[Federal Register Volume 83, Number 63 (Monday, April 2, 2018)]
[Proposed Rules]
[Pages 13919-13942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06571]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2017-0050; FXES11130900000C6-189-FF09E42000]
RIN 1018-BC10


Endangered and Threatened Wildlife and Plants; Reclassifying the 
Hawaiian Goose From Endangered to Threatened With a 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: 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), 
propose to reclassify the Hawaiian goose (nene) (Branta (=Nesochen) 
sandvicensis) from endangered to threatened, and we propose a rule 
under section 4(d) of the Act to enhance conservation of the species 
through range expansion and management flexibility. This proposal is 
based on a thorough review of the best available scientific data, which 
indicate that the species' status has improved such that it is not 
currently in danger of extinction throughout all or a significant 
portion of its range. We also propose to correct the Federal List of 
Endangered and Threatened Wildlife to reflect that Nesochen is not 
currently a scientifically accepted generic name for this species, and 
to acknowledge the Hawaiian name ``nene'' as an alternative common 
name. We seek information, data, and comments from the public on this 
proposal.

DATES: We will accept comments received or postmarked on or before June 
1, 2018. Please note that if you are using the Federal eRulemaking 
Portal (see ADDRESSES), the deadline for submitting an electronic 
comment is 11:59 p.m. Eastern Time on this date.

[[Page 13920]]

We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by May 17, 
2018.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2017-0050, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!'' Please ensure that you 
have found the correct rulemaking before submitting your comment.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2017-0050, U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3808.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Document availability: The proposed rule is available on http://www.regulations.gov. In addition, the supporting file for this proposed 
rule will be available for public inspection, by appointment, during 
normal business hours, at the Pacific Islands Fish and Wildlife Office, 
300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850; telephone 808-
792-9400.

FOR FURTHER INFORMATION CONTACT: Mary Abrams, Field Supervisor, 
telephone: 808-792-9400. Direct all questions or requests for 
additional information to: U.S. Fish and Wildlife Service, Pacific 
Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, 
Honolulu, HI 96850. Persons who use a telecommunications device for the 
deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
reclassification from endangered to threatened if it no longer meets 
the definition of endangered (in danger of extinction). The Hawaiian 
goose (nene) is listed as endangered, and we are proposing to 
reclassify nene as threatened because we have determined it is no 
longer in danger of extinction. Reclassifications can only be made by 
issuing a rulemaking. Furthermore, changes to the take prohibitions in 
section 9 of the Act, such as those we are proposing for this species 
under a section 4(d) rule, can only be made by issuing a rulemaking.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any one or a 
combination of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. We have determined that the nene is 
no longer at risk of extinction and, therefore, does not meet the 
definition of endangered, but is still affected by the following 
current and ongoing threats to the extent that the species meets the 
definition of a threatened species under the Act:
     Habitat destruction and modification due to urbanization, 
agricultural activities, nonnative ungulates, and nonnative vegetation;
     Predation by nonnative mammals such as mongooses, cats, 
dogs, rats, and pigs;
     Diseases such as toxoplasmosis, avian pox, avian botulism, 
avian malaria, omphalitis, West Nile virus, and avian influenza;
     Human activities such as motor vehicle collisions, 
collisions at wind energy facilities, artificial hazards (e.g., fences, 
fishing nets, erosion control material), feeding and habituation, and 
recreational activities (e.g., human visitation at parks and refuges); 
and
     Stochastic events such as drought and hurricanes.
    Environmental effects from climate change are likely to exacerbate 
the impacts of drought and hurricanes, and flooding of nene habitat due 
to sea level rise may become a threat in the future. Existing 
regulatory mechanisms and conservation efforts do not effectively 
address the introduction and spread of nonnative plants and animals and 
other threats to the nene.
    We are proposing to promulgate a section 4(d) rule. We are 
proposing to modify the normal take prohibitions to allow certain 
activities conducted on lands where nene occur or where they would 
occur if we were to reintroduce them to areas of their historical 
distribution. Under the proposed 4(d) rule, take of nene caused by 
actions resulting in intentional harassment that is not likely to cause 
direct injury or mortality, control of introduced predators, or habitat 
enhancement beneficial to nene would be not be prohibited. The proposed 
4(d) rule identifies these activities to provide protective mechanisms 
to landowners and their agents so that they may continue with certain 
activities that are not anticipated to cause direct injury or mortality 
to nene and that will facilitate the conservation and recovery of nene. 
Federally implemented, funded, or permitted actions would continue to 
be subject to the requirements of section 7 of the Act and eligible for 
an incidental take exemption through section 7(o).

Information Requested

Public Comments

    We intend that any final action resulting from this proposal will 
be based on the best available scientific and commercial data and will 
be as accurate and as effective as possible. Therefore, we invite 
governmental agencies, the scientific community, industry, Native 
Hawaiian organizations, or any other interested parties to submit 
comments or recommendations concerning any aspect of this proposed 
rule. Comments should be as specific as possible. We are specifically 
requesting comments on:
    (1) The appropriateness of our proposal to reclassify nene from 
endangered to threatened.
    (2) The factors that are the basis for making a reclassification 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to the nene and existing regulations that 
may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (5) Any information on the biological or ecological requirements of 
the species and ongoing conservation measures for the species and its 
habitat.
    (6) Any information on foreseeable changes to State land use or 
County land use planning within the

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boundaries of the nene's range that may affect future habitat 
availability for the nene.
    (7) The appropriateness of a rule under section 4(d) of the Act to 
allow certain actions to take nene, and any additional actions that 
should be considered for authorization.
    (8) The appropriateness of a rule under section 4(d) of the Act to 
allow interstate commerce for nene in captivity outside Hawaii.
    (9) Any additional information pertaining to the promulgation of a 
rule under section 4(d) of the Act to allow certain actions that may 
take nene.
    (10) Relevant data on climate change and potential impacts to the 
nene and its habitat.
    We will take into consideration all comments and any additional 
information we receive. Such communications may lead to a final rule 
that differs from this proposal. All comments, including commenters' 
names and addresses, if provided to us, will become part of the 
supporting record. Please include sufficient information with your 
submission (such as scientific journal articles or other publications) 
to allow us to verify any scientific or commercial information you 
include. Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, 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.
    We will post all hardcopy submissions on http://www.regulations.gov. 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 (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5)(E) of the Act provides for a public hearing on this 
proposal, if requested. We must receive a request for a public hearing, 
in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
the date specified in DATES. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register at least 15 days before the hearing.

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
published in the Federal Register on July 1, 1994 (59 FR 34270), we 
will seek the expert opinion of at least three appropriate independent 
specialists regarding scientific data and interpretations contained in 
this proposed rule. We will send copies of this proposed rule to the 
peer reviewers immediately following publication in the Federal 
Register. This assessment will be completed during the public comment 
period. The purpose of such review is to ensure that our decisions are 
based on scientifically sound data, assumptions, and analysis. 
Accordingly, the final decision may differ from this proposal.

Background

Previous Federal Action

    On March 11, 1967, the Secretary of the Interior identified nene as 
an endangered species (32 FR 4001), under the authority of the 
Endangered Species Preservation Act of 1966 (80 Stat. 926; 16 U.S.C. 
668aa(c)). On March 8, 1969, the Secretary of the Interior again 
identified nene as an endangered species (34 FR 5034) under section 
1(c) of the Endangered Species Preservation Act of 1966. On October 13, 
1970, the Director of the Bureau of Sport Fisheries and Wildlife listed 
nene as an endangered species (35 FR 16047) under the authority of the 
new regulations implementing the Endangered Species Conservation Act 
(ESCA) of 1969. Species listed as endangered under the ESCA of 1969 
were automatically included in the List of Endangered and Threatened 
Wildlife when the Endangered Species Act (Act) was enacted in 1973.
    On February 14, 1983, the Service released the Nene Recovery Plan 
(USFWS 1983). On September 24, 2004, the Service published for comment 
(69 FR 57356) the Draft Revised Recovery Plan for Nene (USFWS 2004). 
The Draft Revised Recovery Plan presented additional information on the 
status of the species, factors affecting species recovery, and an 
updated framework for species recovery.
    A 5-year status review of the nene was completed on September 30, 
2011 (USFWS 2011a). This review concluded that nene continued to meet 
the definition of an endangered species under the Act, and recommended 
no change in the classification of nene as endangered. However, current 
information indicates the species is not in danger of extinction and 
may warrant reclassification from endangered to threatened.

Species Information

    The original rules identifying nene as an endangered species (32 FR 
4001, 34 FR 5034, 35 FR 16047) listed its scientific name as Branta 
sandvicensis and its common name as ``Hawaiian goose (Nene).'' 
Currently the Federal List of Endangered and Threatened Wildlife (50 
CFR 17.11) gives its scientific name as Branta (=Nesochen) 
sandvicensis, and its common name as ``Hawaiian goose,'' without 
indicating ``nene'' as an alternative common name. This species was 
once placed in the genus Nesochen by the American Ornithologists' Union 
(AOU) (1982); however, it was subsequently reassigned to the genus 
Branta (AOU 1993) based on analysis of mitochondrial DNA by Quinn et 
al. (1991). Thus, Branta sandvicensis is the only currently accepted 
scientific name. The common name ``Hawaiian goose'' continues to be 
accepted by the ornithological community (AOU 1998). However, the 
Hawaiian common name ``nene'' is also widely familiar to the public and 
is, for example, frequently referenced in governmental documents within 
the State of Hawaii (e.g., Hawaii Department of Land and Natural 
Resources (DLNR) 2005). Therefore, we are including in this document a 
proposal to return to the scientific and common names that were used in 
the original listing rules, with ``nene'' as an accepted alternative 
common name.
    The nene is a medium-sized goose with an overall length of 
approximately 25 to 27 inches (in) (63 to 65 centimeters (cm)) (Banko 
et al. 1999, p. 2). The plumage of both sexes is similar (Banko et al. 
1999, p. 2). This species is

[[Page 13922]]

adapted to a terrestrial and largely non-migratory lifestyle in the 
Hawaiian Islands with limited freshwater habitat (Banko et al. 1999, p. 
1). Adaptations to a terrestrial lifestyle include increased hindlimb 
size, decreased forelimb size, more upright posture, and reduced 
webbing between the toes compared to other species of Branta (Banko et 
al. 1999, p. 1; Olson and James 1991, p. 42). Compared to the related 
Canada goose (Branta canadensis), nene wings are about 16 percent 
smaller in size and their flight is not as strong (Banko et al. 1999, 
p. 9). Nene are capable of inter-island and high altitude flight, but 
they do not migrate out of the Hawaiian archipelago (Banko et al. 1999, 
p. 9).
    Nene currently use shrublands, grasslands, sparsely vegetated lava 
flows, and human-altered habitats ranging from coastal to alpine 
environments (Wilson and Evans 1890-1899, p. 186; Munro 1944, pp. 41-
42; Scott et al. 1986, p. 77; Banko et al. 1999, pp. 4-5). In the 
grassy shrublands and sparsely vegetated lava flows on the islands of 
Hawaii and Maui, nene nest, raise their young, forage, and molt (Banko 
et al. 1999, p. 2). Some nene populations on these islands move 
seasonally from montane foraging grounds to lowland or midelevation 
nesting areas (Banko et al. 1999, p. 2). On the island of Kauai, nene 
are primarily found using lowland habitats such as coastal wetlands at 
Hanalei National Wildlife Refuge (NWR), with the exception of the Na 
Pali Coast (USFWS 2004, pp. 15, 17).
    Nene are currently known to occupy various habitat and vegetation 
community types ranging from coastal dune vegetation and nonnative 
grasslands (such as golf courses, pastures, and rural areas) to 
sparsely vegetated low- and high-elevation lava flows, mid-elevation 
native and nonnative shrubland, cinder deserts, native alpine 
grasslands and shrublands, and open and nonnative alpine shrubland-
woodland community interfaces (Banko et al. 1999, pp. 4-6). On the 
island of Kauai, nene also use a number of coastal wetland areas 
including taro loi (ponds) (A. Marshall 2017a, pers. comm.). Nene are 
browsing-grazers; the composition of their diet depends largely on the 
vegetative composition of their surrounding habitats, and they appear 
to be opportunistic in their choice of food plants as long as they meet 
nutritional demands (Banko et al. 1999, pp. 6-8; Woog and Black 2001, 
p. 324). Nene may exhibit seasonal movements to grasslands in periods 
of low berry production and wet conditions that produce grass with a 
high water content and resultant higher protein content. The sites 
currently used by nene for nesting range from coastal lowland to 
subalpine zones and demonstrate considerable variability in features 
(Banko et al. 1999, pp. 4-5). However, the current distribution of nene 
nesting sites has been influenced by the location of release sites of 
captive-bred individuals (Hawaii Division of Forestry and Wildlife 
(DOFAW) 2012, pp. 9-10). Historical reports from the island of Hawaii 
indicate that nene bred and molted primarily in the lowlands during 
winter months and moved upslope in the hotter and drier summer months 
(Henshaw 1902, p. 105; Munro 1944, pp. 41-42; Banko 1988, p. 35). 
Reproductive success is relatively low in upland habitats on the 
islands of Hawaii and Maui, and higher in lowland habitat on Kauai 
(Banko et al. 1999, p. 19).
    Nene have an extended breeding season with eggs being laid from 
August to April (Banko et al. 1999, p. 12). Nesting peaks in December, 
and most goslings hatch from December to January (Banko et al. 1999, 
p.12). On the island of Kauai, nene frequently nest earlier (A. 
Marshall 2017a, pers. comm.). Nene nest on the ground, in a shallow 
scrape in the dense shade of a shrub or other vegetation. A clutch 
typically contains three to five eggs, and incubation lasts for 29 to 
32 days (Banko et al. 1999, pp. 14-15). Once hatched, the young may 
remain in the nest for 1 to 2 days; all hatchlings depart the nest 
after the last egg is hatched (Banko et al. 1999, p. 12). Fledging 
(i.e., development of wing feathers large enough for flight) occurs at 
10 to 12 weeks for captive birds, but may be later in the wild (Banko 
et al. 1999, p. 18). During molt, adults are flightless for a period of 
4 to 6 weeks and generally attain their flight feathers at about the 
same time as their offspring. When flightless, goslings and adults are 
extremely vulnerable to predators such as cats, dogs, and mongoose. 
After molting and fledging, around June to September, family groups 
frequently congregate in post-breeding flocks, often far from nesting 
areas. Nene reach sexual maturity at 1 year of age, but usually do not 
form pair bonds until the second year. Females are highly philopatric 
(loyal to their place of birth) and nest near their natal area, while 
males more often disperse (Banko et al. 1999, p. 13).
    Nene and one or more now extinct species of Branta are thought to 
have once been widely distributed among the main Hawaiian Islands. 
Fossil remains of nene have been found on Maui, Molokai, Lanai, and 
Kauai (Olson and James 1991, p. 43). However, nene fossils have not yet 
been found on Niihau (USFWS 2004, p. 6). On Oahu, all fossils appear to 
be of a related but extinct Branta form (Olson and James 1991, p. 43). 
The fossil record indicates the prehistoric (before 1778) range of nene 
was much greater than the historically observed range (Banko et al. 
1999, p. 1). However, it is difficult to estimate original nene 
population numbers because the species composition and even gross 
structure of the vegetation before Polynesian arrival is poorly 
understood (USFWS 2004, p. 7). By 1960, fewer than 30 nene remained on 
Hawaii Island (Smith 1952, p. 1). The release of captive-bred nene, 
which began in 1960, helped save the species from imminent extinction 
(USFWS 2004, pp. 2-3). As a result of such programs, wild populations 
of nene now occur on four of the main Hawaiian Islands. As of 2016, the 
Statewide population of wild Hawaiian geese was estimated to have 
reached 2,855 individuals; the wild populations on the islands of 
Hawaii, Maui, Molokai, Kauai, and Oahu were estimated to have 1,095, 
616, 35, 1,107, and 2 individuals, respectively (Nene Recovery Action 
Group [NRAG] 2017, unpublished). For maps of areas currently used by 
nene, see USFWS (2017).

Recovery Planning

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include 
``objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of [section 4 of the 
Act], that the species be removed from the list.'' However, revisions 
to the Lists of Endangered and Threatened Wildlife and Plants (adding, 
removing, or reclassifying a species) must be based on determinations 
made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 
4(a)(1) requires that the Secretary determine whether a species is 
endangered or threatened (or not) because of one or more of five threat 
factors. Section 4(b) of the Act requires that the determination be 
made ``solely on the basis of the best scientific and commercial data 
available.'' While recovery plans provide important guidance to the 
Service, States, and other partners on methods of enhancing 
conservation and minimizing threats to listed species, as well as 
measurable criteria against which to measure

[[Page 13923]]

progress towards recovery, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. A decision to revise the 
status of a species on, or to remove a species from, the Federal List 
of Endangered and Threatened Wildlife (50 CFR 17.11) is ultimately 
based on an analysis of the best scientific and commercial data then 
available to determine whether a species is no longer an endangered 
species or a threatened species, regardless of whether that information 
differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently and the 
species is robust enough to delist. In other cases, recovery 
opportunities may be discovered that were not known when 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 to which existing 
criteria are appropriate for recognizing recovery of the species. 
Recovery of a species is a dynamic process requiring adaptive 
management that may, or may not, follow all of the guidance provided in 
a recovery plan.
    In 1983, the Service published the Nene Recovery Plan and concluded 
that the nene population in the wild was declining; however, the exact 
causes of the decline were not clearly understood (USFWS 1983, p. 24). 
The Statewide population was estimated at approximately 600 nene with 
390  120 nene on Hawaii Island and 112 nene on Maui. Based 
on the available data, the plan recommended the primary objective to 
delist the species was establishing a population of 2,000 nene on 
Hawaii Island and 250 nene on Maui, well distributed in secure habitat 
and maintained exclusively by natural reproduction (USFWS 1983, p. 24). 
The plan focused on maintenance of wild populations through annual 
releases of captive-reared birds to prevent further population decline, 
habitat management including control of introduced predators, and 
conducting research to determine factors preventing nene recovery and 
appropriate actions to overcome these factors. The plan also 
acknowledged that more research, biological data, and better population 
models would lead to a reassessment of recovery efforts and criteria 
for delisting the species.
    On September 24, 2004, the Service published for comment (69 FR 
57356) the Draft Revised Recovery Plan for Nene (USFWS 2004). The draft 
revised recovery plan presented additional information on the status of 
the species, factors affecting species recovery, and an updated 
framework for species recovery. At the time, the Statewide population 
was estimated at 1,300 nene with populations on Hawaii (349), Maui 
(336), Kauai (564), and Molokai (55). The primary factors affecting the 
nene recovery in the wild were: (1) Predation by introduced mammalian 
predators (Factor C), (2) inadequate nutrition (Factor E), (3) lack of 
lowland habitat (Factor A), (4) human-caused disturbance and mortality 
(Factor E), (5) behavioral issues (Factor E), (6) genetic issues 
(Factor E), and (7) disease (Factor C). The draft revised recovery plan 
recommended the following criteria for downlisting the nene from 
endangered to threatened: (1) Self-sustaining populations exist on 
Hawaii, Maui Nui (Maui, Molokai, Lanai, Kahoolawe), and Kauai (target 
of at least 2,000 birds distributed in 7 populations over 15 years); 
and (2) sufficient suitable habitat to sustain the target population 
levels on each island is identified, protected, and managed in 
perpetuity (USFWS 2004, pp. 50-52). Self-sustaining was defined as 
maintaining (or increasing) established population levels without 
additional releases of captive-bred nene, although manipulation such as 
predator control or pasture management may need to be continued. The 
draft revised recovery plan stated that consideration for delisting 
could occur once all of the downlisting criteria had been met, and 
population levels on Hawaii, Maui Nui, and Kauai had all shown a stable 
or increasing trend (from downlisting levels) for a minimum of 15 
additional years (i.e., for total of 30 years).
    As noted above, substantial self-sustaining populations exist and 
are well distributed in multiple localities on Hawaii Island, Maui, and 
Kauai (NRAG 2017; USFWS 2017), totaling nearly 3,000 individuals. The 
species continues to be conservation-reliant (i.e., dependent on long-
term management commitments to active predator control and habitat 
management), but with ongoing management we expect these populations to 
continue to be self-sustaining without additional releases of captive-
bred birds. As discussed below under Factor A, certain habitat stresses 
continue to exist, but as nene have proven adaptable to diverse native 
and human-modified habitats, it appears that with active management the 
extent and quality of existing breeding habitat is sufficient to 
support robust populations in multiple localities throughout the range. 
Additional management in seasonally occupied non-breeding habitat would 
improve population viability.
    The 2004 draft revised recovery plan sets forth the general 
recovery strategy for nene (USFWS 2004, p. 47), as follows. In order 
for nene populations to survive they should be provided with generally 
predator-free breeding areas and sufficient food resources. Human-
caused disturbance and mortality should be minimized, and genetic and 
behavioral diversity maximized. The goal of recovery stated in the 
draft revised recovery plan is to enable the conservation of nene by 
using a mix of natural and human-altered habitats in such a way that 
the life-history needs of the species are met and the populations 
become self-sustaining. While it is important to restore nene as a 
functioning component of the native ecosystem to ensure long-term 
species survival, it should be noted that nene currently successfully 
use a gradient of habitats ranging from highly altered to completely 
natural. Additionally, some populations exhibit behaviors that differ 
from what it is believed wild birds historically displayed. Nene are a 
highly adaptable species, which bodes well for recovery of the species.
    Conservation needs and activities to recover nene vary among 
islands due to differences in factors affecting nene populations both 
within and among islands. For example, although mongooses occur on 
Hawaii, Maui, and Molokai, Kauai does not yet have an established 
mongoose population; thus predator control priorities there are 
different. In addition, elevations used by nene vary among sites and 
among islands, and vegetation available to nene also differs between 
sites and by island.

Implementation of Recovery Actions for the Nene

    Nene are now more abundant than when they were federally listed as 
endangered in 1967, largely due to a captive propagation program that 
began in 1949 before the species was listed and continued through 2011. 
The program was initiated prior to Hawaiian statehood in collaboration 
between Territory of Hawaii biologists and private partners, and was 
operated by the Division of Fish and Game of the territorial 
government. The initial site of the captive propagation operation was 
at

[[Page 13924]]

Pohakuloa on Hawaii Island. Operations moved to Olinda, Maui, in 1989. 
In 1994, a new partnership was established between the DLNR, the 
Service, and The Peregrine Fund (TPF) to expand facilities and 
operations for captive propagation to include Hawaiian forest bird 
species. The Peregrine Fund established captive propagation operations 
at a newly built propagation facility in Keauhou on Hawaii Island in 
addition to the operations at Olinda. In 2000, management of the 
captive propagation program was transferred to the Zoological Society 
of San Diego. In addition, a number of zoos and private facilities in 
the United States and abroad continue to maintain and breed nene in 
captivity (Kear and Berger 1980, pp. 59-77; A. Marshall 2017b, pers. 
comm.). The existence of privately owned nene outside of Hawaii 
provides additional insurance against extinction of the species, but 
due to concerns about disease introduction, they are not currently used 
as a source for supplementation of the wild population and are not 
considered a significant contributor of conservation of the species. 
However, they are still subject to permitting requirements under the 
Act for interstate commerce.
    Smaller operations to breed nene in open-top pens in semi-captive 
environments were conducted at Hawaii Volcanoes and Haleakala National 
Parks. In some cases, wild birds were placed into the pens where they 
could breed protected from predators. The young fledged from the pens 
to disperse to the surrounding areas. In some cases, birds were 
released directly into the wild farther from the pens.
    In the years between 1960 and 2008, some 2,800 captive-bred nene 
were released into areas of their former range at more than 20 sites 
throughout the main Hawaiian Islands. Most releases of captive birds 
used open-top pens to provide protection from predators. The pens 
provide protection to the birds as long as they are inside the pens, 
and the birds frequently returned to breed in the same pens in 
subsequent years.
    Many of the earlier releases were accompanied by little or no 
management of predators and habitats. Monitoring of released birds 
showed high mortality and low nesting success, indicating that food 
availability and predators had a significant impact on wild populations 
(Banko 1992, pp. 102-104). The highest levels of survival and 
reproductive success were documented at Hawaii Volcanoes and Haleakala 
National Parks, where more intensive management of threats was 
initiated, demonstrating the need and benefits of habitat management 
and predator control (Black et al. 1997, p. 1,171). Recent years have 
seen an increase in the capacity of conservation agencies and partners 
to manage habitat and control predators on larger spatial scales. 
Although not all release sites have supported sustained populations, 
areas in which predators are low or controlled and habitat is managed 
for native food plant species have allowed nene to fare better (Hawaii 
Division of Forestry and Wildlife 2012, p. 19).
    Recent studies on movements of nene using satellite telemetry 
documented the re-establishment of traditional movement patterns in two 
breeding subpopulations on Hawaii Island (Hess et al. 2012, pp. 480-
482). Nene spent the breeding and molting seasons at lower elevations 
from September to April, and moved to higher elevation areas during the 
non-breeding season in May to August. Hess et al. (2012, pp. 479, 482) 
contend that this movement pattern may be beneficial to nene for the 
following reasons: (1) Altitudinal migration may allow nene to track 
availability of food resources not otherwise seasonally available 
(Black et al. 1997, pp. 1,170-1,171); (2) migration may enhance 
survival during the non-breeding season by avoiding nonnative predators 
in (lowland) breeding areas; (3) nene may be able to reduce exposure to 
human activities by occupying high-elevation areas during the non-
breeding season; and (4) there may be opportunities for greater genetic 
exchange if pair bonds are formed between individuals from separate 
breeding subpopulations at non-breeding locations. This movement 
pattern is believed to have occurred historically (Banko et al. 1999, 
pp. 3-4).

Population Viability Analyses

    Black and Banko (1994) conducted a population viability analysis 
using the VORTEX software program to model the long-term fate of nene 
under three different management scenarios: (1) No further releases or 
management, (2) releases mirroring those of the past 30 years, and (3) 
increased management without further releases. The report concluded 
that only under the third scenario could all three populations (Hawaii, 
Maui, and Kauai) survive for 200 years, and that reintroduction alone 
as a management tool may continue to be effective in delaying 
extinction on Hawaii, but will not lead to a self-sustaining 
population. The study concluded that enhanced management efforts, which 
include an appropriate predator control effort, would enable nene to 
reach a self-sustaining level.
    Another population viability analysis was conducted for nene in 
Hawaii Volcanoes National Park to examine management options more 
specific to that area (Hu 1998). First year mortality was identified as 
the primary limiting factor for nene in Hawaii Volcanoes National Park. 
From 1990 to 1996, survival of fledglings averaged 84 percent for 
females and 95 percent for males, while survival from laying to 
fledging ranged from 7 to 19.5 percent (mean 12 percent; Hu 1998, pp. 
84-85). While predator control had reduced egg predation, fledging 
success remained low, largely due to inadequate nutrition. The study 
found that open-top pens cannot sustain a viable nene population in 
Hawaii Volcanoes National Park. The study suggests that while 
management techniques such as grassland management, supplemental 
feeding, and cultivation of native food plants may sustain nene in 
Hawaii Volcanoes National Park, such approaches require considerable 
effort and would require increasing resource expenditures. Thus, Hu 
(1998, pp. 107-114) suggested that nene would be more secure if they 
were integrated into habitat management instituted on a larger scale 
that would involve the creation of native-dominated, fire-adapted 
landscapes at low and mid-elevations in Hawaii Volcanoes National Park 
and more efficient, widespread predator control techniques, allowing 
reestablishment of their seasonal movement patterns between various 
locations.
    Black et al. (1997) analyzed survival data from 1960 through 1990 
for released nene on the island of Hawaii and found that the highest 
mortality rate was found among newly released goslings during drought 
years. They also found that nene at Hawaii Volcanoes National Park had 
the lowest annual mortality rates. The three main factors affecting 
mortality rates were found to be release method, age at time of 
release, and year of release. Releasing pre-fledged goslings with 
parents or foster parents from open-top pens during years with 
sufficient rainfall was found to be the most successful release method 
on the island of Hawaii (Black et al. 1997, p. 1,170). On Kauai, where 
mongooses are not yet established, protecting the nesting area from 
other predators, such as dogs and cats, was found to be extremely 
successful (T. Telfer 1998, pers. comm., as cited in USFWS 2004).
    Amidon (2017) recently conducted a preliminary assessment of the 
short-term population trends in nene populations on the four main 
Hawaiian Islands where nene currently occur. This assessment used 
count-based and demographic models (Morris and Doak 2002, pp. 8-9) 
developed with readily available information on each

[[Page 13925]]

population (Hu 1998; Hu 1999, unpubl. as cited in Banko et al.; USFWS 
2004; Bailey and Tamayose 2016, in litt.; Kendall 2016, in litt.; 
Uyehara 2016a, in litt.) projected over a 20-year time period assuming 
constant management. Count-based models (for Hawaii Volcanoes National 
Park, the island of Maui, Haleakala National Park, the island of 
Molokai, and the island of Kauai) showed an increase or leveling off 
around current population estimates (Amidon 2017, pp. 10-16). 
Demographic models variously projected level or slightly declining 
populations (Hakalau Forest NWR and Haleakala National Park) or 
continued increase (Kauai NWR Complex) (Amidon 2017, pp. 18-21). 
Available data did not allow modeling of nene populations on lands 
outside national parks and national wildlife refuges, where management 
and population trends are likely to differ.

Current Status Summary

    In conclusion, the implementation of recovery actions for nene has 
significantly reduced the risk of extinction for the species. On the 
brink of extinction, the captive propagation and release program 
successfully increased the number of individuals and re-established 
populations throughout the species' range on Kauai, Molokai, Maui, and 
Hawaii Island. Studies of foraging behavior identified nene food 
preferences and nutritional value of food resources contributing to a 
greater understanding of habitat requirements during the breeding and 
non-breeding seasons. Current populations are sustained by ongoing 
management (e.g., predator control, habitat management for feral 
ungulates and nonnative plants). On Hawaii Island, research indicates 
that traditional movements are being restored, which could be expected 
to improve survival and breeding, as well as genetic exchange between 
subpopulations. Recent population modeling data suggest that certain 
key populations are expected to maintain current levels or increase 
into the future if the current level of management is continued.

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 vertebrate 
fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A 
species may be determined to be an endangered or threatened species 
because of any of one or a combination of the five factors described in 
section 4(a)(1) of the Act: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. We must consider these same five 
factors in reclassifying a species from endangered to threatened (i.e., 
downlisting). We may downlist a species if the best available 
scientific and commercial data indicate that the species no longer 
meets the definition of endangered, but instead meets the definition of 
threatened because the species' status has improved to the point that 
it is not in danger of extinction throughout all or a significant 
portion of its range, but the species is not fully recovered.
    Determining whether a species has improved to the point that it can 
be downlisted requires consideration of whether the species is 
endangered or threatened because of the same five categories of threats 
specified in section 4(a)(1) of the Act. 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.''
    In considering what factors might constitute threats, we must look 
beyond the exposure of the species to a particular factor to evaluate 
whether the species may respond to the factor in a way that causes 
actual impacts to the species. If there is exposure to a factor and the 
species responds negatively, the factor may be a threat, and during the 
five-factor analysis, we attempt to determine how significant a threat 
it is. The threat is significant if it drives or contributes to the 
risk of extinction of the species, such that the species warrants 
listing as endangered or threatened as those terms are defined by the 
Act. However, the identification of factors that could impact a species 
negatively may not be sufficient to compel a finding that the species 
warrants listing. The information must include evidence sufficient to 
suggest that the potential threat is likely to materialize and that it 
has the capacity (i.e., it should be of sufficient magnitude and 
extent) to affect the species' status such that it meets the definition 
of endangered or threatened under the Act.
    In the following analysis, we evaluate the status of the nene 
throughout all of its range as indicated by the five-factor analysis of 
threats currently affecting, or that are likely to affect the species 
within the foreseeable future.

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

    The draft revised recovery plan identified the lack of lowland 
habitat and inadequate nutrition as two habitat-related stressors 
limiting nene recovery (USFWS 2004, pp. 29-30). Nene continue to be 
affected by historic and ongoing habitat destruction and modification 
caused by urbanization, agricultural activities, drought, feral 
ungulates, and nonnative plants. These factors limit suitable breeding 
and flocking habitat, constraining the recovery of nene populations.
    Historical habitat loss was largely a result of human activities 
such as urban development and land conversion for agricultural 
activities, particularly in lowland areas. Degradation of lowland 
habitats used by nene began with Polynesian colonization (around 1,600 
years ago) and has continued since European arrival over the past 200 
years (Kirch 1982, pp. 7-10). Impacts to lowland habitat included 
clearing of land for settlements and agriculture; increased frequency 
of fire; heavy grazing, browsing, and soil disturbance by introduced 
deer, cattle, goats, sheep, and pigs; and the spread of nonnative 
plants (Cuddihy and Stone 1990, pp. 103-107).
    The threat of destruction and modification of habitat, particularly 
in lowland areas, by urbanization and land use conversion, including 
agriculture, is ongoing and expected to continue to limit the amount of 
nene foraging and nesting habitat. Past land use practices have 
resulted in great reduction or loss of native vegetation below 2,000 
feet (ft) (600 meters (m)) throughout the Hawaiian Islands (TNC 2006). 
Hawaii's agricultural industries (e.g., sugar cane, pineapple) have 
been declining in importance, and large tracts of former agricultural 
lands are being converted into residential areas or left fallow (TNC 
2007). In addition, Hawaii's population has increased almost 10 percent 
in the past 10 years, further increasing demands on limited land and 
water resources in the islands (Hawaii Department of Business, Economic 
Development and Tourism 2013, in litt.). While breeding habitat has 
some level of protection in the national parks, national wildlife 
refuges, and some

[[Page 13926]]

State lands, there is little to no protection for habitat that nene use 
outside the breeding season. Nene are vulnerable at this time as well 
as during the breeding season as they are moving around to different 
areas, exposing them to additional predation in unprotected habitat, 
poor availability of suitable foraging habitat, and interactions with 
humans and human structures (wind towers, vehicles, etc). Human 
activities associated with the development and urbanization of lowland 
habitat will continue to impact nene. For example, nene collide with 
trees, fences, and particularly motor vehicles (Banko and Elder 1990; 
Banko et al. 1999). Nene are attracted to feeding opportunities 
provided by mowed grass, weeds, and human handouts. Feeding, in 
particular, makes nene vulnerable to collisions along roadsides as they 
frequently become tame and unafraid of human activity (Banko et al. 
1999). Mortality is high in human-modified habitats due to increased 
predation, collisions, and human-caused accidents (Banko et al. 1999).
    The alteration of lowland areas and increasing pressure from human 
activities (including hunting; see Factor B discussion, below) led to 
the extirpation of nene on Kauai and Molokai, and the loss of 
seasonally important lowland breeding habitat in leeward regions of 
islands with elevations above 5,000 ft (1,524 m) (Maui and Hawaii) 
(Baldwin 1945). From the time of European arrival (in the late 1700s) 
until the late 1800s, nene were thought to be all but extirpated, 
except for a widely distributed population on the island of Hawaii 
(Baldwin 1945, pp. 27-30). By the 1940s, Baldwin (1945, p. 35) 
estimated a reduction in the range of nene on Hawaii Island from 2,475 
square miles (mi\2\) (6,410 square kilometers (km\2\)) to 1,150 mi\2\ 
(2,979 km\2\), a loss of over half of its remaining range on Hawaii 
Island since European contact. At the time the captive propagation 
program began in the late 1950s, the remaining wild nene were 
restricted to montane habitats in the ``saddle area'' between Mauna Loa 
and Mauna Kea on Hawaii Island (Baldwin 1945, p. 33).
    Feral ungulates and nonnative plants led to further degradation of 
nene habitat by negatively impacting forage quality, shelter, and 
potential nest sites. Grazing and browsing by introduced cattle, goats, 
and sheep converted significant portions of native montane forest and 
shrubland between 1,640 and 6,562 ft (500 and 2,000 m) to wild 
grassland and managed pastureland dominated by nonnative species 
(Cuddihy and Stone 1990, pp. 59-63, 63-67). Effects of nonnative 
ungulates have been somewhat less severe above 6,562 ft (2,000 m) 
because nonnative weeds are less prevalent (Banko et al. 1999, p. 6). 
Nonnative plants adversely affect native habitat in Hawaii by: (1) 
Modifying the availability of light, (2) altering soil-water regimes, 
(3) modifying nutrient cycling, and (4) altering fire regimes of native 
plant communities (i.e., the ``grass/fire cycle'' that converts native-
dominated plant communities to nonnative plant communities) (Smith 
1985, pp. 180-181; Cuddihy and Stone 1990, p. 74; D'Antonio and 
Vitousek 1992, p. 73; Vitousek et al. 1997, p. 6).
    Studies indicate that inadequate nutritional quality is a limiting 
factor on nene reproduction and gosling survival, especially on Hawaii 
and Maui (USFWS 2004, pp. 29-30). Proper nutrition is critical for 
successful reproduction. Breeding females require carbohydrates and 
protein to increase fat reserves for egg laying and incubation; 
goslings require high-protein foods for growth and development (Ankney 
1984, pp. 364-370; Banko et al. 1999, p. 7). Banko (1992, pp. 103-104) 
suggested that low breeding rates (20 to 63 percent) and low nest 
success (44 percent) at several sites on Maui and Hawaii from 1979 to 
1981 were likely attributable to poor quality or low availability of 
foods. Baker and Baker (1995, p. 2; 1999, p. 12) found that the high 
rates of gosling mortality (57 to 81 percent) in Haleakala National 
Park during the mid-1990s were due to starvation and dehydration. 
Between 1989 and 1999, lack of adequate food or water also appeared to 
be a factor limiting nene recruitment in Hawaii Volcanoes National Park 
(Rave et al. 2005, p. 14). In many instances of gosling mortality, the 
actual cause of death may be exposure because goslings are weakened by 
malnutrition (at hatching) and were unable to keep up with parents, and 
therefore got chilled or overheated and died (Baker and Baker 1999, p. 
13). Emaciation was the most common cause of death diagnosed in 71 out 
of 300 adult and gosling mortalities submitted to the National Wildlife 
Health Research Center between 1992 and 2013 for which a cause of death 
was identified (Work et al. 2015, p. 692). More cases of emaciation 
were diagnosed on Hawaii Island (32), and to a lesser extent Kauai (21) 
and Maui (13), perhaps reflecting the rates of hatching and fledgling 
success and nutritional quality of habitats on the respective islands. 
Habitat also continues to be reduced due to the spread of unpalatable 
alien grasses (e.g., guinea grass (Megathyrsus maximus), sword grass 
(Miscanthus floridulus)) and other weeds (e.g., koa haole (Leucaena 
leucocephala), lantana (Lantana camara)), as this spread diminishes 
foraging opportunities (Banko et al. 1999, p. 23). Therefore, 
inadequate nutritional quality due to the lack of suitable foraging 
opportunities in and around current breeding areas, particularly at 
higher elevations on Maui and Hawaii Island, coupled with the loss of 
lowland breeding areas across its range, is expected to continue as a 
threat to the nene.
    Drought has been identified as a factor contributing to nene 
mortality. Drought reduces the amount and quality of available forage, 
thereby increasing the risk of nene mortality due to starvation and 
dehydration; thus, for example, nene exhibited higher rates of 
mortality in drought years during the prolonged island-wide drought 
between 1976 and 1983 on Hawaii Island (Black et al. 1997, pp. 1,165-
1,169). Drought was also thought to have contributed to the population 
decline (10 percent) at Hawaii Volcanoes National Park in the late 
1990s (Rave et al. 2005, p. 12). Numerous and recurrent droughts have 
been historically documented throughout the Hawaiian Islands 
(Giambelluca et al. 1991, pp. 3-4; Hawaii Civil Defense 2011, ch. 14, 
pp. 1-12), with the most severe events often associated with the El 
Ni[ntilde]o phenomenon (Hawaii Civil Defense 2011, p. 14-3). Based on 
the frequency of drought and its population-level impacts to nene, we 
conclude that the threat of drought is ongoing and likely to continue 
periodically into the foreseeable future.
    Recovery efforts initially focused on the establishment of 
populations with the majority of releases of captive-bred nene at high-
elevation native shrublands (above 5,000 ft (1,524 m)) on Hawaii Island 
and Maui. High-elevation nesting areas are less modified than lowlands 
(Banko et al. 1999, p. 6), but may provide poorer quality habitat for 
nene foraging and nesting, due to drier conditions and phenology of 
food plants, which limit available food resources during critical pre-
breeding and breeding periods (Black et al. 1994, pp. 101-103; Black et 
al. 1997, p. 1,170). Black et al. (1997, p. 1,169) found that nene that 
remained at high-elevation sites year-round exhibited lower rates of 
reproductive success and survival than those that dispersed from 
release sites. Nene survival and breeding success improved by moving 
away from dry upper montane volcanic scrubland to managed grasslands or 
managed ranchland, or if they were provided supplemental feed and 
water,

[[Page 13927]]

particularly in drought years (Black et al. 1994, p. 103; Black et al. 
1997, pp. 1,169-1,170). Subsequent reintroductions at low- and mid-
elevation sites, first on Kauai and Hawaii Island, and more recently on 
eastern Molokai and western Maui, demonstrated the ability of nene to 
successfully become re-established in these areas.
    Currently, nene are found in a range of habitats from sea level to 
subalpine zones on Kauai, Oahu, Molokai, Maui, and Hawaii Island. 
Populations are centered around release sites and rely on continued 
land use protections and habitat management (including predator 
control) to sustain populations in these areas. On Maui Nui and Hawaii 
Island, the majority of the nene nest in managed areas at mid- to high-
elevation habitats, including Haleakala National Park, Hawaii Volcanoes 
National Park, and Puu Oo Ranch/Puu 6677; and at lower elevation sites, 
including Hanaula, Piiholo Ranch, Haleakala Ranch (Waiopae), and Puu O 
Hoku Ranch (Molokai). On Kauai, most nene nest and live year-round in 
areas below 984 ft (300 m), where large expanses of managed grasslands 
(including golf courses) and low levels of predation (mostly due to the 
absence of a mongoose population) have led to a stable and increasing 
nene population. The majority of the Kauai population is centered in 
and around the Hanalei and Kilauea Point NWRs.
    Many of the areas where nene occur in the wild are afforded some 
level of habitat enhancement that focuses on increasing the survival 
and reproduction of nene. Habitat enhancement can include predator 
control, mowing, outplanting, and supplemental feeding. Hawaii 
Volcanoes National Park has areas where many of these types of 
enhancement occur. For instance, park staff maintain two predator-
resistant open-topped pens, 4 and 5 hectares (10 and 13 acres) in size, 
as safe-breeding sites with supplemental feed and occasional mowing. In 
addition, predator control is conducted at key brooding sites, and some 
areas may be closed to human use during the nene breeding season. The 
Hawaii Division of Forestry and Wildlife also provides supplemental 
food for nene populations on Hawaii Island. Haleakala National Park has 
controlled ungulate populations and horses intermittently grazing in 
Paliku pasture. Kauai DOFAW also has predator control programs and may 
provide supplemental feed during drought years. Mowing, grazing, and 
irrigating grass can improve its attractiveness to geese by increasing 
the protein content (Sedinger and Raveling 1986, p. 302; Woog and Black 
2001, pp. 324-328).
    Highly altered landscapes and nonnative vegetation also can 
significantly affect nene recovery. For example, nene on Kauai 
primarily use lowland areas in highly altered, human-impacted habitats 
such as pastures, agricultural fields, golf courses, and highly 
degraded waste areas (USFWS 2004, pp. 41-42). Nene have been very 
successful in these areas, indicating their adaptability to a variety 
of habitats. Lowlands, however, are often unsuitable because of intense 
human activity or dense predator populations placing nene at greater 
risk of predation, and hazardous situations such as habituation to 
human feeding, vehicle collisions, and golf ball strikes (Natural 
Resources Conservation Service [NRCS] 2007, p. 7). The recovery of nene 
is dependent on a variety of habitats ranging from highly altered, 
managed habitats to habitats consisting of primarily native species, 
and it may not be feasible to restore habitats to native species in all 
areas used by nene. It is believed that nene currently require 
availability of a diverse suite of food resources that may include both 
nonnative and native vegetation (Baldwin 1947, pp. 108-120; Black et 
al. 1994, pp. 103-105; Banko et al. 1999, pp. 6-7). However, the 
current amount and distribution of suitable breeding, foraging, and 
flocking habitat continues to be a limiting factor for the nene.
    Our analyses of Factor A under the Act include consideration of 
ongoing and projected changes in climate, and the impacts of global 
climate change and increasing temperatures on Hawaii ecosystems, all of 
which are the subjects of active research. Analysis of the historical 
record indicates surface temperature in Hawaii has been increasing 
since the early 1900s, with relatively rapid warming over the past 30 
years. The average increase since 1975 has been 0.48 degrees Fahrenheit 
([deg]F) (0.27 degrees Celsius ([deg]C)) per decade for annual mean 
temperature at elevations above 2,600 ft (800 m) and 0.16[emsp14][deg]F 
(0.09 [deg]C) per decade for elevations below 2,600 ft (800 m) 
(Giambelluca et al. 2008, pp. 3-4). Based on models using climate data 
downscaled for Hawaii, the ambient temperature is projected to increase 
by 3.8 to 7.7[emsp14][deg]F (2.1 to 4.3 [deg]C) over the 21st century, 
depending on elevation and the emissions scenario (Liao et al. 2015, p. 
4344). Environmental conditions in tropical montane habitats can be 
strongly influenced by changes in sea surface temperature and 
atmospheric dynamics (Loope and Giambelluca 1998, pp. 504-505; Pounds 
et al. 1999, pp. 611-612; Still et al. 1999, p. 610; Benning et al. 
2002, pp. 14,246-14,248; Giambelluca and Luke 2007, pp. 13-15). On the 
main Hawaiian Islands, predicted changes associated with increases in 
temperature include a shift in vegetation zones upslope; a similar 
shift in animal species' ranges; changes in mean precipitation with 
unpredictable effects on local environments; increased occurrence of 
drought cycles; and increases in intensity and numbers of hurricanes 
(tropical cyclones with winds of 74 miles per hour or higher) (Loope 
and Giambelluca 1998, pp. 514-515; U.S. Global Change Research Program 
(US-GCRP) 2009, pp. 10, 12, 17-18, 32-33; Giambelluca 2013, p. 6). The 
effect on nene of these changes associated with temperature increase is 
detailed in the following paragraphs.
    The forecast of changes in precipitation is highly uncertain 
because it depends, in part, on how the El Ni[ntilde]o-La Ni[ntilde]a 
weather cycle (an episodic feature of the ocean-atmosphere system in 
the tropical Pacific having important global consequences for weather 
and climate) might change (State of Hawaii 1998, pp. 2-10). The 
historical record indicates that Hawaii tends to be dry (relative to a 
running average) during El Ni[ntilde]o phases and wet during La 
Ni[ntilde]a phases (Chu and Chen 2005, pp. 4809-4810). However, over 
the past century, the Hawaiian Islands have experienced a decrease in 
precipitation of just over 9 percent (US National Science and 
Technology Council 2008, p. 61) and a decreasing trend (from the long-
term mean) is evident in recent decades (Chu and Chen 2005, pp. 4802-
4803; Diaz et al. 2005, pp. 1-3). Models of future rainfall downscaled 
for Hawaii generally project increasingly wet windward slopes and mild 
to extreme drying of leeward areas in particular during the middle and 
late 21st century (Timm and Diaz 2009, p. 4262; Elison Timm et al. 
2015, pp. 95, 103-105). Altered seasonal moisture regimes can have 
negative impacts on plant growth cycles and overall negative impacts on 
native ecosystems (US-GCRP 2009, pp. 32-33). Long periods of decline in 
annual precipitation result in a reduction of moisture availability; an 
increase in drought frequency and intensity; and a self-perpetuating 
cycle of nonnative plant invasion, fire, and erosion (US-GCRP 2009, pp. 
32-33; Warren 2011, pp. 221-226). Overall, more frequent El Ni[ntilde]o 
events are predicted to produce less precipitation for the Hawaiian 
Islands. These

[[Page 13928]]

projected decreases in precipitation are important stressors for nene 
because they experience substantially higher mortality from starvation 
in drought years (Hess 2011, p. 59). In addition, the drying trend, 
especially on leeward sides of islands, creates suitable conditions for 
increased invasion by nonnative grasses and enhances the risk of 
wildfire.
    Tropical cyclone frequency and intensity are projected to change as 
a result of increasing temperature and changing circulation associated 
with climate change over the next 100 to 200 years (Vecchi and Soden 
2007, pp. 1068-1069, Figures 2 and 3; Emanuel et al. 2008, p. 360, 
Figure 8; Yu et al. 2010, p. 1371, Figure 14). In the central Pacific, 
modeling projects an increase of up to two additional tropical cyclones 
per year in the main Hawaiian Islands by 2100 (Murakami et al. 2013, p. 
2, Figure 1d). In general, tropical cyclones with the intensities of 
hurricanes have been an uncommon occurrence in the Hawaiian Islands. 
From the 1800s until 1949, hurricanes were only rarely reported from 
ships in the area. Between 1950 and 1997, 22 hurricanes passed near or 
over the Hawaiian Islands, and 5 of these caused serious damage 
(Businger 1998, in litt.). A recent study shows that, with a projected 
shift in the path of the subtropical jet stream northward, away from 
Hawaii, more storms will be able to approach and reach the Hawaiian 
Islands from an easterly direction, with Hurricane Iselle in 2014 being 
an example (Murakami et al. 2013, p. 751). At high-elevation nesting 
sites, frequent heavy precipitation may affect gosling survival during 
the cooler months (Hess et al. 2012, p. 483). More frequent and intense 
tropical storms are likely to increase the number of nest failures and 
gosling mortalities in mid- and high-elevation habitats on Maui and 
Hawaii where nene are already at risk of exposure and starvation due to 
inadequate nutrition (Baker and Baker 1995, p. 13; K. Misajon 2016, 
pers. comm.; J. Tamayose 2016, pers. comm.). In addition, projected 
warmer temperatures and increased storm severity resulting from climate 
change are likely to exacerbate other threats to nene, such as by 
enhancing the spread of nonnative invasive plants into these species' 
native ecosystems in Hawaii.
    Finally, sea level rise resulting from thermal expansion of warming 
ocean water; the melting of ice sheets, glaciers, and ice caps; and the 
addition of water from terrestrial systems (Climate Institute 2011, in 
litt.) has the potential for direct effects on nene habitat. Rise in 
global mean sea level (GMSL) is ongoing and expected to continue for 
the foreseeable future (i.e., centuries) (Meehl et al. 2012, p. 576; 
Golledge et al. 2015, pp. 421, 424; DeConto and Pollard 2016, pp. 1, 6) 
due to warming that has already occurred and an uncertain amount of 
additional warming caused by future greenhouse gas emissions (Sweet et 
al. 2017, p. 1). Six risk-based scenarios describing potential future 
conditions through 2100 project lower and upper bounds of GMSL rise 
between 0.3 and 2.5 m (1 and 8 ft) (Sweet et al. 2017, pp. vi-vii, 1-
55, and Appendices A-D).
    Sea level rise is not expected to be uniform throughout the world, 
due to factors including, but not limited to: (1) Variations in 
oceanographic factors such as circulation patterns; (2) changes in 
Earth's gravitational field and rotation, and the flexure of the crust 
and upper mantle due to melting of land-based ice; and (3) vertical 
land movement due to postglacial rebound of topographically depressed 
land, sedimentation compaction, groundwater and fossil fuel 
withdrawals, and other non-climatic factors (Spada et al. 2013, p. 484; 
Sweet et al. 2017, pp. vi-vii, 9, 19). Sea level rise in the Hawaiian 
Islands is expected to be greater than rise in GMSL (Spada et al. 2013, 
p. 484; Polhemus 2015, p. 7; Sweet et al. 2017, p. 9). In Hawaii, long-
term sea level rise adds to coastal erosion, impacts from seasonal high 
waves, coastal inundation due to storm surge and tsunami, and drainage 
problems due to the convergence of high tide and rainfall run-off 
(SOEST 2017, in litt.). Flooding related to sea level rise would result 
in the additional loss of lowland habitat occupied by nene in low-lying 
coastal areas at Huleia NWR on Kauai, Ukumehame on Maui, and Keeau on 
Hawaii Island.
    Thus, although we cannot predict the timing, extent, or magnitude 
of specific events, we expect effects of climate change (changes in 
tropical cyclone frequency and intensity, drought frequency, and sea 
level rise) to exacerbate the current threats to this species such as 
predation, inadequate nutrition, and habitat loss and degradation.
Summary of Factor A
    Habitat destruction and modification from urbanization, 
agricultural activities, drought, feral ungulates, and invasive plant 
species remain threats to nene. These factors contribute to an ongoing 
lack of suitable breeding and flocking habitat, limiting nene 
population expansion. Historical habitat loss was largely a result of 
human activities such as urban development and land conversion for 
agricultural activities, particularly in lowland areas, contributing to 
the extirpation of nene on Kauai and Molokai, and the loss of 
seasonally important leeward, lowland breeding areas on islands with 
elevations above 5,000 ft (1,524 m) (Maui and Hawaii). Feral ungulates 
and invasive plant species led to further degradation of nene habitat 
by negatively impacting forage quality, shelter, and potential nest 
sites.
    Recovery efforts initially focused on the establishment of 
populations with the majority of releases of captive-bred nene at high-
elevation sanctuaries (above 5,000 ft (1,524 m)) on Maui and Hawaii 
Island. Despite supplemental food and water and localized predator 
control efforts, nene at these sites experienced high rates of adult 
mortality and low rates of gosling survival attributed to inadequate 
nutrition caused by habitat factors such as poor forage quality, 
drought, and exposure. Research showed that access to managed grassland 
habitats and habitat enhancement during the breeding season improved 
foraging opportunities and resulted in increased survival and breeding 
success. Control of feral ungulate populations in areas such as Hawaii 
Volcanoes National Park and Haleakala National Park reduced their 
impacts on native vegetation and likely improved nene foraging and 
breeding habitat. Subsequent reintroductions at low- and mid-elevation 
sites, first on Kauai and Hawaii Island, and more recently on eastern 
Molokai and western Maui, demonstrated the ability of nene to 
successfully become established in these areas.
    Currently, nene are found in a range of habitats from sea level to 
subalpine areas on Kauai, Oahu, Molokai, Maui, and Hawaii Island. 
Populations are centered around release sites and rely on continued 
land use protections and habitat management (including predator 
control) to sustain successful breeding and population numbers in these 
areas.
    Overall, the expansion of existing populations is limited by the 
lack of suitable breeding and flocking habitat due to continuing 
urbanization, agricultural activities, and potential conflicts with 
human activities. Periods of drought are expected to continue and are 
likely to be exacerbated by the effects of climate change. To minimize 
the effects of drought on the food availability and adequate nutrition, 
habitat enhancement activities to provide foraging opportunities, 
especially during the breeding season, will need to be maintained. The 
rise in sea level projected by climate change models may threaten any 
low-lying

[[Page 13929]]

habitats used by nene. Although the effects of climate change do not 
constitute a threat to nene now, we do expect them to exacerbate the 
effects of drought and tropical storms, and to constitute a threat in 
the foreseeable future.

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

    Overuse for commercial, recreational, scientific, or educational 
purposes is not a threat to the nene. The exploitation of nene for food 
by Hawaiians and non-Polynesian settlers is believed to have been 
responsible for substantial population declines in lowland areas, and 
hunting was a major limiting factor until a hunting ban was passed and 
enforced in 1907 (Banko et al. 1999, p. 23). Human visitation for 
recreational activities at parks and refuges where nene occur often 
results in human interactions with nene. Habituation to humans and 
feeding of nene at these recreational areas create the potential for 
injury or mortality of nene by attracting nene to hazardous areas where 
collisions, predation, and accidents frequently occur (Banko et al. 
1999, p. 24). For discussion and analysis of the population-level 
impacts to nene caused by direct and indirect human impacts, see our 
discussion under Factor E, below. While the historical effects of 
overuse were factors that led to the original listing of nene as 
federally endangered in 1967, current regulations and enforcement are 
in place to protect nene from overuse. Therefore, overuse does not 
constitute a threat to nene now or in the foreseeable future.

Factor C. Disease or Predation

Disease
    Numerous parasites and diseases have been documented in captive and 
wild nene (van Riper and van Riper 1985, pp. 308, 312, 333; Bailey and 
Black 1995, p. 62; Work et al. 2002, p. 1,040). Recent data attributing 
the primary causes of death in nene to disease have identified 
parasites, bacterial and fungal infection, and, less commonly, avian 
pox (virus) and avian botulism (Work et al. 2015, pp. 690-694). Avian 
influenza and West Nile Virus (WNV), if established, also have the 
potential to affect the nene population.
    Toxoplasma gondii is a protozoan parasite transmitted by domestic 
cats (Felis catus) that has historically caused mortality in native 
Hawaiian birds, and is the most commonly encountered infectious disease 
in nene, primarily affecting adult birds (Work et al. 2015, p. 691). As 
herbivores, nene are likely exposed by eating transport hosts such as 
insects or ingesting oocysts (reproductive phase of the parasite) in 
contaminated water, soil, or vegetation (Work et al. 2016, p. 255). For 
mortalities attributed to T. gondii, the cause of death is typically 
diagnosed as inflammation or lesions on multiple organs. The detection 
of T. gondii in over 30 percent of feral cats sampled (n=67) at 2 
locations on Mauna Kea, Hawaii Island (Danner et al. 2007, p. 316) 
suggests that exposure to and infection by T. gondii is likely to 
continue and to play a role in mortality of nene. This parasite may 
also have non-lethal effects on nene, making them more susceptible to 
trauma caused by vehicle collisions, as a high prevalence of T. gondii 
was observed in road kills of other species (Work et al. 2016, p. 256). 
Widespread exposure to T. gondii was detected in wild birds from Kauai, 
Maui, and Molokai (21 to 48 percent of birds examined) (Work et al. 
2016, p. 255). However, the parasite is implicated as the cause of 
death in a relatively low proportion (4 percent) in the number of nene 
mortalities submitted to the U.S. Geological Survey National Wildlife 
Health Center (USGS-NWHC) between 1992 and 2013 (Work et al. 2015, pp. 
690-694). This suggests that although exposure to T. gondii is 
widespread and ongoing, the threat of disease caused by T. gondii is 
expected to be low in magnitude and is not likely to have significant 
population-level impacts on nene.
    Omphalitis, a bacterial infection of the umbilical stump, has been 
found to cause mortality in both wild and captive nene goslings (USFWS 
2004, p. 34). Work et al. (2015, supplemental material) recently 
diagnosed omphalitis at low levels (2 percent, 7 of 300) in a number of 
nene mortalities submitted to the USGS-NWHC.
    Avian pox is caused by a virus that causes inflammation of the 
skin, and in severe cases may result in large scabs that block 
circulation and lead to the loss of digits or entire limbs or lead to 
blindness, the inability to eat, or death (USGS-NWHC 2017a, in litt.). 
Pox-like lesions have been reported in adult birds in captivity (Kear 
and Brown 1976, pp. 133-134; Kear and Berger 1980, pp. 42, 86, 138), 
and pox scars on many birds in the wild on Hawaii and Maui indicate 
that avian pox is common, but generally not fatal to nene (Banko et al. 
1999, pp. 20-21). Avian pox was recently found in an emaciated bird, 
but was judged to be a secondary finding (Work et al. 2015, p. 693).
    Avian malaria is caused by the microscopic parasitic protozoan, 
Plasmodium relictum. Avian malaria was diagnosed as the cause of death 
in only 1 out of 300 nene mortalities submitted to the USGS-NWHC for 
which the cause of death was identified (Work et al. 2015, supplemental 
material). Avian malaria has also been reported in at least one wild 
bird on Maui, but it does not appear that avian malaria is causing 
significant declines of nene populations (Banko et al. 1999, pp. 20-
21). However, concern about the potential to transfer unique regional 
strains of avian malaria between islands has resulted in quarantine 
testing of any nene to be moved inter-island to ensure they are not 
infected; during the recent Nene Relocation Project, birds from Kauai 
in which Plasmodium was detected were kept on Kauai and not 
translocated to Maui or Hawaii Island (Kauai Lagoons 2015, in litt.).
    Avian botulism is a paralytic disease caused by the ingestion of a 
natural toxin produced by the bacteria, Clostridium botulinum. Birds 
either ingest the toxin directly or may eat invertebrates (e.g., non-
biting midges, fly larvae) containing the toxin (USGS-NWHC 2017b, in 
litt.). Botulism outbreaks may occur year-round with distinct seasonal 
patterns based on location (Uyehara 2016b, in litt.).
    Botulism has been found on Kauai, Oahu, Molokai, Maui, and Hawaii 
Island (USGS-NWHC 2017b, in litt.). Avian botulism was diagnosed as the 
cause of death in only 4 out of 300 nene mortalities submitted to the 
USGS-NWHC for which the cause of death was identified (Work et al. 
2015, supplemental material). Also, between 2011 and 2015, only 1 
percent of the 866 cases of botulism involved nene in the Kauai NWR 
Complex (Uyehara 2016b, in litt.). Avian botulism is thought to pose a 
minor threat to nene because they tend to forage on grasses rather than 
aquatic invertebrates (Work et al. 2015, p. 693).
    The spread of avian influenza and West Nile Virus (WNV) in North 
America has serious implications if either arrives in Hawaii. West Nile 
Virus is transmitted by adults of various species of Culex mosquitoes, 
some of which are present in Hawaii (USGS-NWHC 2017c, in litt.). When 
an infected mosquito bites an animal, the virus enters the animal and 
infects the central nervous system. West Nile Virus causes mortality in 
domestic geese, with goslings more susceptible than adults (Austin et 
al. 2004, p. 117). In experimentally infected young domestic geese, the 
New York strain of WNV caused reduced activity, weight loss, abnormal 
neck and spine posture, and death with accompanying encephalitis

[[Page 13930]]

and myocarditis (Swayne et al. 2001, p. 753). Of the three known cases 
of nene infected with WNV on the U.S. mainland, all were adults and one 
died (Jarvi et al. 2008, p. 5,339).
    Avian influenza has been reported to cause mortality in naturally 
infected Canada geese in Asia and Europe (Ellis et al. 2004, p. 496; 
Teifke et al. 2007, p. 138). Additional studies have shown that 
immunologically na[iuml]ve, juvenile birds are particularly susceptible 
(Pasick et al. 2007, p. 1,827). Migratory birds have been implicated in 
the long-range spread of highly pathogenic avian influenza (HPAI), a 
virus (H5N1) from Asia to Europe and Africa. In 2006, the U.S. 
Departments of the Interior (DOI) and Agriculture (USDA) conducted 
surveillance for the presence of highly pathogenic avian influenza H5N1 
in wild birds in the Pacific islands (American Samoa, Guam, Hawaii, 
Marshall Islands, Northern Mariana Islands, and Palau) (USGS-NWHC 
2017d, in litt.). Over 4,000 specimens were collected from waterfowl, 
shorebirds, and other species from throughout the Pacific, and no 
highly pathogenic avian influenza was detected (Work and Eismueller 
2007, p. 2).
    The Hawaii Field Station of the USGS-NWHC continues to work with 
wildlife managers to monitor the impact of diseases and other mortality 
factors on nene and other wildlife populations. Cats are the sole known 
lifecycle host for the protozoan that causes toxoplasmosis. Reduction 
in the number of feral cats will reduce the likelihood of exposure of 
nene to the disease. Ongoing conservation measures in nene breeding 
areas, such as predator control and predator-proof fences that exclude 
cats, reduce, but do not eliminate, the risk of exposure to 
toxoplasmosis due to the abundance and range of feral cat populations.
Predation
    Predation by introduced mammals continues to be a major factor 
limiting nene breeding success and survival. Predators known to take 
nene eggs, goslings, or adults include dogs (Canis familiaris), feral 
pigs (Sus domesticus), feral cats, small Indian mongooses (Herpestes 
auropunctatus), and black, Norway, and Pacific rats (Rattus, R. 
norvegicus, and R. exulans, respectively) (Hoshide et al. 1990, pp. 
153-154; Baker and Baker 1995, p. 8; Banko et al. 1999, pp. 11-12; 
Hilton 2016, in litt.). In addition, cattle egrets (Bubulcus ibis) and 
barn owls (Tyto alba) are suspected to occasionally take goslings. When 
flightless and during molt, goslings and adults are extremely 
vulnerable to predation by any of these predators (USFWS 2004, p. 21). 
Yellow crazy ants (Anoplolepis gracilipes) and little fire ants 
(Solenopsis papuana) also have the potential to disturb incubating 
females and goslings (Plentovich 2017, in litt.).
    The small Indian mongoose was introduced to the Hawaiian 
archipelago in 1883, and quickly became widespread on Oahu, Molokai, 
Maui, and Hawaii Island, from sea level to elevations as high as 7,000 
ft (2,130 m) (Tomich 1986, pp. 93-94). Kauai remained mongoose-free 
when a planned introduction was aborted; however, there have been 
almost 350 reported sightings since 1968, and in 1976, a road-killed, 
lactating female was found on the island near Eleele (KISC 2016a, in 
litt.; Phillips and Lucey 2016). In 2012 and 2016, a total of three 
mongooses were captured in Lihue, Kauai, at air cargo and harbor 
facilities, as well as a resort adjacent to airport property (KISC 
2016b, in litt.). The numerous sightings and four confirmed individuals 
have led to the perception that mongoose are now established on Kauai. 
While the recent arrivals of mongoose are troubling, there remains 
scant biological evidence that a breeding population of mongoose occurs 
on Kauai.
    Mongooses are believed to be the most serious egg predator and are 
responsible for the most nene nest failures on Hawaii and Maui (Hoshide 
et al. 1990, p. 154; Banko 1992, pp. 101-102; Black and Banko 1994, p. 
400; Baker and Baker 1995, p. 20). Mongoose also prey upon goslings and 
adults (Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122; K. 
Misajon 2016, pers. comm.). The success of the nene on Kauai 
demonstrates that mongooses may constitute the most significant 
predator elsewhere (Banko et al. 1999, p. 25). Despite relying on 
limited data, recent estimates of nest success on Kauai for private 
lands (75 percent) and the Kauai NWR Complex (82 percent) are far 
greater than estimates for both Haleakala National Park (62 percent) 
and Hawaii Volcanoes National Park (58 percent) (Hu, unpublished as 
cited in Banko et al. 1999; Bailey and Tamayose 2016, in litt.; Uyehara 
2016a, in litt.).
    Introduced European pigs hybridized with smaller, domesticated 
Polynesian pigs; became feral; and invaded forested areas, especially 
mesic and wet forests, from low to high elevations, and are present on 
all the main Hawaiian Islands except Lanai and Kahoolawe, where they 
have been eradicated (Tomich 1986, pp. 120-121; Munro 2007, p. 85). 
Pigs may roam over nearly the entire extent of the range of nene. Pigs 
are known to take eggs, goslings, and possibly adults (Kear and Berger 
1980, p. 57; Banko and Elder 1990, p. 122; Baker and Baker 1995, p. 20; 
K. Misajon 2016, pers. comm.). The presence of pigs can also attract 
feral dogs that may then prey upon nene (NPS 2016, p. 2).
    Three species of introduced rats occur in the Hawaiian Islands. 
Studies of Pacific rat DNA suggest they first appeared in the islands 
along with emigrants from the Marquesas Islands (French Polynesia) in 
about 400 A.D., with a second introduction around 1100 A.D. (Ziegler 
2002, p. 315). The black rat and the Norway rat arrived in the islands 
more recently, as stowaways on ships sometime in the late 19th century 
(Atkinson and Atkinson 2000, p. 25). The Pacific rat and the black rat 
are primarily found in rural and remote areas of Hawaii, in dry to wet 
habitats, while the Norway rat is typically found in urban areas or 
agricultural fields (Tomich 1986, p. 41). The black rat is widely 
distributed throughout the main Hawaiian Islands and can be found in a 
range of ecosystems and as high as 9,000 ft (2,700 m), but it is most 
common at low- to mid-elevations (Tomich 1986, pp. 38-40). Sugihara 
(1997, p. 194) found both black and Pacific rats up to 7,000 ft (2,000 
m) on Maui, but found the Norway rat only at lower elevations. Rats are 
known to prey upon nene eggs and goslings (Kear and Berger 1980, p. 57; 
Hoshide et al. 1990, p. 154; Baker and Baker 1995, p. 20).
    Cats were introduced to Hawaii in the early 1800s, and are present 
on all the main Hawaiian Islands (Tomich 1986, p. 101). Although cats 
are more common at lower elevations, there are populations in areas 
completely isolated from human presence, including montane forests and 
alpine areas of Maui and Hawaii Island (Lindsey et al. 2009, p. 277; 
Scott et al. 1986, p. 363). Cats take nene goslings and adults, and 
have been observed moving eggs in nests, so they may also prey upon 
eggs (Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122; Baker 
and Baker 1995, p. 20; Zaun 2008, in litt.).
    Dogs in Hawaii are products of animals brought by Polynesians and 
later introductions of mixed or selected breeds from all over the world 
(Tomich 1986, p. 52). Nene are particularly vulnerable to dogs because 
they have little instinctive fear of them. Along with mongooses, dogs 
are a significant predator of adult nene, and may also take goslings 
(Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122).
    Cattle egrets and barn owls were both introduced into Hawaii in the 
late 1950s, in an attempt to address agricultural pests on farms and 
ranches.

[[Page 13931]]

In Hawaii, cattle egrets are now widespread on all the main islands, as 
well as on the islands and atolls of the Northwestern Hawaiian Islands. 
Barn owls occur on all of the main Hawaiian Islands in all habitat 
types, from sea level to upper elevation forests, and in recent years 
have been sighted with increasing frequency on offshore islets. Barn 
owls and cattle egrets may also take goslings occasionally (Banko et 
al. 1999, p. 11; S. Franklin 2016, pers. comm.).
    The yellow crazy ant occurs in low- to mid-elevations (less than 
2,000 ft (600 m)) in rocky areas of moderate rainfall (less than 100 in 
(250 cm) annually) (Reimer et al. 1990, p. 42). The tropical fire ant 
(Solenopsis geminata) is found in drier areas of all the main Hawaiian 
islands (Wong and Wong 1988, p. 175). Both species are nonnative and 
are known to cause significant injuries and developmental problems in 
adults and chicks of ground-nesting seabirds, and are expected to have 
similar effects on nene (S. Plentovich 2017, pers. comm.).
    A variety of predator control programs have been initiated in areas 
where nene currently reside. Since 1994, Haleakala National Park has 
conducted intensive control of introduced predators using trapping and 
toxicants (Bailey and Tamayose 2016, in litt.). Ongoing efforts on the 
different islands include predator control programs aimed at mongooses, 
dogs, feral cats, rodents, and pigs. Some open-top pens previously used 
to rear captive nene on National Park Service lands are now often used 
to provide predator-free nesting and brooding habitat for free-flying 
pairs or as temporary holding pens for sick or injured birds (Hawaii 
Volcanoes National Park 2016, in litt.).
    Nene population numbers at Hawaii Volcanoes National Park increased 
during a 10-year period (1989 to 1999), probably in part because of 
intensive predator control (Rave et al. 2005, p. 14). Since then, 
ongoing predator trapping focused in the primary breeding and brooding 
areas at Hawaii Volcanoes National Park during the breeding season has 
likely contributed to the overall increase in nene observed. The 
general increase in population at Haleakala National Park over the last 
25 years is likely a response to increased habitat management--first, 
the removal of feral ungulates and control to ``near zero'' 
populations; later, the additional intensive control of introduced 
predators (Bailey and Tamayose 2016, in litt.). At Hawaii Volcanoes 
National Park, various fence designs have been used successfully to 
exclude mongooses, cats, dogs, and pigs. Predator control programs are 
currently conducted in most areas where nene nest, including Hanalei, 
Kilauea Point, and Hakalau Forest NWRs; Haleakala and Hawaii Volcanoes 
National Parks; and Piiholo Ranch, Haleakala Ranch (Waiopae), and Puu O 
Hoku Ranch on Molokai.
    While the predator control programs have proven effective in 
localized areas, recovery of nene is dependent on more aggressive and 
widespread control of introduced predators. Despite documentation of 
the impact of mongooses, dogs, feral cats, rodents, and pigs on nene, 
there are relatively few predator control programs, and they are not 
being implemented over areas large enough to elicit a population 
response by native species (Scott et al. 2001, p. 11). Known control 
techniques should be applied at all habitats needed to recover nene 
(USFWS 2004, p. 41).
Summary of Factor C
    Diseases such as toxoplasmosis, omphalitis, avian pox, avian 
malaria, and avian botulism cause low levels of mortality in nene 
populations. Avian influenza and WNV are not currently established in 
Hawaii, but could cause mortality of nene should they become 
established in the future. Measures to control feral cat populations 
will reduce the risk of exposure of nene to toxoplasmosis. Monitoring 
the occurrence of disease in nene populations, as well as early 
detection of avian botulism outbreaks or cases of avian influenza or 
WNV should minimize the impacts of these threats. Based on the above 
analysis, we conclude that disease will continue to affect nene now and 
in the foreseeable future, but it is not a significant threat because, 
at current and future levels, disease is not likely to cause 
population-level impacts.
    Predation by introduced mammals is the most serious threat to nene. 
Predation by mongooses, dogs, cats, rats, and feral pigs continues to 
affect all life stages of nene (eggs, goslings, or adults), negatively 
impacting breeding success and survival. Predator control measures have 
improved survival and reproductive success and contributed to 
population increases in managed areas. However, these efforts are 
localized and overall predator populations are not being reduced; 
therefore, predators can readily recolonize an area. In addition, as 
nene populations expand into areas in their former historical range, 
such as lowland areas, they will likely encounter higher predator 
populations in and around human-occupied urban, suburban, and 
agricultural areas. Predation by cattle egrets and barn owls, and 
disturbance by ants, may result in injury or mortality of nene; 
however, this does not constitute a threat to nene, as such predation/
disturbance occurs infrequently and is not known to have population-
level impacts. Based on our analysis of the available information, we 
conclude that predation by introduced mammals is a threat to nene now 
and in the foreseeable future.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    The following section includes a discussion of Federal, State, and 
local laws, regulations, or treaties that apply to nene. It includes 
laws and regulations for Federal land management agencies and State and 
Federal regulatory authorities affecting land use or other relevant 
management.
Federal Laws and Regulations
    National Wildlife Refuge System Improvement Act of 1997. The 
National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-
57, October 9, 1997) established the protection of biodiversity as the 
primary purpose of the National Wildlife Refuge (NWR) System. This has 
led to various management actions to benefit federally listed species, 
including development of comprehensive conservation plans (CCPs) on 
NWRs. The CCPs typically set goals and list needed actions to protect 
and enhance populations of key wildlife species on NWR lands. Where 
nene occur on NWR lands (Hanalei, Kilauea Point, Hakalau Forest, Kealia 
Pond, and James Campbell NWRs), their habitats in these areas are 
protected from large-scale loss or degradation due to the Service's 
mission ``to administer a national network of lands and waters for the 
conservation, management, and where appropriate, restoration of the 
fish, wildlife, and plant resources and their habitats within the 
United States for the benefit of present and future generations of 
Americans'' (16 U.S.C. 668dd(2)). National Wildlife Refuges must also 
conduct section 7 consultations under the Act (discussed below) for any 
refuge activity that may result in adverse effects to nene.
    Hanalei NWR was established in 1972, to aid in the recovery of the 
four endangered Hawaiian waterbirds and nene (Endangered Species 
Conservation Act of 1969; 16 U.S.C. 668aa et seq.). Kilauea Point NWR, 
originally established in 1985 to enhance seabird nesting colonies, was 
later expanded to include adjacent lands to be managed for the 
protection and recovery of endangered waterbirds and nene (The Kilauea 
Point National Wildlife Refuge Expansion Act of 2004, Pub. L. 108-481, 
December 23, 2004; 16 U.S.C. 668dd

[[Page 13932]]

note). Approximately two-thirds of the Kauai nene population is 
supported by the Hanalei and Kilauea NWRs. The Kilauea Point CCP 
includes the following goals: (1) Protect, enhance, and manage the 
coastal ecosystem to meet the life-history needs of migratory seabirds 
and threatened and endangered species; (2) restore and/or enhance and 
manage populations of migratory seabirds and threatened and endangered 
species; and (3) gather scientific information (surveys, research, and 
assessments) to support adaptive management decisions (USFWS 2016, pp. 
2:19-31). Both Hanalei and Kilauea Point NWRs conduct ongoing predator 
control and habitat improvement and enhancement actions.
    At Hakalau Forest NWR, a new population was created with the 
reintroduction of 33 captive-bred nene between 1996 and 2003. Since 
then, Hakalau Forest NWR has supported approximately 20 to 25 percent 
of the nene population on Hawaii Island. The Hakalau Forest CCP 
includes the following goals: (1) Protect and maintain grassland 
habitat to support nene population recovery; and (2) collect scientific 
information (inventories, monitoring, research, assessments) necessary 
to support adaptive management decisions on both units of the Hakalau 
Forest NWR (USFWS 2010, pp. 2:30-37).
    Kealia Pond NWR, on the south-central coast of Maui, was 
established in 1992, to conserve habitat for the endangered Hawaiian 
stilt (Himantopus mexicanus knudseni) and Hawaiian coot (Fulica alai). 
Nene are occasionally observed at Kealia Pond NWR (USFWS 2011b, p. 
4:14).
    James Campbell NWR on the northern shore of Oahu was created in 
1976, also for the conservation of endangered Hawaiian waterbirds, and 
later expanded in 2005, to include conservation of additional 
threatened and endangered species, migratory birds, and their habitats 
(USFWS 2011c, p. 1:1). In 2014, a pair of nene arrived on Oahu, nested 
at James Campbell NWR, and produced three offspring. Both parents and 
one of the offspring have since died, leaving the two remaining 
offspring on NWR and adjacent lands.
    Hawaii National Park Act of 1916. Congress established Hawaii 
National Park (later to become, separately, Hawaii Volcanoes National 
Park and Haleakala National Park) on August 1, 1916 (39 Stat. 432), 
``for the benefit and enjoyment of the people of the United States'' 
and to provide for, ``the preservation from injury of all timber, 
birds, mineral deposits, and natural curiosities or wonders within said 
park, and their retention in their natural condition as nearly as 
possible'' (16 U.S.C. 394). Since that time, the enabling legislation 
of the park has been modified several times, both to establish the 
national parks on the islands of Hawaii and Maui as separate parks and 
to expand the boundary of Hawaii Volcanoes National Park. In 1960, 
Congress authorized the establishment of the Haleakala National Park 
(Pub. L. 86-744, September 13, 1960); the park was established the 
following year. Haleakala National Park, on the eastern side of Maui, 
encompasses 33,222 acres (ac) (13,444 hectares (ha)), of which 24,719 
ac (10,003 ha) are designated wilderness (74 percent of the park). 
Hawaii Volcanoes National Park protects 330,086 ac (133,581 ha) of 
public land on Mauna Loa and Kilauea volcanoes on the southeastern side 
of Hawaii Island. Haleakala National Park and Hawaii Volcanoes National 
Park have supported nene recovery actions since the 1960s and 1970s, 
respectively. Past and ongoing actions include releases of captive-bred 
nene, habitat management (e.g., predator control, feral ungulate 
control, nonnative plant species control), provision of supplemental 
food and water, monitoring, and outreach and education.
    Migratory Bird Treaty Act (MBTA). Nene are a protected species 
under the MBTA (16 U.S.C. 703-712, 50 CFR 10.13), a domestic law that 
implements the U.S. commitment to four international conventions (with 
Canada, Japan, Mexico, and Russia) for the protection of shared 
migratory bird resources.
State Laws and Regulations
    The Hawaii Endangered Species law (Hawaii Revised Statutes (HRS) 
195D) prohibits take, possession, sale, transport, or commerce in 
designated species. This State law also recognizes as endangered or 
threatened those species determined to be endangered or threatened 
pursuant to the Federal Endangered Species Act. This Hawaii law states 
that a threatened species (under the Act) or an indigenous species may 
be determined to be an endangered species under State law. Protection 
of these species is under the authority of Hawaii's DLNR, and under 
administrative rule (Hawaii Administrative Rules (HAR) 13-124-11). 
Incidental take of threatened and endangered species may be authorized 
through the issuance of a temporary license as part of a safe harbor 
agreement (SHA) or habitat conservation plan (HCP) (HRS 195D-21, HCPs; 
195D-22, SHAs). Although this State law can address threats such as 
habitat modification, collisions, and other human-caused mortality 
through HCPs that address the effects of individual projects or 
programs on nene, it does not address the pervasive threats to the nene 
posed by introduced mammalian predators. DLNR also maintains HAR 13-
124-3, which protects indigenous and introduced wildlife.
    The importation of nondomestic animals, including microorganisms, 
is regulated by a permit system (HAR 4-71) managed through the Hawaii 
Department of Agriculture (HDOA). The list of nondomestic animals (HAR 
4-71) is defined by providing a list of those animals considered 
domestic: Dog, cat, horse, ass (burro or donkey), cattle and beefalo, 
sheep, goat, swine, pot-bellied pig, alpaca, llama, rabbit, chicken, 
turkey, pigeon, duck, geese, and their hybrids. The HDOA's Board of 
Agriculture maintains lists of nondomestic animals that are prohibited 
from entry, animals without entry restrictions, or those that require a 
permit for import and possession. The HDOA requires a permit to import 
animals, and conditionally approves entry for individual possession, 
businesses (e.g., pets and resale trade, retail sales, and food 
consumption), or institutions.
    Under statutory authorities provided by HRS title 12, subtitle 4, 
183D Wildlife, the DLNR maintains HAR title 13, chapter 124 (2014), 
which defines, at section 13-124-2, ``injurious wildlife'' as ``any 
species or subspecies of animal except game birds and game mammals 
which is known to be harmful to agriculture, aquaculture, indigenous 
wildlife or plants, or constitute a nuisance or health hazard and is 
listed in the exhibit entitled Exhibit 5, Chapter 13-124, List of 
Species of Injurious Wildlife in Hawaii''. Under HAR section 13-124-
3(c), ``no person shall, or attempt to: (1) Release injurious wildlife 
into the wild; (2) transport live injurious wildlife to islands or 
locations within the State where they are not already established and 
living in a wild state; or (3) export any such species, or the dead 
body or parts thereof, from the State.'' Permits for these actions may 
be considered on a case-by-case basis. The small Indian mongoose, a 
serious predator of nene, is included in Exhibit 5, chapter 13-124, 
List of Species of Injurious Wildlife in Hawaii. While this HAR may 
address intentional attempts to transport or release mongooses, there 
is evidence that inspection and biosecurity measures at inter-island 
ports may not adequately address their unintentional introduction 
(e.g., as

[[Page 13933]]

stowaways in cargo) to islands such as Kauai and Lanai that are thought 
to be mongoose-free. Currently, there is no biosecurity at Honolulu 
ports focused on mongoose. At Nawiliwili Harbor (Kauai), low-level 
interdiction was conducted until about 2015, but has since been 
discontinued (B. Phillips 2017, pers. comm.). There are plans to 
reinitiate this in the coming months. Similarly, there is no 
interdiction being conducted on Lanai for mongoose.
    Predation by mongooses is a serious threat to nene (see Factor C 
discussion, above). Currently, the nene population on Kauai represents 
approximately 43 percent of the total Statewide population. 
Establishment of a breeding population of mongoose on Kauai would 
significantly reduce the survival and reproduction of nene on Kauai, 
and as a result, significantly increase the risk of extinction of nene. 
Although based on limited data, nene nesting success estimates on 
unmanaged lands on Kauai (i.e., no predator control) are higher than 
managed lands on Maui and Hawaii; this difference may indicate the 
additional impact of nest predation by mongoose, which are not found on 
Kauai (Amidon 2017).
    Critical biosecurity gaps that reduce the effectiveness of animal 
introduction controls include inadequate staffing, facilities, and 
equipment for Federal and State inspectors devoted to invasive species 
interdiction (Hawaii Legislative Reference Bureau 2002; USDA-APHIS-PPQ 
2010; Coordinating Group on Alien Pest Species (CGAPS) 2009). In 
recognition of these gaps, a State law has been passed that allows the 
HDOA to collect fees for quarantine inspection of freight entering 
Hawaii (Act 36 (2011) HRS 150A-5.3). Hawaii legislation enacted in 2011 
(House Bill 1568) requires commercial harbors and airports to provide 
biosecurity and inspection facilities to facilitate the movement of 
cargo through ports. This bill is a significant step toward optimizing 
biosecurity capacity in the State, but only time will determine its 
effectiveness. The Hawaii Interagency Biosecurity Plan (2017) is a 10-
year strategy that addresses Hawaii's most critical biosecurity gaps 
and provides a coordinated interagency path that includes policies and 
implementation tasks in four main areas: (1) Pre-border; (2) border; 
(3) post-border; and (4) education and awareness. Overall, there is an 
ongoing need for all civilian and military port and airport operations 
and construction to implement biosecurity measures in order to prevent 
the introduction or inter-island transportation of additional predators 
and diseases that could impact nene.
    Feral pigs pose the threat of predation to nene (see Factor C 
discussion, above). The State provides opportunities to the public to 
hunt game mammals (ungulates, including feral pigs) on 91 State-
designated public hunting areas (within 45 units) on all the main 
Hawaiian Islands except Kahoolawe and Niihau (HAR-DLNR 2010; see HAR 
title 13, chapter 123; DLNR 2009, pp. 28-29). The State's management 
objectives for game mammals range from maximizing public hunting 
opportunities (i.e., ``sustained yield'') in some areas to removal by 
State staff or their designees from other areas (HAR-DLNR 2010; see HAR 
title 13, chapter 123; DLNR 2009, pp. 28-29). Nene populations exist in 
areas where habitat is used for game enhancement and game populations 
are maintained at levels for public hunting (HAR-DLNR 2010; see HAR 
title 13, chapter 123; see Nene Use Area Maps in USFWS 2017). Public 
hunting areas are defined, but not fenced, and game mammals have 
unrestricted access to most areas across the landscape, regardless of 
underlying land-use designation. While fences are sometimes built to 
protect certain areas from impacts of game mammals, the current number 
and locations of fences are not adequate to address the threat of 
habitat degradation and predation on the nene in unfenced areas 
throughout its range. There are no other State regulations than those 
described above that address protection of nene and their habitat from 
feral pigs.
Local Mechanisms
    Local groups are working to implement actions urgently needed to 
address the importation of nonnative, invasive species. We discuss the 
primary groups below.
    CGAPS, a partnership of managers from Federal, State, County, and 
private agencies and organizations involved in invasive species work in 
Hawaii, was formed in 1995, in an effort to coordinate policy and 
funding decisions, improve communication, increase collaboration, and 
promote public awareness (CGAPS 2009). This group facilitated the 
formation of the Hawaii Invasive Species Council (HISC), which was 
created by gubernatorial executive order in 2002, to coordinate local 
initiatives for the prevention of introduction and for control of 
invasive species by providing policy-level direction and planning for 
the State departments responsible for invasive species issues (CGAPS 
2009). In 2003, the Governor signed into law Act 85, which conveys 
statutory authority to the HISC to continue to coordinate approaches 
among the various State and Federal agencies, and international and 
local initiatives, for the prevention and control of invasive species 
(DLNR 2003, p. 3-15; HISC 2009, in litt.; HRS 194-2). Reduced funding 
beginning in 2009 restricted State funding support of HISC, resulting 
in a serious setback of conservation efforts (HISC 2009, 2015, in 
litt.) and increasing the likelihood of new invasive plants and animals 
becoming established in nene habitat.
    The Hawaii Association of Watershed Partnerships (HAWP) comprises 
11 separate partnerships on 6 Hawaiian Islands. These partnerships are 
voluntary alliances of public and private landowners, ``committed to 
the common value of protecting forested watersheds for water recharge, 
conservation, and other ecosystem services through collaborative 
management'' (http://hawp.org/partnerships). Funding for the 
partnerships is provided through a variety of State and Federal 
sources, public and private grants, and in-kind services provided by 
the partners and volunteers. However, since 2009, decreases in 
available funding have limited the positive contributions of these 
groups to implementing the laws and rules that can protect and control 
threats to nene.
    These three partnerships, CGAPS, HISC, and HAWP, are collaborative 
measures that attempt to address issues that are not resolved by 
individual State and Federal agencies. The capacity of State and 
Federal agencies and their nongovernmental partners in Hawaii to 
provide sufficient inspection services, enforce regulations, and 
mitigate or monitor the effects of nonnative species is limited due to 
the large number of taxa currently causing damage (CGAPS 2009). Many 
invasive, nonnative species established in Hawaii currently have 
limited but expanding ranges, and they cause considerable concern. 
Resources available to reduce the spread of these species and counter 
their negative effects are limited. Control efforts are focused on a 
few invasive species that cause significant economic or environmental 
damage to commercial crops and public and private lands. Comprehensive 
control of an array of nonnative species and management to reduce 
disturbance regimes that favor them remain limited in scope. If current 
levels of funding and regulatory support for control of nonnative 
species are maintained, the Service expects existing programs to 
continue to exclude, or, on a very limited basis, control these species 
only in the highest priority areas. Threats from established nonnative 
species to nene are ongoing and are expected to continue into the 
future.

[[Page 13934]]

Summary of Factor D
    Based on our analysis of existing regulatory mechanisms, there is a 
diverse network of laws and regulations that provide some protections 
to the nene and its habitat. Nene habitat that occurs on NWRs is 
protected under the National Wildlife Refuge System Improvement Act of 
1997 and section 7 of the Endangered Species Act. Nene habitat is 
similarly protected on lands owned by the National Park Service. 
Additionally, nene receive protection under State law in Hawaii.
    As a conservation reliant species, nene are expected to require 
ongoing management to address the ongoing threat of predation by 
introduced mammals such as mongooses, dogs, cats, rats, and pigs 
(Factor C). Although State and Federal regulatory mechanisms have not 
prevented the introduction into Hawaii of nonnative predators or their 
spread between islands, with sustained management commitments, these 
mechanisms could be an important tool to ameliorate this threat.
    On the basis of the information provided above, existing State and 
Federal regulatory mechanisms are not preventing the introduction of 
nonnative species and pathogens into Hawaii via interstate and 
international pathways, or via intrastate movement of nonnative species 
between islands and watersheds. These mechanisms also do not adequately 
address the current threats posed to the nene by established nonnative 
species. Therefore, we conclude State and Federal regulatory mechanisms 
do not adequately address the threats to nene and their habitats from 
potential new introductions of nonnative species or continued expansion 
of existing nonnative species populations on and between islands and 
watersheds. However, with sustained management commitment, these 
mechanisms could be tools to ameliorate these threats.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

Low Genetic Variation
    Studies have shown that nene went through a prehistoric population 
bottleneck and have very low genetic diversity (Paxinos et al. 2002, p. 
1,827; Rave et al. 1999, p. 40; Veillet et al. 2008, pp. 1,158--1,160). 
Low levels of genetic diversity have been found in wild and captive 
nene populations, and there is some evidence that fertility and gosling 
survival have declined in captivity as inbreeding has increased (Rave 
et al. 1994, p. 747; Rave 1995, p. 87, Rave et al. 1999, p. 40). A 
condition known as ``hairy-down'' caused by a recessive gene, which 
creates a cottony appearance and impairs cold resistance in goslings, 
has been observed in captive and wild nene (USFWS 2004, pp. 33-34); 
such goslings observed in the wild at Hawaii Volcanoes National Park 
have not survived (K. Misajon 2017, pers. comm.).
    Rave (1995, p. 87) found that nene on Kauai had a significantly 
higher genetic similarity coefficient distribution (i.e., the lowest 
level of genetic variation) of all birds sampled from six wild 
populations on Hawaii, Maui, and Kauai. Despite low genetic diversity 
and high levels of inbreeding, nene numbers have increased dramatically 
on Kauai. Thus, low genetic variation may not be a factor limiting 
reproductive success of the nene on Kauai (Rave 1995, p. 88).
Wind Energy Facilities
    A significant number of nene mortalities have been reported at wind 
energy facilities. Nene collide with the towers or collide with or are 
struck by blades of wind turbine generators (WTGs). The diameter of 
rotor blades (approximately 330 ft (100 m)) and combined height of WTGs 
(up to 428 ft (131 m)) create large obstacles for nene during flight. 
On Maui, 3 facilities with a total of 40 WTGs are in operation, Kaheawa 
Wind Power I (20 WTGs) and Kaheawa Wind Power II (12 WTGs) in western 
Maui, and Auwahi Wind (8 WTGs) in southeastern Maui. From 2006 to 2016, 
a total of 26 nene fatalities and an adjusted take of 50 nene have been 
reported at the three Maui wind energy facilities (DOFAW 2016, in 
litt.). Take is adjusted by adding estimates of take undetected by 
search efforts, indirect take (e.g., eggs or goslings taken by parental 
deaths in the current year), and lost productivity in future years. All 
three Maui facilities have approved habitat conservation plans (HCPs) 
and have received Federal incidental take permits and State incidental 
take licenses authorizing the total combined take of 95 nene during the 
20-year period of operation for each project. The HCPs include the 
following conservation measures to offset the amount of authorized 
take: (1) Establish an additional population of 75 nene at an off-site 
location (Haleakala Ranch), (2) conduct predator control and habitat 
enhancement at the additional population site, (3) conduct on-site 
habitat restoration, (4) conduct on-site monitoring of nene, and (5) 
fund nene conservation actions at Haleakala National Park (DOFAW 2016, 
in litt.).
    On Hawaii Island, two facilities with a total of 30 WTGs are in 
operation in Hawi (16 WTGs) and South Point (14 WTGs); however, there 
are no reports of nene being killed at these facilities (D. Sether 
2017, pers. comm.). Based on the proximity of these facilities to areas 
used by nene, there is the potential for collisions. On Oahu, a total 
of 42 WTGs are in operation at Kawailoa Wind Power (30 WTGs) and Kahuku 
Wind Power (12 WTGs), and an additional 9 to 10 WTGs are proposed at 
the Na Pua Makani project in the Kahuku area. Na Pua Makani has 
submitted a draft HCP and requested incidental take for nene due to the 
proximity of the proposed wind energy project to James Campbell NWR, 
where the nene have been frequently observed. Based on the recent 
occurrence of only two individuals, which failed to breed successfully 
in 2016, wind energy facilities on Oahu are not a current threat, but 
represent a potential future threat should a breeding population of 
nene become established. On Maui and Hawaii Island, we expect that 
collisions at wind energy facilities will continue to result in take of 
nene now and in the foreseeable future; however, conservation measures 
in approved and permitted HCPs are expected to offset any population-
level impacts to the species.
Human Activities
    Nene are attracted to feeding opportunities provided by mowed grass 
and human handouts, and can become tame and unafraid of human activity, 
making them vulnerable to the impacts of various human activities. 
These activities include direct harm, such as that caused by vehicles 
and golf ball strikes, as well as possible disturbance by hikers, 
hunters, and other outdoor recreationists (Banko et al. 1999, pp. 23-
24; Rave et al. 2005, p. 12; USFWS 2011a, p. 11; Hawaii Volcanoes 
National Park 2015, in litt.; Mello 2017, in litt.). Nene may also be 
impacted by human activities through the application of pesticides and 
other contaminants, ingestion of plastics and lead, collisions with 
stationary or moving structures or objects, entanglement in artificial 
hazards (e.g., fences, fishing nets, erosion control material), 
disturbance at nest and roost sites, and mortality or disruption of 
family groups through direct and indirect human activities (Banko et 
al. 1999, pp. 23-24; USFWS 2004, pp. 30-31; Work et al. 2015, pp. 692-
693).
Vehicle Collisions
    Vehicle collisions have been an ongoing cause of nene mortality 
(Hoshide et al. 1990, p. 153; Rave et al. 2005, p. 15; Work et al. 
2015, pp. 692-693). In many areas, nene habitat is

[[Page 13935]]

bisected by roads, with nesting and roosting on one side, foraging on 
the other side. This poses a serious threat, particularly during the 
breeding season, when adults walk goslings across roads. The greatest 
number of vehicle collisions occurs between December and April, during 
the peak of the breeding and molting season. It is during this time of 
year that both adults and goslings are flightless for a period of time 
and are especially vulnerable. The problem is worse in some areas 
because birds are attracted to handouts by visitors and the young 
shoots of recently manicured or irrigated lawns of roadsides and golf 
courses. Nene are often seen foraging along the edges of highways and 
ditches as a result of regular mowing and runoff from the pavement 
creating especially desirable grass in these areas. The impact is 
further exacerbated when, after a nene is killed on a road, the 
remaining family members are often unwilling to leave the body, 
resulting in multiple birds being killed over a short period of time 
(DLNR 2016, in litt.) and potential loss of future reproductive output 
from breeding pairs.
    In the past, a number of mortalities caused by vehicle collisions 
were reported in Hawaii Volcanoes National Park (41) and in Haleakala 
National Park (14) (USFWS 2004, pp. 30-31; Rave et al. 2005, p. 12). 
More recent data indicate this is an ongoing issue both inside and 
outside park boundaries on Maui and Hawaii Island; the average annual 
number of nene killed by cars at Haleakala National Park was 1.2  1.2 (from 1988 to 2011), and occurred at an average annual rate 
of 3  2.39 at Hawaii Volcanoes National Park and an 
adjacent State highway (from 2009 to 2016) (Bailey and Tamayose 2016, 
in litt.; Misajon 2017, in litt.). Mortality of nene due to vehicle 
collisions has also been a continual problem on Kauai (Uyehara 2016c, 
in litt.). Over 50 nene were struck and killed by cars across the 
roadways of Kauai in 2 years (Kauai DOFAW 2016, in litt.). On Kauai, 
typically the majority of vehicle strikes occur in Hanalei and Kilauea, 
where the largest proportion of the Kauai population occurs; however, 
the most recent strikes are occurring on the western side of the 
island.
    The National Park Service (NPS) is actively implementing aggressive 
traffic-calming measures (Haleakala National Park 2014, in litt.; USFWS 
2016, in litt.). A press release is sent out at the beginning of the 
nesting season, asking park visitors to drive carefully. Posters are 
displayed at car rental agencies asking visitors to drive carefully 
when visiting the park. ``Nene Crossing'' postcards with ``Slow Down'' 
messages in different languages are handed out to vehicles entering the 
park. Cones, signs, and a radar trailer are placed along roadsides 
where nene are frequently seen. Permanent ``Nene Crossing'' signs alert 
drivers to the potential for birds in the primary area(s) of concern, 
and temporary crossing signs are deployed when birds are observed 
frequenting specific road side sites. The NPS conducts regular outreach 
and education to raise visitor awareness of nene near roads. The Kauai 
DOFAW conducts educational outreach and has signs placed to encourage 
driving at reduced speeds. The conservation measures reduce but do not 
eliminate the threat of vehicle collisions. Based on the available 
information, we conclude vehicle collisions are an ongoing cause of 
nene injury and mortality on Kauai, Maui, and Hawaii.
Natural and Artificial Hazards
    Nene can become entangled or trapped in artificial hazards (e.g., 
old grass-covered fence wire; fishing line, predator traps; spilled 
tar) and some natural hazards (lava tube openings or deep depressions 
in ash deposits) (Banko et al. 1999, p. 24). Goslings occasionally 
drown in stock ponds, water troughs, and other water sources where exit 
to land is difficult (Banko et al. 1999, p. 24). Predator traps 
outfitted with protective guards have been effective at reducing the 
incidence of injury to goslings (NRCS 2007, p. 6).
    The use of certain fencing and erosion control materials has 
resulted in entanglement of nene with the potential to cause impaired 
movement, injury, and in some cases mortality. Over 2 years, a total of 
44 nene (27 adults and 17 hatch-year birds) in the Poipu/Koloa 
population on Kauai have been observed with woven threads from erosion 
control slope matting wrapped around their legs at a single 
construction site (Kauai DOFAW 2016, in litt.). Once the material is 
wrapped around their legs, nene have an increased risk of becoming 
entangled with other objects, experiencing skin lacerations, and having 
the circulation cut from their legs leading to infection and the death 
of the limb (Kauai DOFAW 2015, in litt.). Not all instances of 
entanglement result in harm to nene, as birds may free themselves from 
threads. Nine of the 44 entangled nene have been observed with 
constriction or swelling on their legs; 3 have received rehabilitation 
and been released; and 1 was euthanized due to injuries sustained from 
the material. Kauai DOFAW is working with the landowners to minimize 
impacts and has recommended that the use of this type of erosion 
control matting be discontinued.
Summary of Factor E
    As nene populations continue to recover and increase in number and 
range, they will be subject to increased human interactions in and 
around urban, suburban, agricultural, and recreational areas. Vehicle 
collisions are an ongoing cause of nene injury and mortality; however, 
we do not have evidence that this factor is limiting population sizes. 
We acknowledge that increasing nene population sizes could result in 
increased mortality rates in the future, especially for those 
populations near areas with human presence. While vehicle collisions 
could potentially impact certain populations, they do not constitute a 
threat to the entire species now, and we do not expect them to be a 
threat in the foreseeable future. Artificial hazards that result in 
entanglement or drowning occur at low frequency and thus are not 
expected to result in population-level impacts. Collisions at wind 
energy facilities will result in take of nene now and in the 
foreseeable future; however, conservation measures in approved and 
permitted HCPs are expected to offset any population-level impacts to 
the species. While nene exhibit low levels of genetic variation, this 
does not appear to be a factor limiting reproductive success. Thus, low 
genetic variation is not a threat to nene now or in the foreseeable 
future.

Overall Summary of Factors Affecting Nene

    The current Statewide nene population estimate is 2,855 (NRAG 
2017). The population on Kauai, estimated at 1,107 birds, is stable and 
increasing, sustained by ongoing predator control and habitat 
management (NRAG 2017). Nene on Kauai exhibit successful breeding, 
likely due to abundant food in managed grasslands and the absence of 
mongooses, which are a significant nest predator on other islands. 
Between 2011 and 2016, 640 nene were relocated from Kauai to Maui and 
Hawaii Island. The Kauai population is expected to continue to exhibit 
an increasing trend. On Maui, the current population estimate is 616, 
with approximately half of the population in Haleakala National Park, 
and the remainder is distributed across areas of western Maui, southern 
Maui, and the northwestern slopes of Haleakala. The population at 
Haleakala National Park shows a general increasing trend with numbers 
consistently above 200 birds since

[[Page 13936]]

intensive habitat management (feral ungulate and predator control) 
measures were initiated in the 1990s. On Hawaii Island, the current 
population estimate is 1,095, which includes 592 birds relocated from 
Kauai (NRAG 2017). Prior to the addition of nene from Kauai, population 
estimates on Hawaii Island ranged between 331 and 611, and in general 
show an increasing trend during the previous 10-year period since the 
last major release of 53 birds in 2001. For many years, the largest 
population of nene on Hawaii Island has occurred in Hawaii Volcanoes 
National Park. Over the last 10 years, population estimates at Hawaii 
Volcanoes National Park have remained relatively constant (ranging 
between 200 and 250 birds), sustained by ongoing predator control and 
habitat management. On Molokai, the current population estimate of 35 
(NRAG 2017), down from an estimate of 78 in 2015, is likely due to 
predation (Franklin 2017, in litt.). While nene on Molokai have bred 
successfully, periodically low fledging success has been reported due 
to the high mortality of nestlings, possibly due to overcrowding at the 
release site. Estimates of the population on Molokai have fluctuated 
widely since the reintroduction of 74 birds was completed in 2004. Nene 
are considered a conservation-reliant species, especially on Maui and 
Hawaii Island, where populations are spread across a large area and 
exposed to ongoing threats of predation, habitat loss (development, 
feral ungulates, nonnative plants), and disease (Reed et al. 2012, p. 
888). At a minimum, current management levels must be continued to 
sustain current population trends.
    Threats to nene from habitat destruction or modification (Factor A) 
remain and will likely continue into the foreseeable future in the form 
of urbanization, agricultural activities, habitat alteration by feral 
ungulates and nonnative plants, and drought. These factors contribute 
to a lack of suitable breeding and flocking habitat and, in combination 
with predation (Factor C) and human activities (Factor E), continue to 
threaten nene and limit expansion of nene populations. Some habitats 
are expected to be affected by habitat changes resulting from the 
effects of climate change (Factor A). Overutilization (Factor B) is not 
a threat. Diseases (Factor C) such as toxoplasmosis, avian malaria, 
omphalitis, and avian botulism are not currently known to contribute 
significantly to mortality in nene. Thus, we do not consider disease to 
be a threat. Predation (Factor C) by introduced mammals, including 
mongooses, dogs, cats, rats, and pigs, is a significant limiting factor 
for nene populations now and into the foreseeable future. Therefore, we 
consider predation to be a threat. Existing regulatory mechanisms, 
including those to prevent predation will be an important component of 
ongoing management of nene as a conservation reliant species, but do 
not currently adequately ameliorate threats and will require continuing 
commitment to implementation (Factor D). Human activities such as 
vehicle collisions, artificial hazards, and other human interactions 
(Factor E) continue to result in injury and mortality; while the 
individual impacts of these hazards do not constitute threats with 
population-level impacts to nene, they collectively and in combination 
with other factors (Factors A, C, and D) constitute an ongoing threat.

Proposed Determination of Species Status

Introduction

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for 
determining whether a species is an endangered species or threatened 
species and should be included on the Federal Lists of Endangered and 
Threatened Wildlife and Plants (listed). The Act defines an endangered 
species as any species that is ``in danger of extinction throughout all 
or a significant portion of its range'' and a threatened species as any 
species ``that is likely to become endangered throughout all or a 
significant portion of its range within the foreseeable future.'' On 
July 1, 2014, we published a final policy interpreting the phrase 
``significant portion of its range'' (SPR) (79 FR 37578). In our 
policy, we interpret the phrase ``significant portion of its range'' in 
the Act's definitions of ``endangered species'' and ``threatened 
species'' to provide an independent basis for listing a species in its 
entirety; thus there are two situations (or factual bases) under which 
a species would qualify for listing: A species may be in danger of 
extinction or likely to become so in the foreseeable future throughout 
all of its range; or a species may be in danger of extinction or likely 
to become so throughout a significant portion of its range. If a 
species is in danger of extinction throughout an SPR, the species, is 
an ``endangered species.'' The same analysis applies to ``threatened 
species.''
    The SPR policy is applied to all status determinations, including 
analyses for the purposes of making listing, delisting, and 
reclassification determinations. Under section 4(a)(1) of the Act, we 
determine whether a species is an endangered species or threatened 
species because of any one or a combination of the following: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence. These five factors 
apply whether we are analyzing the species' status throughout all of 
its range or throughout a significant portion of its range.

Determination of Status Throughout All of Its Range

    As required by the Act, we considered the five factors in assessing 
whether nene is endangered or threatened throughout all of its range. 
We carefully examined the best scientific and commercial information 
available regarding the past, present, and future threats faced by 
nene. We reviewed the information available in our files and other 
available published and unpublished information, and we consulted with 
recognized experts and State agencies. The current statewide nene 
population estimate is 2,855 individuals, with the wild populations on 
the islands of Hawaii, Maui, Molokai, Kauai, and Oahu estimated to have 
1,095, 616, 35, 1,107, and 2 individuals, respectively. Populations on 
Kauai, Maui, and Hawaii are exhibiting a stable or increasing trend, 
while the nene population on Molokai is experiencing a fluctuation in 
population numbers. Continuation of current population trends into the 
future is dependent on, at a minimum, maintaining current levels of 
management (e.g., predator control and habitat enhancement). Nene are 
still affected by predation (Factor C), loss and degradation of habitat 
(Factor A), and effects of human activities (Factor E); and some 
subpopulations may potentially be affected in the future by habitat 
changes resulting from the effects of climate change such as increases 
in drought, hurricanes, or sea level rise (Factor A). Regulatory 
mechanisms do not adequately address these threats. While threat 
intensity and management needs vary somewhat across the range of the 
species (for example, the current lack of an established mongoose 
population on Kauai influences predator control strategies there), nene 
populations on

[[Page 13937]]

islands throughout the range of the species continue to be reliant on 
active conservation management and require adequate implementation of 
regulatory mechanisms, and all remain vulnerable to threats that could 
cause substantial population declines in the foreseeable future. 
Despite the existing regulatory mechanisms and conservation efforts 
(Factor D), the factors identified above continue to affect the nene 
such that it is likely to become in danger of extinction within the 
foreseeable future throughout all of its range. Thus, after assessing 
the best available information, we conclude that the nene is not 
currently in danger of extinction, but is likely to become in danger of 
extinction within the foreseeable future throughout all of its range.

Determination of Status Throughout a Significant Portion of Its Range

    Because we have determined that the nene is likely to become in 
danger of extinction in the foreseeable future throughout all of its 
range, per the Service's Final Policy on Interpretation of the Phrase 
``Significant Portion of Its Range'' in the Endangered Species Act's 
Definitions of ``Endangered Species'' and ``Threatened Species'' (79 FR 
37578, July 1, 2014) (SPR Policy), no portion of the species' range can 
be ``significant'' for the purposes of the definitions of endangered 
and threatened species. Therefore, we do not need to conduct an 
analysis of whether there is any significant portion of its range 
because the species is likely to become in danger of extinction in the 
foreseeable future.

Proposed Determination of Status

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the nene. Based on the analysis above and given increases in 
population numbers due to recovery efforts, we conclude the nene does 
not currently meet the Act's definition of an endangered species in 
that it is not in danger of extinction throughout all of its range. 
Although population numbers have increased, our analysis indicates that 
because of significant remaining threats, the species remains likely to 
become in danger of extinction in the foreseeable future throughout all 
of its range. Because the species is likely to become in danger of 
extinction in the foreseeable future throughout all of its range, the 
species meets the definition of a threatened species. Therefore, we 
propose to reclassify the nene from an endangered species to a 
threatened species.
    This proposal, if made final, would revise 50 CFR 17.11(h) to 
reclassify nene from endangered to threatened. Reclassification of nene 
from endangered to threatened is due to the substantial efforts made by 
Federal, State, and local government agencies and private landowners to 
recover the species. Adoption of this proposed rule would formally 
recognize that this species is no longer in danger of extinction 
throughout all or a significant portion of its range and, therefore, 
does not meet the definition of endangered, but is still impacted by 
predation, habitat loss and degradation, and inadequacy of regulatory 
mechanisms to the extent that the species meets the definition of a 
threatened species under the Act.

Proposed 4(d) Rule

    Whenever a species is listed as threatened, the Act allows 
promulgation of a rule under section 4(d). Section 4(d) of the Act 
states that ``the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation'' of species 
listed as threatened species. Conservation is defined in the Act to 
mean ``to use and the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to [the Act] are no 
longer necessary.'' The purposes of the Act are to provide a means 
whereby the ecosystems upon which endangered species and threatened 
species depend may be conserved, to provide a program for the 
conservation of endangered species and threatened species, and to take 
such steps as may be appropriate to achieve the purposes of the 
treaties and conventions set forth in the Act. For any threatened fish 
and wildlife species, the Secretary has the discretion to prohibit by 
regulation any action prohibited under section 9(a)(1) of the Act. 
Exercising this discretion, the Service has by regulation (50 CFR 
17.31) applied the prohibitions in section 9(a)(1) to all threatened 
wildlife species except for those for which a rule has been promulgated 
under section 4(d) of the Act. A 4(d) rule may include some or all of 
the prohibitions under section 9(a)(1), as set out at 50 CFR 17.21, but 
also may be less or more restrictive than those general provisions.
    Section 9 of the Act prohibits the taking of any federally listed 
endangered species, including nene. Section 3(19) defines ``take'' to 
mean ``to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to engage in any such conduct.'' 
Service regulations (50 CFR 17.3) define ``harm'' to include 
significant habitat modification or degradation which actually kills or 
injures wildlife by significantly impairing essential behavioral 
patterns, including breeding, feeding, or sheltering. Harass is defined 
at 50 CFR 17.3 as an intentional or negligent act or omission which 
creates the likelihood of injury to wildlife by annoying it to such an 
extent as to significantly disrupt normal behavioral patterns which 
include, but are not limited to, breeding, feeding, or sheltering. 
Section 9 also prohibits import, export, and sale of endangered species 
in interstate or foreign commerce. The Act provides for civil and 
criminal penalties for the unlawful taking of listed species or other 
violations of section 9.
    Under 50 CFR 17.32, permits may be issued for certain actions 
affecting threatened fish and wildlife species that would otherwise be 
prohibited under the Act. The processes and criteria for such permit 
issuance are governed by 50 CFR 17.32, unless otherwise provided in a 
4(d) rule. If an activity that may affect the nene is not covered in 
this proposed 4(d) rule and the activity would result in an act that 
would be otherwise prohibited, authorization under 50 CFR 17.32 would 
be required. In addition, nothing in this 4(d) rule affects in any way 
other provisions of the Act, such as the designation of critical 
habitat under section 4, recovery planning provisions of section 4(f), 
and consultation requirements under section 7.
    For the nene, the Service has determined that a 4(d) rule is 
appropriate. We propose to issue a rule for this species under section 
4(d) of the Act as a means to provide continued protection from take 
and to facilitate conservation of nene and expansion of their range by 
increasing flexibility in management activities. This proposed 4(d) 
rule would apply only if and when the Service finalizes the 
reclassification of the nene as threatened. We propose a 4(d) rule for 
nene, as described below.
    Anyone taking, attempting to take, or otherwise possessing a nene, 
or parts thereof, in violation of section 9 of the Act would still be 
subject to a penalty under section 11 of the Act, except for the 
actions that would be covered under the proposed 4(d) rule. Under 
section 7 of the Act, Federal agencies must ensure that any actions 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of nene.
    Under the proposed 4(d) rule, take will generally continue to be 
prohibited, but the following forms of take would be allowed under the 
Act:
     Take by landowners or their agents conducting intentional 
harassment in

[[Page 13938]]

the form of hazing or other deterrent measures not likely to cause 
direct injury or mortality;
     Take that is incidental to conducting lawful control of 
introduced predators or habitat management activities for nene; and
     Take by authorized law enforcement officers for the 
purposes of aiding or euthanizing sick, injured, or orphaned nene; 
disposing of dead specimens; and salvaging a dead specimen that may be 
used for scientific study.
    The proposed 4(d) rule targets activities to facilitate 
conservation and management of nene where they currently occur and may 
occur in the future through increased flexibility by eliminating the 
Federal take prohibition under certain conditions. These activities are 
intended to encourage support for the occurrence of nene in areas with 
land use practices compatible with the conservation of nene, and to 
redirect nene use away from areas that do not support the conservation 
of nene (see Justification, below).
    As nene increase in number and range, they are facing increased 
interaction and potential conflict with the human environment. In 
addition, the nene recently translocated from Kauai to Maui and Hawaii 
Island have expanded into new areas on these islands, often in close 
proximity to human populations. Nene are known to use and interact with 
human-modified environments (such as wind farms, airports, resorts, 
golf courses, agricultural operations, residential areas, parks, public 
recreation areas, and transportation routes) during feeding, breeding, 
molting, and sheltering activities, as well as during seasonal intra-
island movements. In these environments, nene may be subject to injury 
or mortality as a result of activities such as vehicle collisions, 
collisions with wind turbines, golf ball strikes, predation or attack 
by unrestrained pets, entanglement with foreign materials, and 
ingestion of herbicides and pesticides associated with construction, 
maintenance, or normal business activities in these areas. The proposed 
4(d) rule would not change the prohibition on any take of nene 
associated with these activities, although hazing to move nene away 
from these activities would be allowed under the 4(d) rule. For these 
types of activities on non-Federal lands or those without a Federal 
nexus where section 7 would provide incidental take exemption, 
landowners or project proponents may develop an HCP and apply for an 
incidental take permit to address any potential take of the nene to 
avoid violating the prohibition on take.

Intentional Harassment Not Likely To Cause Mortality or Direct Injury

    Hazing and other persistent deterrence actions are management 
strategies that may be used to address wildlife conflict issues. As 
nene populations increase, particularly in heavily human-populated 
lowland areas, they may often come into conflict with human activities. 
For example, nene are known to use a variety of human-modified areas 
including wind farms, airports, resorts, golf courses, agricultural 
operations, residential areas, parks, public recreation areas, and 
transportation routes. Nene using these areas may present a conflict 
with normal business activities or cause crop depredation or safety 
hazards to humans. Humans may also inadvertently harm nene by feeding 
them, which could result in nene showing aggressive behaviors towards 
humans, being injured or killed by vehicles or humans, or being placed 
at increased risk from predators. Methods such as hazing are necessary 
to prevent and address these potential human-nene conflicts, allowing 
nene to coexist with areas of established human activity and providing 
for continued public support of nene recovery actions.
    Any deterrence activity that does not create a likelihood of injury 
by significantly disrupting normal nene behavioral patterns such as 
breeding, feeding, or sheltering is not take and is not prohibited 
under the Act.
    If an activity creates the likelihood of injury to wildlife by 
annoying it to such an extent as to significantly disrupt normal 
behavioral patterns such as breeding, feeding, and sheltering, then the 
activity has the potential to cause take in the form of harassment. 
Hazing of nene is considered intentional harassment, which creates the 
likelihood of injury and has been prohibited under section 9 of the 
Act. Under this proposed 4(d) rule, hazing and other deterrence 
activities that may cause indirect injury to nene by disrupting normal 
behavioral patterns, but are not likely to be lethal or cause direct 
injury (including the need for veterinary care or rehabilitation), 
would be classified as intentional harassment not likely to cause 
direct injury or mortality, and would be allowed under Federal law. 
Such activities may include the use of predator effigies (including 
raptor kites, predator replicas, etc.), commercial chemical repellents, 
ultrasonic repellers, audio deterrents (noisemakers, pyrotechnics, 
etc.), herding or harassing with trained or tethered dogs, or access 
control (including netting, fencing, etc.). This proposed 4(d) rule 
would not apply to scenarios involving lethal or directly injurious 
take. For example, laser irradiation used for hazing may cause ocular 
damage resulting in temporary or permanent loss of visual acuity or 
blindness (Oregon State University 2017, in litt.), impairing the 
ability of nene to feed or avoid predators or other hazards (e.g., 
vehicle collisions). Feral dogs or unrestrained pets are known to take 
nene adults and goslings, and nene are particularly vulnerable to dogs 
because they have little instinctive fear of them (NRCS 2007, p. 6). 
Therefore, the proposed rule would not cover hazing methods such as 
lasers or untrained and untethered dogs.
    Intentional harassment activities not likely to cause direct injury 
or mortality that are addressed in this proposed 4(d) rule are 
recommended to be implemented prior to the nene breeding season 
(September through April) wherever feasible. If, during the breeding 
season, a landowner desires to conduct an action that would 
intentionally harass nene to address nene loafing or foraging in a 
given area, a qualified biologist familiar with the nesting behavior of 
nene must survey in and around the area to determine whether a nest or 
goslings are present. If a nest or families with goslings is 
discovered, a qualified biologist must be notified and the following 
measures implemented to avoid disturbance of nests and broods: (1) No 
disruptive activities may occur within a 100-foot (30-meter) buffer 
around all active nests and broods until the goslings have fledged; and 
(2) brooding adults (i.e., adults with an active nest or goslings) or 
adults in molt may not be subject to intentional harassment at any 
time. In general, any observation of nene nest(s) or gosling(s) should 
be reported to the Service and authorized State wildlife officials 
within 72 hours. Additionally, follow-up surveys of the property by 
qualified biologists should be arranged by the landowner to assess the 
status of birds present.

Predator Control and Habitat Management

    Control of introduced predators and habitat management are 
identified as two primary recovery actions for nene (USFWS 2004, p. 
52). Control of predators (e.g., mongooses, dogs, feral pigs, cats, 
rats, cattle egrets, and barn owls) may be conducted to eliminate or 
reduce predation on nene during all life stages. These predators are 
managed using a variety of methods, including fencing, trapping, 
shooting, and

[[Page 13939]]

toxicants. All methods must be used in compliance with State and 
Federal regulations. In addition to the application of the above tools, 
predator control as defined here includes activities related to 
predator control, such as performing efficacy surveys, trap checks, and 
maintenance duties. Predator control may occur year-round or during 
prescribed periods. During approved predator control activities, 
incidental take of nene may occur in the following manner: (1) Injury 
or death to goslings, juveniles, or adults from accidental trapping; 
(2) injury or death due to fence strikes caused from introduction of 
equipment or materials in a managed area; and (3) injury or death due 
to ingestion of chemicals approved for use in predator control. Under 
this proposed 4(d) rule, take resulting from actions implementing 
predator control activities to benefit nene would not be prohibited as 
long as reasonable care is practiced to minimize the effects of such 
taking. Reasonable care may include but is not limited to: (1) 
Procuring and implementing technical assistance from a qualified 
biologist(s) on predator control methods and protocols prior to 
application of methods; (2) compliance with all applicable regulations 
and following principles of integrated pest management; and (3) 
judicious use of methods and tool adaptations to reduce the likelihood 
that nene would ingest bait, interact with mechanical devices, or be 
injured or die from an interaction with mechanical devices.
    Nene productivity and survival are currently limited by 
insufficient nutritional resources due to habitat degradation and the 
limited availability of suitable habitat due to habitat loss and 
fragmentation, especially in lowland areas (USFWS 2004, pp. 29-30). 
Active habitat management is necessary for populations of nene to be 
sustained or expanded without the continued release of captive-bred 
birds. Active habitat management in protected nesting and brooding 
areas should improve productivity and survival, as well as attract 
birds to areas that can be protected during sensitive life stages. 
Habitat management actions may include: (1) Mowing, weeding, 
fertilizing, herbicide application, and irrigating existing pasture 
areas for conservation purposes; (2) planting native food resources; 
(3) providing watering areas, such as water units or ponds or 
catchments, designed to be safe for goslings and flightless/molting 
adults; (4) providing temporary supplemental feeding and watering 
stations when appropriate, such as under poor quality forage or extreme 
conditions (e.g., drought or fire); (5) if mechanical mowing of 
pastures is not feasible, alternative methods of keeping grass short, 
such as grazing; or (6) large-scale restoration of native habitat 
(e.g., feral ungulate control, fencing).
    In the course of habitat management activities, incidental take of 
nene may occur in the following manner: (1) Accidental crushing of non-
flighted juveniles, goslings, or nests with eggs; (2) injury or death 
due to collisions with vehicles and equipment; (3) injury or death due 
to ingestion of plants sprayed with herbicides or ingestion of 
fertilizers; (4) injury or death due to entanglement with landscaping 
materials or choking on foreign materials; and (5) injury or death of 
goslings if goslings are separated from parents because of disturbance 
by restoration activities (e.g., use of heavy equipment or mechanized 
tools). Under this proposed 4(d) rule, take resulting from habitat 
management activities would not be prohibited as long as reasonable 
care is practiced to minimize the effects of such taking. Reasonable 
care may include but is not limited to: (1) Procuring and implementing 
technical assistance from a qualified biologist on habitat management 
activities prior to implementation; and (2) best efforts to minimize 
nene exposure to hazards (e.g., predation, habituation to feeding, 
entanglement, vehicle collisions, golf ball strikes).

Additional Authorizations for Law Enforcement Officers

    The increased interaction of nene with the human environment also 
increases the likelihood of encounters with injured, sick, or dead 
nene. This proposed 4(d) rule would exempt take of nene by law 
enforcement officers in consultation with State wildlife biologists to 
provide aid to injured or sick nene, or disposal or salvage of a dead 
nene. Law enforcement officers would be allowed take of nene for the 
following purposes: Aiding or euthanizing sick, injured, or orphaned 
nene; disposing of a dead specimen; and salvaging a dead specimen that 
may be used for scientific study.

Justification

    As the nene population increases in number and range, nene are 
facing increased interaction and potential conflict with the human 
environment. If finalized, the reclassification of the nene to 
threatened status would allow employees of State conservation agencies 
operating a conservation program pursuant to the terms of a cooperative 
agreement with the Service in accordance with section 6(c) of the Act, 
and who are designated by their agencies for such purposes, and who are 
acting in the course of their official duties, to take nene in the 
course of carrying out conservation programs (see 50 CFR 17.31(b)). 
However, there are many activities carried out or managed by landowners 
or their agents that help reduce conflict or benefit the recovery of 
nene, and thereby facilitate the expansion of nene populations, but 
would not be exempted from take prohibitions without a 4(d) rule. These 
activities include intentional harassment not likely to result in 
mortality or direct injury, predator control, and habitat management. 
We anticipate that reclassification and implementation of a 4(d) rule 
would facilitate the expansion of nene into additional areas with land 
use practices compatible with the conservation of nene, and reduce the 
occurrence of nene in areas that do not support the conservation of 
nene across the landscape. The proposed 4(d) rule would provide 
incentives to landowners to support the occurrence of nene on their 
properties, as well as neighboring properties, by alleviating concerns 
about unauthorized take of nene.
    Except as outlined in the proposed 4(d) rule, prohibitions on take 
of nene would remain in effect. Harm or harassment that is likely to 
cause mortality or injury would continue to be prohibited because 
allowing these forms of take would be incompatible with restoring 
robust populations of nene and restoring and maintaining their habitat.
    This rule does not alter the requirements of the Act's section 7 or 
the interagency regulations implementing section 7 found at 50 CFR part 
402. Federal actions covered by this rule would still be subject to 
section 7. The effect of this rule would be to exclude certain specific 
actions from the prohibitions on take so that such actions may not 
require an exemption through section 7(o) of the Act. However, under 50 
CFR 402.14 the Federal agency would still need to consult with the 
Service if the proposed action may affect nene, unless the agency 
determines with written concurrence from the Service that the proposed 
action is not likely to adversely affect the nene.
    One of the limiting factors in the recovery of nene has been the 
concern of landowners regarding nene on their property due to the 
potential damage to agricultural crops and potential conflicts with 
normal business, recreational, and residential activities. Landowners 
express concern over their inability to prevent or address the

[[Page 13940]]

damage or conflicts caused by nene because of the threat of penalties 
under the Act. Furthermore, State and Federal wildlife agencies expend 
resources addressing landowner complaints regarding potential nene 
damage to agricultural crops and conflicts during normal business, 
recreational, and residential activities. By providing more flexibility 
to the landowners regarding management of nene, we envision enhanced 
support for the conservation of the species, by providing a tool to 
reduce potential human-wildlife conflicts in areas incompatible with 
the conservation of nene, as well as promote expansion of the species' 
range into additional areas compatible with conservation of nene across 
the State.
    The proposed 4(d) rule would address intentional harassment of nene 
by landowners and their agents that is not likely to result in 
mortality or direct injury, and predator control and habitat 
management. Exempting targeted activities that may normally result in 
take under the prohibitions of the Act would increase the incentive for 
all landowners to support nene recovery and provide enhanced options 
for wildlife managers with respect to nene management, thereby 
encouraging their participation in recovery actions for nene.
    We believe the actions and activities that would be allowed under 
the proposed 4(d) rule, while they may cause some minimal level of harm 
or disturbance to individual nene, would not be expected to cause 
mortality or direct injury, would not adversely affect efforts to 
conserve and recover nene, and in fact should facilitate these efforts 
because they would make it easier to implement recovery actions and 
redirect nene activity toward lands that are managed for conservation.
    This proposed 4(d) rule would not be made final until we have 
reviewed and fully considered comments from the public and peer 
reviewers.

Provisions of the 4(d) Rule

    The increased interaction of nene with the human environment 
increases the potential for nene to cause conflicts for business, 
agricultural, residential, and recreational activities, as well as the 
potential for nene to become habituated to hazardous areas (e.g., golf 
courses, roadways, parks, farms). Therefore, this proposed 4(d) rule 
would increase the flexibility of nene management for landowners and 
their agents by allowing take of nene resulting from intentional 
harassment of nene that is not likely to result in mortality or direct 
injury, control of introduced predators of nene, and nene habitat 
management activities.
    The proposed 4(d) rule only addresses Federal Endangered Species 
Act requirements, and would not change State law. It is our 
understanding that current State of Hawaii (HRS section 195D-4) law 
does not include the authority to issue regulations, equivalent to 
those under section 4(d) of the Act, to exempt take prohibitions for 
endangered and threatened species. Instead, State law requires the 
issuance of a temporary license for the take of endangered and 
threatened animal species, if the activity otherwise prohibited is: (1) 
For scientific purposes or to enhance the propagation or survival of 
the affected species (HRS 195D-4(f)); or (2) incidental to an otherwise 
lawful activity (HRS 195D-4(g)). Incidental take licenses require the 
development of an HCP (section 195D-21) or a safe harbor agreement 
(section 195D-22), and consultation with the State's Endangered Species 
Recovery Committee. Therefore, persons may need to obtain a State 
permit for some of the actions described in the proposed 4(d) rule. In 
addition, it is our understanding that current State regulations for 
endangered and threatened wildlife (HAR section 13-124, subchapter 3) 
do not allow permits for the intentional harassment or hazing of 
endangered or threatened species, thus changes to these State 
regulations may be necessary to allow the State to issue such permits.
    As explained above, the provisions included in this proposed 4(d) 
rule are necessary and advisable to provide for the conservation of the 
nene. Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or the ability of 
the Service to enter into partnerships for the management and 
protection of the nene. However, the consultation process may be 
further streamlined through planned programmatic consultations between 
Federal agencies and the Service for these activities. We ask the 
public, particularly State agencies and other interested stakeholders 
that may be affected by the proposed 4(d) rule, to provide comments and 
suggestions regarding additional guidance and methods that the Service 
could provide or use, respectively, to streamline the implementation of 
this 4(d) rule (see Information Requested, above).

Required Determinations

Clarity of This Proposed Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act

    We have determined that an environmental assessment 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 such as this. 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 all references cited in this proposed rule is 
available at http://www.regulations.gov at Docket No. FWS-R1-ES-2017-
0050, or upon request from the Pacific Islands Fish and Wildlife Office 
(see ADDRESSES).

Authors

    The primary authors of this document are staff members of the 
Pacific Islands Fish and Wildlife Office in Honolulu, Hawaii (see FOR 
FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:


[[Page 13941]]


    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.
0
2. Amend Sec.  17.11(h) by revising the entry for ``Goose, Hawaiian'' 
under BIRDS in the List of Endangered and Threatened Wildlife to read 
as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
          Common name             Scientific name      Where listed          Status          applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                      Birds
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Goose, Hawaiian (Nene).........  Branta             Wherever found...  T................  32 FR 4001, 3/11/1967;
                                  sandvicensis.                                            [Insert Federal
                                                                                           Register citation
                                                                                           when published as a
                                                                                           final rule]; 50 CFR
                                                                                           17.41(d) \4d\.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.41 by adding a paragraph (d) to read as follows:


Sec.  17.41   Special rules--birds.

* * * * *
    (d) Hawaiian goose (Branta sandvicensis) (nene).
    (1) General requirements. Except as expressly provided in 
paragraphs (d)(3) and (4) of this section, all provisions of Sec.  
17.21, except Sec.  17.21(c)(5), and all provisions of Sec.  17.31(b) 
apply to the nene.
    (2) Definitions. For the purposes of this paragraph:
    (i) Nene means the Hawaiian goose (Branta sandvicensis);
    (ii) Intentional harassment means an intentional act which creates 
the likelihood of injury to wildlife by annoying it to such an extent 
as to significantly disrupt normal behavior patterns which include, but 
are not limited to, breeding, feeding, or sheltering (Intentional 
harassment may include prior purposeful actions to attract, track, wait 
for, or search out nene, or purposeful actions to deter nene); and
    (iii) Person means a person as defined by section 3(13) of the Act.
    (3) Allowable forms of take of nene. Any person may take nene as a 
result of the following legally conducted activities in accordance with 
this paragraph.
    (i) Intentional harassment of nene that is not likely to cause 
direct injury or mortality. A person may harass nene on lands they own, 
rent, or lease, if the action is not likely to cause direct injury or 
mortality of nene. Techniques for such harassment may include the use 
of predator effigies (including raptor kites, predator replicas, etc.), 
commercial chemical repellents, ultrasonic repellers, audio deterrents 
(noisemakers, pyrotechnics, etc.), herding or harassing with trained or 
tethered dogs, or access control (including netting, fencing, etc.). 
Such harassment techniques must avoid causing direct injury or 
mortality to nene. Before implementation of any intentional harassment 
activities during the nene breeding season (September through April), a 
qualified biologist knowledgeable about the nesting behavior of nene 
must survey in and around the area to determine whether a nest or 
goslings are present. If a nest is discovered, the Service and 
authorized State wildlife officials must be notified within 72 hours 
(see paragraph (d)(5) of this section for contact information) and the 
following measures implemented to avoid disturbance of nests and 
broods:
    (A) No disruptive activities may occur within a 100-foot (30-meter) 
buffer around all active nests and broods until the goslings have 
fledged; and
    (B) Brooding adults (i.e., adults with an active nest or goslings) 
or adults in molt may not be subject to intentional harassment at any 
time.
    (ii) Nonnative predator control or habitat management activities. A 
person may incidentally take nene in the course of carrying out 
nonnative predator control or habitat management activities for 
conservation purposes if reasonable care is practiced to minimize 
effects to the nene.
    (A) Predator control activities include use of fencing, trapping, 
shooting, and toxicants to control predators, and related activities 
such as performing efficacy surveys, trap checks, and maintenance 
duties. Reasonable care for predator control activities may include, 
but is not limited to, procuring and implementing technical assistance 
from a qualified biologist on predator control methods and protocols 
prior to application of methods; compliance with all State and Federal 
regulations and guidelines for application of predator control methods; 
and judicious use of methods and tool adaptations to reduce the 
likelihood of nene ingesting bait, interacting with mechanical devices, 
or being injured or dying from interaction with mechanical devices.
    (B) Habitat management activities include mowing, weeding, 
fertilizing, herbicide application, and irrigating existing pasture 
areas for conservation purposes; planting native food resources; 
providing watering areas, such as water units or ponds or catchments, 
designed to be safe for goslings and flightless/molting adults; 
providing temporary supplemental feeding and watering stations when 
appropriate, such as under poor quality forage or extreme conditions 
(e.g., drought or fire); if mechanical mowing of pastures is not 
feasible, alternate methods of keeping grass short, such as grazing; 
and large-scale restoration of native habitat (e.g., feral ungulate 
control, fencing). Reasonable care for habitat management may include, 
but is not limited to, procuring and implementing technical assistance 
from a qualified biologist on habitat management activities, and best 
efforts to minimize nene exposure to hazards (e.g., predation, 
habituation to feeding, entanglement, vehicle collisions, golf ball 
strikes).
    (4) Additional authorizations for law enforcement officers. When 
acting in the course of their official duties, State and local 
government law enforcement officers, working in conjunction with 
authorized wildlife biologists and wildlife rehabilitators in the State 
of Hawaii, may take nene for the following purposes:
    (i) Aiding or euthanizing sick, injured, or orphaned nene;
    (ii) Disposing of a dead specimen; or
    (iii) Salvaging a dead specimen that may be used for scientific 
study.
    (5) Reporting and disposal requirements. Any injury or mortality of 
nene associated with the actions

[[Page 13942]]

authorized under paragraphs (d)(3) and (4) of this section must be 
reported to the Service and authorized State wildlife officials within 
72 hours, and specimens may be disposed of only in accordance with 
directions from the Service. Reports should be made to the Service's 
Law Enforcement Office at (808) 861-8525, or the Service's Pacific 
Islands Fish and Wildlife Office at (808) 792-9400. The State of Hawaii 
Department of Land and Natural Resources, Division of Forestry and 
Wildlife may be contacted at (808) 587-0166. The Service may allow 
additional reasonable time for reporting if access to these offices is 
limited due to closure.
    (6) Take authorized by permits. Any person with a valid permit 
issued by the Service under Sec.  17.22 or Sec.  17.32 may take nene, 
subject to all take limitations and other special terms and conditions 
of the permit.
    (7) Federal actions remain subject to section 7 of the Act. Nothing 
in this section relieves Federal agencies from compliance with the 
provisions of 16 U.S.C. 1536 or 50 CFR part 402.
    (8) Nothing in this section provides authorization for take of nene 
under the Migratory Bird Treaty Act (16 U.S.C. 703-712).
* * * * *

    Dated: February 7, 2018.
James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the 
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-06571 Filed 3-30-18; 8:45 am]
 BILLING CODE 4333-15-P