island, north of Kailua-Kona (A. 
Medeiros, pers. comm. 1998; F. Howarth, pers. comm. 2001). Both of 
these two areas contain populations of the moth regarded as probable 
source areas or ``reservoirs'' (Murphy et al. 1990) for dispersing or 
colonizing moth adults.
    Habitat areas close to the two large reservoir areas are also 
designated in order to promote genetic variability in the Blackburn's 
sphinx moth population, contributing to the long-term persistence and 
conservation of the species. These areas will serve as corridors for 
dispersing adult moths or as overflow habitat during particularly 
fecund years, which could be very important to the integrity of moth 
populations. For example, adult moths observed at Cape Kinau (Unit 2) 
on Maui may have originated from larval host plants located in the 
Kanaio NAR (Unit 3). The moth populations inhabiting these habitat 
areas appear to be taking advantage of lower elevation adult native 
host plants and nonnative host plants such as tree tobacco upon which 
the larval stage is completed successfully. In addition, these habitat 
areas may be able to support persistent moth populations independent of 
the reservoir areas, significantly contributing to conservation of the 
species.
    Molokai is an example of essential habitat because it provides for 
the expansion of the species' range and for improved connectivity of 
the different populations. While the designated unit on this island is 
not known to currently harbor a Blackburn's sphinx moth population, 
preserving this habitat is important because some threats to the 
species may be absent there (Table 1 shows several of the potential 
moth predators and parasites are not reported on Molokai). Likewise, 
because of Molokai's distance from islands currently inhabited by the 
moth, we believe the designated critical habitat on this island will be 
extremely important for the species' conservation as it will help 
protect the species from extinction by catastrophic events, which could 
impact other more closely grouped populations (e.g., those on Maui or 
the island of Hawaii). For these reasons, we find that inclusion of an 
area such as on Molokai, identified as containing the primary 
constituent elements, is essential to the conservation of the species 
even though it does not currently contain known Blackburn's sphinx moth 
populations.
    Due to the species' presently reduced range, the Blackburn's sphinx 
moth is now more susceptible to the variations and weather fluctuations 
affecting quality and quantity of available habitat and food. 
Furthermore, the moth is now more susceptible to direct pressure from 
numerous nonnative insect predators and parasites. For these reasons, 
and the reasons discussed above, those areas currently occupied would 
be inadequate to ensure the conservation of the species, and we have 
designated 9 units on four islands.
    We are developing a draft recovery plan for this species. The 
overall objective of this recovery plan will be to ensure the species' 
long-term conservation and identify research

[[Page 34742]]

necessary so that the moth can be reclassified to threatened and 
ultimately removed from the list of endangered and threatened species. 
Because a recovery plan for the moth has not yet been completed, in 
making this determination we evaluated the remaining potential habitat, 
the biological and life history characteristics of the moth, and the 
best available scientific information on conservation planning to 
determine what will be required to ensure viable populations of this 
species. However, should our understanding of what areas support 
essential features for the conservation of the moth change after 
completing the recovery planning process, we may revise the existing 
critical habitat designation accordingly.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas to designate as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available. We consider those 
physical and biological features (primary constituent elements) that 
are essential to the conservation of the species and that may require 
special management considerations or protection. These include, but are 
not limited to: Space for individual and population growth and for 
normal behavior; food, water, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
egg laying; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The primary constituent elements for the Blackburn's sphinx moth 
include specific habitat components identified as essential for the 
primary biological needs of foraging, sheltering, maturation, 
dispersal, breeding, and egg laying, and are organized by life cycle 
stage. The primary constituent elements required by the Blackburn's 
sphinx moth larvae for foraging, sheltering, maturation, and dispersal 
are the two documented host plant species within the endemic genus 
Nothocestrum (N. latifolium and N. breviflorum), and the dry and mesic 
habitats between the elevations of sea level and 1,525 m (5,000 ft) and 
receiving between 25 and 250 cm (10 and 100 in) of annual 
precipitation. The primary constituent elements required by Blackburn's 
sphinx moth adults for foraging, sheltering, dispersal, breeding, and 
egg production are native, nectar-supplying plants including, but not 
limited to, Ipomoea indica and other species within the genus Ipomoea, 
Capparis sandwichiana, and Plumbago zeylanica, and within the dry to 
mesic habitats between the elevations of sea level and 1,525 m (5,000 
ft) and receiving between 25 and 250 cm (10 and 100 in) of annual 
precipitation.
    Both the larval and adult food plants are found in undeveloped 
areas supporting mesic and dry habitats, typically receiving less than 
250 cm (100 in) of rain per year and are located between the elevations 
of sea level and 1,525 m (5,000 ft). Vegetative communities in these 
areas include native plants, and in some instances, introduced plant 
species (A. Medeiros, pers. comm. 1998; Roderick and Gillespie 1997; 
Van Gelder and Conant 1998).
    Although Blackburn's sphinx moth larvae feed on the nonnative 
Nicotiana glauca, we do not consider this plant to be a primary 
constituent element for the designation of critical habitat. As 
previously discussed, the native Nothocestrum species are more stable 
and persistent components of dry to mesic forest habitats than 
Nicotiana glauca. Nicotiana glauca is a short-lived species that may 
disappear from areas during prolonged drought (A. Medeiros, pers. comm. 
1998), or during successional changes in the plant community (F. 
Howarth, pers. comm. 2001; Symon 1999). Many studies have shown that 
insects, and particularly lepidopteran larvae, consume more food when 
the food has a relatively high water content (Murugan and George 1992). 
Relative consumption rate and growth have been reported to decrease for 
many sphingids closely related to the Blackburn's sphinx moth when 
raised on host plants or diets with a relatively low water content 
(Murugan and George 1992). Nicotiana glauca's vulnerability to drought 
conditions suggests that its water content frequently may not be 
suitable for optimal growth of Blackburn's sphinx moth larvae.
    The restoration of native host species for the moth and other 
endangered species may also require the control or elimination of 
nonnative vegetation, potentially including Nicotiana. Additionally, 
unlike the Nothocestrum species, Nicotiana glauca is more likely to 
occur in habitats less suitable due to their occupation by alien insect 
predators (D. Hopper, in litt. 2000, 2002; Symon 1999). Therefore, in 
comparison with Nicotiana glauca, the native Nothocestrum species 
better fulfill the primary biological needs of the moth larvae. For all 
of these reasons, we are not considering Nicotiana glauca as a primary 
constituent element for the designation of critical habitat at this 
time.

Criteria Used To Identify Critical Habitat

    We identified critical habitat areas essential to the conservation 
of Blackburn's sphinx moth in the primary locations where it currently 
occurs or has been known to occur. We have designated sufficient 
critical habitat at each site to maintain self-sustaining populations 
of Blackburn's sphinx moth at each of these locations.
    During the development of this rule, we considered the role of 
unoccupied habitat in the conservation of Blackburn's sphinx moth. Due 
to the historic loss of the habitat that supports this species, we 
believe that future conservation and recovery of this taxon depends not 
only on protecting it in the limited area that it currently occupies, 
but also on providing the opportunity to expand its distribution by 
protecting currently unoccupied habitat that contains the necessary 
primary constituent elements within its historic range.
    To help achieve our goal of conservation of Blackburn's sphinx 
moth, we are including one critical habitat unit on Molokai, despite 
the fact that the moth has not been documented there in recent years. 
The area is located within dry to mesic forest on the southern uplands 
of Molokai and contains both larval and adult stage host plants. By 
allowing the moth to recover to this area, either through its own 
ability or with assistance, the threat of extinction due to natural 
catastrophe occurring within the currently, close-grouped populations 
will be minimized. We believe the site is essential to the conservation 
of the species because it is the most appropriate site for a 
reestablishment effort. The combination of limited range, few 
populations, and restricted habitat, makes the moth susceptible to 
extinction or extirpation due to random events, such as disease, 
hurricanes, or other occurrences (Shaffer 1981, 1987; Primack 1993; 
Meffe and Carroll 1994). Such events are a concern when the number of 
populations or the geographic distribution of a species is severely 
limited, as is the case with Blackburn's sphinx moth. Establishment of 
the Molokai unit for the moth is likely to prove important in reducing 
the risk of extinction due to such catastrophic events.
    Given the large size and strong flight capabilities of the 
Blackburn's sphinx moth, the species is believed to use large areas of 
habitat. Therefore, moth

[[Page 34743]]

population linkages will likely be enhanced if designated habitat 
occurs in large contiguous blocks or within a matrix of undeveloped 
habitat (A. Medeiros, pers. comm. 1998; S. Montgomery, pers. comm. 
2001; McIntyre and Barrett 1992; Roderick and Gillespie 1997; Van 
Gelder and Conant 1998). To the extent possible with the limited 
potential habitat remaining, we have attempted to consider the wide-
ranging behavior of the Blackburn's sphinx moth. Since the moth is 
believed to be a strong flier and able to move many kilometers from one 
area to another, areas of larval or adult presence and feeding may be 
separated from similar habitat areas and still serve important 
functions in maintaining moth populations.
    Some small habitat areas are also suitable for Blackburn's sphinx 
moth larvae (e.g., Units 2, 5, 6, and 9 (see unit descriptions below)) 
and are critical for the species' conservation since such habitats may 
facilitate adult moth dispersal and promote genetic exchange between 
populations located on different islands. These areas also provide 
nectar resources and sheltering opportunities required by the adult 
moth. However, geographically isolated populations may be subject to 
decreased viability caused by inbreeding depression, reductions in 
effective population size due to random variation in sex ratio, and 
limited capacity to evolve in response to environmental change (Soule 
1987). The adult moth is dependent on its primary constituent element 
nectar source host plants for dispersal and migrating to and from 
various habitats. Because the factors threatening the moth's 
conservation are often not so mobile, providing for access to the 
moth's adult stage primary constituent elements, and thereby 
facilitating its ability to disperse, can minimize the effect of the 
various threats.
    Blackburn's sphinx moth populations fluctuate from year to year and 
season to season, apparently correlated with environmental and climatic 
variation. The moth is likely sensitive to thermal conditions and 
habitat changes that disrupt its microclimatic requirements. Therefore, 
the critical habitat units include dry and mesic habitats containing 
the primary constituent elements along wide elevational gradients to 
better ensure adult moth foraging needs, up and downslope, within their 
range. Furthermore, the boundaries include elevational gradients to 
better ensure larval host plant availability during periods of drought. 
Numerous habitat elevations containing the various primary constituent 
elements are believed to be necessary for successful conservation of 
the sphingid species (Ehrlich and Murphy 1987; Shaffer 1987; Murphy and 
Weiss 1988; Murphy et al. 1990) in order to minimize the effects of 
annual localized drought conditions throughout different areas of the 
species' host plant range (Murugan and George 1992).
    Critical habitat is being designated on those Hawaiian Islands 
where the Blackburn's sphinx moth's primary constituent elements are 
known to occur and are considered essential for the conservation of the 
species. This will allow the species the ability to persist and 
recolonize areas where it has become extirpated due to catastrophic 
events or demographic stochasticity (randomness) (Shaffer 1987). For 
example, on the island of Kauai in 1992, Hurricane Iniki blew over 
large areas of native forest, leaving open areas where nonnative plants 
became established, and created paths for further invasion of nonnative 
animals, both of which have been identified as threats to the survival 
of the moth.
    Natural areas of suitable native, dry-to-mesic habitat containing 
at least one Nothocestrum plant adjacent to or near other Nothocestrum 
populations are included in the critical habitat units. We have 
included suitable habitat without Nothocestrum larval host plants, 
provided it contained the adult stage primary constituent elements 
including, but not limited to, Ipomoea species, Capparis sandwichiana, 
or Plumbago zeylanica. This is especially true for areas lying between 
or adjacent to large populations of Nothocestrum spp. that could serve 
as a flight corridor to other larger host plant habitat areas. An area 
may also serve as a corridor when it contains adult native host plants, 
thereby providing foraging opportunities for adults. Natural areas of 
primarily native vegetation containing the larval or adult stage 
primary constituent elements and where habitat could support a moth 
population and increase the potential for conservation are also 
designated as critical habitat. The designation and protection of a 
unit not known to currently contain a moth population (i.e., the unit 
on Molokai), but which contains the primary constituent elements and 
lacks some of the serious threats to the species (see Table 1), will 
enhance population expansion and connectivity, thereby improving the 
likelihood of the species' conservation.

Mapping

    Following publication of the proposed critical habitat rule for 
Blackburn's sphinx moth (67 FR 40633), we re-evaluated the proposed 
critical habitat units and modified the boundaries using additional 
information from peer review experts and comments on the proposed rule. 
We excluded areas that do not contain one or more of the primary 
constituent elements, or that are highly degraded and thus not 
essential for the conservation of the species. In addition, some areas 
were excluded under section 4(b)(2) of the Act (see Exclusions Under 
Section 4(b)(2)). The specific modifications are described above in the 
Summary of Changes from the Proposed Rule section. The boundaries of 
the final critical habitat units are described by their Universal 
Transverse Mercators (UTMs).
    Within the critical habitat boundaries, section 7 consultation is 
generally necessary, and adverse modification could occur only if the 
primary constituent elements are affected. Therefore, not all 
activities within critical habitat would trigger an adverse 
modification conclusion. In designating critical habitat, we made an 
effort to avoid developed areas, such as towns and other similar lands, 
which are unlikely to contribute to the conservation of the species. 
However, the minimum mapping unit that we used to approximate our 
delineation of critical habitat for this species did not allow us to 
exclude all such developed areas, or other areas unlikely to contain 
the primary constituent elements from the maps. In addition, existing 
manmade features and structures within the boundaries of the mapped 
unit, such as the following, do not contain one or more of the primary 
constituent elements, and are therefore excluded under the terms of 
this regulation: buildings; roads; aqueducts and other water system 
features, including but not limited to pumping stations, irrigation 
ditches, pipelines, siphons, tunnels, water tanks, gauging stations, 
intakes, and wells; telecommunications towers and associated structures 
and equipment; electrical power transmission lines and associated 
rights-of-way; radars; telemetry antennas; missile launch sites; 
arboreta and gardens; heiau (indigenous places of worship or shrines); 
airports; other paved areas; and other rural residential landscaped 
areas. Federal actions limited to those areas would not trigger a 
section 7 consultation unless they affect the species or primary 
constituent elements in adjacent critical habitat.
    The lack of scientific data on Blackburn's sphinx moth life history 
makes it impossible for us to develop a quantitative model (e.g., 
population viability analysis) to identify the optimal number, size, 
and location of

[[Page 34744]]

critical habitat units (Ginzburg et al. 1990; Menges 1990; Murphy et 
al. 1990; Karieva and Wennergren 1995; Taylor 1995; Bessinger and 
Westphal 1998). At this time, we are only able to conclude that the 
current size and distribution of the extant populations are not 
sufficient to expect a reasonable probability of the Blackburn's sphinx 
moth's long-term survival and conservation. Therefore, we used the best 
available information to identify as critical habitat a reasonable 
number of additional units.
    The one unoccupied area designated in this final rule is located on 
the island of Molokai (Unit 9). Although currently unoccupied by the 
moth, the area contains both larval stage and adult moth native host 
plants. The area is close enough in proximity to the Maui moth 
population that the area may again be re-populated by the moth on its 
own, yet because it is a separate island, some additional protection 
from a potential natural catastrophe affecting, for example, the Maui 
population, may be afforded a future moth population on Molokai. Also, 
as Molokai is the closest island to Oahu, we believe that allowing for 
a future moth population on Molokai may facilitate the species' 
dispersal and provide a flight corridor for moths eventually migrating 
to the island of Oahu, which is also part of its historical range.
    Molokai was designated as critical habitat rather than other 
suitable unoccupied areas because we determined, to the best of our 
abilities, that it is the highest quality unoccupied habitat essential 
to the conservation of the moth. The designated unoccupied area on 
Molokai may lack some of the serious potential threats to the moth (see 
Table 1). Conserving and restoring Blackburn's sphinx moth populations 
in multiple locations decreases the likelihood that the effect of any 
single alien parasite or predator, or the combined pressure of such 
species and other threats, could result in the diminished vigor or 
extinction of the species.

Exclusions Under Section 4(b)(2)

    Subsection 4(b)(2) of the Act allows us to exclude areas from 
critical habitat designation where the benefits of such exclusions 
outweigh the benefits of designation, provided the exclusion will not 
result in the extinction of the species.

Economic Impacts

    Following the publication of the proposed critical habitat 
designation on June 13, 2002, a DEA was prepared to estimate the 
potential economic impact of the designation, in accordance with recent 
decisions in the New Mexico Cattlegrowers Association v. U.S. Fish and 
Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). The DEA was made 
available for review on November 15, 2002 (67 FR 69179). We accepted 
comments on it until the comment period closed on December 30, 2002.
    Our DEA evaluated the potential direct and indirect economic 
impacts associated with the proposed critical habitat designation for 
Blackburn's sphinx moth on Hawaii, Kahoolawe, Maui, and Molokai over 
the next 10 years. Direct impacts are those related to consultations 
under section 7 of the Act. They include the cost of completing the 
section 7 consultation process and potential project modifications 
resulting from the consultation. Indirect impacts are secondary costs 
and benefits not related to the specific provisions of the Act. 
Examples of indirect impacts include potential effects to property 
values, redistricting of land from agricultural or urban to 
conservation, and social welfare benefits of ecological improvements.
    The categories of potential direct and indirect costs considered in 
the analysis included the costs associated with: (1) Conducting section 
7 consultations associated with the listing or with the critical 
habitat, including incremental consultations and technical assistance; 
(2) modifications to projects, activities, or land uses resulting from 
the section 7 consultations; (3) potential delays associated with 
reinitiating completed consultations after critical habitat is 
finalized; (4) uncertainty and public perceptions resulting in loss of 
land value from the designation of critical habitat; (5) potential 
effects on property values including potential indirect costs resulting 
from the loss of hunting opportunities and increased regulation related 
costs due to the interaction of State and local laws; and (6) potential 
offsetting benefits associated with critical habitat, including 
educational benefits. The most likely economic effects of critical 
habitat designation are on activities funded, authorized, or carried 
out by a Federal agency (i.e., direct costs).
    The DEA included an evaluation of the economic impacts associated 
with implementation of the section 7 provisions of the Act for the 
Blackburn's sphinx moth. To quantify the proportion of total potential 
economic impacts attributable to section 7 implementation, including 
both the section 7 listing provisions and the proposed critical habitat 
designation, the analysis evaluated a ``without section 7'' baseline 
and compared it to a ``with section 7'' scenario. The ``without section 
7'' baseline represented the current and expected economic activity 
under all modifications except those associated with section 7, 
including protections afforded the species under Federal and State 
laws. The difference between the two scenarios measured the net change 
in economic activity attributable to the implementation of section 7 
for the Blackburn's sphinx moth. Because of the uncertainty of the 
costs resulting solely from critical habitat designation, we believe it 
is reasonable to estimate the total impacts of section 7 application. 
However, it is important to note that inclusion of impacts attributable 
co-extensively to listing does not convert this economic analysis into 
a tool to be used in making listing decisions.
    Following the close of the comment period on the DEA, an addendum 
was completed that incorporated public comments on the draft analysis 
and made other changes in the draft as necessary. These changes were 
primarily the result of information received during the comment period 
indicating that certain areas do not contain the necessary primary 
constituent elements or are not essential to the conservation of the 
species. However, the Addendum did analyze the economic impacts of 
areas that have been excluded pursuant to section 4(b)(2) in this final 
rule. Therefore, the total area and the potential impacts evaluated in 
the Addendum are greater than the total area designated as critical 
habitat and the actual impacts.
    Together, the DEA as modified by the addendum constitute our final 
economic analysis. The final economic analysis estimates that, over the 
next 10 years, the designation may result in potential direct economic 
costs ranging from approximately $1,183,800 to $1,739,000. This 
reduction of approximately $27,399 to $175,400 from the costs estimated 
in the DEA is primarily due to the reduction in acreage for biological 
reasons.
    Our final economic analysis for this rule also includes an 
evaluation of potential indirect costs associated with the designation 
of critical habitat for the Blackburn's sphinx moth. For example, in 
the event that designation results in a rezoning of property from 
agricultural district to conservation district a landowner could be 
expected to spend $50,000 to contest a potential re-zoning of their 
property, and a CDUA might cost as much as $100,000. Also, as described 
in section 4.e. of the Addendum, an estimate of the costs involved with 
investigation for the

[[Page 34745]]

intended designation ranges from approximately $173,000 to $618,000.
    In addition, the final economic analysis discusses economic 
benefits in qualitative terms rather than providing quantitative 
estimates because of the lack of information available to estimate the 
economic benefits of endangered species preservation and ecosystem 
improvements.
    A more detailed discussion of our economic analysis is contained in 
the DEA and the Addendum. Both documents are included in our 
administrative record and available for inspection at the Pacific 
Islands Fish and Wildlife Office (see ADDRESSES section).
    Although we do not find the economic costs to be significant, they 
were considered in balancing the benefits of including or excluding 
areas from critical habitat. The likely cost of designating critical 
habitat for the Blackburn's sphinx moth is estimated to be between 
$118,380 to $173,900 per year over the next 10 years.
    Approximately 4,717 ha (11,656 ac) within two proposed critical 
habitat units (Units 1 and 2) are located on private lands owned by 
Ulupalakua and Haleakala Ranches. We are excluding both ranches from 
designation because the benefits provided by these two landowners' 
voluntary conservation activities within and adjacent to these units 
outweigh the benefits provided by a designation of critical habitat.

Ulupalakua Ranch

    The portion of proposed Unit 1 on Ulupalakua Ranch lands is 
occupied habitat for Blackburn's sphinx moth.
    As discussed previously, conservation of the moth will require 
self-sustaining, reproducing populations located in a geographic array 
across its range, with population numbers and population locations of 
sufficient robustness to withstand periodic threats due to natural 
disaster or biological threats. The highest priority conservation tasks 
include active management, such as host plant propagation and 
reintroduction, fire control, alien species removal, and ungulate 
fencing. Failure to implement these active management measures, all of 
which require voluntary landowner support and participation, virtually 
assures the extirpation of this moth species from those areas. Many of 
these types of conservation actions in this area of Maui are carried 
out as part of Ulupalakua Ranch's participation with our Partners for 
Fish and Wildlife and other landowner incentive-based programs, and by 
actions taken on the landowner's initiative in areas outside the 
partnership area. These activities, which are described in more detail 
below, require substantial voluntary cooperation by Ulupalakua Ranch.
    The following analysis describes the likely conservation benefits 
of a critical habitat designation compared to the conservation benefits 
without critical habitat designation. We paid particular attention to 
the following issues: Whether critical habitat designation would confer 
regulatory conservation benefits on this species; whether the 
designation would educate members of the public such that conservation 
efforts would be enhanced; and whether a critical habitat designation 
would have a positive, neutral, or negative impact on voluntary 
conservation efforts on this privately owned land.
    If excluding an area from a critical habitat designation will 
provide substantial conservation benefits, and at the same time 
including the area fails to confer a counter-balancing benefit to the 
species, then the benefits of excluding the area from critical habitat 
outweigh the benefits of including it. The results of this type of 
evaluation will vary significantly depending on the landowners, 
geographic areas, and species involved.

(1) Benefits of Inclusion

    Critical habitat was proposed for Blackburn's sphinx moth on 3,533 
ha (8,730 ac) in the Ulupalakua Ranch portion of proposed Unit 1. The 
primary direct benefit of inclusion of this portion of proposed Unit 1 
as final critical habitat would result from the requirement under 
section 7 of the Act that Federal agencies consult with us to ensure 
that any proposed Federal actions do not destroy or adversely modify 
critical habitat. Without critical habitat, some site-specific projects 
might not trigger consultation requirements under the Act in areas 
where species are not currently present. In contrast, Federal actions 
in areas occupied by listed species would still require consultation 
under section 7 of the Act. The portion of Unit 1 being excluded is 
occupied by the moth, and thus would be subject to consultation anyway. 
See e.g., 50 CFR section 402.12 (biological assessments are based on a 
list of species present in the action area).
    Historically, we have conducted no formal or informal consultations 
under section 7 on Maui for Blackburn's sphinx moth. We have conducted 
only two informal intraservice consultations regarding Ulupalakua 
Ranch, and these have been on the effects of fencing and outplanting of 
certain endangered plants including Alectryon Micrococcus var. 
auwahiensis and Zanthoxylum hawaiiense within the Puu Makua Partnership 
Project area and the Auwahi Partnership Project area (see discussion 
below). Current and likely future economic activities on the ranch 
include cattle grazing, diversified agriculture such as strawberry and 
papaya production, eco-tourism, wild fowl hunting, and lease of lands 
for cellular phone and radio transmission towers. The most likely 
future Federal involvement on these lands includes the development of 
voluntary conservation agreements between the ranch and Federal 
agencies such as the Service and NRCS. Additionally, it is possible the 
ranch may apply for and receive Farm Service loans for land improvement 
projects pertaining to agricultural needs or to enhance habitat for 
wild fowl.
    As a result of the low level of previous Federal activity on 
Ulupalakua Ranch, and after considering the likely future Federal 
activities in this area, it is our opinion that there is likely to be a 
low number of future Federal activities that would affect designated 
Blackburn's sphinx moth critical habitat on Ulupalakua Ranch. Even if a 
Federal action is proposed in the future, it would likely be subject to 
section 7 consultation because of the presence of the moth. The Final 
Economic Analysis (FEA) prepared for this rule does discuss the 
possibility that a re-zoning of some lands from agricultural status to 
conservation status could occur which might limit certain agricultural 
activities. However, the FEA concedes that the possibility of re-zoning 
of agricultural lands is low or unlikely. Furthermore, there are 
different levels of conservation district land use categories, and in 
the event of a potential re-zoning, activities such as grazing would 
likely continue. Therefore, we anticipate little direct regulatory 
benefits from including Ulupalakua Ranch lands in critical habitat.
    Another possible benefit if including these lands is that the 
designation of critical habitat can serve to educate landowners and the 
public regarding the potential conservation value of an area. This may 
focus and contribute to conservation efforts by other parties by 
clearly delineating areas of high conservation value for certain 
species. Any information about the moth species for which critical 
habitat was proposed in Unit 1 that reaches a wide audience, including 
other parties engaged in conservation activities, would be considered 
valuable.
    However, we believe we have achieved the same educational benefits 
through ongoing conservation activities

[[Page 34746]]

and the critical habitat designation process. The portion of proposed 
Unit 1 that lies within Ulupalakua Ranch has been identified as 
essential to the conservation of the Blackburn's sphinx moth and has 
been addressed in this rule. In addition, the existing conservation 
activities being conducted within proposed Unit 1, as well as within 
other areas of Ulupalakua Ranch, by the Service and other Federal 
agencies (e.g., NRCS), the State, and private organizations (e.g., 
Ducks Unlimited, Incorporated (DU)) demonstrates that the landowner and 
the public is already aware of the importance of this area for the 
conservation of Blackburn's sphinx moth.
    In summary, we believe that a critical habitat designation for 
Blackburn's sphinx moth on Ulupalakua Ranch lands would provide a 
relatively low level of additional regulatory conservation benefits to 
the species. Any regulatory conservation benefits would accrue through 
the benefit associated with section 7 consultation. Based on a review 
of past consultations and consideration of the likely future activities 
in this area, there is little Federal activity expected to occur on 
this privately owned land that would trigger section 7 consultation. We 
also believe that a final critical habitat designation provides little 
additional educational benefits since the conservation value is already 
known by the landowner, the State, Federal agencies, and private 
organizations, and the area has been identified as essential to the 
conservation of Blackburn's sphinx moth. Both the additional regulatory 
conservation benefits to the species and the additional educational 
benefits appear marginal when considering the past and likely future 
conservation partnership opportunities with this landowner. Through 
cooperative and creative land restoration activities which have 
occurred on the ranch and are likely to continue to occur, a 
significant amount of land (hundreds of acres or more) can and will 
likely be restored for the long-term conservation of the moth, its host 
plant species, and other native Hawaiian ecosystem components. No such 
future conservation partnerships with this landowner are likely to 
occur if the proposed portions of the ranch are designated as outlined 
by the landowner within several letters.

(2) Benefits of Exclusion

    Proactive voluntary conservation efforts on private lands are 
necessary to prevent the extinction and promote the conservation of 
this species on Maui and other Hawaiian islands (Wilcove and Chen 1998; 
Wilcove et al. 1998; Shogren et al. 1999). This is especially important 
in areas where species or their essential habitat components, i.e., 
host plants, have been extirpated and their recovery requires access 
and permission for reintroduction or restoration efforts. For example, 
the Blackburn's sphinx moth's larval stage host plant species, 
Nothocestrum latifolium, associated with proposed Unit 1, are in 
decline on Ulupalakua Ranch lands, and natural repopulation is likely 
not possible without human assistance and landowner cooperation.
    Ulupalakua Ranch is involved in several important voluntary 
conservation agreements, and is currently carrying out some of these 
activities for the conservation of the moth and its essential habitat 
components. For example, the Partners for Fish and Wildlife Auwahi and 
Puu Makua agreements were entered into in 1997 and 1998 with the stated 
purpose of protecting and restoring dryland forest, including 
construction of exclosure fences, a greenhouse, access road, and 
propagation and outplanting of native plants. Preservation of these 
areas conserves critically endangered species of plants and animals in 
one of Hawaii's most degraded ecosystem types, the lowland dry forest. 
This management strategy is consistent with recovery of the Blackburn's 
sphinx moth. The Auwahi agreement is between Ulupalakua Ranch, USGS-
BRD, and the Service. We provided funding ($64,388) for fence 
materials, plant propagation and outplanting, and weed control, 
Ulupalakua Ranch provided labor and materials valued at $18,000, and 
USGS-BRD provided materials and technical assistance as well as staff 
and volunteer labor. In the 4 ha (10 ac) Auwahi project area, 
Ulupalakua Ranch has built the exclosure fence, outplanted native 
plants grown in the greenhouse including Nothocestrum latifolium, 
removed the majority of non-native alien species within the fence, and 
removed all ungulates. We provided $31,675, through an agreement with 
Ulupalakua Ranch, for restoration work at Puu Makua. Ulupalakua Ranch 
has provided in-kind labor and materials valued at $37,055 to construct 
a fence around the 40 ha (100 ac) exclosure, removal of ungulates, 
control of nonnative plants and out-planting of native plants. The 
first two tasks have been completed, with weed control and out-planting 
ongoing.
    A third voluntary partnership project undertaken in cooperation 
with the landowner is the Auwahi II Dryforest Restoration Project. We 
provided $76,500 (matched by in-kind services valued at $52,000) for 
this 8 ha (20 ac) restoration effort adjacent to the Auwahi I project. 
This project is ongoing, and will employ the same methods used at 
Auwahi I: Construct ungulate exclosure fence, remove ungulates, control 
nonnative plants, and outplant native species, including listed 
species.
    Ulupalakua Ranch entered a partnership with Ducks Unlimited (DU), a 
private conservation organization, and the NRCS's Wetland Reserve 
Program (WRP) in 2000, to create wetland complexes suitable for the 
Hawaiian goose, nene (Branta sandvicensis) and Hawaiian duck, koloa 
(Anas wyvilliana). The NRCS WRP provided $100,000 for funding and 
technical support to develop the wetland complex, DU provided funds and 
provided full survey, design, construction management and completion of 
wetland development practices, and Ulupalakua Ranch provided fencing, 
equipment, labor or other in-kind serves as required to match the WRP 
funds. DU also conducted waterfowl monitoring at the four ponds for 1 
full year after pond construction. In 2001, a 14 ha (35 ac) area was 
fenced and encompassed the four constructed ponds and associated upland 
habitat at a 1,585 m (5,200 ft) elevation site. The ponds were created 
to attract nene and koloa pairs to forage and nest within the protected 
pond/wetland area, which totals approximately 0.4 ha (1 ac) of surface 
water, with 0.9-1.8 m (3-6 ft) depths filled and maintained by natural 
hydrology and rainfall.
    In addition to the projects described above, to address the 
conservation needs of the species in a larger area, Ulupalakua Ranch 
has expanded their Partners for Fish and Wildlife projects with the 
Service and in cooperation with the State NAR program for conserving 
additional areas, which include the following important voluntary 
actions by Ulupalakua Ranch:
    (1) Construction of exclosure fencing around a portion of 
Ulupalakua Ranch and the Ka naio NAR (a portion of proposed Unit 1 
(approximately 283 ha (700 ac)) with $50,000 provided us, matched by 
in-kind services (e.g., labor and materials) valued at $50,000;
    (2) Active management of feral ungulates that are negatively 
affecting listed plants within the fenced areas;
    (3) Active management of nonnative grasses and other fire hazards, 
and development of fire control measures; and
    (4) Nursery propagation and planting of native flora, including 
Nothocestrum latifolium, within the fenced areas.

[[Page 34747]]

Currently, this is the only large-scale planned nursery production of 
the moth's native larval host plants in the State.
    We believe that Blackburn's sphinx moth habitat and host plant 
populations originally included within the Ulupalakua Ranch portion of 
proposed Unit 1 will benefit substantially from these management 
actions. Specifically, the planned and current conservation actions on 
324 ha (800 ac) or approximately 10 percent of the area originally 
proposed on ranch lands should directly benefit the moth and its host 
plants. These benefits include a reduction in ungulate browsing and 
habitat conversion, a reduction in competition with nonnative weeds, a 
reduction in risk of fire, and the potential for reintroduction of moth 
host plants currently extirpated from various areas. Also, these 
benefits include what is current or currently planned only, additional 
benefits could be derived from projects not yet conceived.
    On Maui, simply preventing ``harmful activities'' will not slow the 
extinction of listed species. Where consistent with the discretion 
provided by the Act, we believe it is necessary to provide positive 
incentives to private landowners to voluntarily conserve natural 
resources. The FEA for this rule concluded that the likelihood of any 
particular parcel being rezoned as conservation district was low. 
However, the potential costs of such a rezoning should it occur, could 
entail additional costs to a landowner. For example, a landowner could 
be expected to spend $50,000 to contest a rezoning, and a conservation 
district use application (CDUA) might cost as much as $100,000. 
However, the FEA also conceded that some economic activities such as 
grazing would likely be permitted to continue even with a conservation 
district rezoning. Although the FEA concludes that the potential 
effects of rezoning are anticipated to be low, this landowner and other 
commenters nevertheless believe there is a risk that the critical 
habitat designation will result in the rezoning of lands, a decrease in 
the Ulupalakua Ranch's ability to remain economically competitive, and 
an increased risk of third-party litigation. The landowner has 
expressed concern over these potential negative impacts and has stated 
in several letters that they would cease all voluntary conservation 
activities on ranch property. We believe the ranch's cooperation on all 
current and planned future conservation projects on ranch property are 
necessary to conserve the moth. Current conservation projects alone 
will result in the direct restoration and conservation of approximately 
10 percent of the ranch's property proposed for designation.
    As described earlier, Ulupalakua Ranch has a history of entering 
into conservation agreements with various Federal and State agencies 
and private organizations on biologically important portions of their 
lands. These arrangements have taken a variety of forms. They include 
partnership commitments such as the Puu Makua and the two Auwahi 
Dryland Forest Restoration Partners for Fish and Wildlife projects (in 
cooperation with USGS-BRD and funded through Partners for Fish and 
Wildlife), wetland restoration/creation (in cooperation with NRCS and 
DU), and the Ka naio Dry Forest Restoration Project (in cooperation 
with DOFAW and funded through Partners for Fish and Wildlife and 
section 6 of the Act).
    Approximately 80 percent of imperiled species in the United States 
occur partly or solely on private lands where we have little management 
authority (Wilcove et al. 1996). In addition, recovery actions 
involving the reintroduction of listed species onto private lands 
require the voluntary cooperation of the landowner (Knight 1999; Main 
et al. 1999; Shogren et al. 1999; Norton 2000; Bean 2002; James 2002). 
Therefore, ``a successful recovery program is highly dependent on 
developing working partnerships with a wide variety of entities, and 
the voluntary cooperation of thousands of non-Federal landowners and 
others is essential to accomplishing recovery for listed species'' 
(Crouse et al. 2002). Because the Federal government owns relatively 
little land in the State of Hawaii, and because large tracts of land 
suitable for conservation of threatened and endangered species are 
owned by private landowners, successful recovery of the Blackburn's 
sphinx moth and other listed species in Hawaii is especially dependent 
upon working partnerships and the voluntary cooperation of non-Federal 
landowners. Thus, we believe it is essential for the conservation of 
Blackburn's sphinx moth to build on continued conservation activities 
such as these with a proven partner.

(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion

    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding the Ulupalakua Ranch portion of proposed 
Unit 1 as critical habitat outweigh the benefits of including it as 
critical habitat for Blackburn's sphinx moth. This conclusion is based 
on the following analysis:
    (1) Benefits of inclusion: There will be little Federal regulatory 
benefit to the moth as a result of including ranch property in the 
designation because, as described in the FEA and in this rule, there is 
a low likelihood that this critical habitat unit will be negatively 
affected to any significant degree by Federal activities requiring 
section 7 consultation. The designation of critical habitat can serve 
to educate the general public, as well as conservation organizations 
regarding the potential conservation value of an area. However, this 
goal has already been effectively accomplished through the 
identification of this area in the management agreements described 
above. Lastly, even if any given ranch parcel were re-zoned as 
conservation district as a result of the designation, the FEA concluded 
that grazing activities would likely continue. Given the current 
Partners for Fish and Wildlife agreements between ourselves and the 
landowner, we believe the overall regulatory and educational benefits 
of including the Ulupalakua Ranch lands portion of proposed Unit 1 as 
critical habitat are relatively small.
    (2) Benefits of exclusion: Excluding Ulupalukua Ranch property from 
the designation will result in the elimination of uncertainty about 
decreased land values and potential third party litigation. Potential 
costs to the landowner resulting from the need to investigate the 
effect of designation or to contest potential conservation rezoning, 
for example, will be eliminated. Lastly, and perhaps, most important 
for the conservation of the moth, excluding the properties from 
designation will ensure the landowner's continued voluntary 
participation in proactive conservation agreements and partnerships as 
the landowner has stated in several letters to the Service.
    (3) In the past, Ulupalakua Ranch has cooperated with us, the 
State, and other organizations to implement voluntary conservation 
activities on their lands that have resulted in tangible conservation 
benefits. The ranch has a long history of participation in conservation 
projects beginning in the 1960s through the present. A substantial 
amount (approximately 10 percent) of the Ulupalakua Ranch portion of 
proposed Unit 1 is currently being managed by the landowner on a 
voluntary basis to achieve important conservation goals and which 
directly benefits numerous native Hawaiian plant and animal species 
including the

[[Page 34748]]

moth. For example, the landowner is currently cooperating with the 
Service and the State to restore and actively manage approximately 324 
ha (800 ac) of high quality habitat for the moth and its host plants.
    Simple regulation of potential ``harmful activities'' is not 
sufficient to conserve the Blackburn's sphinx moth on private lands. 
Landowner cooperation and support will be required to prevent its 
extirpation in this area of Maui and promote the recovery of the moth's 
host plants in this area due to the need to implement proactive 
conservation actions such as ungulate management, weed control, fire 
suppression, and plant propagation and reintroduction. This need for 
landowner cooperation is especially important because the Ulupalakua 
portion of proposed Unit 1 is part of the habitat for what is 
considered a core or metapopulation of the moth. In fact, some portions 
of the ranch's property currently being fenced and actively managed for 
restoration include some of the highest quality moth habitat remaining 
anywhere in the State. Future conservation efforts, such as maintaining 
and conserving Blackburn's sphinx moth host plant habitat in this area, 
will require the cooperation of Ulupalakua Ranch.
    In conclusion, we find that the designation of critical habitat in 
the Ulupalakua Ranch portion of proposed Unit 1 would most likely have 
a net negative conservation effect on the recovery and conservation of 
Blackburn's sphinx moth. As described above, the overall benefits to 
this moth of a critical habitat designation for this portion of Unit 1 
are relatively small. We conclude there is a greater likelihood of 
beneficial conservation activities occurring on this area of Maui 
without designated critical habitat than there would be with designated 
critical habitat in this location. We reached this conclusion because 
the landowner is more likely to continue and increase their ongoing 
voluntary conservation efforts for the moth and other listed species if 
their property is not designated as critical habitat. In fact, the 
landowner has stated in several letters to the Service that all 
voluntary conservation activities will cease if ranch property is 
designated. Therefore, it is our conclusion that the net benefits of 
excluding this portion of proposed Unit 1 from critical habitat for the 
Blackburn's sphinx moth outweigh the benefits of including it.

(4) Exclusion of This Unit Will Not Cause Extinction of the Species

    In considering whether or not exclusion of this portion of proposed 
Unit 1 might result in the extinction of Blackburn's sphinx moth, we 
considered the impacts to the species. It is our conclusion that the 
current partnership agreements developed by Ulupalakua Ranch and the 
Service will provide more net conservation benefits than would be 
provided by designating the portion of proposed Unit 1 as critical 
habitat. These agreements will provide tangible proactive conservation 
benefits that will result in the direct restoration and active 
management of 324 ha (800 ac) of habitat for the moth and its native 
host plants within proposed Unit 1. Specifically, the benefits will 
include the construction of exclosure fencing around a large portion of 
high quality moth habitat, active management of feral ungulates and 
nonnative grasses and weeds, development of fire control methods, and 
nursery propagation of the moth's host plants. These benefits will 
reduce the likelihood of the moth's extirpation in this area of Maui, 
reduce the likelihood of its extinction, and increase its likelihood of 
conservation overall. Extinction of the Blackburn's sphinx moth as a 
consequence of this exclusion is unlikely because there are no known 
threats in this portion of proposed Unit 1 due to any current or 
reasonably anticipated Federal actions that might be regulated under 
section 7 of the Act. Implementation of the partnership agreements 
between the landowner and the Service, and the exclusion of the portion 
of proposed Unit 1, have the highest likelihood of preventing 
extinction of this species and enhancing its conservation.
    In addition, critical habitat is being designated in other areas of 
Maui and on the islands of Hawaii, Kahoolawe, and Molokai for 
Blackburn's sphinx moth. These other designations identify conservation 
areas for the maintenance and expansion of existing populations.
    In summary, the above analysis indicates there is a much greater 
likelihood of the landowner undertaking conservation actions on Maui to 
prevent extinction, such as the outplanting of moth host plants to 
expand and establish additional populations, without the Ulupalakua 
Ranch portion of proposed Unit 1 being designated as critical habitat. 
Therefore, the exclusion of this portion of proposed Unit 1 will not 
cause extinction and should in fact improve the chances of conservation 
for Blackburn's sphinx moth.

Haleakala Ranch

    Most of the portion of proposed Units 1 and 2 on Haleakala Ranch 
lands is believed to be occupied habitat for Blackburn's sphinx moth.
    The following analysis describes the likely conservation benefits 
of a critical habitat designation compared to the conservation benefits 
without critical habitat designation. We paid particular attention to 
the following issues: Whether critical habitat designation would confer 
regulatory conservation benefits on this species; whether the 
designation would educate members of the public such that conservation 
efforts would be enhanced; and whether a critical habitat designation 
would have a positive, neutral, or negative impact on voluntary 
conservation efforts on this privately owned land.
    If a critical habitat designation reduces the likelihood that 
voluntary conservation activities will be carried out, and at the same 
time fails to confer a counter-balancing positive regulatory or 
educational benefit to the species, then the benefits of excluding such 
areas from critical habitat outweigh the benefits of including them. 
The results of this type of evaluation will vary significantly 
depending on the landowners, geographic areas, and species involved.

(1) Benefits of Inclusion

    On Haleakala Ranch property, critical habitat was proposed for 
Blackburn's sphinx moth on 393 ha (972 ac) for proposed Unit 1 and 791 
ha (1,955 ac) for proposed Unit 2. The primary direct benefit of 
inclusion of this portion of proposed Units 1 and 2 as final critical 
habitat would result from the requirement under section 7 of the Act 
that Federal agencies consult with us to ensure that any proposed 
Federal actions do not destroy or adversely modify critical habitat.
    Historically, there have been no formal consultations of informal 
consultations under section 7 involving Haleakala Ranch lands, except 
the consultation in the process of being completed for the Puu Pahu 
conservation project that we are funding in part.
    Current and likely future economic activities on the ranch include 
cattle grazing, diversified agriculture, eco-tourism, hunting, and 
lease of lands for cellular phone and radio transmission towers. Likely 
future Federal involvement includes the development of voluntary 
conservation agreements between the ranch and Federal agencies such as 
the Service and NRCS. Additionally, it is possible the ranch

[[Page 34749]]

may apply for and receive Farm Service loans for land improvement 
projects pertaining to agricultural needs or to enhance habitat for 
wild fowl.
    As a result of this low level of Federal activity on Haleakala 
Ranch, and after considering the likely future Federal activities in 
this area, it is our opinion that there is likely to be a low number of 
future Federal activities that would affect designated Blackburn's 
sphinx moth critical habitat on Haleakala Ranch. Even if a Federal 
action is proposed in the future, it would likely be subject to section 
7 consultation because of the presence of the moth. The FEA prepared 
for this rule does discuss the possibility that a rezoning of some 
lands from agricultural status to conservation status could occur which 
might limit certain agricultural activities. However, the FEA concedes 
that the possibility of rezoning of agricultural lands is low or 
unlikely. Furthermore, there are different levels of conservation 
district land use categories, and in the event of a potential rezoning, 
activities such as grazing would likely continue. Therefore, we 
anticipate little regulatory benefits from including Haleakala Ranch 
lands in critical habitat.
    Another possible benefit of including these lands is that the 
designation of critical habitat can serve to educate landowners and the 
public regarding the potential conservation value of an area. This may 
focus and contribute to conservation efforts by other parties by 
clearly delineating areas of high conservation value for certain 
species. This outcome would be important for the Blackburn's sphinx 
moth. Any information about the species and its habitat that reaches a 
wide audience, including other parties engaged in conservation 
activities, would be considered valuable.
    However, we believe we have achieved the same educational benefits 
through ongoing conservation actions and the critical habitat 
designation process. The portion of proposed Units 1 and 2 that lie 
within Haleakala Ranch has been identified as essential to the 
conservation of the Blackburn's sphinx moth. In addition, the existing 
conservation activities being conducted within proposed Units 1 and 2, 
as well as within other areas of Haleakala Ranch, by the Service and 
other Federal agencies (e.g., NRCS), the State, and private 
organizations (e.g., The Nature Conservancy (TNC)) demonstrates that 
the landowner and the public is already aware of the importance of 
these areas for the conservation of the moth.
    In summary, we believe that a critical habitat designation for 
Blackburn's sphinx moth on Haleakala Ranch lands would provide a 
relatively low level of additional regulatory conservation benefits to 
the species. Any regulatory conservation benefits would accrue through 
the benefit associated with section 7 consultation. Based on a review 
of past consultations and consideration of the likely future activities 
in this area, there is little Federal activity expected to occur on 
this privately owned land that would trigger section 7 consultation. In 
addition, we believe that the critical habitat proposal and final 
designation provides some conservation benefits by educating the public 
on the site-specific areas on Maui essential to the conservation of the 
Blackburn's sphinx moth. Both the additional regulatory conservation 
benefits to the species and the additional educational benefits appear 
marginal when considering the past and likely future conservation 
partnership opportunities with this landowner. Through cooperative and 
creative land restoration activities which have occurred and are likely 
to continue to occur on the ranch, a significant amount of land 
(hundreds of acres or more) can and will likely be restored for the 
long-term conservation of the moth, its host plant species, and other 
native Hawaiian ecosystem components. No such future conservation 
partnerships with this landowner are likely to occur if the proposed 
portions of the ranch are designated as outlined by the landowner 
within several letters.

(2) Benefits of Exclusion

    Proactive voluntary conservation efforts on private lands are 
necessary to prevent the extinction and promote the conservation of 
this species on Maui and other Hawaiian islands (Wilcove and Chen 1998; 
Wilcove et al. 1998; Shogren et al. 1999). This is especially important 
in areas where species or their essential habitat components, i.e., 
host plants, have been extirpated and their recovery requires access 
and permission for reintroduction or restoration efforts. For example, 
the Blackburn's sphinx moth's host plant species, associated with 
proposed Units 1 and 2 are either extirpated or in decline on Haleakala 
Ranch lands, and natural repopulation is likely not possible without 
human assistance and landowner cooperation.
    Haleakala Ranch is involved in several important voluntary 
conservation agreements, some of which benefit the moth. For example, 
in the mid-1980s, Haleakala Ranch Company sold to TNC a perpetual 
conservation easement that included over 19,000 ha (47,000 ac) 
(Waikamoi Preserve) in order to protect its native forest resources and 
watershed from damage caused by pigs and cattle. Haleakala Ranch 
Company has been working with the Central Maui Soil and Water 
Conservation District to address soil and resource issues. In 
cooperation with the NRCS Environmental Quality Incentives Program 
(EQIP), Haleakala Ranch Company has been implementing a weed control 
program that has been ongoing for over 80 years. Eight years ago, the 
Haleakala Ranch Company Directors created and filled a Land Steward 
position in order to shepherd conservation efforts of the ranch and 
update the conservation plans for all Haleakala Ranch lands.
    The Partners for Fish and Wildlife Puu Pahu agreement was begun in 
2001 with the stated purpose of protecting and restoring native 
subalpine dry shrubland including construction of a 6.9 kilometers (km) 
(4.3 miles (mi)) exclosure fence, and removal of ungulates within the 
area in order to allow the already semi-intact native vegetation to 
regenerate. Preservation of this area conserves critically endangered 
species of plants and animals in one of Hawaii's most restricted 
ecosystem types, subalpine dry shrubland. The agreement is between 
Haleakala Ranch, the Service, and NRCS. The Service and NRCS provided 
funding for fencing materials ($91,418 from us), and are providing 
technical assistance on the conservation of certain native plants and 
restoration of the subalpine dry shrubland, whereas Haleakala Ranch is 
building the fence and removing the ungulates (in-kind cost-share 
valued at $28,875). This work is to be completed by August 30, 2003. 
Haleakala Ranch has also been working with DOFAW for the past 2 years 
on an ungulate free reserve for native habitat regeneration in the 
Waiopae area. Haleakala Ranch is fencing the area for better grazing 
management from the forest to the shoreline. These actions will include 
riparian protection to improve habitat for native plants and watershed 
management. The area contains high quality habitat for both the moth's 
larval and adult stage host plants, and when completed, it would 
involve the conservation, restoration, and management of approximately 
445 ha (1,100 ac) of moth habitat.
    Through voluntary agreements with our Partners for Fish and 
Wildlife and the NRCS Wildlife Habitat Incentives Programs (WHIP), and 
in cooperation with the Native Hawaiian Plant Society, USGS-BRD and 
DOFAW, Haleakala Ranch is assisting with the fencing and exclusion of 
feral axis deer in the Puu

[[Page 34750]]

o Kali project area (part of proposed Unit 2) by granting access to the 
area. Furthermore, the success of this project, a high quality habitat 
area for the moth and its host plants, can be enhanced and facilitated 
by voluntary cooperation of Haleakala Ranch. Currently, the ranch is 
planning to implement similar fire control, weed, and ungulate 
management, and fence construction efforts on its properties adjacent 
and partly surrounding the Puu o Kali project area. Additionally, the 
ranch is fencing and excluding feral ungulates from a high elevation 
shrubland adjacent to Haleakala National Park, for conservation of 
endangered plants and animals and habitat protection purposes. 
Preservation of both these habitat areas conserves critically 
endangered species of plants and animals in two of Hawaii's most 
degraded ecosystem types. This management strategy is consistent with 
the conservation needs of Blackburn's sphinx moth and should directly 
benefit the moth's host plant habitat.
    In addition, Haleakala Ranch has informed us that they are 
currently devising additional management plans for conserving habitat, 
including that of the moth. These plans include the following important 
voluntary actions by Haleakala Ranch:
    (1) Construction of a 9 ha (22 ac) exclosure fence around Keokea 
Gulch in Kihei to reduce sedimentation on the shoreline and reef, and 
to reduce the fire hazard in the area by using R-1 (highest quality 
recycled water) water to irrigate a riparian buffer; exclosure fencing 
of a dryland lava flow in the Keokea area, in cooperation with the 
Service. Additionally, the ranch has begun planning with the Service 
and DOFAW to fence and restore a significant portion of the Waiopae 
area (within proposed Unit 1) for habitat protection of native forest 
and riparian areas. The project would involve the enclosure and 
management of approximately 445 ha (1,100 ac) of high quality moth 
habitat, or approximately 30 percent of the amount of Haleakala Ranch 
lands proposed for designation.
    (2) Control of feral ungulates that are negatively impacting listed 
and rare plants, including the Blackburn's sphinx moth's host plants, 
within all the currently fenced areas and planned project areas;
    (3) Control of nonnative grasses and other fire hazards, and 
development of fire control measures within many project areas 
including some occupied by the moth; and
    (4) Habitat protection for natural regeneration of native flora 
including Blackburn's sphinx moth host plants, within many of the 
fenced project areas.
    We believe that Blackburn's sphinx moth habitat included within the 
Haleakala Ranch portion of proposed Units 1 and 2 will benefit 
substantially from these management actions. Specifically, the planned 
and current conservation actions on approximately 445 ha (1,100 ac) or 
approximately 30 percent of the ranch property amount originally 
proposed should directly benefit the moth and its host plants. These 
benefits include a reduction in ungulate browsing and habitat 
conversion, a reduction in competition with nonnative weeds, a 
reduction in risk of fire, and the potential for reintroduction of moth 
host plants currently extirpated from various areas. Furthermore, these 
benefits include what is current or currently planned only, additional 
benefits could be derived from projects not yet conceived.
    On Maui, simply preventing ``harmful activities'' will not slow the 
extinction of listed species. Where consistent with the discretion 
provided by the Act, we believe it is necessary to provide incentives 
to private landowners to voluntarily conserve natural resources. The 
FEA for this rule concluded that the likelihood of any particular 
parcel being rezoned as conservation district was low. However, the 
potential costs of such a rezoning, should it occur, could entail 
additional costs to a landowner. For example, a landowner could be 
expected to spend $50,000 to contest a rezoning, and a CDUA might cost 
as much as $100,000. However, the FEA also conceded that some economic 
activities such as grazing would likely be permitted to continue even 
with a conservation district rezoning. Although the FEA concludes that 
the potential effects of rezoning are therefore anticipated to be low, 
this landowner and other commenters nevertheless believe there is a 
risk that the critical habitat designation will result in the rezoning 
of lands, a decrease in the Haleakala Ranch's ability to remain 
economically competitive and that there is an increased risk of third-
party litigation. The landowner has expressed concern over these 
potential negative impacts and has stated in several letters that they 
would cease all voluntary conservation activities on ranch property. We 
believe the ranch's cooperation on all current and planned future 
conservation projects on ranch property are necessary to conserve the 
moth. Current and planned conservation projects alone could result in 
the direct restoration and conservation of approximately 30 percent of 
the ranch property acreage amount proposed for designation.
    As described earlier, Haleakala Ranch has a history of entering 
into conservation agreements with various Federal and State agencies, 
and private organizations on important portions of their lands. These 
arrangements have taken a variety of forms. They include partnership 
commitments ranging from the Partners for Fish and Wildlife projects, 
and an agreement with DOFAW to fence areas in Waiopae, to weed control 
programs with NRCS WHIP, and a perpetual easement to TNC (Waikamoi 
Preserve).
    We believe it is essential for the conservation of Blackburn's 
sphinx moth to build on continued conservation activities such as these 
with a proven partner. Approximately 80 percent of imperiled species in 
the United States occur partly or solely on private lands where we have 
little management authority (Wilcove et al. 1996). In addition, 
recovery actions involving the reintroduction of listed species onto 
private lands require the voluntary cooperation of the landowner 
(Knight 1999; Main et al. 1999; Shogren et al. 1999; Norton 2000; Bean 
2002; James 2002). Therefore, ``a successful recovery program is highly 
dependent on developing working partnerships with a wide variety of 
entities, and the voluntary cooperation of thousands of non-Federal 
landowners and others is essential to accomplishing recovery for listed 
species'' (Crouse et al. 2002). Because the Federal government owns 
relatively little land in the State of Hawaii, and because large tracts 
of land suitable for conservation of threatened and endangered species 
are owned by private landowners, successful recovery of the Blackburn's 
sphinx moth and other listed species in Hawaii is especially dependent 
upon working partnerships and the voluntary cooperation of non-Federal 
landowners.

(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion

    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding the Haleakala Ranch portion of proposed 
Units 1 and 2 as critical habitat outweigh the benefits of including it 
as critical habitat for Blackburn's sphinx moth. This conclusion is 
based on the following analysis:
    (1) Benefits of inclusion: There will be little Federal regulatory 
benefit to the moth as a result of including ranch property in the 
designation because, as described in the FEA and in this rule,

[[Page 34751]]

there is a low likelihood that this critical habitat unit will be 
negatively affected to any significant degree by Federal activities 
requiring section 7 consultation. The designation of critical habitat 
can serve to educate the general public, as well as conservation 
organizations regarding the potential conservation value of an area. 
However, this goal has already been effectively accomplished through 
the identification of this area in the management agreements described 
above. Lastly, even if any given ranch parcel were re-zoned as 
conservation district as a result of the designation, the FEA concluded 
that grazing activities would likely continue. Given the current 
Partners for Fish and Wildlife agreements between ourselves and the 
landowner, we believe the overall regulatory and educational benefits 
of including the Haleakala Ranch lands portion of proposed Units 1 and 
2 as critical habitat are relatively small.
    (2) Benefits of exclusion: Excluding Haleakala Ranch property from 
the designation will result in the elimination of uncertainty about 
decreased land values and potential third party litigation. Potential 
costs to the landowner resulting from the need to investigate the 
effect of designation or to contest potential conservation rezoning, 
for example, will be eliminated. Lastly, and perhaps, most important 
for the conservation of the moth, excluding the properties from 
designation will ensure the landowner's continued voluntary 
participation in proactive conservation agreements and partnerships as 
the landowner has stated in several letters to the Service.
    (3) In the past, Haleakala Ranch has cooperated with us, the State, 
and other organizations to implement voluntary conservation activities 
on their lands that have resulted in tangible conservation benefits. 
Currently only a small percentage of the Haleakala Ranch portion of 
proposed Units 1 and 2 are being restored or managed for the moth. 
However, a substantial amount (approximately 30 percent) of the ranch's 
portion of proposed Units 1 and 2 is within the planning stage to be 
restored and managed by the landowner on a voluntary basis to achieve 
important conservation goals, and to directly benefit numerous native 
Hawaiian plant and animal species including the moth. For example, the 
landowner is currently planning with the Service and the State to 
restore and actively manage approximately 445 ha (1,100 ac) of high 
quality habitat for the moth and its host plants.
    Simple regulation of potential ``harmful activities'' is not 
sufficient to conserve the Blackburn's sphinx moth on private lands. 
Landowner cooperation and support will be required to prevent its 
extirpation in this area of Maui and promote the recovery of the moth's 
host plants in this area due to the need to implement proactive 
conservation actions such as ungulate management, weed control, fire 
suppression, and plant propagation and reintroduction. This need for 
landowner cooperation is especially important because the Haleakala 
Ranch portion of proposed Units 1 and 2 is part of the habitat for what 
is considered a core or metapopulation of the moth. Future conservation 
efforts, such as maintaining and conserving Blackburn's sphinx moth 
host plant habitat in this area, will require the cooperation of 
Haleakala Ranch.
    In conclusion, we find that the designation of critical habitat in 
the Haleakala Ranch portion of proposed Units 1 and 2 would most likely 
have a net negative conservation effect on the recovery and 
conservation of Blackburn's sphinx moth. As described above, the 
overall benefits to this moth of a critical habitat designation for 
this portion of Units 1 and 2 are relatively small. We conclude there 
is a greater likelihood of beneficial conservation activities occurring 
within this area of Maui without designated critical habitat than there 
would be with designated critical habitat in this location. We reached 
this conclusion because the landowner is more likely to continue and 
increase their ongoing voluntary conservation efforts for the moth and 
other listed species if their property is not designated as critical 
habitat. In fact, the landowner has stated in several letters to the 
Service that all voluntary conservation activities will cease if ranch 
property is designated. Therefore, it is our conclusion that the net 
benefits of excluding this portion of proposed Units 1 and 2 from 
critical habitat for the Blackburn's sphinx moth outweigh the benefits 
of including it.

(4) Exclusion of This Unit Will Not Cause Extinction of the Species

    In considering whether or not exclusion of this portion of proposed 
Units 1 and 2 might result in the extinction of Blackburn's sphinx 
moth, we considered the impacts to the species. It is our conclusion 
that the current partnership agreements developed and planned by 
Haleakala Ranch and the Service will provide more net conservation 
benefits than would be provided by designating the portion of proposed 
Units 1 and 2 as critical habitat. These agreements will provide 
tangible proactive conservation benefits that may result in the direct 
restoration and active management of 445 ha (1,100 ac) of habitat for 
the moth and its native host plants within proposed Units 1 and 2. 
Specifically, the benefits would include the construction of exclosure 
fencing around a large portion of high quality moth habitat, active 
management of feral ungulates and nonnative grasses and weeds, and 
development of fire control methods. These benefits will reduce the 
likelihood of the moth's extirpation in this area of Maui, reduce the 
likelihood of its extinction, and increase its likelihood of 
conservation overall. Extinction of the Blackburn's sphinx moth as a 
consequence of this exclusion is unlikely because there are no known 
threats in this portion of proposed Units 1 and 2 due to any current or 
reasonably anticipated Federal actions that might be regulated under 
section 7 of the Act. Implementation of the partnership agreements 
between the landowner and the Service, and the exclusion of the portion 
of proposed Units 1 and 2, have the highest likelihood of preventing 
extinction of this species and enhancing its conservation.
    In addition, critical habitat is being designated in other areas of 
Maui and on the islands of Hawaii, Kahoolawe, and Molokai for 
Blackburn's sphinx moth. These other designations identify conservation 
areas for the maintenance and expansion of existing populations.
    In summary, the above analysis indicates there is a much greater 
likelihood of the landowner undertaking conservation actions on Maui to 
prevent extinction, such as the restoration and management of moth host 
plant habitat, without the Haleakala Ranch portion of proposed Units 1 
and 2 being designated as critical habitat. Therefore, the exclusion of 
this portion of proposed Units 1 and 2 will not cause the species' 
extinction and should, in fact, improve the chances of conservation for 
Blackburn's sphinx moth.

Other Private Lands

    Approximately 567 acres of State and private land within two 
proposed critical habitat units (Units 5A and 5B) are excluded because 
the economic impacts of their inclusion outweigh the benefits provided 
by a designation of critical habitat. The economic analysis indicates 
that activities already planned for these two units, including the 
State VOLA master planned community with over 1,000 units of affordable 
housing, and the Kaloko Properties projects, could incur indirect costs 
ranging between $49.9 and $61.9 million. While

[[Page 34752]]

there is no certainty that any or all of these indirect costs would be 
incurred, these figures are illustrative of the order of magnitude of 
the indirect impacts that could occur from the designation.

(1) Benefits of Inclusion

    These areas proposed for development or other uses are proposed 
Units 5A and 5B. Proposed Unit 5A absent this exclusion would consist 
of 226 acres of State and private land. Proposed Unit 5B absent this 
exclusion would consist of 232 acres of State land. Both units are 
unoccupied by the moth.
    If these areas were designated as critical habitat, any Federal 
agency which proposed to approve, fund or undertake any action which 
might adversely modify the critical habitat would be required to 
consult with us. This is commonly referred to as a ``Federal nexus'' 
for requiring the consultation. Since the areas in question are not 
occupied by the plants, this consultation would not be required absent 
the critical habitat designation.
    The draft economic analysis and final addendum indicate no projects 
within the areas proposed for exclusion which have a Federal nexus, and 
thus there is no expectation that there would be any section 7 
consultations if these areas were designated as critical habitat for 
the moth.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved. These units have 
already been identified through the draft proposal and final 
designation. In addition, the State has included a preserve for listed 
plants within its VOLA development project, which will contribute to 
the long-term educational benefit of conserving the habitat of listed 
species.
    In summary, we believe that a critical habitat designation for the 
moth on these properties would provide relative low additional Federal 
regulatory benefits. There is no Federal activity which might trigger 
the section 7 consultation process for these species known or 
anticipated for the lands to be excluded. The additional educational 
benefits which might arise from critical habitat designation are 
largely accomplished through the notice and comments which accompanied 
the development of this regulation, and the proposed critical habitat 
is known to the landowners. In addition, the State is planning for a 
preserve for the listed plants within the VOLA development which will 
provide ongoing educational benefits regarding the habitat of listed 
species.

(2) Benefits of Exclusion

    There are two development projects currently planned within the 
pre-exclusion boundaries of proposed Units 5A and 5B which could suffer 
significant economic impacts due to indirect effects of the critical 
habitat designation.
    The Housing and Community Development Corporation of Hawaii has 
since 1990 had a master-planned community development project known as 
``Villages at Laiopua'' (VOLA), much of which is within the pre-
exclusion boundary of proposed Unit 5B. This includes a planned 570 
``affordable housing'' homes within the area proposed for designation. 
The State of Hawaii has already invested $30 million in infrastructure 
costs, including roads, utilities, a High School, planning and 
expanding the local waste-water treatment plant, and some of the 
project has been constructed.
    There are real but undeterminable possibilities that designation of 
these areas as critical habitat would lead to loss or significant 
restriction of the project through actions not under the control of the 
Federal government but resulting from the critical habitat designation. 
These include redistricting of land, rezoning and other regulatory 
approvals, and litigation related to both.
    Hawaii has statewide land classifications of Urban, Rural, 
Agricultural and Conservation, with restrictions on what type of 
activities can be conducted within the different classifications. The 
State Department of Land and Natural Resources commented on this 
proposal that they would be required to initiate rezoning of lands 
designated as critical habitat into the ``Conservation'' 
classification, which prohibits development.
    While there is a low probability that the State Land Use Commission 
would finally vote to redistrict the lands proposed for the VOLA 
project, that possibility exists. In addition, there could well be 
litigation designed to either force the Commission to act or to have a 
court make the decision.
    The VOLA project has already been troubled by litigation and 
defaulting developers; additional regulatory or legal uncertainties 
arising from this designation could well cause further delays or kill 
the project altogether. If this were to occur, the Housing and 
Community Development Corporation would lose the $30 million in sunk 
costs, and the affordable housing units that would have been 
constructed. Although the final addendum to the economic analysis 
assigns a cost to the loss of the affordable units of $2.7 million, 
there could well be considerable non-monetary social costs as well, 
particularly inasmuch as the available information indicates that there 
are no other affordable housing projects planned within the next 10 
years.
    The second project within the excluded areas is known as the Kaloko 
Properties/Kaloko Town Center. This project has been underway since 
1987, and covers 1,150 acres, of which 240, or 21%, is within the 
preexclusion boundary of the proposed units. The developers have 
already expended over $20 million for infrastructure improvements, 
engineering and related costs, which approximately $4.2 (by percentage 
allocation) is associated with the portion of the project within the 
proposed critical habitat. This project will need both redistricting 
from the State and rezoning from the county for portions of the land. 
The final addendum to the economic analysis finds there is a reasonably 
foreseeable chance that the designation of critical habitat would 
affect this development.
    In the worst-case scenario, the State or county might decide not to 
grant the discretionary approvals needed for the project--redistricting 
and rezoning--or might be prevented from doing so by litigation. This 
could lead to loss of the $4.2 million in sunk costs for the portion of 
the property within the proposed critical habitat, or of the entire $20 
million investment. In addition, there would be an estimated loss of 
future profits from the land proposed for inclusion within the critical 
habitat of between $40 to $80 million. Using a present value discount, 
the loss would range between $13 and $25 million.

(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion

    The VOLA project has already been troubled by litigation and 
defaulting developers; additional regulatory or legal uncertainties 
arising from this designation could well cause further delays or kill 
the project altogether. If this were to occur, the Housing and 
Community Development Corporation would lose the $30 million in sunk 
costs, and the affordable housing units that would have been 
constructed.
    Although the final addendum to the economic analysis assigns a cost 
to the loss of the affordable units of $2.7 million, there could well 
be considerable non-monetary social costs as well, particularly 
inasmuch as the

[[Page 34753]]

available information indicates that there are no other affordable 
housing projects planned within the next 10 years.
    We accordingly do not find that the benefits from the designation 
of critical habitat for lands within the VOLA project, as discussed 
above, exceed the benefits of avoiding the possible economic and social 
costs which could well arise from this designation.
    For the Kaloko Properties/Kaloko Town Center, there is also the 
real possibility that the designation of critical habitat could lead to 
loss of necessary regulatory approvals. This in turn could lead to loss 
of the $4.2 million in sunk costs for the portion of the property 
within the proposed critical habitat, or of the entire $20 million 
investment. In addition, there would be an estimated loss of future 
profits from the land proposed for inclusion within the critical 
habitat of between $40 to $80 million. Using a present value discount, 
this loss would range between $13 and $25 million. (There could also be 
the loss of all project revenues in the event the inability to utilize 
the lands within the critical habitat designation caused the failure of 
the entire project.)
    The possibility of significant economic impacts to this project, 
while not certain, clearly exist. As noted above, we cannot find 
offsetting benefits from the designation of critical habitat in these 
two units which exceed the benefits of avoiding these possible economic 
costs.
    There are two other factors of which we take note but upon which 
our decision does not rest. First, in June 2002, the State enacted 
legislation allowing State entities to enter into Safe Harbor 
agreements and Habitat Conservation Plans for three designated areas, 
including the VOLA project. There were previously specimens of the 
moth's larval host plant, which presumably could be reintroduced. There 
are also populations of the various plants on which adult moths feed. 
This area is thus a candidate for a Safe Harbor agreement. Absent the 
exclusion, it is highly unlikely the State would pursue these 
conservation options.
    Secondly, the developers of this project contacted us after the 
close of the comment period offering to undertake a number of actions 
designed to provide conservation benefits to the species. Specifically, 
the offer included: (1) To set aside 100 to 130 acres within the 
proposed Unit 13; (2) enter into good faith negotiations with the 
Federal, State or county entities for acquisition of the area; (3) 
agree to enter into a Safe Harbor agreement with us; and (4) to enter 
into a memorandum of understanding or cooperative agreement to address 
habitat protection, monitoring and management actions for the remainder 
of their property relating to Blackburn's sphinx moth and two species 
of endangered plants.
    Due to the court-ordered date by which this designation must be 
completed, we were unable to conclude such an agreement with the 
developers or to enter into a Safe Harbor agreement with the State 
prior to issuing this notice and regulation. However, if we had been, 
these are the types of agreements for which we have found in other 
cases that the benefits of the agreement exceed the benefits of 
designation and thus warrant exclusion (See previous discussions of 
exclusions under section 4(b)(2)).
    It has been our policy not to make exclusions under section 4(b)(2) 
based on offers of conservation agreements, and we are not doing so in 
either case here. However, we find it highly unlikely that either party 
would pursue them absent the exclusions, and note the ability to pursue 
the agreements as a secondary benefit of the exclusions. A decision by 
the developers to follow through on their offer and by the State to 
pursue a Safe Harbor agreement might well be in both their and the 
species best interest.

(4) Exclusion Will Not Cause Extinction of the Species

    In considering whether or not exclusion of this portion of the 
proposed critical habitat might result in the extinction of Blackburn's 
sphinx moth, we considered the impacts on the species. Given that the 
units in question are unoccupied, we find, based on all of the 
information available to us, that the projects proposed for the areas 
to be excluded will not adversely impact existing populations of the 
moth.
    The exclusions will provide an opportunity to pursue beneficial 
conservation agreements with the landowners, as noted above, that most 
likely would not exist without the exclusions.
    Critical habitat for the moth is also designated on Molokai, Maui, 
and Kahoolawe, and in other locations on the island of Hawaii.
    We accordingly find no basis for any conclusion that these 
exclusions would cause extinction of the species.

Critical Habitat Designation

    The critical habitat areas described below constitute our best 
assessment of the physical and biological features needed for the 
conservation of Blackburn's sphinx moth and the special management 
needs of this species, and are based on the best scientific and 
commercial information available. We publish this final rule 
acknowledging that we have incomplete information regarding many of the 
primary biological and physical requirements for this species. However, 
both the Act and the relevant court orders require us to proceed with 
designation at this time based on the best information available. As 
new information accrues, we may consider reevaluating the boundaries of 
areas that warrant critical habitat designation.

Descriptions of Critical Habitat Units

    The approximate areas of the designated critical habitat by 
landownership or jurisdiction are shown in Table 2.
    Critical habitat includes habitat for the Blackburn's sphinx moth 
on the islands of Hawaii, Kahoolawe, Maui, and Molokai. Lands 
designated as critical habitat have been divided into 9 units. A brief 
description of each unit is presented below.

Unit 1: Puu O Kali (Maui)

    Unit 1 consists of approximately 1,604 ha (3,965 ac) on State and 
private land, encompassing portions of the leeward slope of Haleakala 
and adjacent portions of the upper southeast isthmus. The unit is 
bounded on the north and the south by pasture lands, on the east by the 
lower slopes of Haleakala below the area of Kula, and on the west by 
the coastal town of Kihei. Natural features within the unit include 
widely spread, remnant dry forest communities, rugged aa lava flows, 
and numerous cindercones, including the highly visible Puu O Kali. 
Vegetation consists primarily of mixed-species mesic and dry forest 
communities composed of native and introduced plants (HHP 1993).
    Along with Units 2, 3, and 4, this unit contains what is probably 
the largest extant Blackburn's sphinx moth population or 
metapopulation. This unit is essential to the species' conservation 
because it is occupied and contains the native larval host plant 
Nothocestrum latifolium, and other nectar-supplying plants for adult 
moths. In addition to providing essential habitat for the Maui 
metapopulation, areas within this unit provide temporary (ephemeral) 
habitat for migrating Blackburn's sphinx moths.

Unit 2: Cape Kinau (Maui)

    Unit 2 consists of approximately 603 ha (1,490 ac) on State and 
private land, encompassing Cape Kinau and the entire Ahihi-Kinau NAR. 
The unit is

[[Page 34754]]

bounded on the north by Puu Naio, to the south by the ocean, to the 
east by La Perouse Bay, and on the west by Ahihi Bay. Natural features 
within the unit include widely spread, remnant dry forest communities, 
and numerous rugged aa lava flows. Vegetation consists primarily of 
mixed-species dry forest communities composed of native and introduced 
plants, with smaller amounts of dry coastal shrubland (HHP 1993).
    Along with Units 1, 3, and 4, this unit contains what is probably 
the largest extant Blackburn's sphinx moth population or 
metapopulation. This unit is essential to the species' conservation 
because it is occupied and contains the native larval host plant 
Nothocestrum latifolium, and other nectar-supplying plants for adult 
moths. In addition to providing essential habitat for the Maui 
metapopulation, areas within this unit provide ephemeral habitat for 
migrating Blackburn's sphinx moths.

Unit 3: Kanaio (Maui)

    Unit 3 consists of approximately 2,421 ha (5,982 ac) on State and 
private land, encompassing portions of the leeward slope of Haleakala 
and adjacent portions of the upper southeast isthmus. The unit is 
bounded on the north by pasture lands, to the south by ocean, to the 
east by the Kanaio NAR boundary and Puu Hokukano, and on the west by 
the Kanaio Homesteads and Cape Hanamanioa. Natural features within the 
unit include widely spread, remnant dry forest communities, rugged aa 
lava flows, and numerous cindercones including the highly visible Puu 
Pimoe. Vegetation consists primarily of mixed-species mesic and dry 
forest communities composed of native and introduced plants, with 
smaller amounts of dry coastal shrubland (HHP 1993).
    Along with Units 1, 2, and 4, this unit contains what is probably 
the largest extant Blackburn's sphinx moth population or 
metapopulation. This unit is essential to the species' conservation 
because it is occupied and contains the native larval host plant 
Nothocestrum latifolium, and other nectar-supplying plants for adult 
moths. In addition to providing essential habitat for the Maui 
metapopulation, areas within this unit provide ephemeral habitat for 
migrating Blackburn's sphinx moths.

Unit 4: Kahikinui (Maui)

    Unit 4 consists of approximately 4,799 ha (11,859 ac) on State and 
private land, encompassing portions of the leeward slope of Haleakala. 
The unit is bounded on the northeast by the 1,525 m (5,000 ft) 
elevation contour of Haleakala Volcano, to the south by the ocean, to 
the east by Poopoo Gulch, and on the west by Lualailua Hills. Natural 
features within the unit include widely spread, remnant dry forest 
communities, rocky coastline, numerous cindercones, and some of the 
most recent lava flows on Maui. Vegetation consists primarily of mixed-
species mesic and dry forest communities composed of native and 
introduced plants, with smaller amounts of dry coastal shrubland (HHP 
1993).
    Along with Units 1, 2, and 3, this unit contains what is probably 
the largest extant Blackburn's sphinx moth population or 
metapopulation. This unit is essential to the species' conservation 
because it is occupied and contains the native larval host plant 
Nothocestrum latifolium, and other nectar-supplying plants for adult 
moths. In addition to providing essential habitat for the Maui 
metapopulation, areas within this unit provide ephemeral habitat for 
migrating Blackburn's sphinx moths.

Unit 5: Kanaha Pond (Maui)

    Unit 5 consists of approximately 56 ha (139 ac) on State land, 
entirely comprised of the Kanaha Pond State Sanctuary on Maui. It is 
bounded on the south by the Kahului Airport, on the north by the ocean, 
on the east by coastline, and to the west by the town of Kahului. 
Natural features within the unit includes Kanaha Pond and remnant 
coastal dune communities. Vegetation consists primarily of mixed-
species, dry coastal shrub land communities composed of native and 
introduced plants, including nonnative larval host plants (HHP 2000).
    Although devoid of naturally occurring Nothocestrum spp., the unit 
is essential to the species' conservation because it contains adult 
Blackburn's sphinx moth primary constituent elements, and recent 
observations of both larvae and adults have been documented within the 
sanctuary. Although this unit is lower in elevation than areas 
currently containing Nothocestrum plants, the persistent occurrence of 
Blackburn's sphinx moth within the Kanaha Pond State Sanctuary and 
other nearby areas indicates this site provides habitat for this area's 
moth population, and plays an important role in the species' population 
dynamics. Based upon an understanding of this species and other moth 
species' flight capabilities and migrational needs, we believe that 
designation of this area contributes to the available matrix of 
undeveloped habitat necessary as refugia for Blackburn's sphinx moths 
migrating to other areas of existing suitable host plant habitat on 
Maui (A. Medeiros, pers. comm. 1998; S. Montgomery, pers. comm. 2001; 
McIntyre and Barrett 1992; Roderick and Gillespie 1997; Van Gelder and 
Conant 1998).

Unit 6: Kanaha Park (Maui)

    Unit 6 consists of approximately 25 ha (62 ac) of State land, 
entirely comprised of coastal land on Maui. It is bounded on the south 
by the Kahului Airport, on the north by the ocean, on the east by other 
coastal lands, and immediately to the west by the Kanaha Pond State 
Sanctuary. Natural features within the unit include remnant coastal 
dune communities. Vegetation consists primarily of mixed-species, dry 
coastal shrub land communities composed of native and introduced 
plants, including nonnative larval host plants (HHP 2000).
    We have no recent and verified Blackburn's sphinx moth observations 
within this unit. However, the unit is considered essential to the 
species' conservation because it is within the geographical area 
occupied by the species at the time of listing and contains the moth's 
adult stage primary constituent elements. Furthermore, recent 
observations of both larvae and adults have been documented within the 
adjacent Kanaha Pond State Sanctuary and in the nearby Kanaha-
Spreckelsville area. Although this unit is lower in elevation than 
areas currently containing Nothocestrum plants, the persistent 
occurrence of Blackburn's sphinx moth within the nearby Kanaha Pond 
State Sanctuary, and other nearby areas, indicates this site provides 
habitat for this area's moth population and plays an important role in 
the species' population dynamics. Based upon an understanding of this 
species and other moth species' flight capabilities and migrational 
needs, we believe that designation of this area contributes to the 
available matrix of undeveloped habitat necessary as refugia for adult 
Blackburn's sphinx moths migrating to other areas of existing suitable 
host plant habitat on Maui in order to forage or lay eggs (A. Medeiros, 
pers. comm. 1998; S. Montgomery, pers. comm. 2001; McIntyre and Barrett 
1992; Roderick and Gillespie 1997; Van Gelder and Conant 1998).

Unit 7: Upper Kahoolawe (Kahoolawe)

    Unit 7 consists of approximately 1,721 ha (4,252 ac) on State land, 
encompassing portions of the upper elevational contour of Kahoolawe, 
approximately above 305 m (1,000 ft) in elevation. Kahoolawe is located 
approximately 11 km (6.7 mi) south of

[[Page 34755]]

Maui and is approximately 11,655 ha (28,800 ac) in total land area. 
Natural features within the unit include the main caldera, Lua Makika, 
and Puu Moaulaiki. Vegetation within the unit consists primarily of 
mixed-species, mesic and dry grass and shrubland communities composed 
of primarily introduced plants and some native plant species (HHP 
2000).
    This unit contains a large Blackburn's sphinx moth population, 
which may or may not be part of the larger Maui populations. Adult host 
plants identified as primary constituent elements are numerous within 
this area. Because the unit is occupied, harbors adult native host 
plants, and is in close proximity to the large Maui moth population, 
this unit is essential for Blackburn's sphinx moth conservation and 
would improve dispersal and migration corridors and thus expand 
population recruitment potential (P. Higashino, pers. comm. 2001).

Unit 8: Puuwaawaa--Hualalai (Hawaii)

    Unit 8 consists of approximately 9,954 ha (24,597 ac) on State and 
private land, encompassing portions of the flows and northwest slopes 
of Hualalai volcano on the island of Hawaii. It is bounded on the south 
by the Kailua-Kona region and large expanses of barren lava flows, on 
the north by Parker Ranch and large expanses of nonnative grass lands, 
to the east by the upper slopes of Hualalai volcano, and to the west by 
lava flows and coastal land. Natural features within the unit include 
Puuwaawaa cindercone and significant stands of native dry forest 
including the adult Blackburn's sphinx moth's nectar food plants and 
large numbers of Nothocestrum breviflorum host plants (Perry 2001). 
Vegetation consists primarily of mixed-species mesic and dry forest 
communities composed of native and introduced plants, with smaller 
amounts of dry coastal shrubland (HHP 2000).
    This unit is essential to the species' conservation because 
frequent and persistent observations of both Blackburn's sphinx moth 
larvae and adults throughout this unit indicate that Unit 8 contains 
the largest population of Blackburn's sphinx moth on the island of 
Hawaii. In addition to providing habitat for this area's population, 
Unit 8 provides refugia for moths migrating to other areas of existing 
suitable host plant habitat. As previously discussed, given the large 
size and strong flight capabilities of the Blackburn's sphinx moth, 
support for moth population linkages requires habitat in large 
contiguous blocks or within a matrix of undeveloped habitat (A. 
Medeiros, pers. comm.1998; S. Montgomery, pers. comm. 2001; McIntyre 
and Barrett 1992; Roderick and Gillespie 1997; Van Gelder and Conant 
1998).

Unit 9: Kamoko Flats--Puukolekole (Molokai)

    Unit 9 consists of approximately 1,256 ha (3,105 ac) on State and 
private land, encompassing portions of the higher, yet drier portions 
of east Molokai. It is bounded on the north by wet forests, to the 
south by drier coastal land, to the east by rugged, dry gullies and 
valleys, and to the west by dry to mesic lowland forest. Natural 
features within the unit include numerous forested ridges and gullies. 
Vegetation consists primarily of mixed-species mesic and dry forest 
communities composed of native and introduced plants (HHP 2000).
    This unit is part of the historical range of the moth. Unit 9 is 
not known to currently contain a Blackburn's sphinx moth population, 
but it does contain native Nothocestrum host plants, including N. 
longifolium and N. latifolium (Wood 2001a), as well as adult native 
host plants. Because Unit 9 contains both larval and adult native host 
plants and is in close proximity to the large Maui population, it is 
essential for Blackburn's sphinx moth conservation. It would allow the 
species to expand into a former part of its historical range in very 
close proximity to its current range on the island of Maui. 
Furthermore, it may facilitate dispersal and provide a flight corridor 
for moths eventually migrating to the island of Oahu, which is also 
part of its historical range.
    Due to its proximity to the island of Maui where the current and 
presumed highest historical concentration of Blackburn's sphinx moth 
occurred, and because this unit contains currently and historically 
known dry and mesic habitats to support the larval and adult native 
host plants, scientists believe that the Blackburn's sphinx moth will 
re-establish itself on this unit over time (F. Howarth, pers. comm. 
2001). Furthermore, this unit lacks some of the serious potential 
threats to the moth, three ant, and one wasp species (see Table 1). 
Conserving and restoring Blackburn's sphinx moth populations in 
multiple locations decreases the likelihood that the effect of any 
single alien parasite or predator or the combined pressure of such 
species and other threats could result in the diminished vigor or 
extinction of the moth. Including this unit also reduces the 
possibility of the species' extinction from catastrophic events 
impacting the existing populations on other islands. Designating 
critical habitat within this area on Molokai is complementary to 
existing and planned management activities of the landowners. The 
critical habitat unit lies within a larger existing conservation area 
to be managed for watershed conservation and the conservation of 
endangered and rare species. The landowners, State and Federal resource 
agencies, and local citizens groups are involved with these planned 
natural resource management activities on Molokai.

Effects of Critical Habitat Designation

    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 of critical habitat occurs when a Federal action 
directly or indirectly alters critical habitat to the extent that 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 when 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, including the 
Service, 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 action agency in eliminating conflicts that may be caused by 
the proposed action. The conservation measures in a conference report 
are advisory. We may issue a formal conference report, if requested by 
the Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if the species was 
listed or critical habitat designated. We may adopt the formal 
conference report as the biological opinion when the species is listed 
or critical habitat designated, if no substantial new information or 
changes in the action alter the content

[[Page 34756]]

and conclusion(s) of the opinion (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 action agency must 
enter into consultation with us. Through this consultation, the action 
agency would ensure that the actions do not destroy or adversely modify 
critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including instances where critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement, or control has been retained or is 
authorized by law. Consequently, some Federal agencies may request 
reinitiation of consultation or conferencing with us on actions for 
which formal consultation has been completed.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, which are 
economically and technologically feasible, and which 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.
    Federal activities that may affect Blackburn's sphinx moth or its 
critical habitat will require consultation under section 7 of the Act. 
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 (Corps) 
under section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.), the 
Department of Housing and Urban Development, or a section 10(a)(1)(B) 
permit from us; or some other Federal action (funding or authorization 
from the Federal Highway Administration, Federal Aviation 
Administration (FAA), Federal Emergency Management Agency (FEMA), 
Environmental Protection Agency (EPA), or Department of Energy); 
regulation of airport improvement activities by the FAA; and 
construction of communication sites licensed by the Federal 
Communications Commission (FCC)) 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, authorized, or permitted do not require 
Section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate 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. We 
note that such activities may also jeopardize the continued existence 
of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly destroy or adversely modify 
critical habitat include, but are not limited to:
    (1) Overgrazing; maintenance of feral ungulates; clearing or 
cutting of native live trees and shrubs, whether by burning or 
mechanical, chemical, or other means (e.g., woodcutting, bulldozing, 
construction, road building, mining, herbicide application); 
introducing or enabling the spread of nonnative species; and taking 
actions that pose a risk of fire;
    (2) Recreational activities that appreciably degrade vegetation;
    (3) Introducing or encouraging the spread of nonnative plant 
species into critical habitat units; and
    (4) Importation of nonnative species for research, agriculture, and 
aquaculture, and the release of biological control agents that would 
have unanticipated effects on the listed species and the primary 
constituent elements of its habitat.
    If you have questions regarding whether specific activities will 
likely 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 
plants and animals, and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Branch of Endangered 
Species/Permits, 911 NE. 11th Ave., Portland, OR 97232-4181 (telephone 
503/231-2063; facsimile 503/231-6243).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget (OMB) has determined that this critical habitat designation 
is not a significant regulatory action. This rule will not have an 
annual economic effect of $100 million or more or adversely affect any 
economic sector, productivity, competition, jobs, the environment, or 
other units of government. This designation will not create 
inconsistencies with other agencies' actions or otherwise interfere 
with an action taken or planned by another agency. It will not 
materially affect entitlements, grants, user fees, loan programs, or 
the rights and obligations of their recipients. Finally, this 
designation will not raise novel legal or policy issues. Accordingly, 
OMB has not formally reviewed this final critical habitat designation.

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever a Federal agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entitiesm, i.e., small businesses, small 
organizations, and small governmental jurisdictions. However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that a rule will not have a significant economic impact 
on a substantial number of small entities.
    Based on the information in our economic analysis (DEA and 
Addendum), we are certifying that the critical habitat designation for 
Blackburn's sphinx moth will not have a significant effect on a 
substantial number of small entities because a substantial number of 
small entities are not affected by the designation.
    Small entities include small organizations, such as independent 
nonprofit organizations, and small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents, as well as small businesses. The RFA/SBREFA 
requires

[[Page 34757]]

that agencies use the Small Business Administration's definition of 
``small business'' that has been codified at 13 CFR 121.201. Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. The RFA/SBREFA defines ``small 
governmental jurisdiction'' as the government of a city, county, town, 
school district, or special district with a population of less than 
50,000. By this definition, neither Maui nor Hawaii County is a small 
governmental jurisdiction because both counties had populations 
exceeding 50,000 in 2000. Although certain State agencies, such as the 
DLNR, may be affected by this critical habitat designation, State 
governments are not considered small governments, for the purposes of 
the RFA. SBREFA further defines ``small organization'' as any not for 
profit enterprise that is independently owned and operated and is not 
dominant in its field.
    The RFA/SBREFA does not explicitly define either ``substantial 
number'' or ``significant economic impact.'' Consequently, to assess 
whether a ``substantial number'' of small entities is affected by this 
designation. This analysis considers the relative number of small 
entities likely to be impacted in an area. In addition, Federal courts 
and Congress have indicated that an RFA/SBREFA is properly limited to 
impacts to entities directly subject to the requirements of the 
regulation (Service 2002). Therefore, entities not directly regulated 
by the listing or critical habitat designation are not considered in 
this section of the analysis.
    The primary projects and activities that might be affected by the 
designation that could affect small entities include ranching 
operations and conservation projects. Our DEA found that the only small 
or potentially small entities that could be impacted by the listing of 
Blackburn's sphinx moth and critical habitat designation were: (1) Ka 
Ohana O Kahikinui on Maui (participation in residential loan program; 
conservation activities; development of water collection system); (2) 
one to two lending institutions on Maui (loans for Department of 
Hawaiian Home Lands residential development); and (3) one farmer or 
rancher on Maui, Molokai, or the island of Hawaii (participation in 
farm loan programs). The DEA concluded that these entities did not 
represent a substantial number of small entities in their respective 
fields or industries. Because estimated section 7 costs associated with 
possible lessee participation in the Housing and Urban Development loan 
insurance and guarantee program are no longer expected, the Addendum 
estimates that the one to two lending institutions on Maui would no 
longer be impacted by critical habitat designation, and no new small 
entities were identified as being potentially impacted. Thus, the 
Addendum concluded that the critical habitat designation would not have 
a significant economic impact on a substantial number of small entities 
in Hawaii.
    These conclusions are supported by the history of consultations on 
the Blackburn's sphinx moth. Since the species was listed in February 
2000, there have been no formal section 7 consultations and only five 
informal section 7 consultations concerning the species, specifically 
on the island of Kahoolawe and entirely involved the Department of the 
Navy. The Navy is not a small entity.
    Even where the requirements of section 7 might apply due to 
critical habitat, 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 under section 7--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.
    For these reasons, we are certifying that the designation of 
critical habitat for the Blackburn's sphinx moth will not have a 
significant economic impact on a substantial number of small entities. 
Therefore, a regulatory flexibility analysis is not required.

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

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation are described in 
the DEA and final addendum to the economic analysis. Based on the 
effects identified in these documents, we believe that this rule will 
not have an effect on the economy of $100 million or more, will not 
cause a major increase in costs or prices for consumers, and will not 
have 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 addendum to the economic analysis for a discussion of the effects 
of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 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 rule is 
a significant regulatory action under Executive Order 12866, it is not 
expected to significantly affect energy production supply and 
distribution facilities because no energy production, supply, and 
distribution facilities are included within designated critical 
habitat. Further, for the reasons described in the economic analysis, 
we do not believe the designation of critical habitat for Blackburn's 
sphinx moth on the islands of Hawaii, Kahoolawe, Maui, and Molokai will 
affect future energy production. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) For reasons described in the economic analysis, this rule will 
not produce a Federal mandate on State or local governments or the 
private sector of $100 million or greater in any year, that is, it is 
not a ``significantly regulatory action'' under the Unfunded Mandates 
Reform Act. The designation of critical habitat imposes no direct 
obligations on State or local governments.
    (b) This rule will not ``significantly or uniquely'' affect small 
governments so a Small Government Agency Plan is not required. Small 
governments will not be affected unless they propose an action 
requiring Federal funds, permits, or other authorizations. Any such 
activities will require that the Federal agency ensure that the action 
will not adversely modify or destroy designated critical habitat.

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 Blackburn's sphinx moth on

[[Page 34758]]

the islands of Hawaii, Kahoolawe, Maui, and Molokai 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, this final rule does not 
have significant federalism effects or impose substantial direct 
compliance costs on State and local governments. This designation 
requires Federal agencies to ensure that their actions do not adversely 
modify critical habitat; it does not impose direct obligations on State 
or local governments. A federalism assessment is not required. In 
keeping with Department of Interior policy, we requested information 
from appropriate State agencies in Hawaii. The economic analysis does 
address possible impacts to State programs (e.g. hunting, airport 
operations) that may receive Federal funding. However, it does not 
conclude that there will be substantial costs to those programs due to 
the designation of critical habitat.
    The designations may have some benefit to these governments, in 
that the areas essential to the conservation of the moth are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the survival of this species are specifically identified. 
While this definition and identification do not alter where and what 
federally sponsored activities may occur, they 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 have designated critical 
habitat in accordance with the provisions of the Endangered Species 
Act. The 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 Blackburn's sphinx moth.

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

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a valid OMB 
control number.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act. We published a notice outlining our reason for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244). This 
determination 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 recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands essential for the conservation of the 
Blackburn's sphinx moth. Therefore, designation of critical habitat for 
this species does not involve any Tribal lands.

References Cited

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

Authors

    The primary author of this final rule is Mike Richardson, 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 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we hereby amend part 17, subchapter B of chapter I, title 
50 of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

0
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.


0
2. Amend Sec.  17.11(h) by revising the entry for ``Moth, Blackburn's 
Sphinx'' under INSECTS in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed     habita       trules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
* * * * * * *
             Insects
 
* * * * * * *
Moth, Blackburn's sphinx.........  Manduca blackburni..  U.S.A. (HI)........  NA.................  E                       682     17.95(I)           NA
 
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95(i) by adding critical habitat for the Blackburn's 
sphinx moth (Manduca blackburni), 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.

* * * * *

[[Page 34759]]

    (i) Insects.
* * * * *
Blackburn's Sphinx Moth (Manduca blackburni)
    (1) Critical habitat units are depicted for the Hawaiian islands of 
Maui, Kahoolawe, Hawaii, and Molokai on the maps below.
    (2) The primary constituent elements of critical habitat for 
Blackburn's sphinx moth include specific habitat components identified 
as essential for the primary biological needs of foraging, sheltering, 
maturation, dispersal, breeding, and egg-laying.
    (i) Based on our current knowledge of the species, the primary 
constituent elements required by Blackburn's sphinx moth larvae for 
foraging and maturation are two larval host plant species in the 
endemic genus Nothocestrum (N. breviflorum and N. latifolium) and the 
habitats that support these plants, i.e., dry and mesic habitats 
between the elevations of sea level and 1,525 m (5,000 ft) that receive 
between 25 and 250 cm (10 and 100 in) of annual precipitation.
    (ii) Based on our current knowledge of the species, the primary 
constituent elements required by Blackburn's sphinx moth adults for 
foraging, sheltering, dispersal, breeding, and egg production are 
native nectar-supplying plants, including, but not limited to, Ipomoea 
spp., Capparis sandwichiana, and Plumbago zeylanica, and the habitats 
that support these plants, i.e., dry and mesic habitats between the 
elevations of sea level and 1,525 m (5,000 ft) that receive between 25 
and 250 cm (10 and 100 in) of annual precipitation.
    (3) Existing manmade features and structures within the boundaries 
of the mapped areas do not contain one or more of the primary 
constituent elements described for the species in paragraph (2) of this 
section, and therefore, are not included in the critical habitat 
designations. These features include, but are not limited to: 
buildings; roads; aqueducts and other water system features such as 
pumping stations, irrigation ditches, pipelines, siphons, tunnels, 
water tanks, gauging stations (section in a stream channel equipped 
with facilities for obtaining streamflow data), intakes, and wells; 
telecommunications towers and associated structures and equipment; 
electrical power transmission lines and associated rights-of-way; 
radars; telemetry antennas; missile launch sites; arboreta and gardens; 
heiau (indigenous places of worship or shrines); airports; other paved 
areas; lawns; and other rural residential landscaped areas.
    (4) Critical habitat units are described below. Coordinates are in 
UTM Zone 4 with units in meters using North American Datum of 1983 
(NAD83). The following index map shows the general locations of the 9 
critical habitat units designated on the islands of Hawaii, Kahoolawe, 
Maui, and Molokai.

    (i) Note: Map 1--State of Hawaii General Locations of Units for 
Blackburn's Sphinx Moth on Molokai, Maui, Kahoolawe, and Hawaii 
follows:

[GRAPHIC][TIFF OMITTED]TR10JN03.004


[[Page 34760]]


    (ii) Unit 1: Island of Maui, Puu O Kali (1,604 ha; 3,965 ac):
    (A) Unit 1 consists of the following 38 boundary points: Start at 
770230, 2293671; 769969, 2293640; 769876, 2293794; 769523, 2293779; 
769444, 2293784; 769146, 2293904; 769358, 2294451; 769492, 2294471; 
769569, 2294563; 770123, 2294379; 770384, 2294317; 770707, 2294517; 
770169, 2294794; 769629, 2295149; 769732, 2295410; 770032, 2295219; 
769985, 2295371; 770360, 2295328; 769892, 2295671; 770362, 2295705; 
770578, 2295954; 771492, 2296086; 772138, 2296102; 772522, 2296179; 
772876, 2295933; 773384, 2295733; 773324, 2296764; 775265, 2296040; 
775041, 2295484; 774484, 2295757; 774033, 2294844; 774654, 2294538; 
774448, 2294006; 774392, 2292779; 773825, 2291760; 772032, 2292639; 
770772, 2293255; 770524, 2293353; return to starting point.

    (B) Note: Unit 1 is depicted below on Map 2--Units 1, 2, 3, and 
4--Island of Maui.

    (iii) Unit 2: Island of Maui, Cape Kinau (603 ha; 1,490 ac):
    (A) Unit 2 consists of the following 36 boundary points: 769419, 
2281688; 769716, 2281856; 769854, 2281648; 769726, 2281351; 769548, 
2281173; 769433, 2280683; 769312, 2280406; 769251, 2280342; 769175, 
2280353; 769073, 2280442; 768954, 2280466; 768791, 2280406; 768658, 
2280329; 768621, 2280282; 768645, 2279874; 768737, 2279820; 767046, 
2281800; 767136, 2281768; 767208, 2281837; 767139, 2281940; 767151, 
2281994; 767136, 2282020; 767607, 2282308; 767710, 2282266; 767837, 
2282318; 767857, 2282291; 768160, 2282410; 769380, 2282944; 769746, 
2282588; 769429, 2282400; 769103, 2282123; 768598, 2281510; 768687, 
2281391; 768737, 2281399; 768836, 2281460. 768738, 2279820. Coast.

    (B) Note: Unit 2 is depicted below on Map 2--Units 1, 2, 3, and 
4--Island of Maui.

    (iv) Unit 3: Island of Maui, Kanaio (2,420 ha; 5,981 ac):
    (A) Unit 3 consists of the following 45 boundary points: 777366, 
2282219; 777421, 2281595; 777453, 2281235; 777531, 2280334; 777588, 
2279661; 777719, 2278166; 770402, 2278173; 770445, 2278268; 770936, 
2279194; 771208, 2279714; 771289, 2279691; 771211, 2279314; 771211, 
2278906; 771368, 2278922; 771525, 2279173; 771854, 2279424; 772011, 
2279707; 772231, 2279974; 772357, 2280335; 772451, 2280445; 772514, 
2280351; 772561, 2280068; 772687, 2279848; 772938, 2279801; 773221, 
2279817; 773425, 2280021; 773676, 2280335; 773676, 2280665; 773888, 
2280993; 773606, 2281355; 774253, 2281430; 774897, 2280433; 775340, 
2281119; 774662, 2281499; 775105, 2281701; 775435, 2282376; 775590, 
2284264; 776004, 2284678; 776020, 2285055; 776484, 2284998; 776553, 
2285169; 776691, 2285141; 776878, 2283402; 777021, 2282206; 777227, 
2278017. Coast.
    (B) Unit excludes an area (1 ha; 2 ac) consisting of the following 
6 boundary points: 771887, 2277914; 771944, 2277910; 771986, 2277995; 
771948, 2277989; 771909, 2277980; 771870, 2277975.

    (C) Note: Unit 3 is depicted below on Map 2--Units 1, 2, 3, and 
4--Island of Maui.

    (v) Unit 4: Island of Maui, Kahikinui (4,799 ha; 11,859 ac):
    (A) Unit 4 consists of the following 79 boundary points: 786068, 
2283893; 786089, 2283760; 782956, 2282353; 783312, 2282399; 784167, 
2282606; 784764, 2282682; 785521, 2282878; 786198, 2283068; 786227, 
2282882; 786706, 2282953; 786657, 2283206; 787388, 2283424; 787555, 
2283500; 788907, 2284087; 789388, 2283321; 789534, 2283053; 788185, 
2282559; 786399, 2281761; 785563, 2281400; 785715, 2281039; 786057, 
2280754; 786112, 2280548; 779950, 2278500; 779720, 2280135; 779703, 
2280237; 779617, 2280887; 779412, 2282307; 779402, 2282377; 779372, 
2282585; 779368, 2282602; 779376, 2282933; 779427, 2285142; 779549, 
2285133; 779550, 2285007; 780604, 2285092; 781898, 2285373; 781956, 
2285061; 781923, 2284848; 781966, 2284607; 781902, 2284320; 782032, 
2283672; 782491, 2282783; 782731, 2282340; 783230, 2282514; 783112, 
2282850; 782587, 2283565; 782996, 2283744; 783721, 2283912; 784941, 
2284106; 784823, 2284611; 785088, 2284724; 785012, 2285109; 784719, 
2285271; 784639, 2285526; 784482, 2285613; 784385, 2285910; 786498, 
2286367; 787288, 2286710; 787415, 2286765; 787506, 2286804; 787311, 
2286772; 782285, 2285909; 782162, 2286366; 781651, 2286291; 781569, 
2286457; 782827, 2286695; 786589, 2287817; 787091, 2287913; 787800, 
2286248; 787893, 2286297; 787957, 2285636; 788105, 2285388; 788261, 
2285257; 788481, 2284803; 788363, 2284742; 786517, 2283943; 786510, 
2283966; 786068, 2283893; 779965, 2278394. Coast.

    (B) Note: Unit 4 is depicted on Map 2--Units 1, 2, 3, and 4--
Island of Maui, which follows:


[[Page 34761]]


[GRAPHIC][TIFF OMITTED]TR10JN03.005

    (vi) Unit 5: Island of Maui, Kanaha Pond (56 ha; 139 ac):
    (A) Unit 5 consists of the following 35 boundary points: Start at 
764695, 2312624; 764849, 2312615; 765062, 2312636; 765174, 2312639; 
765226, 2312636; 765201, 2312573; 765221, 2312534; 765223, 2312502; 
765259, 2312452; 765291, 2312304; 765287, 2312260; 765291, 2312223; 
765281, 2312190; 765356, 2312144; 765352, 2312121; 765325, 2312090; 
765284, 2312093; 765213, 2312118; 765183, 2312109; 765157, 2312091; 
765106, 2312075; 765069, 2312044; 765036, 2312036; 764954, 2311971; 
764872, 2311927; 764845, 2311912; 764588, 2311880; 764530, 2311946; 
764474, 2311988; 764424, 2312038; 764390, 2312140; 764336, 2312293; 
764397, 2312539; 764542, 2312565; 764615, 2312613; return to starting 
point.

    (B) Note: Unit 5 is depicted below on Map 3--Units 5 and 6--
Island of Maui.
    (vii) Unit 6: Island of Maui, Kanaha Park (25 ha; 62 ac):
    (A) Unit 6 consists of the following 7 boundary points: 766783, 
2313583; 766781, 2313351; 766330, 2313141; 765776, 2312874; 765717, 
2312838; 765689, 2312823; 765557, 2313073. Coast.

    (B) Note: Unit 6 is depicted on Map 3--Units 5 and 6--Island of 
Maui, which follows:


[[Page 34762]]


[GRAPHIC][TIFF OMITTED]TR10JN03.006

(viii) Unit 7: Island of Kahoolawe, Upper Kahoolawe (1,721 ha; 4,252 
    ac):(A) Unit 7 consists of the following 39 boundary points: Start 
at 751848, 2276600; 751944, 2276801; 752021, 2277051; 752708, 2277402; 
752817, 2277444; 752922, 2277482; 753039, 2277468; 754266, 2276996; 
754390, 2276868; 754486, 2276715; 754758, 2275711; 754871, 2275319; 
754880, 2275141; 754868, 2275021; 754822, 2274844; 754523, 2273789; 
754438, 2273635; 754364, 2273546; 754213, 2273418; 753057, 2272446; 
752825, 2272362; 750995, 2272184; 750869, 2272206; 750787, 2272247; 
749069, 2273302; 749575, 2273659; 750287, 2273729; 750943, 2273970; 
751205, 2274403; 751431, 2274927; 751475, 2275037; 751531, 2275180; 
751447, 2275330; 751428, 2275366; 751291, 2275543; 751032, 2275938; 
751109, 2276062; 751570, 2276254; 751752, 2276408; return to starting 
point.

    (B) Note: Unit 7 is depicted on Map 4--Unit 7--Island of 
Kahoolawe, which follows:


[[Page 34763]]


[GRAPHIC][TIFF OMITTED]TR10JN03.007

    (ix) Unit 8: Island of Hawaii, Puuwaawaa--Hualalai (9,954 ha; 
24,598 ac):
    (A) Unit 8 consists of the following 449 boundary points: Start at 
193748, 2193379; 193979, 2193518; 194022, 2193428; 194091, 2193386; 
194109, 2193303; 194145, 2193281; 194185, 2193225; 194212, 2193188; 
194225, 2193213; 194201, 2193260; 194232, 2193325; 194227, 2193356; 
194266, 2193381; 194290, 2193366; 194306, 2193379; 194301, 2193431; 
194281, 2193478; 194292, 2193504; 194286, 2193538; 194291, 2193598; 
194328, 2193648; 194331, 2193666; 194320, 2193710; 194969, 2194077; 
195027, 2194069; 195065, 2194098; 195121, 2194107; 195172, 2194152; 
195231, 2194087; 195235, 2194013; 195256, 2193957; 195324, 2193909; 
195378, 2193840; 195441, 2193804; 195564, 2193455; 195558, 2193407; 
195590, 2193322; 195588, 2193245; 195641, 2193182; 195659, 2193134; 
195645, 2193064; 195682, 2192983; 195722, 2192963; 195793, 2192836; 
195838, 2192773; 195829, 2192664; 195844, 2192499; 195907, 2192445; 
196009, 2192213; 196079, 2192144; 196061, 2192063; 196077, 2191999; 
196121, 2191888; 196184, 2191891; 196196, 2191837; 196250, 2191837; 
196287, 2191749; 196280, 2191681; 196331, 2191672; 196361, 2191560; 
196379, 2191428; 196414, 2191446; 196473, 2191524; 196497, 2191624; 
196494, 2191708; 196593, 2191768; 196656, 2191837; 196644, 2191885; 
196593, 2192093; 196576, 2192195; 196596, 2192288; 196581, 2192409; 
196566, 2192451; 196506, 2192484; 196397, 2192655; 196367, 2192770; 
196427, 2192764; 196452, 2192703; 196581, 2192577; 196614, 2192547; 
196623, 2192577; 196605, 2192634; 196608, 2192685; 196679, 2192667; 
196749, 2192610; 196804, 2192476; 196831, 2192436; 196879, 2192403; 
196885, 2192466; 196815, 2192586; 196717, 2192687; 196614, 2192809; 
196241, 2193037; 196094, 2193227; 196003, 2193494; 195985, 2193759; 
196088, 2193858; 195949, 2194099; 195958, 2194379; 195865, 2194469; 
195811, 2194559; 196050, 2194687; 196076, 2194653; 196055, 2194610; 
196109, 2194511; 196184, 2194505; 196223, 2194361; 196256, 2194337; 
196322, 2194285; 196334, 2194171; 196370, 2194174; 196348, 2194291; 
196379, 2194331; 196367, 2194427; 196363, 2194508; 196372, 2194578; 
196427, 2194610; 196385, 2194670; 196314, 2194718; 196304, 2194841; 
196831, 2195161; 196944, 2195021; 196930, 2194959; 197092, 2194830; 
197104, 2194773; 197179, 2194752; 197273, 2194622; 197279, 2194550; 
197361, 2194467; 197477, 2194325; 197573, 2194252; 197613, 2194177; 
197654, 2194115; 197640, 2194033; 197654, 2193943; 197697, 2193753; 
197750, 2193692; 197778, 2193488; 197871, 2193374; 197922, 2193401; 
197995, 2193392; 198304, 2193109; 198362, 2193103; 198518, 2192944; 
198584, 2192854; 198620, 2192761; 198680, 2192715; 198716, 2192658; 
198731, 2192586; 198801, 2192589; 198879, 2192547; 198921, 2192493; 
199051, 2192352; 199101, 2192412; 199177, 2192324; 199171, 2192201; 
199246, 2192141; 199252, 2192243; 199294, 2192252; 199303, 2192291; 
199225, 2192348; 199243, 2192397; 199186, 2192439; 199156, 2192529; 
199084, 2192566; 199047, 2192643; 198948, 2192736; 198956, 2192786; 
198949, 2192835; 198931, 2192888; 198913, 2192924; 198819, 2192954; 
198760, 2192979; 198741, 2193028; 198777, 2193070; 198746, 2193098; 
198718, 2193126; 198730, 2193180; 198683, 2193290; 198609, 2193325; 
198679, 2193472; 198648, 2193542; 198669, 2193598; 198623, 2193633; 
198602, 2193685; 198553, 2193675; 198480, 2193748; 198442, 2193839; 
198494, 2193857; 198550, 2193860; 198819, 2193594; 198819, 2193514; 
198882, 2193479; 198872, 2193388; 198872, 2193252; 198861, 2193199; 
198844, 2193143; 198935, 2193063; 198981, 2193027; 199010, 2192968; 
199103,

[[Page 34764]]

2193492; 199103, 2193552; 199015, 2193608; 198931, 2193619; 198910, 
2193717; 198753, 2193867; 198735, 2193951; 198805, 2193972; 198889, 
2193941; 198942, 2193853; 199005, 2193794; 199050, 2193829; 199001, 
2193880; 199029, 2193930; 199092, 2193962; 199110, 2194004; 199025, 
2194133; 199012, 2194241; 198896, 2194308; 198861, 2194399; 198799, 
2194485; 198862, 2194479; 198938, 2194378; 199015, 2194329; 198987, 
2194392; 198934, 2194434; 198931, 2194472; 198798, 2194560; 198795, 
2194672; 198749, 2194749; 198623, 2194860; 198553, 2194937; 198550, 
2195004; 198637, 2195060; 198683, 2195074; 198746, 2195175; 198714, 
2195256; 198707, 2195340; 198588, 2195399; 198497, 2195417; 198402, 
2195429; 198344, 2195490; 198302, 2195511; 198274, 2195563; 198179, 
2195584; 198172, 2195658; 198127, 2195703; 198641, 2195878; 198662, 
2195829; 198714, 2195780; 198732, 2195665; 198809, 2195633; 198970, 
2195626; 199047, 2195549; 199075, 2195469; 199141, 2195427; 199087, 
2195235; 199101, 2195127; 199124, 2194955; 199208, 2194840; 199267, 
2194675; 199270, 2194567; 199260, 2194504; 199263, 2194437; 199310, 
2194460; 199347, 2194479; 199306, 2194541; 199326, 2194591; 199424, 
2194595; 199508, 2194525; 199522, 2194441; 199582, 2194392; 199598, 
2194329; 199643, 2194295; 199662, 2194406; 199599, 2194462; 199596, 
2194588; 199515, 2194853; 199368, 2195011; 199260, 2195319; 199312, 
2195434; 199235, 2195476; 199274, 2195696; 199169, 2195847; 199138, 
2195938; 199071, 2196039; 199663, 2196234; 199977, 2195921; 200985, 
2194989; 201320, 2194454; 201268, 2194305; 201289, 2194176; 201150, 
2193708; 201809, 2193212; 202487, 2192751; 202713, 2192557; 202794, 
2192559; 203007, 2192869; 203088, 2192979; 203136, 2192967; 203139, 
2192921; 203197, 2192911; 203224, 2192943; 203218, 2192991; 203264, 
2193014; 203275, 2193130; 203278, 2193165; 203253, 2193224; 203277, 
2193250; 203296, 2193248; 203321, 2193200; 203355, 2193261; 203340, 
2193353; 203398, 2193434; 203487, 2193372; 203534, 2193296; 203580, 
2193267; 203611, 2193247; 203631, 2193197; 203661, 2193126; 203650, 
2193032; 203644, 2192994; 203649, 2192943; 203665, 2192930; 203692, 
2192935; 203681, 2193005; 203695, 2193038; 203743, 2193045; 203751, 
2193024; 203738, 2192991; 203747, 2192970; 203800, 2192948; 203810, 
2192905; 203819, 2192867; 203833, 2192838; 203878, 2192830; 203916, 
2192790; 203944, 2192724; 203935, 2192680; 203951, 2192655; 203968, 
2192628; 203952, 2192587; 203978, 2192535; 203975, 2192477; 203992, 
2192466; 204025, 2192444; 204044, 2192404; 204086, 2192392; 204133, 
2192395; 204170, 2192417; 204186, 2192474; 204162, 2192528; 204130, 
2192602; 204129, 2192641; 204081, 2192714; 204046, 2192717; 204022, 
2192755; 204021, 2192835; 204057, 2192840; 204076, 2192827; 204105, 
2192829; 204151, 2192846; 204218, 2192835; 204283, 2192808; 204311, 
2192754; 204327, 2192655; 204350, 2192684; 204434, 2192709; 204459, 
2192700; 204478, 2192684; 204469, 2192614; 204482, 2192593; 204485, 
2192570; 204478, 2192547; 204485, 2192512; 204523, 2192529; 204540, 
2192511; 204553, 2192479; 204294, 2191977; 203325, 2189871; 203670, 
2189403; 203884, 2188867; 203876, 2188804; 204461, 2186966; 204241, 
2186814; 203491, 2186573; 202905, 2186615; 201914, 2186332; 201935, 
2186229; 201876, 2186192; 201969, 2186029; 201914, 2185947; 201962, 
2185871; 201921, 2185754; 201866, 2185830; 201776, 2185816; 201838, 
2185534; 201270, 2183971; 200424, 2183478; 194641, 2182859; 194391, 
2182952; 194378, 2183030; 194326, 2183157; 194456, 2183246; 194375, 
2183319; 194389, 2183392; 194641, 2183400; 195006, 2183522; 195441, 
2183574; 195719, 2183591; 196066, 2183591; 196362, 2183670; 196372, 
2183812; 195923, 2185051; 195805, 2185370; 195527, 2186175; 195324, 
2186794; 195333, 2187189; 195544, 2187388; 195515, 2187690; 195450, 
2187775; 193517, 2187814; 192035, 2187735; 191436, 2188145; 191395, 
2188201; 191330, 2188228; 191183, 2188413; 191053, 2188549; 192020, 
2188888; 192202, 2189030; 192137, 2189101; 192046, 2189432; 191945, 
2189652; 191926, 2189817; 192000, 2189918; 191994, 2190055; 192009, 
2190194; 191926, 2190322; 191954, 2190387; 191972, 2190616; 191961, 
2190800; 191953, 2190938; 191917, 2191094; 191981, 2191296; 191943, 
2191461; 191923, 2191548; 191871, 2191672; 191850, 2191864; 191834, 
2192269; return to starting point.
    (B) This unit excludes three areas:
    (1) Unit excludes an area (292 ha; 723 ac) consisting of the 
following 53 boundary points: Start at 194866, 2189663; 194567, 
2189462; 194355, 2189326; 194325, 2189306; 194187, 2189261; 193786, 
2189183; 193790, 2189211; 193677, 2189413; 193430, 2189605; 193325, 
2189528; 192941, 2190012; 192773, 2190361; 192668, 2190673; 192763, 
2190854; 192807, 2191149; 192721, 2191436; 192600, 2191671; 192527, 
2191928; 192513, 2192089; 192642, 2191999; 192658, 2191915; 192697, 
2191881; 192913, 2191886; 193004, 2191923; 193133, 2191855; 193180, 
2191784; 193280, 2191621; 193278, 2191563; 193175, 2191653; 193109, 
2191763; 193075, 2191789; 192949, 2191779; 192960, 2191622; 193028, 
2191556; 193012, 2191490; 193102, 2191393; 193291, 2191346; 193364, 
2191272; 193540, 2191230; 193782, 2191099; 193918, 2190994; 193958, 
2190933; 193989, 2190799; 193984, 2190718; 194048, 2190643; 194008, 
2190547; 194039, 2190466; 194149, 2190358; 194304, 2190298; 194449, 
2190177; 194695, 2189967; 194808, 2189833; 194848, 2189683; return to 
starting point.
    (2) Unit excludes an area (15 ha; 38 ac) consisting of the 
following 12 boundary points: Start at 202034, 2189562; 202141, 
2189566; 202153, 2189649; 202308, 2189645; 202298, 2189564; 202339, 
2189548; 202329, 2189219; 202193, 2189187; 202230, 2189088; 202042, 
2189024; 202020, 2189151; 202024, 2189554; return to starting point.
    (3) Unit excludes an area (11 ha; 28 ac) consisting of the 
following 23 boundary points: Start at 199447, 2195793; 199533, 
2195796; 199635, 2195736; 199639, 2195696; 199701, 2195643; 199708, 
2195591; 199713, 2195537; 199743, 2195499; 199737, 2195444; 199746, 
2195368; 199725, 2195312; 199732, 2195273; 199753, 2195207; 199772, 
2195162; 199732, 2195181; 199706, 2195245; 199646, 2195283; 199615, 
2195345; 199573, 2195368; 199509, 2195416; 199449, 2195478; 199437, 
2195611; 199430, 2195734; return to starting point.

    (C) Note: Unit 8 is depicted on Map 5-Unit 8--Island of Hawaii, 
which follows:


[[Page 34765]]


[GRAPHIC][TIFF OMITTED]TR10JN03.008

    (x) Unit 9: Island of Molokai, Kamoko Flats--Puukolekole (1,256 ha; 
3,105 ac):
    (A) Unit 9 consists of the following 170 boundary points: Start at 
713960, 2337883; 713787, 2337815; 713641, 2337737; 713587, 2337686; 
713542, 2337635; 713525, 2337608; 713514, 2337604; 713488, 2337574; 
713275, 2337497; 713260, 2337442; 713302, 2337415; 713444, 2337400; 
713651, 2337482; 713677, 2337507; 713828, 2337580; 713834, 2337585; 
713841, 2337587; 713989, 2337659; 714006, 2337664; 714030, 2337681; 
714036, 2337674; 714090, 2337691; 714150, 2337601; 714065, 2337490; 
714169, 2337531; 714182, 2337553; 714217, 2337500; 714313, 2337356; 
714267, 2337327; 713658, 2336950; 713641, 2336937; 713639, 2336938; 
713638, 2336937; 713592, 2336909; 713171, 2337020; 713128, 2337025; 
713101, 2337039; 712948, 2337083; 712768, 2337134; 712739, 2337127; 
712714, 2337150; 712707, 2337152; 712647, 2337156; 711929, 2337023; 
712115, 2336844; 712527, 2336930; 712811, 2336772; 712314, 2336653; 
712783, 2336203; 712700, 2336108; 712785, 2336093; 712927, 2336085; 
713147, 2336184; 713257, 2336224; 713265, 2336238; 712778, 2336365; 
712783, 2336372; 712923, 2336457; 713217, 2336633; 714333, 2337309; 
714341, 2337313; 715056, 2336242; 715073, 2336232; 716805, 2335668; 
717490, 2335146; 717565, 2335112; 718350, 2334490; 718276, 2333666; 
717554, 2332806; 717447, 2332851; 717080, 2333001; 716796, 2333195; 
715114, 2334345; 715139, 2334491; 715684, 2334688; 716000, 2334857; 
715980, 2334880; 715849, 2335177; 715914, 2335254; 715842, 2335306; 
715274, 2335635; 715213, 2335636; 715076, 2335749; 715046, 2335773; 
714377, 2335948; 714372, 2335938; 714373, 2335938; 714280, 2335711; 
714494, 2335653; 714617, 2335594; 714901, 2335519; 715544, 2335359; 
715547, 2335358; 715174, 2335053; 715005, 2334932; 714716, 2334982; 
714205, 2335078; 714040, 2335127; 714024, 2335088; 711244, 2336986; 
711354, 2337009; 711401, 2337037; 711322, 2337112; 711727, 2337380; 
711733, 2337403; 711948, 2337483; 712220, 2337776; 712433, 2338103; 
712602, 2338152; 712517, 2338265; 712284, 2338486; 711968, 2338683; 
711759, 2338845; 711681, 2338900; 711900, 2338941; 711710, 2339118; 
711642, 2339123; 711579, 2339096; 711465, 2339097; 711625, 2339356; 
711763, 2339365; 711777, 2339323; 711817, 2339308; 711969, 2339303; 
712089, 2339324; 712130, 2339297; 712272, 2339304; 712447, 2339115; 
712346, 2339007; 712231, 2338953; 712098, 2338911; 712002, 2338805; 
712132, 2338664; 712392, 2338783; 712579, 2338783; 712421, 2338675; 
712279, 2338579; 712353, 2338489; 712568, 2338528; 712635, 2338591; 
712780, 2338508; 712777, 2338472; 712895, 2338488; 713001, 2338534; 
713003, 2338502; 713072, 2338512; 713177, 2338629; 713424, 2338561; 
713452, 2338533; 712978, 2338207; 712867, 2337997; 712845, 2337873; 
713121, 2337952; 713150, 2337771; 713181, 2337784; 713184, 2337801; 
713189, 2337803; 713196, 2337826; 713191, 2337829; 713197, 2337831; 
713204, 2337853; 713303, 2337864; 713482, 2338023; 713503, 2338044; 
713520, 2338067; 713525, 2338081; 713557, 2338108; 713664, 2338205; 
713713, 2338254; 713731, 2338228; return to starting point.
    (B) This unit excludes two areas:
    (1) Unit excludes an area (2 ha; 4 ac) consisting of the following 
5 boundary

[[Page 34766]]

points: Start at 712804, 2337632; 712923, 2337724; 712990, 2337608; 
712917, 2337600; 712748, 2337553; return to starting point.
    (2) Unit excludes an area (5 ha; 13 ac) consisting of the following 
10 boundary points: Start at 712742, 2337968; 712839, 2337857; 712748, 
2337850; 712646, 2337870; 712632, 2337823; 712481, 2337590; 712425, 
2337550; 712313, 2337564; 712299, 2337574; 712360, 2337661; return to 
starting point.

    (C) Note: Unit 9 is depicted on Map 6-Unit 9-Island of Molokai, 
which follows:

[GRAPHIC][TIFF OMITTED]TR10JN03.009

* * * * *

    Dated: May 30, 2003.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-14144 Filed 6-9-03; 8:45 am]
BILLING CODE 4310-55-P