[Federal Register Volume 73, Number 152 (Wednesday, August 6, 2008)]
[Proposed Rules]
[Pages 45680-45689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16858]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2007-0024; 92220-1113-0000-C6]
RIN 1018-AU96


Endangered and Threatened Wildlife and Plants; Withdrawal of 
Proposed Reclassification of the Hawaiian Hawk or Io (Buteo solitarius) 
From Endangered to Threatened; Proposed Rule To Remove the Hawaiian 
Hawk From the Federal List of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Withdrawal of proposed rule; proposed rule.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as 
amended (Act), we, the U.S. Fish and Wildlife Service (Service), 
withdraw our 1993 proposed reclassification of the Hawaiian hawk or io 
(Buteo solitarius) from endangered to threatened, and propose to remove 
the Hawaiian hawk from the Federal List of Endangered and Threatened 
Wildlife (List). These actions are based on a thorough review of the 
best available scientific data, which indicates that range-wide 
population estimates have been stable for at least 20 years, and the 
species has recovered and is not likely to become an endangered species 
in the foreseeable future throughout all or a significant portion of 
its range. The proposed rule, if made final, would remove the Hawaiian 
hawk from the List, thereby removing all protections provided by the 
Act.

DATES: Comments on the proposed delisting rule must be received by 
October 6, 2008. Public hearing requests must be received by September 
22, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AU96; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, 
Pacific Islands Fish and Wildlife Office, P.O. Box 50088, Honolulu, HI 
96850; (telephone 808/792-9400). Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800/877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited

    Our intent is to use the best available commercial and scientific 
data as the foundation for all endangered and threatened species 
classification decisions. Comments or suggestions from the public, 
other concerned

[[Page 45681]]

governmental agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule to delist the Hawaiian 
hawk are hereby solicited. Comments particularly are sought concerning:
    (1) Data on any threats (or lack thereof) to the Hawaiian hawk;
    (2) Additional information concerning the range, distribution, and 
population size of the Hawaiian hawk, including the locations of any 
additional populations;
    (3) Current or planned activities in the areas occupied by the 
Hawaiian hawk and possible impacts of these activities on this species; 
and
    (4) Data on Hawaiian hawk population trends.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in addition to the required items 
specified in the previous paragraph, such as your street address, phone 
number, or e-mail address, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service Pacific Islands Fish and Wildlife Office, 300 Ala Moana 
Boulevard, Room 3-122, Honolulu, HI 96813 (808/792-9400).

Background

    The Hawaiian hawk or io (Buteo solitarius) is a small, broad-winged 
hawk endemic to the Hawaiian Islands, and is the only extant member of 
the family Accipitridae native to the Hawaiian Islands (Berger 1981, p. 
83; Olson and James 1982, p. 35). The Hawaiian hawk's breeding 
distribution is restricted to the island of Hawaii, but there have been 
at least eight observations of vagrant individuals on the islands of 
Kauai, Oahu, and Maui since 1778 (Banko 1980, pp. 1-9), and fossil 
remains have been found on the islands of Molokai (Olson and James 
1982, p. 35) and Kauai (Olson and James 1996, pp. 65-69; Burney et al. 
2001, pp. 628-629). The Hawaiian hawk occurs in light and dark color 
morphs, with intermediate plumages and much individual variation 
(Griffin 1985, p. 46). The light morph is dark brown above and white 
below, with brown flecks on the upper breast. The dark morph is dark 
brown above and below. The legs, feet, and cere (fleshy area between 
the eye and bill) are yellow in adults and bluish-green in juveniles 
(Griffin 1985, pp. 58-63).
    The Hawaiian hawk occurs over much of the island of Hawaii, from 
approximately 1,000 to 8,530 feet (ft) (300 to 2,600 meters (m)) above 
sea-level, and occupies a variety of habitat types, including native 
forest, secondary forest consisting primarily of non-native plant 
species, agricultural areas, and pastures (Banko 1980, pp. 2-9, 15-16; 
Scott et al. 1986, pp. 78-79; Hall et al. 1997, p. 14; Griffin et al. 
1998, p. 661; Klavitter 2000, pp. 2, 38, 42-45; Klavitter et al. 2003, 
pp. 169-170, 172, 173). It is adaptable and versatile in its feeding 
habits and preys on a variety of rodents, birds, and large insects 
(Munro 1944, p. 48; Griffin 1985, pp. 142-145, Appendix 5; Griffin et 
al. 1998, p. 659). Hawaiian hawks are monogamous and defend their 
territories year-round (Griffin 1985, pp. 119-121; Griffin et al. 1998, 
p. 660; Clarkson and Laniawe 2000, pp. 6-7; Klavitter 2006), although 
more aggressively during the breeding season (Klavitter 2006). Egg-
laying generally occurs from March to June, hatching from May to July, 
and fledging from July to September (Griffin 1985, p. 110; Griffin et 
al. 1998, p. 656). Clutch size is usually one egg (Griffin 1985, p. 76; 
Griffin et al. 1998, p. 657; Klavitter et al. 2003, p. 170), but there 
are records of two or three young per nest (Griffin 1985, pp. 75, 80, 
Appendix 1).
    The Hawaiian hawk was listed as endangered on March 11, 1967 (32 FR 
4001). At that time, the best available data indicated that the number 
of Hawaiian hawks was in the low hundreds (Berger 1981, p. 83) and that 
extensive destruction of native forests had reduced the quality of 
available habitat (USFWS 1984, pp. 10-11).
    The first detailed study of the ecology and life history of the 
Hawaiian hawk was conducted from 1980 to 1982, the results of which 
were described in a PhD dissertation (Griffin 1985) and in a 1998 
manuscript published in The Condor, an international peer-reviewed 
scientific journal (Griffin et al. 1998). During this study, 
researchers found no significant difference in nest success between 
habitats dominated by native versus non-native vegetation, with 10 of 
13 nests successful in native habitats (77 percent) versus 11 of 17 (65 
percent) in non-native habitats (Griffin 1985, pp. 102-103; Griffin et 
al. 1998, p. 658). They also found no evidence that the Hawaiian hawk's 
population was adversely affected by avian diseases, such as avian 
malaria or avian pox, nor was there evidence that it was affected by 
introduced mammalian predators, such as cats (Felis catus), rats 
(Rattus spp.), or mongoose (Herpestes auropunctatus), or environmental 
contaminants such as DDT (Griffin 1985, pp. 104-107, 194; Griffin et 
al. 1998, pp. 658, 661).
    A preliminary population estimate of 1,400 to 2,500 birds was noted 
in Griffin's (1985, p. 25) dissertation, based on home range size from 
radio telemetry data and distribution data from island-wide bird 
surveys. The dissertation cited ``Griffin et al. in prep'' for this 
estimate, but no details were provided on how it was derived, and 
Griffin et al. (in prep.) was never published. Scott et al. (1986, p. 
79) later stated that use of the island-wide forest bird surveys to 
estimate the population size of Hawaiian hawks was not appropriate 
because ``the Hawaiian hawk, like many other raptors, failed to meet 
many of the assumptions that underlie our density estimates.''
    A final recovery plan for the Hawaiian hawk was produced in 1984, 
which established a primary recovery objective to ``ensure a self-
sustaining `io population in the range of 1,500 to 2,500 adult birds in 
the wild, as distributed in 1983, and maintained in stable, secure 
habitat'' (USFWS 1984, p. 25). The plan also stated that ``for the 
purposes of tracking the progress of recovery, 2,000 will be used as a 
target to reclassify to threatened status,'' and that ``criteria for 
complete delisting will be further developed'' (USFWS 1984, p. 25). No 
explanation for the recovery goal of 1,500 to 2,500 birds was provided, 
but these numbers were presumably based on Griffin's (1985, p. 25) 
preliminary population estimate of 1,400 to 2,500 birds. The recovery 
plan also stated that ``considering the current size and distribution 
of the `io population, the species' high breeding success, the 
relatively low levels of predation and human disturbance, and the 
absence of environmental contaminants affecting the `io, the population 
appears to be in a more secure condition than previously thought. This 
information, based on completed research, indicates that 
reclassification to threatened status may be warranted. Continued 
monitoring and the other items of this plan need to be pursued before 
complete delisting should be considered'' (USFWS 1984, p. 38). Thus, 
the species was considered for downlisting at the time the recovery

[[Page 45682]]

plan was produced, but no criteria for delisting were developed at that 
time.
    Recovery plans are not regulatory documents and are instead 
intended to provide guidance to the Service, States, and other partners 
on methods of minimizing threats to listed species and on criteria that 
may be used to determine when recovery is achieved. There are many 
paths to accomplishing recovery of a species and recovery may be 
achieved without all criteria being fully met. For example, one or more 
criteria may have been exceeded while other criteria may not have been 
accomplished. In that instance, the Service may judge that the threats 
have been minimized sufficiently, and the species is robust enough to 
reclassify from endangered to threatened, or to delist. In other cases, 
recovery opportunities may have been recognized that were not known at 
the time the recovery plan was finalized. These opportunities may be 
used instead of methods identified in the recovery plan. Likewise, 
information on the species may be learned that was not known at the 
time the recovery plan was finalized. The new information may change 
the extent that criteria need to be met for recognizing recovery of the 
species. Recovery of a species is a dynamic process requiring adaptive 
management that may, or may not, fully follow the guidance provided in 
a recovery plan.
    The Service published a proposed rule to reclassify the Hawaiian 
hawk from endangered to threatened on August 5, 1993 (58 FR 41684), 
based on Griffin's (1985, p. 25) preliminary population estimate of 
1,400 to 2,500 adult birds and because it was discovered that the 
species occupied, and nested in, non-native forests and exploited non-
native prey species as a food resource. However, the proposal was not 
finalized; during the public comment period, several commenters 
expressed concerns that the population data used in the proposal were 
not current and there was not enough known about the hawk's breeding 
success to warrant downlisting. Based on these comments, we funded an 
island-wide survey to provide a contemporary range-wide assessment of 
the distribution and population status of the hawk. The surveys were 
conducted from December 1993 to February 1994. The researchers found 
the Hawaiian hawk widely distributed in both native and non-native 
habitats and provided a population estimate of 1,600 birds, made up of 
1,120 adults, or 560 pairs (Morrison et al. 1994, p. 23; Hall et al. 
1997, pp. 13-14). The researchers also questioned the recovery 
objective published in the Hawaiian Hawk Recovery Plan (USFWS 1984, p. 
25), stating: ``the Recovery Plan set a target that was unlikely to 
ever be met, given that Griffin's estimate assumed total saturation of 
hawks on forested land on the island. Reevaluation of the Recovery 
target is thus indicated, and should be based on more reasonable 
estimates of the distribution and abundance of 'io on the island'' 
(Morrison et al. 1994, p. 21).
    In 1997, the Service formed the Io Recovery Working Group (IRWG), 
the mission of which was to provide oversight and advice on aspects of 
the recovery of the Hawaiian hawk. Specifically, the IRWG was asked to: 
(1) Evaluate existing recovery goals for the Hawaiian hawk in light of 
current knowledge, and formulate new goals if warranted; (2) recommend 
strategies for minimizing negative interactions between the Hawaiian 
hawk and the endangered Hawaiian crow or alala (Corvus hawaiiensis); 
(3) identify research and management priorities; and, (4) write and 
revise a report summarizing their findings and recommendations. 
Following its first meeting in December 1997, the IRWG forwarded a 
report to the Service, in which it recommended that, rather than 
focusing primarily on population numbers to assess the Hawaiian hawk's 
overall status, field studies should look at population numbers in 
combination with trends to be consistent with the guidelines published 
by the International Union for Conservation of Nature (IUCN) Species 
Survival Commission for identification of species at three levels of 
risk: critically endangered, endangered, and vulnerable (IUCN 1996, p. 
21, Annex 8-10; IRWG 1998, p. 4).
    In keeping with the IRWG's recommendations, we funded a detailed 
ecological and demographic study of the Hawaiian hawk from 1998 to 1999 
to obtain more comprehensive information about population size, amount 
of suitable habitat, survival of adult and juvenile birds in native and 
non-native-dominated habitats, fecundity (average number of female 
offspring produced per individual breeding-aged female per year) in 
different habitats, and the rate of population change in different 
habitats (Klavitter 2000; Klavitter et al. 2003). During this study, 
researchers found that Hawaiian hawks were broadly distributed 
throughout the island of Hawaii, and that 58.7 percent of the island 
(2,372 square miles (sq mi) (6,143 square kilometers (sq km)) contained 
habitat for the hawk. State and Federal forests, parks, and refuges, 
totaled 754 sq mi (1,954 sq km), supported 469 hawks, and made up 32 
percent of its habitat (Klavitter et al. 2003, p. 170).
    The total Hawaiian hawk population was estimated to be 1,457 
( 176.3 birds), with an average density of 0.24 ( 0.08) birds per square kilometer (Klavitter 2000, pp. 38, 96; 
Klavitter et al. 2003, p. 170). Population density varied among 
habitats, from 0.01 to 0.57 birds per square kilometer. The highest 
densities were within native forest with grass, fallow sugarcane 
fields, and orchards; the lowest were within native mamane-naio 
(Sophora chrysophylla-Myoporum sandwicense) forest, urban, and lava 
areas (Klavitter 2000, p. 38; Klavitter et al. 2003, p. 169). In all 
successful nests monitored, only one young fledged per nest. Annual 
survival of juveniles and adults was high (0.50 ( 0.10) and 
0.94 ( 0.04), respectively), and fecundity was 0.23 ( 0.04) female young/breeding female in all habitats combined. 
Nest success in native habitat tended to be slightly higher than in 
exotic habitats, but juvenile survival was higher in exotic habitats 
than in native forest (Klavitter et al. 2003, p. 170). There was no 
significant difference in fecundity or population growth rate between 
native and mixed, native and exotic, or mixed and exotic habitats 
(Klavitter 2000, pp. 39, 56; Klavitter et al. 2003, pp. 170-171). The 
overall rate of population growth based on data from all habitat areas 
was 1.03 ( 0.04), which is not significantly different than 
1.0, indicating that there was no detectable change in population size 
across habitat types from 1998 to 1999 (Klavitter 2000, pp. 40, 56; 
Klavitter et al. 2003, pp. 170-171).
    Most recently, we funded an island-wide survey that was completed 
in the summer of 2007. The researchers used updated vegetation maps and 
methods to calculate population and density estimates for the 1998-1999 
survey data and the 2007 survey data. Using consistent maps and methods 
they were then able to compare population size and density over time to 
see if there had been significant changes. They found that, according 
to Klavitter's data, the Hawaiian hawk population numbered 3,239 (95% 
CI = 2,610 to 3,868) in 1998, more than double Klavitter's original 
estimate of 1,457 ( 176.3 birds) (Klavitter 2000, pp. 38, 
96; Klavitter et al. 2003, p. 170). In 2007, they estimated the 
population to number 3,085 hawks (95% CI = 2,496 to 3,680). There was 
no significant difference in densities found in 1998 and 2007 and no 
evidence that the hawk's spatial distribution had changed (Gorresen et 
al. 2008, p. 6).
    The primary objective stated in the 1984 recovery plan was to 
``ensure a self-sustaining `io population in the

[[Page 45683]]

range of 1,500 to 2,500 adult birds in the wild, as distributed in 
1983, and maintained in stable, secure habitat.'' Although the plan did 
not include specific delisting criteria, the population and 
distribution targets have been met (see Factor A below, for a 
discussion of habitat).
    Because of the short duration of their study (2 years), the 
relatively low population size (compared to mainland species), the 
possibility of environmental fluctuations (e.g., volcanic eruptions), 
and uncertainties regarding future anthropogenic changes to the island, 
Klavitter et al. (2003, p. 173) recommended either downlisting the hawk 
to threatened status or consideration of a ``near threatened'' status 
rather than delisting.
    Upon review of the Klavitter (2000) study results, the IRWG 
recommended that the Hawaiian hawk be delisted due to: (1) The lack of 
evidence of current declines in population numbers, survival rates, or 
productivity and, (2) the lack of evidence of current substantial loss 
or degradation of preferred nesting or foraging habitats (IRWG 2001, p. 
3). The IRWG also recommended that regular monitoring take place to 
assess factors that may produce future population declines (IRWG 2001, 
pp. 3-4).
    In light of these differing viewpoints, we consider existing or 
perceived threats to the Hawaiian hawk in more detail below (see 
Summary of Factors Affecting the Species).

Previous Federal Actions

    The Hawaiian hawk was added to the U.S. Department of the 
Interior's list of endangered species on March 11, 1967 (32 FR 4001) in 
accordance with section 1(c) of the Endangered Species Preservation Act 
of October 15, 1966 (80 Stat. 926; 16 U.S.C. 668aa(c)), and its status 
as an endangered species was retained under the Endangered Species Act 
of 1973, as amended (16 U.S.C. 1531 et seq.). A recovery plan for the 
Hawaiian hawk was published on May 9, 1984 (USFWS 1984).
    On August 5, 1993, we published a proposed rule to reclassify the 
Hawaiian hawk from endangered to threatened (58 FR 41684). In response 
to concerns regarding the proposed downlisting, as expressed in public 
comments, the proposed downlisting was not finalized. Instead, a 
population status assessment and further ecological studies were 
conducted to ascertain the population size and trends of the Hawaiian 
hawk.
    On February 3, 1997, we received a petition from the National 
Wilderness Institute to delist the Hawaiian hawk. We responded to that 
petition in a letter dated June 19, 1998, indicating that we could not 
immediately work on the petition due to higher priority listing and 
delisting actions. This proposed rule constitutes our 90-day finding 
and 12-month finding on the February 3, 1997, petition.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct vertebrate population segment of fish or 
wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the 
``species'' is determined we then evaluate whether that species may be 
endangered or threatened because of one or more of the five factors 
described in section 4(a)(1) of the Act. We must consider these same 
five factors in delisting a species. We may delist a species according 
to 50 CFR 424.11(d) if the best available scientific and commercial 
data indicate that the species is neither endangered nor threatened for 
the following reasons: (1) The species is extinct; (2) the species has 
recovered and is no longer endangered or threatened; and/or (3) the 
original scientific data used at the time the species was classified 
were in error.
    A recovered species is one that no longer meets the Act's 
definition of threatened or endangered. Determining whether a species 
is recovered requires consideration of the same five categories of 
threats specified in section 4(a)(1) of the Act. For species that are 
already listed as threatened or endangered, this analysis of threats is 
an evaluation of both the threats currently facing the species and the 
threats that are reasonably likely to affect the species in the 
foreseeable future following the delisting or downlisting and the 
removal or reduction of the Act's protections.
    A species is ``endangered'' for purposes of the Act if it is in 
danger of extinction throughout all or a significant portion of its 
range, and is ``threatened'' if it is likely to become endangered 
within the foreseeable future throughout all or a significant portion 
of its range. The word ``range'' is used here to refer to the range in 
which the species currently exists, and the word ``significant'' refers 
to the value of that portion of the range being considered to the 
conservation of the species. The ``foreseeable future'' is the period 
of time over which events or effects reasonably can or should be 
anticipated, or trends reasonably extrapolated.
    In this proposed rule, we consider the foreseeable future for the 
Hawaiian hawk to be the next 20 years. Hawaiian hawks take about 3 
years to obtain adult plumage (Clarkson and Laniawe 2000, p. 13); 
however, there are few data available on the age at which Hawaiian 
hawks first breed. Although one researcher documented a 3-year-old 
female pairing with a male of unknown age and building a nest, no eggs 
were laid. Another researcher documented the formation of a pair bond 
between a 3-year-old male and a female with immature plumage. In this 
case, no nesting attempts were documented (Clarkson and Laniawe 2000, 
p. 10). Based on this information, we believe that the Hawaiian hawk 
likely first breeds at age 3 or 4. We used 5 Hawaiian hawk generations, 
about 20 years, as a reasonable biological timeframe to determine if 
threats could depress the population size and therefore would be 
significant. Also, the best available data indicate that the population 
size and distribution of the Hawaiian hawk has remained relatively 
unchanged for the past 20 years. Based on these data, our knowledge of 
Hawaiian hawk biology, and our understanding of the threats of the 
greatest potential consequence to the Hawaiian hawk (habitat 
modification and the possible introduction of novel avian diseases, 
such as West Nile virus), we conclude that 20 years is a reasonable 
timeframe over which we can extrapolate the likely extent of the 
threats and their impacts on the species. We note that we have no 
information suggesting these threats will increase in intensity more 
than 20 years in the future.
    Following this threats analysis we evaluate whether the Hawaiian 
hawk is threatened or endangered in any significant portion(s) of its 
range.

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

    The Hawaiian hawk reproduces and forages in native and non-native 
habitats on the island of Hawaii (Griffin 1985, pp. 102-103; Morrison 
et al. 1994, p. 23; Hall et al. 1997, pp. 13-14; Griffin et al. 1998, 
p. 658; Klavitter 2000, pp. 38-39, 56; Klavitter et al. 2003, pp. 169-
171) and appears to be adaptable in its ability to exploit non-native 
species as prey (Munro 1944, p. 48; Griffin 1985, pp. 142-145; Griffin 
et al. 1998, p. 659).
    The 1993 proposed rule to reclassify the Hawaiian hawk (58 FR 
41684), the 2001 IRWG report (IRWG 2001, p. 3), Klavitter et al. (2003, 
p. 173), and

[[Page 45684]]

Gorresen et al. (2008, pp. 9-11) all identified loss of preferred 
nesting and foraging habitats as a potential threat to the Hawaiian 
hawk. Although their specific concerns were variously stated, they all 
fit into one of the following categories: (1) Urbanization/lack of 
secure habitat; (2) conversion of sugarcane fields to unsuitable 
habitat; (3) increase in fire frequency; (4) invasion of plant species 
in the understory that degrade foraging habitat by concealing prey; and 
(5) environmental fluctuations. Below, we address the first four of 
these specific threats to Hawaiian hawk habitat. We discuss 
environmental fluctuations under Factor E.
Urbanization/Lack of Secure Habitat
    The Hawaiian hawk is broadly distributed on the island of Hawaii, 
and 58.7 percent of the island (2,372 sq mi (6,144 sq km)) contains 
habitat for the hawk. Of this habitat, 55 percent is zoned for 
agriculture and 44.7 percent is zoned for conservation. Approximately 
754 sq mi (1,953 sq km), or 32 percent, of the hawk's habitat is 
located on protected lands in the form of State and Federal forests, 
parks, and refuges and less than 1 percent is rural or urban-zoned land 
that has the potential to be impacted by or subjected to future 
development (Klavitter 2000, p. 38; Klavitter et al. 2003, p. 170; 
State of Hawaii 2007).
    The amount of urban land or land subject to potential future 
urbanization is generally localized in areas surrounding existing 
cities (County of Hawaii 2005, pp. 14-2, 14-9, Land Use Pattern 
Allocation Guide Map (LUPAG) 1-25), and represents less than 1 percent 
of Hawaiian hawk habitat on the island. Changes in zoning from one 
category to another (e.g. agricultural to urban) are made through 
petitions to the State Land Use Commission. There are currently no 
pending petitions that would change current agriculture, conservation, 
or rural zones to urban on the island of Hawaii (State of Hawaii Land 
Use Commission 2007). Similarly, there are no amendments currently 
proposed to the County of Hawaii General Plan (2005) that would reflect 
projected future urban growth beyond that which was projected in the 
2005 plan. The latest amendments were in 2006 and did not project 
changes in urban growth on the island of Hawaii (County of Hawaii 
2006). Because the hawk is broadly distributed on the island and can 
use a variety of habitats, the potential future conversion of a 
relatively small amount of its habitat (less than 1 percent) 
surrounding existing urban uses is not a threat to the viability of the 
species.
    Since the time of listing, protection of native forests on the 
Island of Hawaii has also resulted in increased protection for the 
Hawaiian hawk. One example of a significant recovery action that was 
completed with regard to conservation of habitat for multiple native 
species, including the Hawaiian hawk, was the establishment of the 
32,733 acre Hakalau Forest National Wildlife Refuge in 1985. The Refuge 
was established with the primary purpose of promoting the recovery of 
endangered forest birds and their habitat. There have also been several 
other projects undertaken at Hawaii Volcanoes National Park and on 
private lands on the Island of Hawaii aimed at native forest 
conservation that have likely benefited the hawk. While the exact 
benefit of these actions specifically for hawk populations can not be 
reasonably calculated because the actions benefit multiple species, 
these actions highlight just a few examples of efforts that have been 
undertaken that have likely had a significant contribution to 
conservation of the Hawaiian hawk.
Conversion of Sugarcane Fields to Unsuitable Habitat
    Sugarcane was historically an important crop on the island of 
Hawaii, and Hawaiian hawks had adapted to use these croplands for 
foraging where nest trees and perching structures were available. With 
the demise of the sugarcane industry on the island in the 1990s, 
sugarcane plantations were converted to a diversity of agricultural 
uses (County of Hawaii 2005, pp. 1-8, 1-11), some of which (e.g., 
large, patchily distributed monocultures of eucalyptus or macadamia nut 
trees with little edge) are not compatible with Hawaiian hawk nesting 
or foraging (Klavitter et al. 2003, p. 172). We anticipate that in 
these localized, patchily distributed areas where eucalyptus 
plantations are established, Hawaiian hawks will not be able to 
effectively forage or nest. It remains unclear if hawks will use these 
areas immediately following a harvest or at the time of initial 
planting. However, given the short-rotation times planned for these 
plantations (5-8 years) and the rapid growth-rate of eucalyptus on 
Hawaii (Whitesell et al. 1992, pp. ii, 2) these areas might only 
briefly be suitable for hawk foraging.
    Conversion of agricultural lands to eucalyptus forests is an 
ongoing threat to the Hawaiian hawk, but the scope of this threat is 
limited primarily to the Hamakua coastline--the best potential forest 
lands in the County (County of Hawaii 2005, p. 14-20)--and these 
monocultures are patchily distributed, with mixed agricultural and 
residential uses in the surrounding areas. Approximately 24,000 acres 
(9,712 hectares (ha)) (6.5 percent of the Hamakua District, or less 
than 2 percent of Hawaiian hawk habitat) of former sugarcane fields 
were being cultivated for eucalyptus production and ``thousands of 
additional acres'' were being planned as of 2005, but the exact timing 
of these future plantings is not currently available (County of Hawaii 
2005, pp. 2-4, 2-20). Therefore, it appears possible that at least 
`thousands of additional acres' will be converted in the future. 
However, even if all 80,000 acres (32,375 ha) of the best potential 
lands for cultivating forests on the island were converted to 
eucalyptus trees (County of Hawaii 2005, p. 14-20) in the future, that 
would represent only 22 percent of the Hamakua District and less than 5 
percent of Hawaiian hawk habitat. For comparison, the Hamakua District 
contains 235,212 acres (95,187 ha) (59 percent) of lands designated for 
conservation thus far and into the foreseeable future (County of Hawaii 
2005, p. 14-11).
    At a regional scale we do not anticipate significant changes in 
hawk densities in response to this threat because many of the 
plantations are patchily distributed among areas with suitable habitat 
for foraging, perching, and nesting (e.g., small agricultural 
operations, fallow sugarcane fields, riparian areas, and native and 
non-native forest). Furthermore, the total amount of habitat converted 
(24,000 acres (9,712 ha)) represents less than 2 percent of all 
available habitat (Klavitter et al. 2003, p. 167). Therefore, while 
conversion of sugarcane fields has reduced the total amount of suitable 
habitat along the Hamakua coast, we believe that the scope and extent 
of this conversion is not likely to significantly impact the 
distribution or density of the Hawaiian hawk in such a way that would 
affect its viability.
    Another potential threat is the conversion of current agricultural 
lands to crops for biodiesel fuel production (Gorresen et al. 2008, p. 
10). A report prepared in 2006 for the State of Hawaii Department of 
Agriculture identifies up to 185,000 ac (74,000 ha) of agricultural 
lands on the island of Hawaii that would be suitable for such crop 
production (Poteet 2006, pp. 27-28), which represents up to 13 percent 
of the Hawaiian hawk's breeding range (Gorresen et al. 2008, p. 10). 
Because the proposed crops vary in terms of their feasibility and 
potential impacts to the Hawaiian hawk--some are likely to

[[Page 45685]]

continue to provide suitable foraging areas while others may not--it is 
not possible to provide an accurate estimate of the amount of habitat 
likely to be converted. However, all of the areas identified as 
potential sites for biofuel production are either fallow sugarcane 
fields or are currently being used for crop production, grazing, or 
forestry production (e.g., eucalyptus) (Poteet 2006, pp. 27-28). Thus, 
the extent of conversion from suitable hawk habitat to unsuitable hawk 
habitat is likely to be limited and well below 13 percent of the hawk's 
range.
Invasive Plant Species and Increase in Fire Frequency
    Historically, fires on the island of Hawaii were likely infrequent 
occurrences (Smith and Tunison 1992, pp. 395-397). In some areas, 
primarily mesic and dry habitats, the fire regime has changed 
dramatically with an accumulation of fine fuels, primarily alien 
grasses, which spread in the 1960s and 1970s (Smith and Tunison 1992, 
pp. 397-398). Increased fire frequency facilitates the spread of alien 
grass, which increases fine fuel loads, further increasing the 
likelihood of more frequent and larger fires (Smith and Tunison 1992, 
pp. 398-399). This positive feedback loop can inhibit the establishment 
of tree species if fires are too frequent (Smith and Tunison 1992, p. 
399).
    Because Hawaiian hawks rely on forests for nesting and perching, 
loss of these structural components could result in the loss of 
habitat. Approximately 26 percent (370,658 ac (150,000 ha)) of the 
Hawaiian hawk's breeding range is within mesic to dry forest habitat 
areas that are particularly susceptible to fire (Gorresen et al. 2008, 
p. 11). Smith and Tunison (1992, p. 398) reported that the average size 
of the 58 fires that burned in Volcanoes National Park from 1968 to 
1991 was 507 acres (205 ha). This is roughly the size of the average 
home range of the Hawaiian hawk (mean = 456 acres (185 ha); n = 10) 
reported by Griffin (1985, p. 173). Therefore, large fires could remove 
habitat in one or a few hawk territories at one time, but we expect 
that hawks would maintain their territory if sufficient prey and forest 
structure remained such that they could still nest and perch. At a 
regional scale we do not anticipate significant changes in hawk 
densities in response to this threat because most fires are expected to 
have a patchy distribution on the landscape such that some forest 
structure will continue to be present around or within these burned 
areas. Only if large-scale changes to dry forests occurred, eliminating 
nesting and perching areas across vast swaths of the leeward portion of 
the island, would the viability of the species potentially be at risk. 
The available information on hawk distribution and habitat does not 
suggest that this is currently occurring or is likely to occur in the 
foreseeable future. Therefore, while an increase in fire frequency due 
to alien plants is a threat and may reduce the amount of available 
habitat for nesting and perching, we believe that the maximum scope and 
extent of this conversion that we can reasonably anticipate is not 
likely to have a significant impact on the distribution or density of 
the Hawaiian hawk in such a way that would affect its viability.
Invasive Species (Concealing Prey)
    Vegetative cover can be more important than prey abundance in the 
selection of hunting sites by raptors (Bechard 1982, p. 158). Klavitter 
et al. (2003, p. 169) found that exotic tree, shrub, and grass habitats 
had similar hawk densities to some native habitats (e.g., mature native 
forest), but were lower than densities recorded in native forests with 
an understory of grass. The relationship between cover and demographic 
variables is likely to be complex given that a hawk's home-range may 
span several habitat types and that the effect of various invasive 
species on total vegetation cover has not been well studied. However, 
the best available data indicate that, despite the introduction of a 
variety of invasive plant species on the island of Hawaii, the 
population size and distribution of the Hawaiian hawk has remained 
relatively unchanged for the past 20 years, and no reliable 
extrapolation from current information suggests that this circumstance 
will change in the future.
    Summary of Factor A: Based on the best available scientific and 
commercial data, we believe that destruction, modification, or 
curtailment of the Hawaiian hawk's habitat or range is not currently 
putting the Hawaiian hawk in danger of extinction and is not likely to 
result in the endangerment or extinction of the Hawaiian hawk in the 
foreseeable future. Comparison of island-wide survey data in 2007 with 
similar data from 1998-1999 suggests that the population numbers, 
densities, and spatial distribution of Hawaiian hawks on the island of 
Hawaii have not significantly changed in the past decade. Also, the 
best available data indicate that the population size and distribution 
of the Hawaiian hawk has remained relatively unchanged for the past 20 
years (Service 1984; Griffin 1985, p. 25; Scott et al. 1986, p. 79; 
Morrison et al. 1994, p. 23; Hall et al. 1997, pp. 13-14; Klavitter 
2000, pp. 38, 96; Klavitter et al. 2003, p. 170; Gorresen et al. 2008, 
p. 6). Although some habitat loss is expected in the future, this loss 
is likely to be a small percentage of the hawk's habitat and is likely 
to be patchily distributed such that hawks are expected to continue to 
be widely distributed on Hawaii.

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

    Historically, some Hawaiian hawks were taken for scientific 
collection (e.g., Henshaw 1902, pp. 197-198; Banko 1980, p. 2) and may 
also have been taken by the early Hawaiians for either food or feathers 
(Clarkson and Laniawe 2000, p. 12). Neither of these factors is known 
to currently threaten the Hawaiian hawk.
    Berger (1981, p. 79) stated that shooting was among the primary 
factors contributing to a suspected population decline of the Hawaiian 
hawk, but provided no data supporting his statement regarding shooting 
as a threat or his statement regarding a suspected population decline. 
He speculates that people shot Hawaiian hawks because they mistakenly 
believed that the hawks were ``chicken hawks'' (note: Banko (1980, p. 
6) reported a dead Hawaiian hawk (cause of death unknown) being used as 
a ``scarecrow'' to discourage predation on domestic poultry flocks 
sometime in the late 1960's or early 1970's). Griffin (1985, p. 108) 
also speculated that illegal shooting of Hawaiian hawks was a 
significant threat factor, but provided no data to support this 
assertion.
    While there is at least one anecdotal account of a Hawaiian hawk 
being treated for suspected gunshot wounds in the recent past (Lucas 
2006), there is little other evidence that shooting is a current threat 
to the Hawaiian hawk at a regional scale. With increased community 
outreach regarding the hawk's status on the island of Hawaii, there no 
longer appears to be a substantive threat to the species from shooting 
(Mello 2007) and there is no reason to suspect that this threat is 
likely to increase in the future. Therefore, overutilization for 
commercial, recreational, scientific, or educational purposes is not 
likely to result in the endangerment or extinction of the Hawaiian hawk 
in the foreseeable future.

C. Disease or Predation

    Neither disease nor predation is currently known to substantively 
affect the Hawaiian hawk population (Griffin

[[Page 45686]]

1985, pp. 104-107, 194; Griffin et al. 1998, pp. 658, 661; Klavitter 
2000, p. 45). Introduced mammalian predators (i.e., rats, cats, and 
mongooses) could potentially prey on Hawaiian hawks or their eggs and 
are known to have serious impacts on other species of native Hawaiian 
birds (Atkinson 1977, pp. 120-122, 127-130; Scott et al. 1986, pp. 363-
364; VanderWerf and Smith 2002, pp. 77-80). However, there is no 
evidence of predation by these species on Hawaiian hawks or their eggs. 
There is evidence, on the other hand, that introduced mammalian species 
are a food resource for the hawk (Munro 1944, p. 48; Griffin 1985, pp. 
142-145, Appendix 1; Griffin et al. 1998, p. 659).
    Although the Hawaiian hawk population is not currently known to be 
substantively affected by any diseases, Griffin (1985, p. 104-105) 
observed ``pox-like'' lesions on 2 of 44 captured hawks. No 
bacteriological or virological samples were collected; therefore, these 
lesions were not confirmed as avian pox.
    The IRWG (2001, p. 3) identified disease as a potential factor that 
might lead to a decline in the size of the Hawaiian hawk population by 
reducing future reproduction and survival. In their report (IRWG 2001, 
p. 3) they state: ``[d]isease could have a serious negative impact on 
`io as the population does not appear to be separated into disjunct 
subpopulations that could more easily evade an outbreak. The panmictic 
nature of the population [i.e., a population where all individuals are 
potential partners] may also limit genetic variability that could 
contribute to pockets of disease resistance, although genetic 
attributes have not been directly studied.''
    The hawk does not appear to be susceptible to diseases currently 
established on the island of Hawaii, such as avian pox or malaria that 
have devastated many other Hawaiian endemic forest birds (Griffin 1985, 
pp. 104-106; Griffin et al. 1998, pp. 658, 661). The fact that the 
Hawaiian hawk population has remained stable for at least 20 years 
(Klavitter 2000, p. 42; Klavitter et al. 2003, p. 172) indicates that 
predators and disease are not having a measurable deleterious impact on 
Hawaiian hawk viability.
    Emergent diseases, such as West Nile virus, have the potential to 
influence Hawaiian hawk viability in the future. West Nile virus, which 
is primarily transmitted by infected mosquitoes, has been reported in 
all of the 48 conterminous United States and is potentially fatal to 
many species of birds, including members of the genus Buteo (Centers 
for Disease Control and Prevention (CDC) 2005, 2007). Hawaii and Alaska 
are the only two States that have reported no occurrences of West Nile 
virus to date (State of Hawaii 2006; CDC 2007). To help prevent West 
Nile Virus from spreading to Hawaii, the State's Department of 
Agriculture has established a pre-arrival isolation requirement and a 
Poultry and Bird Import Permit issued through the Livestock Disease 
Control Branch for all birds entering the State. Furthermore, the 
Hawaii State Department of Health has an ongoing, multi-agency West 
Nile virus surveillance program in place on all of the main Hawaiian 
Islands, which involves surveillance for infected mosquitoes and dead 
birds, as well as live-bird surveillance at major ports of entry, 
equine surveillance, and human surveillance (State of Hawaii 2006). To 
date, no cases of West Nile virus have been reported in Hawaii; 
however, there is currently no certainty that we can prevent the 
disease from arriving and spreading. Should this disease arrive on the 
island of Hawaii, native birds may be particularly susceptible as they 
are likely to be immunologically naive to arboviruses such as West Nile 
virus, because they evolved in the absence of biting insects (van Riper 
et al. 1986, p. 340). Furthermore, there are a number of introduced 
birds (e.g., house sparrows and house finches) and mosquitoes (e.g., 
Culex quinquefasciatus) that could support West Nile virus 
amplification in Hawaii and transport it from low to middle to high 
elevations (Marra et al. 2004, p. 398) throughout the range of the 
Hawaiian hawk. Nevertheless, the short- and long-term impacts of West 
Nile virus on wildlife are uncertain (Marra et al. 2004, p. 394) and it 
is uncertain whether it will ever arrive on the island of Hawaii.
    Summary of Factor C: Neither predation nor avian diseases currently 
established on Hawaii are known to threaten the Hawaiian hawk. West 
Nile virus and other emergent avian diseases have the potential to 
affect the species if they become established on Hawaii. However, it is 
uncertain whether such diseases will ever arrive. The State is 
currently implementing a prevention program to reduce the risk of its 
arrival. They are also implementing a surveillance program so that they 
can detect if it does arrive and take appropriate and timely action. 
Furthermore, maintaining the hawk on the List of Endangered and 
Threatened Wildlife because of speculative future threats would do 
nothing to prevent their occurrence. We do not believe that disease and 
predation currently endanger the Hawaiian hawk; nor are they likely to 
cause the endangerment or extinction of the Hawaiian hawk in the 
foreseeable future.

D. The Inadequacy of Existing Regulatory Mechanisms

    A variety of regulatory mechanisms, managed by State and Federal 
resource agencies, are in place to protect the Hawaiian hawk and the 
habitats upon which it depends.
    If this proposed rule is finalized, the Hawaiian hawk would still 
be protected by the Migratory Bird Treaty Act (16 U.S.C. 703) (MBTA). 
Section 704 of the MBTA states that the Secretary of the Interior is 
authorized and directed to determine if, and by what means, the take of 
migratory birds should be allowed and to adopt suitable regulations 
permitting and governing the take. In adopting regulations, the 
Secretary is to consider such factors as distribution and abundance to 
ensure that take is compatible with the protection of the species. The 
MBTA and its implementing regulations (50 CFR parts 20 and 21) prohibit 
take, possession, import, export, transport, selling, purchase, barter, 
or offering for sale, purchase or barter, any migratory bird, their 
eggs, parts, and nests, except as authorized under a valid permit (50 
CFR 21.11).
    Although we are not aware of any intent to use Hawaiian hawks for 
falconry, regulations at 50 CFR 21.28 and 21.30 specifically authorize 
the issuance of permits to take, possess, transport and engage in 
commerce with raptors for falconry purposes and for propagation 
purposes. Certain criteria must be met prior to issuance of these 
permits, including a requirement that the issuance will not threaten a 
wildlife population (50 CFR 13.21(b)(4)). In addition to considering 
the effect on wild populations, issuance of raptor propagation permits 
requires that the Service consider whether suitable captive stock is 
available and whether wild stock is needed to enhance the genetic 
variability of captive stock (50 CFR 21.30(c)(4)).
    Another regulatory mechanism that will continue to provide 
protection to the Hawaiian hawk if this proposed rule is finalized is 
the requirement that pesticides be registered with the Environmental 
Protection Agency (EPA). Under the authority of the Federal 
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136), the 
Environmental Protection Agency requires environmental testing of all 
new pesticides. Testing the effects of pesticides on representative 
wildlife species prior to pesticide registration is specifically 
required. Only pesticides

[[Page 45687]]

that have been determined not to pose unreasonable adverse effects on 
the environment may be used in the United States. This protection from 
effects of pesticides would not be altered by delisting the Hawaiian 
hawk.
    On June 28, 1979, the Hawaiian hawk was included in Appendix II of 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES). This treaty was established to prevent 
international trade that may be detrimental to the survival of plants 
and animals. International trade is regulated through a system of CITES 
permits and certificates. CITES permits and certificates may not be 
issued if trade will be detrimental to the survival of the species or 
if the specimens being imported or exported were not legally acquired. 
This protection would not be altered by removing the Hawaiian hawk from 
the List of Endangered and Threatened Wildlife.
    Federal delisting of the Hawaiian hawk will automatically remove 
this species from the State of Hawaii threatened and endangered species 
lists under Hawaii Revised Statute (HRS) Sec.  195D-4. However, as a 
native species, the hawk will continue to be afforded the protection of 
the State in accordance with HRS Sec.  195-1, which states that ``[a]ll 
indigenous species of aquatic life, wildlife, and land plants are 
integral parts of Hawaii's native ecosystems and comprise the living 
heritage of Hawaii, for they represent a natural resource of 
scientific, cultural, educational, environmental, and economic value to 
future generations of Hawaii's people'' and that ``it is necessary that 
the State take positive actions to enhance their prospects for 
survival.'' Under State of Hawaii Administrative Rules (HAR), it is 
prohibited to ``catch, possess, injure, kill, destroy, sell, offer for 
sale, or transport'' any indigenous wildlife, as well as to export any 
such species (HAR Sec.  13-124-3), unless authorized by permit (HAR 
Sec.  13-124-4).
    Summary of Factor D: Several regulatory mechanisms will protect the 
Hawaiian hawk should we finalize this delisting proposal and there is 
no evidence to suggest that those regulatory mechanisms will be 
modified in the future. Therefore, the inadequacy of existing 
regulatory mechanisms does not presently endanger the Hawaiian hawk, 
nor is it likely to do so in the foreseeable future.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Species that are endemic to a single island, such as the Hawaiian 
hawk, are inherently more vulnerable to extinction than widespread 
species because of the higher risks posed to a single population by 
random demographic fluctuations and localized catastrophes such as 
fires, hurricanes, and disease outbreaks (IRWG 2001, p. 3). However, 
the Hawaiian hawk is adaptable to a variety of habitats and is 
relatively abundant and widespread in suitable habitat on much of the 
island, making it resilient to random demographic fluctuations or 
localized catastrophes (e.g., volcanic eruption). Even a large-scale 
catastrophe such as a major hurricane or fire is unlikely to cause the 
extinction or endangerment of a hawk that can effectively utilize 
regenerating forests as foraging areas and can nest in relatively small 
patches of older forests that are likely to remain intact following 
such an event. Therefore, due in large measure to their demonstrated 
ability to effectively use altered habitats on Hawaii, the endemic 
nature of the Hawaiian hawk population does not currently endanger the 
species nor is there evidence that it is likely to do so in the future.
    Summary of Factor E: The Hawaiian hawk, although an island endemic, 
appears to be resilient to habitat changes and catastrophes. Therefore, 
we do not believe that other natural or manmade factors currently 
endanger the Hawaiian hawk; nor are they likely to cause the 
endangerment or extinction of the Hawaiian hawk in the foreseeable 
future.

Finding

    For the reasons stated above, we find that the Hawaiian hawk is not 
currently in danger of extinction, nor is there evidence that it is 
likely to become endangered in the foreseeable future.

Withdrawal of Proposed Rule To Reclassify the Hawaiian Hawk as 
Threatened

    We have carefully assessed the best scientific and commercial data 
available regarding the status of the Hawaiian hawk and have analyzed 
the five threat factors described in section 4(a)(1) of the Act. We 
find, based on the best available scientific data, that there is not 
sufficient information to justify the earlier proposed rule to 
reclassify the Hawaiian hawk as threatened. Due to implementation of 
recovery actions and other conservation efforts, we now believe that 
the Hawaiian hawk is broadly distributed throughout the island of 
Hawaii, has been stable in number for at least 20 years, nests and 
forages successfully in both native and altered habitats, and has large 
areas of habitat in protected status. The Hawaiian hawk is not 
currently threatened by overutilization, disease, predation, 
contaminants, lack of adequate regulatory mechanisms, or other factors, 
and therefore no longer meets the definition of a threatened or 
endangered species throughout its range.
    At the time we proposed to reclassify the Hawaiian hawk in 1993, we 
determined that enough secure habitat was available for 
reclassification, but there was not enough for delisting. We have 
reassessed this statement in light of the best available data, 
including the current land-use plan for the island, and additional 
studies regarding Hawaiian hawk population status, habitat use, 
productivity, and survival, and find that sufficient habitat is 
available for a viable, broadly distributed population of hawks into 
the foreseeable future. While certain areas of the island are subject 
to additional development or conversion into habitats that may be 
unsuitable for hawk nesting or foraging (e.g., eucalyptus plantations) 
these areas are expected to be small and localized in comparison to 
protected areas and agricultural areas that do provide suitable 
habitat. Both implementation of recovery actions and accumulation of 
additional information on the Hawaiian hawk over the past 30 years 
contribute to the above assessment. Therefore, we withdraw our proposal 
to reclassify the Hawaiian hawk.

Proposal To Delist

    For the reasons discussed above, we do not believe the species is 
in danger of extinction throughout all or a significant portion of its 
range, or that it is likely to become endangered throughout all or a 
significant portion of its range in the foreseeable future. Therefore, 
we propose to remove the Hawaiian hawk from the Federal List of 
Endangered and Threatened Wildlife. Based on our analysis of the five 
threat factors and the best scientific data available on the status of 
the species, we believe that the Hawaiian hawk should be delisted due 
to the implementation of recovery actions that have facilitated a 
better understanding of the hawk's ecology and threats.
    Additional recovery actions that have benefited the Hawaiian hawk 
and which likely played a role in maintaining stable hawk populations 
include numerous native forest habitat conservation projects, 
protection from human harassment, public education, and evaluation of 
potential impacts of new pesticides. One example of a significant 
recovery action that was completed with regard to conservation of 
habitat for multiple native species, including the Hawaiian hawk, was 
the

[[Page 45688]]

establishment of Hakalau Forest National Wildlife Refuge in 1985. There 
have also been several other projects undertaken at Hawaii Volcanoes 
National Park and on private lands on the Island of Hawaii aimed at 
native forest conservation that have likely benefited the hawk. While 
the exact benefit of these actions specifically for hawk populations 
can not be reasonably calculated because these actions benefit multiple 
species, these actions highlight just a few examples of efforts that 
have been undertaken that have likely had a significant contribution to 
conservation of the Hawaiian hawk.
    Due to implementation of recovery actions and other conservation 
efforts, we now believe that the Hawaiian hawk is broadly distributed 
throughout the island of Hawaii, has been stable in number for at least 
20 years, nests and forages successfully in both native and altered 
habitats, and has large areas of habitat in protected status. The 
Hawaiian hawk is not currently threatened by overutilization, disease, 
predation, contaminants, lack of adequate regulatory mechanisms, or 
other factors, and therefore no longer meets the definition of a 
threatened or endangered species throughout its range.

Significant Portion of the Range Analysis

    Having determined that the Hawaiian hawk is not currently in danger 
of extinction, nor likely to become endangered throughout its range in 
the foreseeable future, we next consider whether there are any 
significant portions of its range that are in danger of extinction or 
are likely to become endangered in the foreseeable future. We consider 
factors such as whether there is a biological basis (e.g., population 
groupings, genetic differences, or differences in ecological setting) 
or regulatory basis (e.g., International or State boundaries where the 
threats from lack of regulatory mechanisms might be different on either 
side of the boundary) for parsing the range into finer portions and 
whether extinction risk is spread evenly across the range of the 
species.
    In the case of the Hawaiian hawk, (1) there is only one panmictic 
population, having no apparent barriers to dispersal or gene flow, (2) 
there are no regulatory differences since the species occurs only in 
one County in Hawaii, (3) although it occurs in a variety of ecological 
settings on Hawaii, habitat threats are small in overall magnitude and 
are not concentrated in any one ecological setting (see Factor A, 
above), and (4) there are no other geographically concentrated threats. 
Because extinction risk, both currently and in the foreseeable future, 
is not measurably higher in any one location on the island, we do not 
propose to retain listing status for any portion of the species' range.

Effects of the Rule

    If made final, this rule would revise 50 CFR 17.11(h) to remove the 
Hawaiian hawk from the Federal List of Endangered and Threatened 
Wildlife. The prohibitions and conservation measures provided by the 
Act, particularly through sections 7 and 9, would no longer apply to 
this species. Federal agencies would no longer be required to consult 
with the Service under section 7 of the Act in the event that 
activities they authorize, fund, or carry out may affect the Hawaiian 
hawk. There is no critical habitat designated for this species.
    The Hawaiian hawk would continue to be protected under the 
Migratory Bird Treaty Act (16 U.S.C. 703), CITES (Article IV), and 
State of Hawaii law (HRS Sec.  195-1).

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires the Service to implement a 
system, in cooperation with the States, to monitor for not less than 5-
years the status of all species that have recovered and been removed 
from the lists of threatened and endangered wildlife and plants (50 CFR 
17.11, 17.12). The purpose of this post-delisting monitoring (PDM) is 
to verify that the Hawaiian hawk remains secure from risk of extinction 
after it has been removed from the protections of the Act. We are to 
make prompt use of the emergency listing authorities under section 
4(b)(7) of the Act to prevent a significant risk to the well-being of 
any recovered species. Section 4(g) of the Act explicitly requires 
cooperation with the States in development and implementation of PDM 
programs, but we remain responsible for compliance with section 4(g) 
and, therefore, must remain actively engaged in all phases of PDM. We 
also seek active participation of other entities that are expected to 
assume responsibilities for the species' conservation, post-delisting.
    The Service is developing a draft PDM plan in cooperation with the 
Hawaii Department of Land and Natural Resources, Division of Forestry 
and Wildlife (DOFAW), the National Park Service (NPS), and the U.S. 
Geological Survey (USGS). We intend to publish a notice of availability 
of the draft plan in the Federal Register, and solicit public comments 
on that plan, prior to finalizing this proposed rule. All public 
comments on the draft PDM will be considered and incorporated into the 
final PDM plan as appropriate. The final PDM plan and any future 
revisions will be posted on our Endangered Species Program's national 
Web page (http://endangered.fws.gov) and on the Pacific Islands Fish 
and Wildlife Office Web page (http://pacificislands.fws.gov).

Peer Review

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

Public Hearings

    Section 4(b)(5)(D) of the Act requires that we hold one public 
hearing on this proposal, if requested. Requests must be received 
within 45 days of the date of publication of the proposal in the 
Federal Register (see DATES). Such requests must be made in writing and 
be addressed to the Field Supervisor at the address in the FOR FURTHER 
INFORMATION CONTACT section above.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the emergency rule? What else could we

[[Page 45689]]

do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. 
You also may e-mail the comments to this address: [email protected].

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

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.) and assigned Office of Management and Budget (OMB) 
control number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of references cited in this rule is available upon 
request from the Field Supervisor, Pacific Islands Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary authors of this document are Ms. Karen Marlowe, Pacific 
Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT) 
and Jesse D'Elia, Pacific Regional Office, Portland, Oregon.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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


Sec.  17.11  [Amended]

    2. Amend Sec.  17.11(h) by removing the entry for ``Hawk, 
Hawaiian'' under ``BIRDS'' from the List of Endangered and Threatened 
Wildlife.

    Dated: July 14, 2008.
H. Dale Hall,
Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-16858 Filed 8-5-08; 8:45 am]
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