[Federal Register Volume 84, Number 244 (Thursday, December 19, 2019)]
[Rules and Regulations]
[Pages 69918-69947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26548]



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Vol. 84

Thursday,

No. 244

December 19, 2019

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





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

  Federal Register / Vol. 84 , No. 244 / Thursday, December 19, 2019 / 
Rules and Regulations  

[[Page 69918]]


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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 Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final 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), 
determine threatened status for the Hawaiian goose (nene) (Branta 
sandvicensis). This rule changes the listing status of the nene from an 
endangered species to a threatened species on the List of Endangered 
and Threatened Wildlife. We call this ``reclassifying'' or 
``downlisting'' the species. We are also adopting a rule under the 
authority of section 4(d) of the Act (a ``4(d) rule'') to enhance 
conservation of the species through range expansion and management 
flexibility. This final rule is based on a thorough review of the best 
available scientific data, which indicate that the threats to this 
species have been reduced to the point that it no longer meets the 
definition of endangered under the Act, but that it is likely to become 
an endangered species within the foreseeable future. In addition, this 
rule corrects the Federal List of Endangered and Threatened Wildlife to 
reflect that Nesochen is not currently a scientifically accepted 
generic name for this species, and acknowledges the Hawaiian name 
``nene'' as an alternative common name.

DATES: This rule is effective January 21, 2020.

ADDRESSES: This final rule is available on http://www.regulations.gov 
under Docket No. FWS-R1-ES-2017-0050. Comments and materials received, 
as well as supporting documentation used in preparation of this final 
rule, are available for public inspection at http://www.regulations.gov, or by appointment at: U.S. Fish and Wildlife 
Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana 
Boulevard, Room 3-122, Honolulu, HI 96850; telephone 808-792-9400.

FOR FURTHER INFORMATION CONTACT: Katherine Mullett, Acting 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 
reclassification of a listed species can only be completed by issuing a 
rule. The endangered designation no longer correctly reflects the 
current status of the nene due to a substantial improvement in the 
species' status. This rule finalizes the reclassification of the nene 
as a threatened species. Furthermore, changes to the take prohibitions 
in section 9 of the Act, such as those we enact for this species under 
a section 4(d) rule, can only be made by issuing a rule. This rule 
finalizes provisions under the authority of section 4(d) of the Act and 
is necessary and advisable for the conservation needs of the nene.
    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 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 
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 mongoose, cats 
(feral and domestic), dogs (feral and domestic), 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, hurricanes, and floods.
    Environmental effects from climate change are likely to exacerbate 
the impacts of drought, hurricanes, and flooding associated with storms 
and hurricanes, as well as causing flooding of portions of nene habitat 
due to sea-level rise. Impacts associated with climate change 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.
    Under section 4(d) of the Act, when a species is listed as a 
threatened species, the Secretary of the Interior (Secretary) has 
discretion to issue such regulations he or she deems necessary and 
advisable to provide for the conservation of the species. For fish or 
wildlife listed as threatened, the Secretary may, by regulation, 
prohibit any act prohibited under section 9(a)(1) of the Act. For the 
nene, the Service has determined that a 4(d) rule is appropriate as a 
means to facilitate conservation and expand the species' range by 
increasing flexibility in management activities for our State partners 
and private landowners. The Service has modified the normal take 
prohibitions to allow certain activities to be conducted on lands where 
nene occur or where they would occur if we were to reintroduce them to 
areas of their historical distribution. Under this 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 is not prohibited 
under Federal law. This 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 will continue to be subject to the requirements of 
section 7 of the Act and eligible for an incidental take exemption 
through section 7 of the Act.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our determination is based on scientifically

[[Page 69919]]

sound data, assumptions, and analyses. We invited these peer reviewers 
to comment on the downlisting proposal. We also invited government 
agencies, the scientific community, industry, Native Hawaiian 
organizations, and any other interested parties to submit comments or 
recommendations concerning any aspect of the proposed rule. We 
considered all comments and information we received during the comment 
period.

Summary of Changes From Proposed Rule

    In preparing this final rule, we reviewed and fully considered 
comments from the peer reviewer and public on the proposed downlisting 
of nene with a 4(d) rule. This final rule incorporates the following 
substantive changes to our proposed rule, based on the comments we 
received:
    (1) During the comment period, we received new information 
regarding the recent volcanic activity on the island of Hawaii. We have 
added an analysis of the effects of volcanic activity to portions of 
nene habitat under Factor A. The Present or Threatened Destruction, 
Modification, or Curtailment of Its Habitat or Range.
    (2) During the comment period, we received new information 
regarding impacts of floods resulting from storms and hurricanes on 
nene eggs and goslings. We have added an analysis of the effects of 
flooding resulting from storms and hurricanes to nene eggs and goslings 
under Factor E. Other Natural or Manmade Factors Affecting Its 
Continued Existence. This threat is anticipated to be exacerbated by 
the increasing global surface temperature associated with greenhouse 
gases resulting from human activities.
    (3) We have incorporated updated information from the Hawaii 
Department of Land and Natural Resources (DLNR) on the most recent nene 
population counts into the rule (see Species Information below).
    (4) We added language under Recovery Planning and Implementation of 
Recovery Actions for the Nene to further clarify the status of nene on 
Molokai and to more clearly reflect our analysis under Overall Summary 
of Factors Affecting Nene.
    (5) We added a definition of ``qualified biologist'' to the 4(d) 
rule.
    (6) We added surveys that further the recovery of nene to the 
excepted forms of take in the 4(d) rule.
    (7) We modified the 4(d) rule to explicitly identify six categories 
of prohibited actions, which resulted in changes to its organizational 
structure and narrative justification but no substantive alteration in 
either prohibited or excluded actions.
    (8) Under 50 CFR 17.41(d)(3)(iii)(A)(3), we've added that the 
landowner must arrange follow-up surveys of the property by qualified 
biologists to assess the status of birds present to the actions 
necessary should a nest be discovered during any intentional harassment 
activities excepted in this final 4(d) rule.

Background

Previous Federal Actions

    Please refer to the proposed downlisting with a 4(d) rule, 
published in the Federal Register on April 2, 2018 (83 FR 13919), for 
previous Federal actions for the nene prior to that date. The 
publication of the proposed downlisting with a 4(d) rule opened a 60-
day comment period, ending on June 1, 2018. In addition, we published a 
public notice of the proposed rule on May 5, 2018, in the Honolulu Star 
Advertiser, Hawaii Tribune Herald, The Garden Island, and West Hawaii 
Today; on May 9, 2018, in the Molokai Dispatch; and on May 12, 2018, in 
The Maui News.

Species Information

    Please see the April 2, 2018, proposed rule (83 FR 13919) regarding 
the history of the scientific and common names of the nene. This final 
rule adopts the currently accepted scientific name, Branta 
sandvicensis, and the common Hawaiian name ``nene,'' on the Federal 
List of Endangered and Threatened Wildlife (List; 50 CFR 17.11(h)). 
Hawaiian goose remains an accepted common name on the List. Please also 
see the proposed rule (83 FR 13919; April 2, 2018) for a physical 
description of nene and a summary of its current and historical range, 
habitat description and use, movement patterns, life history, 
demography, and population status.
    Here, we provide only new information we received since the 
publication of the April 2, 2018, proposed rule. We received the 2017 
statewide nene count of individuals from the Hawaii DLNR, which 
includes a statewide population of 3,252 individuals comprised of 1,104 
individuals on Hawaii, 1,482 individuals on Kauai, 627 individuals on 
Maui, 37 individuals on Molokai, and 2 individuals on Oahu. These 
estimates include the 646 translocations made from Kauai to Hawaii 
(598) and Maui (48), between 2011 and 2016. We have incorporated this 
information into this final rule.

Recovery Planning

    Section 4(f) of the Act (16 U.S.C. 1531 et seq.) 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 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 (List; 50 CFR 17.11(h)) 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.

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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 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 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 made the Draft Revised Recovery 
Plan for Nene (USFWS 2004) available for public review and comment (69 
FR 57356). 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. Although this 
plan was not finalized, it has been our guiding document regarding 
recovery of the nene for the past decade and a half. At the time the 
draft revised recovery plan was written, the statewide population was 
estimated at approximately 1,300 nene with populations on Hawaii (350), 
Maui (250), Kauai (620), 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 three criteria for 
downlisting the nene from endangered to threatened: (1) Self-sustaining 
populations exist on Hawaii, Maui Nui (Maui, Molokai, Lanai, 
Kahoolawe), and Kauai with a target of at least 2,000 birds distributed 
in 7 populations over 15 years; (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); and (3) 
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). Self-sustaining was defined as maintaining (or increasing) 
established population levels without additional releases of captive-
bred nene, although we recognized that continued management, such as 
predator control or pasture management (e.g., mowing or grazing 
regime), may need to be continued.
    As noted in the April 2, 2018, proposed rule (83 FR 13919), and 
throughout this final rule, substantial self-sustaining populations 
exist and are well distributed in multiple localities on the islands of 
Hawaii, Kauai, and Maui (NRAG 2017; Amidon 2017, entire; DLNR 2018, in 
litt.), totaling 3,252 individuals (DLNR 2018, in litt.). Populations 
on Maui and Hawaii have been observed to be stable without external 
supplementation since about 2011, when active translocations from Kauai 
were discontinued; Kauai populations have been stable to increasing for 
several decades while also providing stock for translocation. 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 populations on these 
three islands to continue to be self-sustaining without additional 
releases of captive-bred birds. As discussed in the proposed rule and 
this final rule, 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 species' 
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 within 
its native ecosystem to ensure long-term species survival, 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 mongoose 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, due largely to a captive propagation program that 
began in 1949 before the species was listed and continued through 2011, 
when it was stopped due to successful breeding in the wild. This 
program was implemented collaboratively by the Territory and later the 
State of Hawaii, the Peregrine Fund, and 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; Marshall 2017, pers. 
comm.). The existence of captive nene outside of Hawaii provides 
additional insurance against extinction of the species, but due to 
concerns about disease introduction, they are not used currently as a 
source for supplementation of the wild population and are not 
considered a significant

[[Page 69921]]

contributor to conservation of the species. However, they are still 
subject to permitting requirements under the Act for interstate 
commerce.
    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 
(e.g., Molokai), 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).
    Nene have re-established traditional movement patterns in two 
breeding subpopulations on the island of Hawaii (Hess et al. 2012, pp. 
480-482; Leopold and Hess 2014, pp. 67-78). Nene spend the breeding and 
molting seasons at lower elevations from September to April, and move 
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 and Mortality Rates

    A population viability analysis modelled 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. Only under the third 
scenario could all three populations (Hawaii, Maui, and Kauai) survive 
for 200 years; thus, 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 (Black and 
Banko 1994, entire).
    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, it was 
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 (Hu 1998, 
pp. 107-114).
    Survival data from 1960 through 1990 for released nene on the 
island of Hawaii showed that the highest mortality rate was found among 
newly released goslings during drought years. 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, entire). On Kauai, where 
mongoose are not yet established, protecting the nesting area from 
other predators, such as dogs and cats, was found to be extremely 
successful (Telfer 1998, pers. comm., as cited in USFWS 2004).
    In a preliminary assessment of the short-term population trends in 
nene populations on the four main Hawaiian islands where nene currently 
occur, count-based and demographic models (Morris and Doak 2002, pp. 8-
9) were developed with readily available information on each population 
(Hu 1998; Hu 1999, unpubl. as cited in Banko et al. 1999; USFWS 2004; 
Bailey and Tamayose 2016, in litt.; Kendall 2016, in litt.; Uyehara 
2016a, in litt.) and projected over a 20-year time period assuming 
constant management (Amidon 2017, entire). 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 National Wildlife Refuge 
(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. In the best case scenario, nene populations were 
predicted to remain stable or increase; however, because the model was 
based on the assumption that management actions would continue on into 
the future, it does not support the nene's viability into the 
foreseeable future without continuing management.

Current Status Summary

    The implementation of recovery actions for nene has significantly 
reduced the risk of extinction for the species. Once on the brink of 
extinction, the captive propagation and release program successfully 
increased the number of individuals and re-

[[Page 69922]]

established populations throughout the species' range on the islands of 
Hawaii, Kauai, Maui, and Molokai. 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 the island of Hawaii, traditional movements are being restored, 
which could be expected to improve survival and breeding, as well as 
genetic exchange between subpopulations. 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 is in danger of extinction in the foreseeable 
future.
    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 (i.e., 
future foreseeability) 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 evaluated the status of the nene 
throughout all of its range as indicated by the five-factor analysis of 
threats currently affecting the species, or that are likely to affect 
the species within the foreseeable future. As part of our analysis we 
also evaluated the foreseeability of threats. As nene is a 
conservation-reliant species, some threats are already present and so 
already ``foreseeable'' but we also evaluated the foreseeability of the 
continued conservation management to address such threats (see 
discussion below in Determination section).

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 historical 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 increased almost 10 percent 
between 2003 and 2013, further increasing demands on limited land and 
water resources in the islands (Hawaii Department of Business, Economic 
Development and Tourism 2013, in litt.). Hawaii's average annual 
population growth rate has since slowed to 0.7 percent per year, and is 
anticipated to slow to 0.5 percent by 2025 (Hawaii Department of 
Business, Economics, and Tourism (HDEBT) 2018, p. 2); however, existing 
demands for competing resources will persist.
    While breeding habitat has some level of protection in national 
parks, in national wildlife refuges, and on some 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, thus 
being exposed 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

[[Page 69923]]

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).
    Feral ungulates and nonnative plants led to 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). Efforts to control feral 
ungulate populations (e.g., fencing) have been implemented at some 
sites, including localities in Hawaii Volcanoes and Haleakala National 
Parks, and have locally reduced ungulate impacts on native vegetation 
and likely improved nene foraging and breeding habitat. 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). Nonnative ungulates 
and plants are expected to require continued management into the 
foreseeable future, if not indefinitely, as the main Hawaiian islands 
are too large for complete eradication to be feasible with current 
technology.
    Inadequate nutrition limits 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). 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 (Banko 1992, 
pp. 103-104). The high rates of gosling mortality (57 to 81 percent) in 
Haleakala National Park during the mid-1990s were due to starvation and 
dehydration (Baker and Baker 1995, p. 2; 1999, p. 12). 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 on 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 nutrition 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 into 
the foreseeable future as a threat to the nene.
    Drought contributes to nene mortality by reducing the amount and 
quality of available forage, thereby increasing the starvation and 
dehydration. 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 documented 
historically 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). Climate modelling projections 
indicate that drought frequency and intensity in the Hawaiian Islands 
are expected to increase over time (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). Therefore, we expect drought 
to be an ongoing threat to nene and to increase in frequency and 
intensity in the foreseeable future.
    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 for conservation management purposes, 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, which are 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 Department of Fish and Wildlife (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 1984, p. 302; Woog and Black 2001, pp. 324-328). All of these 
management actions are considered necessary into the foreseeable future 
for the sustained and continued recovery of nene. Predation is expected 
to continue indefinitely as a threat to nene, as the main Hawaiian 
islands are too large for complete eradication of predators to be 
feasible with current technology.
    Nene use of highly altered landscapes and nonnative vegetation can 
significantly contribute to long-term viability of the population. For 
example, nene on Kauai use primarily lowland

[[Page 69924]]

areas in highly altered, human-impacted habitats such as pastures, 
agricultural fields, and golf courses (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. Currently, nene are thought 
to 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 continue to be limiting factors for the 
nene, and we expect this to be the case into the foreseeable future.
    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 [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 [deg]F (2.1 to 4.3 [deg]C) over the 21st century, depending on 
elevation and which of the four Representative Concentration Pathway 
(RCP) emissions scenarios (RCP 2.6, 4.5, 6, and 8.5) are considered 
(Liao et al. 2015, p. 4344; van Vuuren et al. 2011, p.5; 
Intergovernmental Panel on Climate Change 2014, p. 8). 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.
    Forecast of changes in precipitation are highly uncertain because 
they 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 (U.S. 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 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 reported only rarely. 
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; Misajon 2016, 
pers. comm.; 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 enhancing the 
spread of nonnative invasive plants into these species' native 
ecosystems in Hawaii.
    New information received during the comment period revealed that 
flooding from increased storm frequency and intensity may negatively 
affect nene viability as past heavy rainfall during the nene breeding 
season has caused numerous failures of eggs and young goslings at 
Hawaii Volcanoes National Park (NPS 2018, in litt.). On Kauai, flooding 
has decreased nest success for

[[Page 69925]]

the past 2 years (Webber et al. 2017, in litt.; Uyehara 2018, in 
litt.). In 2017 and 2018, Kauai experienced a record number of flooding 
events (Uyehara 2018, in litt.). Approximately 10 flash floods impacted 
the Hanalei flood plain through the 2017-2018 breeding season, which 
hindered breeding activity (Luxner et al. 2018, in litt.; Uyehara 2018, 
in litt.). Three nene nests were discovered in October 2017, all of 
which were destroyed the following month by the first flood of the 
season (Luxner et al. 2018, in litt.). Most of the active, undiscovered 
nests established prior to the flood also presumably failed (Luxner et 
al. 2018, in litt.). Overall, both the 2016-2017 and 2017-2018 seasons 
resulted in over 30 percent nest failure as a result of flooding 
(Webber et al. 2017, in litt.; Luxner et al. 2018, in litt.). Many 
breeding pairs may have failed after the first attempt to nest, may 
have failed after attempting to re-nest, did not re-nest, or may have 
moved off the refuge to nest or re-nest (Luxner et al. 2018, in litt.). 
Flooding also pushes nene out of their habitat and closer to roads, 
placing them at risk of vehicular strikes (Webber et al. 2017, in 
litt.). Another impact from flooding is an increased subsequent risk of 
an avian botulism outbreak (Uyehara 2018, in litt.).
    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 (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 the rise in GMSL (Spada et al. 
2013, p. 484; Polhemus 2015, p. 7; Sweet et al. 2017, p. 9), due, at 
least in part, to gravitational redistribution of meltwater resulting 
from terrestrial ice melt occurring in Greenland, Antarctica, and other 
places (Spada et al. 2013, p. 484). 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 runoff (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 Keaau on 
Hawaii Island.
    Thus, although we cannot predict the timing, extent, or magnitude 
of specific events given that RCP scenarios diverge after around 2035, 
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.
    During the comment period, we received new information that 
indicates the recent volcanic activity from Kilauea on the island of 
Hawaii destroyed portions of nene habitat in Hawaii Volcanoes National 
Park and some nearby areas. Hawaii Volcanoes National Park is home to 
approximately one-third of the current statewide nene population. There 
have been significant changes to the caldera floor and notable deposits 
of ash in the vicinity of the Kilauea summit and to the southwest 
(Misajon 2018, in litt.). Areas of nene habitat known to be affected 
include nesting, roosting, and molting sites; however, the extent of 
affected habitat and the actual impacts to that habitat as a result of 
the collapses and the ash are not known at this time (Misajon 2018, in 
litt.). The eruption in lower Puna eliminated habitat for a small group 
of nene that resides in the area (Mello 2018, in litt.). Severe, 
ongoing volcanic eruptions have the potential to destroy much or all of 
the habitat in Hawaii Volcanoes National Park and surrounding areas 
that support approximately one-third of the statewide nene population. 
Fortunately, nene were not nesting or molting during the time period of 
the eruption. Nene have evolved alongside volcanic activity on the 
island of Hawaii for centuries, and despite past and present activity, 
volcanic activity has not been identified as a dominant factor that 
threatens the survival of the species. Although we have added volcanic 
activity as a threat under Factor A in this rule, we do not identify 
volcanic activity as a dominant factor that threatens the survival of 
the species as there are additional self-sustaining nene populations on 
the islands of Kauai and Maui. Additionally, in mid-August 2018, 
Kilauea's activity decreased in some areas and ceased in others. 
Although initially the recent eruption temporarily altered nene 
behavior by causing them to spend much more time at Wright Road farms, 
Volcano Winery, and Volcano Golf and Country Club, by December 2018, 
State biologists reported that ``business is as usual'' for nene in the 
volcano area (Mello 2018, in litt.). Updates have yet to come in for 
the small coastal population of nene in the Kapoho to Pohoiki area; 
however, they are assumed to have moved out during the eruption and 
moved back into the area afterward (Mello 2018, in litt). Volcanic 
activity has greater potential to bring harm to individual nene if it 
occurs during breeding or molting seasons, when birds may be 
flightless. Direct impacts to individual nene will be difficult to 
assess, and any impacts at the population level will not be immediately 
apparent (Misajon 2018, in litt.). It is impossible to know if the lull 
in volcanic activity will continue or if Kilauea will increase in 
activity again in the near future.
Summary of Factor A
    Habitat destruction and modification from urbanization, 
agricultural activities, drought, feral ungulates, and invasive plant 
species remain threats to nene. Volcanic activity recently impacted 
nene habitat on the island of Hawaii, but the long-term effects of this 
activity have yet to be determined. 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) (Hawaii and Maui). Feral ungulates 
and invasive plant species led to further degradation of nene habitat 
by negatively impacting forage quality, shelter, and potential nest 
sites. Nonnative ungulates and plants are ongoing threats that we 
expect will continue indefinitely into the future and require continued 
management, as the

[[Page 69926]]

main Hawaiian islands are too large for complete eradication to be 
feasible.
    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 the islands of 
Maui and Hawaii. 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 that were attributed 
to inadequate nutrition caused by habitat factors such as poor forage 
quality, drought, and exposure. 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 some localities has reduced 
their impacts on native vegetation and likely improved nene foraging 
and breeding habitat. Subsequent reintroductions at low- and mid-
elevation sites, first on the islands of Kauai and Hawaii, 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 the islands of Kauai, Oahu, Molokai, Maui, and 
Hawaii. 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 (Spada et al. 
2013, p. 484; Polhemus 2015, p. 7; Sweet et al. 2017, p. 9) may 
threaten any low-lying habitats used by nene. Although the effects of 
climate change do not constitute a threat to nene at the present, we do 
expect them to exacerbate the effects of drought and tropical storms, 
and to constitute a threat in the foreseeable future.
    Flooding and volcanic activity are threats to nene; however, 
neither of these threats is likely to occur across the nene's range in 
a single event. Flooding may only occur on one island, or impact only 
one subpopulation on an island, leaving intact the remaining self-
sustaining populations on other islands, or other subpopulations on a 
single island. Similarly, volcanic activity is not a threat to the 
survival of the species because it is restricted to one island (Hawaii) 
and self-sustaining nene populations exist on three islands (Hawaii, 
Kauai, and Maui).

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). 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 and have proven effective in protecting nene 
from overuse.

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). The primary causes of 
death to nene from disease have been 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 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 two 
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. Wild birds infected 
by T. gondii may experience a variety of sublethal effects including 
weakness, loss of balance, and visual impairment (Dubey 2002, pp. 128-
136). Such nonlethal effects may also make nene more susceptible to 
trauma caused by vehicle collisions; in other species the prevalence of 
T. gondii infection has been observed to be greater in roadkilled 
individuals than in the general population (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) of the number of nene 
mortalities 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 thus not likely to have population-level impacts on 
nene into the foreseeable future.
    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). Diagnosis of omphalitis infection has been documented at 
low levels (2 percent) (Work et al. 2015, supplemental material). We 
are uncertain as to the impacts on nene into the foreseeable future; 
however, due to the low incidence, we do not view this a species-level 
threat.
    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 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

[[Page 69927]]

only 1 out of 300 nene mortalities 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), nor do we expect it to 
cause significant declines in the foreseeable future. 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.).
    Avian 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 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 avian 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). We do not anticipate avian 
botulism becoming a threat in the foreseeable future.
    The spread of avian influenza and 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 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). Immunologically naive, 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).
    We are uncertain whether or not avian influenza or West Nile virus 
will be introduced to Hawaii, and current available data does not 
include modeling to determine any potential future risk.
    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. 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), cats, small Indian mongoose (Herpestes 
auropunctatus), and black, Norway, and Pacific rats (Rattus 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), tropical fire ants 
(Solenopsis geminata), and little fire ants (Wasmannia auropunctata) 
also have the potential to disturb incubating females and goslings 
(Plentovich 2019, 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 mongooses are troubling, there remains 
scant biological evidence that a breeding population of mongoose occurs 
on Kauai.
    Mongoose are believed to be the most serious egg predator 
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; 
Misajon 2016, pers. comm.). The success of the nene on Kauai 
demonstrates that mongoose may constitute the most significant predator 
elsewhere (Banko et al. 1999, p. 25). Despite limited data, recent 
estimates of nest success on Kauai for private lands (75 percent) and 
the Kauai NWR Complex (82 percent) are greater than estimates for both 
Haleakala (62 percent) and Hawaii Volcanoes (58 percent) National Parks 
(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.

[[Page 69928]]

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; 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 found primarily in rural and remote areas of Hawaii in dry to wet 
habitats, while the Norway rat typically is found in urban areas or 
agricultural fields (Tomich 1986, p. 41). The black rat is distributed 
widely 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). Both black and 
Pacific rats have been found up to 7,000 ft (2,000 m) on Maui, but the 
Norway rat has been found only at lower elevations (Sugihara 1997, p. 
194). Rats 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, populations occur 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 mongoose, 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).
    Predation by mongoose, pigs, rats, cats, and dogs is expected to 
continue into the foreseeable future, if not indefinitely. Complete 
eradication of non-native predators from the main Hawaiian islands is 
not feasible with current technology
    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. 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; 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 
is found in drier areas of all the main Hawaiian islands (Wong and Wong 
1988, p. 175). Little fire ants have spread across the island of Hawaii 
with isolated locations on Kauai, Maui, and Oahu (Lee et al. 2015, p. 
100). Little fire ants have yet to establish on the islands of 
Kahoolawe, Lanai, and Molokai (Hawaii Invasive Species Council 2019). 
All three ant 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 2019, in litt.).
    Predation by cattle egrets and barn owls, and disturbance by ants, 
may result in injury or mortality of nene; however, predation/
disturbance by these species occurs infrequently and is not known to 
have population-level impacts.
    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 mongoose, 
feral dogs, feral cats, rodents, and pigs. Some open-top pens used 
previously to rear captive nene on National Park Service lands are now 
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 during that period (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 mongoose, 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 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 
mongoose, dogs, 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 prey 
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, 
although without resulting in population-level effects, and are 
expected to continue to do so indefinitely into the future. Avian 
influenza and WNV are not currently established in Hawaii, and we have 
no reliable estimate of the risk of this occurring, but they could 
cause mortality of nene should they become established. Measures to 
control feral cat populations would reduce the risk of exposure of nene 
to toxoplasmosis. Continued monitoring of 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.
    Predation by introduced mammals is the most serious threat to nene.

[[Page 69929]]

Predation by mongoose, dogs, cats, rats, and feral pigs continues to 
affect all life stages of nene (eggs, goslings, and 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, predation/disturbance by these species occurs infrequently and 
is not known to have population-level impacts. Predation is an ongoing 
threat that we expect will continue indefinitely into the future and 
require continued management, as the main Hawaiian islands are too 
large for complete eradication of nonnative predators to be feasible.

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 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(a)(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, 
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 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 NWR 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'' 
(16 U.S.C. 391) 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) (NPS 2018, in litt.). 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 (NPS 2017, p. 3). 
Haleakala National Park (supporting half of the Maui population) and 
Hawaii Volcanoes National Park (supporting one-third of the statewide 
population) have conducted 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. The MBTA regulates most aspects of take, 
possession, transport,

[[Page 69930]]

sale, purchase, barter, export, and import of migratory birds and 
prohibits the killing, capturing, and collecting of individuals, eggs, 
and nests, unless such action is authorized by permit. While the MBTA 
prohibits actions that directly kill a covered species, unlike the 
Endangered Species Act (Act), it does not prohibit habitat modification 
that indirectly kills or injures a covered species, affords no habitat 
protection when the birds are not present, and provides only very 
limited mechanisms for addressing chronic threats to covered species, 
such as nonnative predators.
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) (Hawaii Revised 
Statutes (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, including nene, from take and export out of 
Hawaii. The importation of nondomestic animals (including 
microorganisms) is regulated by a permit system (HAR 4-71) managed 
through the Hawaii Department of Agriculture (HDOA), reducing the 
likelihood of introducing new predators or new diseases that may 
adversely impact nene. 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, 
chapter 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 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 mongoose, there is evidence that inspection and biosecurity 
measures at inter-island ports may not adequately address their 
unintentional introduction (e.g., as 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. Similarly, there is no interdiction being conducted on Lanai 
for mongoose. At Nawiliwili Harbor (Kauai), the Department of Health is 
actively implementing a mongoose detection program and has been for the 
past 2 years (Cecconi, 2019, pers. comm.). In 2016, Governor Ige 
finalized the Hawaii Interagency Biosecurity Plan 2017-2027. This plan 
outlines the myriad biosecurity threats (e.g., mongoose and other 
harmful nonnative animals, diseases, and nonnative plants) in Hawaii 
and provides broad-scale solutions, including inspections at all air 
and sea ports to prevent inter-island, interstate, and international 
spread of invasive species. As of December 2018, all inspector 
positions were staffed; however, even with full staffing, only 1 to 5 
percent of containers can be inspected (Ige 2018, in litt.).
    Predation by mongoose 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 on 
managed lands on Maui and Hawaii, this difference may indicate the 
additional impact of nest predation by mongoose on other islands, 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 its effectiveness into the 
future will be dependent on adequate funding. In response to House Bill 
1568, and other pressures resulting from the unintentional introduction 
of invasive nonnative species, the State presented 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.,

[[Page 69931]]

``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.
    The Coordinating Group on Alien Pest Species (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, in litt.; 
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 six 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'' (HAWP 2019, entire). 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 
contributed 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 
in only in the highest priority areas. Threats from established 
nonnative species to nene are ongoing and are expected to continue into 
the future.
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 mongoose, 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. 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
    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 (Misajon 2017, pers. comm.).
    Nene on Kauai have less genetic variation than birds sampled from 
six wild populations on Hawaii, Maui, and Kauai (Rave 1995, p. 87). 
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).

[[Page 69932]]

Wind Energy Facilities
    A significant number of nene mortalities have been reported at wind 
energy facilities. Nene collide with the towers or 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, three 
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, three facilities with a total of 35 WTGs are in 
operation at Hawi (16 WTGs), South Point (14 WTGs), and Lalamilo Wind 
Farm (5 WTGs); however, there are no reports of nene being killed at 
these facilities (Sether 2019, 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 nene have been observed frequently. 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. We are uncertain regarding any 
future impacts to nene's viability from wind turbines; however, we and 
the State will be monitoring and regulating wind farm activity through 
HCPs.
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). We anticipate impacts from human activities to continue into the 
foreseeable future.
Vehicle Collisions
    Vehicle collisions are 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 bisected by roads, with 
nesting and roosting on one side, and 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 peak breeding and 
molting season. During this time of year, both adults and goslings are 
flightless for a period of time and are especially vulnerable. The 
problem is worse in areas where 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 (41) and Haleakala (14) National 
Parks (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.
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

[[Page 69933]]

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.

Overall Summary of Factors Affecting Nene

    The current statewide nene population estimate is 3,252 birds (in 
comparison to an estimated 2,855 birds in 2015, as reported in the 
proposed rule (NRAG 2017; DLNR 2018, in litt.), and fewer than 300 
birds at the time of listing in 1967 (USFWS 2004, pp. 110-112). The 
population on Kauai, most recently estimated at 1,482 birds, is stable 
and increasing, sustained by ongoing predator control and habitat 
management (NRAG 2017; DLNR 2018, in litt.). Nene on Kauai exhibit 
successful breeding, likely due to abundant food in managed grasslands 
and the absence of mongoose, which are a significant nest predator on 
other islands. Between 2011 and 2016, 646 nene were relocated from 
Kauai to Maui (48) and the island of Hawaii (598). Our current 
population estimate of nene on Kauai does not include birds that have 
been translocated from Kauai to other islands. The Kauai population is 
expected to continue to exhibit an increasing trend provided no 
significant nest predators are introduced to the island.
    On Maui, the current population estimate is 627 (including 
translocated birds), with approximately half of the population in 
Haleakala National Park, and the remainder 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 intensive habitat 
management (feral ungulate and predator control) measures were 
initiated in the 1990s.
    On the island of Hawaii, the current population estimate is 1,091, 
which includes 598 birds relocated from Kauai (NRAG 2017; DLNR 2018, in 
litt.). Prior to the addition of nene from Kauai, population estimates 
on the island of Hawaii ranged between 331 and 611, and in general show 
an increasing trend during the 10-year period since the last major 
release of 53 birds in 2001. For many years, the largest population of 
nene on the island of Hawaii 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. The second subpopulation on the island of Hawaii is found 
at Puu Oo (NPS 2018, in litt.).
    On Molokai, the current population estimate of 37 (NRAG 2017; DLNR 
2018, in litt.) is down from an estimate of 78 in 2015, 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 
the islands of Maui and Hawaii, where populations are spread across a 
large area and exposed to ongoing threats of predation and habitat loss 
(development, feral ungulates, nonnative plants) (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, drought, floods, and volcanic activity. 
These factors contribute to a lack of suitable breeding and flocking 
habitat and, in combination with predation (Factor C) and other human 
activities that cause mortality (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 no longer 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 current 
threat, although novel diseases such as West Nile virus could become a 
threat if introduced to Hawaii in the future. Predation (Factor C) by 
introduced mammals, including mongoose, 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

[[Page 69934]]

conservation-reliant species, but do not currently adequately 
ameliorate threats and will require a 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. Similarly, loss of 
individuals from flooding and volcanic activity (Factor E) do not 
independently constitute a threat with species-level impacts. However, 
if they occur in combination with other factors, the cumulative impacts 
constitute an ongoing threat.

Summary of Comments and Recommendations

    In the proposed rule that published on April 2, 2018 (83 FR 13919), 
we requested that all interested parties submit written comments on the 
proposal by June 1, 2018. We also contacted appropriate Federal and 
State agencies, scientific experts, Native Hawaiian organizations, and 
other interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comments were published in 
the Honolulu Star Advertiser, West Hawaii Today, Hawaii Tribune Herald, 
The Garden Isle, The Maui News, and The Molokai Dispatch newspapers. We 
did not receive any requests for a public hearing.
    We received a total of 36 comment letters on the proposed nene 
downlisting and associated 4(d) rule. Two of these comment letters were 
from a peer reviewer, 7 from Federal agencies, 6 from State agencies, 
and 21 from the general public. All new substantive information has 
either been incorporated directly into this final rule or is addressed 
below. All public and peer review comments are available at http://www.regulations.gov (Docket No. FWS-R1-ES-2017-0050) and from our 
Pacific Islands Fish and Wildlife Office by request (see FOR FURTHER 
INFORMATION CONTACT).

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' 
published on July 1, 1994 (59 FR 34270), we solicited expert opinion 
from nine knowledgeable individuals with scientific expertise that 
included familiarity with nene and their habitat, biological needs, and 
threats. We received a response from one peer reviewer.
Peer Review Comments
    (1) Comment: While low genetic variation in nene on Kauai does not 
appear to affect their fitness, this should not be assumed to be true 
for the species as a whole. Further, fitness on Kauai might be even 
higher if there was more genetic variation. It is hard to predict the 
consequences of bottlenecks, low genetic variation, and inbreeding. One 
consequence of a loss of overall genetic variation is often a loss of 
variation in important immune system genes, which makes low variation 
and inbred populations more susceptible to invasive disease (including 
epidemics and massive die-offs). Although the peer reviewer believes 
that the low genetic variation and inbreeding are not likely the 
dominating factors threatening nene population numbers (compared to for 
example, mongoose and other introduced predators), the peer reviewer 
thinks this section oversimplifies the potential threats of these 
factors to nene.
    Our Response: We agree that it is important to track genetic 
diversity and implement conservation efforts that enable nene 
populations across the species' range to maximize genetic diversity. We 
also concur that low genetic variation and inbreeding, although 
threats, are not the dominating factors limiting nene population 
numbers. As we stated in the April 2, 2018, proposed rule, nene went 
through a prehistoric population bottleneck and have since had 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). We recognize that 
populations with low genetic variability have increased susceptibility 
to disease (e.g., West Nile virus, avian influenza). However, despite 
Kauai having the lowest level of genetic diversity and high levels of 
inbreeding, nene numbers have increased dramatically on Kauai. 
Additionally, we believe that having breeding populations on three 
separate islands provides a potential buffer should a lethal disease 
such as West Nile virus be introduced. Our analysis also considers that 
there may be an opportunity for nene to increase genetic diversity: The 
establishment of traditional movement patterns on Hawaii Island may 
provide opportunities for greater genetic exchange if pair bonds are 
formed between individuals from separate breeding subpopulations at 
non-breeding locations (Hess et al. 2012, pp. 479, 482 and Leopold and 
Hess 2014, pp. 73-74). Although we do not have specific data to support 
this hypothesis, we find it a reasonable assumption based on recent 
population genetics research. For example, genetic variation can occur 
over time when closely associated subpopulations occupy habitats with 
varying physical and biological elements within the same geographic 
area (Kristensen et al. 2018, pp. 1346-1347).
    (2) Comment: Downlisting the nene, which is a uniquely adapted 
Hawaiian goose (and the only remnant species of a small Branta 
radiation in the islands), would reduce their standing for conservation 
mitigation and increase the likelihood of take. Therefore, if the 
downlisting proceeds, it should be accompanied by stringent adherence 
to regulations protecting the species.
    Our Response: We are aware of the perception that conservation 
benefits afforded to nene would be reduced as a result of this 
reclassification and associated 4(d) rule. However, the combined 
purpose of these rules is to provide nene continued protection while 
facilitating conservation of nene and expansion of their range by 
increasing flexibility in management activities. As nene increase in 
number and range, they face increased interaction and potential 
conflict with the human environment. The exceptions from section 9 of 
the Act that are outlined in this final 4(d) rule are intended to 
decrease human-wildlife conflict while ensuring nene have the 
protections they need in order to continue their path toward recovery.
    Upon the effective date of this reclassification and associated 
4(d) rule (see DATES, above), nene will still be afforded protections 
under the Act. With the exception of the explicitly limited actions 
that are covered under the 4(d) rule, anyone taking, attempting to 
take, or otherwise possessing a nene, or parts thereof, in violation of 
section 9 of the Act will still be subject to a penalty under Federal 
law (see section 11 of the Act). This final rule does not alter the 
requirements of section 7 of the Act or the interagency regulations 
implementing section 7 that are found at 50 CFR part 402. Under section 
7 of the Act, Federal agencies must still continue to ensure that any 
actions they authorize, fund, or carry out are not likely to jeopardize 
the continued existence of nene. Under 50 CFR 402.14, a Federal agency 
still needs 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.

[[Page 69935]]

    Although the 4(d) rule allows for select exceptions of take from 
the section 9 prohibitions of the Act, as outlined under the 4(d) Rule, 
below, this rule only addresses Federal Endangered Species Act 
requirements, and does not change the Hawaii Endangered Species Law. 
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 except 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 for scientific or conservation 
purposes or incidental to an otherwise lawful activity. Please see the 
4(d) Rule, below, for more details on State law and associated 
requirements (e.g., license, permit, safe harbor agreement, habitat 
conservation plan). Please also see our responses to related comments 
(5), (6), (15), and (24).

Federal Agency Comments

    (3) Comment: The U.S. Department of Agriculture, National Resources 
Conservation Service (NRCS) commented that the participation of private 
landowners is considered essential to the recovery of nene, especially 
on Kauai, where there is limited habitat on Federal land. Privately 
held ranches on islands of Molokai, Maui, and Hawaii have stepped 
forward to support recovery of nene, and this should be recognized and 
supported. These private landowners are being affected by the expansion 
and dispersal of the nene populations and improving communication and 
developing partnerships with private landowners are proven means to 
maximize opportunities for success.
    Our Response: We agree that developing and maintaining 
partnerships, especially with private landowners, is essential to the 
successful recovery of nene. We greatly appreciate the efforts made by 
privately held ranches on Hawaii, Maui, and Molokai. We plan to 
continue to work with these conservation champions and look forward to 
strengthening these partnerships to maximize conservation success.
    (4) Comment: The NRCS commented that the recent gains in the 
statewide nene population as a whole appear strongly tied to the 
productivity of the Kauai population. The lack of mongoose on Kauai is 
a major factor in this population's success. They encourage a 
coordinated and sustained effort to increase both island biosecurity 
and eradication response to ensure mongoose do not become established 
on Kauai.
    Our Response: We agree that the success of nene on Kauai is a major 
factor in the species overall trajectory toward recovery and that the 
potential establishment of mongoose on Kauai poses a serious threat to 
the island's nene population. We are involved in ongoing, coordinated 
efforts to increase biosecurity on Kauai as well as improve eradication 
efforts, and we welcome partnerships that will further these efforts. 
In 2016, the Service released the Kauai Mongoose Standard Operating 
Procedures to Conduct an Island-wide Status Assessment and Early 
Detection Rapid Response (Phillips and Lucey 2016, pp. 1-12, Appendices 
A and B).
    (5) Comment: The NRCS commented that the 4(d) rule is an important 
mechanism for providing the regulatory assurance needed to successfully 
implement the voluntary Working Lands for Fish and Wildlife (WLFW) 
program in Hawaii, as it may provide provisions to ensure that private 
landowners and citizens are not disproportionately burdened by 
regulations that do not further the conservation of the species and are 
excepted from the ``take'' prohibitions. The WLFW is a collaborative 
effort between NRCS, the Service, and other conservation partners to 
provide technical and financial support to help private landowners make 
habitat improvements on their lands, while providing regulatory 
predictability under the Act. They encourage the Service to consider 
adding language that specifically includes the NRCS conservation plans 
related to WLFW in the 4(d) rule. They anticipate the Service being 
actively engaged in the development of this program and expect that any 
routine activities, such as prescribed grazing, predator control, and 
other habitat improvements, would be thoroughly vetted in advance by 
the Service.
    Our Response: The Service considers all activities in a NRCS 
conservation plan that benefit nene habitat as being within the scope 
of the 4(d) rule exception for nene habitat management activities. The 
exceptions from the prohibitions of section 9 of the Act specified in 
this final 4(d) rule target 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 away from areas that do not support the conservation of the 
species.
    (6) Comment: The Department of the Navy requested that the Service 
amend the proposed 4(d) rule to allow the safe hazing of nene families 
and goslings away from dangerous areas such as roadways, airfields, and 
construction areas.
    Our Response: The 4(d) rule that we proposed and are finalizing in 
this rule allows for the safe hazing of nene from dangerous areas. 
Thus, the Navy's request has been addressed. This final 4(d) rule 
allows for specific exceptions of nene take under Federal law (i.e., 
section 9 of the Act), including, but not limited to, hazing that is 
not likely to involve lethal or direct injurious take. Intentional 
harassment activities not likely to cause direct injury or mortality 
that are addressed in this final 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 (i.e., 
an individual with a combination of academic training in the area of 
wildlife biology or related discipline and demonstrated field 
experience in the identification and life history of nene) familiar 
with the nesting behavior of nene must survey in and around the area to 
determine whether a nest or goslings are present. The 4(d) rule does 
not apply to scenarios involving lethal or directly injurious take. 
Further, any take of nene is still prohibited under State law, and any 
action likely to adversely affect the nene continues to require 
consultation with the State. For more details, please see Intentional 
Harassment Not Likely to Cause Mortality or Direct Injury and 
Justification under 4(d) Rule, below, and our responses to comments (2) 
and (5).
    (7) Comment: The Department of the Navy commented that the proposed 
rule does not list potential take from surveys. Installation biologists 
routinely conduct surveys to collect data on nene on installation 
property and in particular surveys for nests during the breeding 
season. The Navy requests that any unintentional take, specifically 
harassment, resulting from survey work be included in the 4(d) rule as 
allowable.
    Our Response: We have added unintentional take, specifically 
harassment, resulting from survey work that benefits and furthers the 
recovery of nene to the excepted forms of take under Intentional 
Harassment Not

[[Page 69936]]

Likely to Cause Mortality or Direct Injury, below. Please see 4(d) 
Rule, below, and Summary of Changes from Proposed Rule, above.
    (8) Comment: The Department of the Navy commented that consistent 
with the 2014 Formal Consultation for Pacific Missile Range Facility 
Base-wide Infrastructure, Operations, and Maintenance, Kauai, hazing is 
conducted, and signs are placed to alert drivers; however, collisions 
still occasionally occur. The Navy requests that vehicular collisions 
in general (not just during habitat management) be included in the 4(d) 
rule as allowable take (with the condition that other best management 
practices are in place to reduce risk of collisions).
    Our Response: Vehicle strikes at Haleakala National Park, and 
across the species' range, are a threat to nene, particularly during 
breeding season, as discussed in the April 2, 2018, proposed rule and 
this final rule under Factor E. Other Natural or Manmade Factors 
Affecting Its Continued Existence. As stated in our responses to 
comments (6) and (7), the purpose of this reclassification and 
associated 4(d) rule is to further the conservation of the nene. 
Vehicle collisions do not achieve this goal; therefore, we did not 
except them from take prohibitions in the 4(d) rule.
    (9) Comment: The Department of the Navy noted that the 4(d) rule 
allows take by law enforcement officers for the aiding or euthanizing 
of sick, injured, or orphaned nene; disposing of a dead specimen; and 
salvaging a dead specimen that may be used for scientific study. The 
Navy requested that the rule allow Federal employees, specifically 
installation natural resource managers, or any biologists that support 
the implementation of integrated natural resources management plans 
(INRMPs) to perform these actions under the 4(d) rule.
    Our Response: Under the 4(d) rule, law enforcement officers are 
allowed to aid or euthanize sick, injured, or orphaned nene; dispose of 
dead specimens; and salvage dead specimen that may be used for 
scientific study. In response to the Navy's comment, we noted that the 
September 2014 section 7 Biological Opinion for their Pacific Missile 
Range Facility on Kauai covers the incidental take of nene resulting 
from hazing activities. The Terms and Conditions in the Biological 
Opinion's Incidental Take Statement address disposition of injured or 
dead nene as well as who must be contacted. Naval personnel are not 
authorized to euthanize injured nene; however, they can recover and 
dispose of a dead specimen in accordance with the Terms and Conditions 
in the Incidental Take Statement. Injured nene can be collected and 
delivered to a previously specified care facility to determine if the 
specimen can be recuperated and returned to the wild. If it cannot be 
recuperated, the care facility has the authority to euthanize the bird. 
We do not believe the Navy's natural resource managers possess the 
expertise to make such a decision and therefore recommend the 4(d) rule 
not be revised to allow them to euthanize injured individuals. We also 
do not find it necessary to revise the 4(d) rule to provide the 
authority for incidental take that is already covered by the biological 
opinion.

State Comments

    (10) Comment: The Hawaii State Department of Agriculture (HDOA) 
made two suggested edits to the proposed rule: (a) That the lease and 
special permits within the Hanalei NWR be amended to allow agricultural 
lessees the ability to exercise the same permitted practices identified 
in the 4(d) rule; and (b) assuming the rule is finalized, they 
encourage ongoing review of the nene's status on Kauai.
    Our Response: Leases and special permits associated with the 
Hanalei NWR may be able to be revised to accommodate the Federal 
exceptions outlined in this final 4(d) rule. As discussed under 4(d) 
rule, below, the example is take by landowners or their agents 
conducting intentional harassment in the form of hazing or other 
deterrent measures not likely to cause direct injury or mortality. We 
recommend that such hazing not occur during the breeding season. 
Additionally, any form of hazing is still prohibited under State law, 
and any proposed action that may affect nene requires consultation with 
the State. Please also see our response to comment (2). In regard to 
reviewing the status of nene on Kauai, the Act requires the Service to 
conduct status reviews for all listed species at least once every 5 
years; this analysis will include an analysis of the status of the nene 
on Kauai.
    (11) Comment: The HDOA notes that the proposed rule indicates a 
substantial increase in the nene population on Kauai. In 2004, the 
Kauai population was estimated at 564 (83 FR 13923; April 2, 2018) and 
the 2017 population was estimated at 1,107 birds. The HDOA assumes the 
2017 count did not include the 640 nene that were relocated from Kauai 
to Maui and Hawaii from 2011 to 2016 (83 FR 13935; April 2, 2018).
    Our Response: As discussed below under comment (12), the Hawaii 
State Department of Land and Natural Resources (HDLNR) provided us an 
updated (2017) statewide nene population estimate of 3,252 birds, 
including 1,482 birds on Kauai, 1,104 birds on Hawaii, and 627 birds on 
Maui. We have added this estimate to this final rule under Species 
Information. The HDLNR noted that their 2017 count includes the most 
recent translocation efforts to Kauai and Maui. The April 2, 2018, 
proposed rule included nene population estimates from 2015, including 
any translocations through 2015.
    (12) Comment: The HDLNR commented that a divide exists between the 
downlisting criteria outlined in the nene recovery plan and the 
definitions of ``endangered'' and ``threatened'' species under the Act. 
They stated that nene populations clearly do not meet the downlisting 
criteria as established in the recovery plan, but could qualify for 
downlisting under the Act's definition of endangered. The HDLNR 
provided updated nene population estimates. The HDLNR noted that their 
2017 count includes the most recent translocation efforts. Between 2011 
and 2016, 646 nene were translocated from Kauai to Hawaii (598 birds) 
and Maui (48 birds) to reduce aviation safety concerns at Lihue airport 
on Kauai. They also stated that if the recent translocations had not 
taken place, there would not be a population of 500 birds on the island 
of Hawaii; therefore, the nene's status would not meet the downlisting 
criteria of a minimum of seven populations, of which two consist of 500 
or more breeding adults each on two of the islands of Hawaii, Kauai, 
and east Maui; and one population of 300 breeding adults. Additionally, 
they stated there are no populations of 100 breeding adults on ``two of 
the following: East Maui, Molokai, Kahoolawe, or Lanai,'' and that 
there are no nene on Kahoolawe or Lanai, and the population on Molokai 
has declined from 78 captive-bred birds to an estimated 37 birds after 
more than 10 years. They acknowledged that there are two or more 
populations of 250 to 300 breeding birds, depending on how they are 
divided, and more than two populations between 100 and 250 birds.
    Our Response: We appreciate the updated population-wide estimate 
for nene and the island-specific estimates. We also appreciate the 
information on nene translocation efforts between 2011 and 2016. 
According to the values provided, 493 nene were on Hawaii prior to the 
recent translocations. State data are consistent with our assessment 
that there are self-sustaining populations on Hawaii (493, plus the

[[Page 69937]]

598 translocated birds, totaling 1,091), Kauai (1,482 birds), and Maui 
(579, plus the 48 translocated birds, totaling 627). We updated our 
Species Information discussion to include the new and most recent 
statewide population estimates and translocation efforts. Although the 
translocations were beneficial, the Hawaii and Maui populations would 
likely have been self-sustaining over time without the translocated 
birds. Further, as discussed under Implementation of Recovery Actions 
for the Nene in the April 2, 2018, proposed rule (83 FR 13923-13924), 
two breeding subpopulations of nene on the island of Hawaii have re-
established traditional movement patterns, and recent data suggest that 
certain key populations are expected to maintain current numbers or 
increase in the future if the current level of management is continued.
    Regarding the perceived divide between the recovery criteria and 
the Act's definition of ``endangered,'': We addressed this in the April 
2, 2018, proposed rule under Recovery Planning (83 FR 13922-13923), 
where we discuss that 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(h)) 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. 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. For 
further information, please refer to the April 2, 2018, proposed rule 
(83 FR 13919), as well as the Recovery Planning section of this final 
rule. We have determined that the nene no longer meets the Act's 
definition of an endangered species, but does meet the definition of a 
threatened species; therefore, downlisting is appropriate regardless of 
how or whether the recovery criteria have been met.
    (13) Comment: The HDLNR commented that the range of nene has 
contracted and that the species remains vulnerable to extinction on all 
islands, apart from Kauai (which makes up 9 percent of the nene's 
historical range) on which mongoose are currently not established but 
the potential for establishment is high. Mongoose are a significant 
predator and would dramatically threaten Kauai's nene population.
    Our Response: We concur that the range of nene has contracted; 
however, due to captive-rearing and release efforts, nene are now self-
sustaining on the islands of Hawaii, Kauai, and Maui. We acknowledge 
that nene is a conservation-reliant species, and we anticipate current 
conservation actions will continue into the foreseeable future. We also 
recognize that predation by mongoose is a serious threat to nene. As 
stated in the April 2, 2018, proposed rule and in this final rule, the 
establishment of a breeding population of mongoose on Kauai would 
significantly reduce the survival and reproduction of nene on Kauai 
and, as a result, would significantly increase the risk of extinction 
of nene. Please also see our response to comment (4).
    (14) Comment: The HDLNR commented that over half of the island of 
Hawaii's nene are in two subpopulations at Puu Oo and Hawaii Volcanoes 
National Park, which are both currently under direct and indirect 
threats from the Kilauea's volcanic eruption.
    Our Response: At the time of Kilauea's most recent activity (May 4, 
2018), the April 2, 2018, proposed rule was in the comment period 
stage; therefore, volcanic activity was not addressed in the proposed 
rule. We have added an analysis of the effects of volcanic activity to 
the nene under Factor A. The Present or Threatened Destruction, 
Modification, or Curtailment of Its Habitat or Range in this final 
rule.
    (15) Comment: The HDLNR commented that some Division of Forestry 
and Wildlife (DOFAW) employees are concerned that downlisting nene and 
the establishment of a 4(d) rule, and associated provisions under State 
law, could result in inadequate regulatory mechanisms for the nene and 
other endangered species in Hawaii. On the other hand, DOFAW 
appreciates that a more flexible regulatory mechanism to authorize 
nonlethal take permits is needed in some circumstances (e.g., hazing), 
and that the 4(d) rule may be effective in implementing a more 
intuitive approach to managing the bird in specific situations. 
Revisions to Hawaii Revised Statutes would be required to bring the 
State law into alignment, and that may take years due to opposition and 
associated litigation.
    Our Response: This reclassification and associated 4(d) rule is 
designed to give more nene management authority to the State. Upon 
finalization of this rule, the State will be the main authority 
regarding how and whether any of the excepted forms of take outlined in 
this rule will be permitted. Any proposed action that may cause take of 
nene on Federal lands will still require consultation with the Service. 
Please also see our response to comments (2), (5), and (24).

Public Comments

    (16) Comment: Two commenters stated that reclassification of nene 
will decrease funding for predator control (i.e., mongoose).
    Our Response: We are unaware of any reason why the reclassification 
of nene from endangered to threatened will result in a decrease in 
funding for predator control. Upon the effective date of this final 
rule (see DATES, above), nene will still be afforded protections under 
the Federal Endangered Species Act and the Hawaii Endangered Species 
Law. Efforts to protect nene, including predator control, are 
anticipated to continue into the foreseeable future. Although nene have 
made progress toward recovery, they are not considered to be recovered. 
Additionally, we recognize that the nene is considered a conservation-
reliant species by scientists and thus will require management, 
including predator control, into the foreseeable future in order to 
achieve and sustain recovery. Please also see our responses to related 
comments (2), (4), (5), and (15).
    (17) Comment: One commenter stated that the only reason nene are 
doing well on Kauai is because there are no mongoose.
    Our Response: We agree that the success of the nene on Kauai is 
largely due to the lack of mongoose on the island. In addition to the 
lack of an established mongoose population, the greater availability of 
lowland habitat on Kauai is considered an important factor. 
Historically, nene are believed to have bred mainly in lowland habitat, 
and research has shown that reproductive success is higher in lowland 
habitats than in upland habitats. We also attribute the success of the 
nene on Kauai to all of our partners on the island who continue to work 
collaboratively toward the recovery of nene. Along with our partners, 
we will continue to implement current biosecurity efforts as well as 
seek innovative ways to continually improve such efforts to decrease 
the risk of mongoose establishing on Kauai. Please also see our 
response to comment (4).
    (18) Comment: Three commenters expressed that inbreeding is a 
concern, especially on islands other than Kauai. They stated that 
genetic testing would be best to determine the threat of inbreeding. 
One commented that nene are recognized as the most genetically 
bottlenecked listed species given their

[[Page 69938]]

near extinction in the 1940s, and that genetic fecundity of nene is 
unknown and needs to be adequately assessed and demonstrated as 
independently viable on all islands on which it occurs before 
downlisting is biologically supportable.
    Our Response: Please see our response to comment (1).
    (19) Comment: Three commenters stated that the nene should have the 
highest level of protection because nene is a cultural symbol and the 
State bird.
    Our Response: All listing decisions made under the Federal 
Endangered Species Act are based on a biological analysis of whether a 
species is an endangered species or a threatened species because of any 
of the five factors specified under section 4 of the Act. Please see 
Summary of Factors Affecting the Species, above, for our five-factor 
analysis on the nene, including new information we received since the 
publication of the April 2, 2018, proposed rule (83 FR 13919).
    (20) Comment: Four commenters stated that predatory invasive 
species such as rats, mongoose, dogs, pigs, and cats are a threat to 
nene because nene are ground nesters, adults are incapable of flying 
during molting, and goslings do not fledge until after 10 weeks. Also, 
with the increase in human population, there is a subsequent increase 
in dogs, and nene are not instinctively afraid of dogs because they are 
not a natural predator, which together increases the threat of 
depredation by dogs. Further, nonnative species may also outcompete 
nene for food resources.
    Our Response: We agree that predatory invasive species such as 
rats, mongoose, dogs, pigs, and cats are a threat to nene as discussed 
above under Summary of Factors Affecting the Species. Please also see 
our responses to comments (4), (13), (16) and (28).
    (21) Comment: Six commenters stated that the nene is a rare species 
with low number of individuals (especially on Oahu) and endangered 
throughout a significant portion of its range. One of these commenters 
added that the nene is considered the sixth rarest waterfowl in world. 
Nene might be stable, but stable with a low number of individuals. One 
commented that breeding success is low on all islands except Kauai. 
Some of these commenters suggested that nene should be established on 
all islands on which it once occurred before downlisting is initiated, 
and that approximately 3,000 individuals is not enough to downlist or 
consider recovered.
    Our Response: We agree that the nene is a relatively rare species, 
particularly in comparison to other waterfowl, and has a restricted 
distribution. However, rarity alone does not warrant listing a species 
as endangered or threatened under the Act. Because nene experience many 
threats that put them in danger of extinction, nene have been listed 
under the Act since 1967. The Act's definition of an ``endangered 
species'' is any species which is in danger of extinction throughout 
all or a significant portion of its range (16 U.S.C. 1532(6)). The 
Act's definition of a ``threatened species'' is any species which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range (16 U.S.C. 
1532(20)). At the time of its listing in 1967, the nene was at risk of 
extinction as defined by the Act. Since then, conservation efforts have 
slowly yet steadily made progress toward the recovery of the nene; 
today, nene have increased from 30 individuals to over 3,000 
individuals with self-sustaining populations on Hawaii, Kauai, and 
Maui. These three islands make up over 80 percent of nene's historical 
range. Nene have not been recorded, nor are they known historically, on 
Oahu. Although nene have yet to become established (successfully 
breeding) on Molokai, a small portion of their historical range, our 
evaluation of the current range of nene indicates they do not meet the 
definition of an endangered species (i.e., nene are not currently at 
risk of extinction throughout all or a significant portion of their 
range). Breeding success could be improved on Hawaii and Maui, and 
continued management is necessary for predator control and other 
biological and conservation factors that influence nene population 
numbers and survivorship. Reclassification of nene to threatened status 
does not mean we consider nene to be recovered. This reclassification 
rule recognizes the progress of conservation measures since listing.
    (22) Comment: Seven commenters stated that habitat loss and 
modification (i.e., human development, sea-level rise and associated 
erosion of coastal areas) are a threat to nene. One of these commenters 
provided an example of an upcoming development on the south shore of 
Kauai, the ``New City'' which will encompass 480 acres of planned 
development.
    Our Response: We agree that habitat loss and modification are a 
threat to nene as outlined in the April 2, 2018, proposed rule and this 
final rule under Factor A. The Present or Threatened Destruction, 
Modification, or Curtailment of Its Habitat or Range. Sea-level rise 
and associated erosion caused by the effects of climate change are not 
anticipated to bring extensive alterations to nene habitat, as nene are 
not dependent on coastal areas. Increases in frequency and intensity of 
both drought and hurricanes are anticipated to bring direct and 
indirect impacts to nene; however, to what extent and when such impacts 
may occur is unknown. Please also see our response to comment (28). 
Regarding the ``New City'' plans on Kauai, this proposed development 
occurs in an area on Kauai that is currently at least partially 
developed, and nene are not known to occupy the project area nor 
adjacent areas.
    (23) Comment: Two commenters stated that before downlisting is 
warranted, more research is needed to determine the impacts of climate 
change (i.e., drought, hurricanes, and sea-level rise), the amount (if 
any) of genetic variability, the impacts from wind energy and wind 
turbines, and toxoplasmosis. Sea-level rise is not a future threat; it 
is happening now. Hawaii has already lost approximately 13 miles of 
beaches and shorelines (Hawaii Climate Change Mitigation and Adaptation 
Commission, in litt. 2015). Further, more intense hurricanes will 
increase flooding events and thus increase the loss of nene nests due 
to flooding.
    Our Response: We agree that Toxoplasma gondii poses both direct and 
indirect threats to nene as discussed in the April 2, 2018, proposed 
rule and this final rule under Factor C. Disease or Predation. Please 
see our responses to comment (1) regarding low genetic variation; 
comments (2) and (24) regarding downlisting and the 4(d) rule; comments 
(22) and (28) regarding climate change; and comment (25) regarding wind 
farms.
    (24) Comment: Six commenters suggested that reclassification from 
endangered to threatened status will significantly increase harassment 
and human wildlife conflict. Human-wildlife conflict still exists. With 
the observed increase in human population, there is subsequent increase 
in nene take (e.g., more people equals more dogs). Also, more people 
will likely lead to an increase in hazardous situations, especially if 
take is allowed during nene breeding season because nene are ground-
nesting birds. One of these commenters suggested only allowing hazing 
outside of nene breeding season, and then stated that hazing may be an 
advantage but is a narrow perspective to the conservation of the 
species. Further, the human dimensions side of nene acceptance deserves 
immediate Service emphasis (i.e., outreach) to help broaden support for 
nene. One of these commenters suggested that downlisting

[[Page 69939]]

nene to threatened status may increase human hunting of nene.
    Our Response: Please see our responses to comments (2), (5), (6), 
and (15), which address similar comments pertaining to downlisting nene 
and the promulgation of this 4(d) rule. Please also see our response to 
comment (31) regarding outreach. Regarding hunting, whether nene are 
listed as endangered or threatened under the Act, hunting nene is still 
prohibited under current law, and subject to civil and criminal 
penalties under both Federal and State law.
    (25) Comment: One commenter stated that wind energy was harmful to 
nene and that there was a large increase in wind energy production 
between 2009 and 2015, with new prospects underway.
    Our Response: We agree that wind energy production has increased 
over the past 10 years and that new prospects are underway. We also 
agree that wind turbines have the potential to harm nene. Nine wind 
energy facilities are either built or under construction on the islands 
of Oahu (3), Maui (3), and Hawaii (3). Four of these have active 
incidental take permits and associated HCPs, one is in the process of 
finalizing a HCP to receive an incidental take permit for take of nene, 
three are not permitted for take of nene (because take is unlikely to 
result from operations on Oahu), and one of the three not currently 
permitted for take of nene is just beginning the process to seek 
coverage for nene. Rigorous and standardized fatality monitoring is 
conducted on a 4- to 7-day interval year-round for all wind energy 
facilities that have incidental take permits. These wind energy 
facilities are required to fully offset their requested take through 
mitigation that includes predator control, improving foraging (e.g., 
outplanting favored nene food plants), pen maintenance and 
construction, and other management actions that benefit the nene. The 
mitigation actions are carried out on the island where the incidental 
take occurs. The mitigation actions include specific monitoring 
components that ensure the mitigation actions are indeed offsetting the 
requested take above the baseline that exists without the additive 
mitigation actions. In other words, the mitigation actions must produce 
nene that, but for the mitigation, would not have been produced. Prior 
to the Service issuing an incidental take permit, the cumulative 
impacts of all projects existing and in the foreseeable future that may 
impact a species are analyzed to ensure the action does not 
significantly impact the survival and recovery of the species.
    (26) Comment: One commenter stated that there are inadequate 
regulatory mechanisms in place to protect nene.
    Our Response: We addressed regulatory mechanisms in the April 2, 
2018, proposed rule and this final rule under Factor D. The Inadequacy 
of Existing Regulatory Mechanisms. Based on our analysis of existing 
regulatory mechanisms, a diverse network of laws and regulations 
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. Although 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, we believe that with sustained management commitment, these 
mechanisms could be important tools to ameliorate these threats.
    (27) Comment: Four commenters expressed conditional support for the 
proposed downlisting rule if the Service would withdraw or limit the 
4(d) proposal. These commenters stated that nene do not eat taro or 
harm taro production, and the commenters do not want the Service to 
permit hazing on taro farms on Kauai. To allow this would impermissibly 
disrupt nene populations in an area where they are highly concentrated. 
These commenters support efforts to decrease motor vehicle strikes, as 
a lot occur in Hanalei Valley. They support the 4(d) rule as long as 
the purpose is to open up and increase positive management for nene.
    Our Response: We agree that taro farms on Kauai support large 
numbers of nene and that taro farms are important, although not ideal, 
habitat. As outlined in the April 2, 2018, proposed rule and this final 
rule, the purpose of the 4(d) rule is to 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 final 
4(d) rule provides 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. Nonlethal take on 
any farms, taro or otherwise, is allowed consistent with the 4(d) rule 
if permitted by the State and in the case of the NWRs, if permitted by 
their lease language. Harm or harassment that is likely to cause 
mortality or injury will continue to be prohibited under the 4(d) rule 
here because allowing these forms of take would be incompatible with 
restoring robust populations of nene and restoring and maintaining 
their habitat. Please also see our response to comment (2); 4(d) Rule, 
below; and Factor D. The Inadequacy of Existing Regulatory Mechanisms, 
above, for more information. Regarding vehicle strikes, we agree 
vehicle strikes are a threat to nene, as outlined in the April 2, 2018, 
proposed rule and this final rule under Factor E. Other Natural or 
Manmade Factors Affecting Its Continued Existence, and we will continue 
to work with partners to reduce the impacts from vehicle strikes on 
Kauai and throughout the nene's range.
    (28) Comment: Five commenters stated that continued conservation 
actions are essential for this rule to work, and that a stronger 
management plan is needed if reclassification is finalized with the 
4(d) rule, as well as to address impacts from climate change. An 
increase in protection for crucial nene nesting areas is needed, 
perhaps a large predator-free preserve. The Service also needs to 
include climate change as part of the larger regulatory discussion, as 
well as focus on ecosystem stabilization. Federal management is 
essential for nene.
    Our Response: We agree that continued conservation actions are 
essential to the full recovery of nene. This is true with or without 
this final reclassification and 4(d) rule as the nene is considered a 
conservation-reliant species, as discussed in the April 2, 2018, 
proposed rule under Recovery Planning (83 FR 13922-13923). Although 
classified as threatened upon the effective date of this final rule 
(see DATES, above), nene are still protected under both the Act and 
Hawaii Endangered Species Law. Please also see our response to comment 
(2). We also agree that current and future anticipated impacts from 
climate change should be part of both regulatory and management 
discussions at all levels, as well as ecosystem stabilization. However, 
impacts to nene and nene habitat from the effects of climate change are 
not fully known. We expect there will be both anticipated (e.g., 
increased intensity and frequency of drought and hurricane) and 
unanticipated impacts, although we do not know when such impacts will

[[Page 69940]]

manifest. Please also see our response to related comment (22). Federal 
management of nene is expected to continue into the foreseeable future. 
We also anticipate continued collaboration with State and private 
partners. The nene recovery plan is rooted in adaptive management, and 
as the species needs become evident in light of climate change, we will 
adapt accordingly. We are aware that data indicate an increase in 
frequency and intensity of both drought and hurricanes, and indicate 
species range shifts due to a warming ambient global temperature, and 
we will work with partners to do our best to minimize such impacts to 
nene and nene habitat.
    (29) Comment: Two commenters stated that there is an alarming 
increase in motor vehicle collisions, either because there are more 
nene or more people, or both.
    Our Response: We agree that vehicle strikes at Haleakala National 
Park, and across the species' range, are a threat to nene, particularly 
during breeding season, as discussed in the April 2, 2018, proposed 
rule and this final rule under Factor E. Other Natural or Manmade 
Factors Affecting Its Continued Existence. The Service uses the best 
available scientific and commercially data during the compilation of 
both proposed and final rules. Any pertinent new information we 
received during the comment period has been included in this final 
rule.
    (30) Comment: One commenter shared that there is an investigation 
underway in Koloa on Kauai regarding a homeowner that allegedly killed 
four nene with a BB gun.
    Our Response: We are unable to comment on alleged or actual 
investigations. Shooting nene is prohibited under Federal and State 
law, and subject to both civil and criminal penalties.
    (31) Comment: Two commenters asked the Service to conduct more 
outreach for nene and associated current issues, and stated that it 
would have been better to provide more public information rather than 
simply referring to readers to http://www.regulations.gov. It would be 
advantageous to broadly communicate the nene as a success for the 
recovery progress that has been made, and use that to educate the 
public about endorsing biodiversity.
    Our Response: We agree that additional outreach regarding the 
status of nene and associated current issues would further advance the 
conservation of nene. We are always seeking more effective ways to best 
reach the public and create awareness about endangered species and 
surrounding issues, including nene. Our current methods of outreach 
include releases to media (local television and newspaper stations), 
multiple social media stories and website postings, and outreach to the 
community. We also welcome the public to contact our office if they 
have questions about nene (please see FOR FURTHER INFORMATION CONTACT, 
above). The nene's trajectory toward recovery is the culmination of 
years of collaborative efforts between Federal, State, and private 
partners. Working with partners, we will continue to use a variety of 
tools to provide information to the public regarding nene, including, 
but not limited to, social media, websites, news releases, 
environmental education, and outreach and interpretation.
    (32) Comment: One commenter questioned the success of nene outlined 
in the April 2, 2018, proposed rule by citing the release of 2,400 
birds between 1960 and 2006, yet the statewide population is currently 
only 3,000.
    Our Response: As discussed in the April 2, 2018, proposed rule 
under Species Information (83 FR 13921-13922), approximately 2,800 
captive-bred nene were released between 1960 and 2008. The population 
estimate provided in the proposed rule (2,855 individuals) was the 
result of a combination of captive-bred and wild (naturally produced 
offspring from released birds) nene. We received a more recent 
statewide population estimate of 3,252 birds from the State. Estimated 
mortality rates retrieved from capture-recapture analysis on over 2,000 
captive-bred nene that were released to the wild ranged from 0 to 87 
percent (Black et al. 1997, p. 1161; Banko et al. 1999, p. 20). 
Variability was attributed to year of release, age class, and method of 
release (Black et al. 1997, pp. 1167-1168, 1171, 1173). Survival for 
nene released before the drought years of 1976 to 1983 ranged from 84 
to 95 percent; however, during the drought period, nearly 1,200 
captive-bred nene perished (Banko et al. 1999, p. 20). The cumulative 
data (including values for captive-bred release, translocated birds, 
mortality rates, fledging success, life span (up to 28 years for one 
captive-bred released nene at Haleakala National Park), and other 
factors discussed in the April 2, 2018, proposed rule) indicate that 
although nene are conservation-reliant, they are on a path toward 
recovery. There are self-sustaining nene populations on Hawaii, Kauai, 
and Maui, and the most recent population estimate we received from the 
State shows an increase in number of individuals from the 2015 value 
cited in the April 2, 2018, proposed rule.
    (33) Comment: Two commenters stated that nene are conservation 
reliant, especially outside of Kauai.
    Our Response: We agree, as stated in the April 2, 2018, proposed 
rule and this final rule. We anticipate that current conservation 
actions will continue or increase in the foreseeable future. Please 
also see our response to comment (28).
    (34) Comment: One commenter stated the need for an increase in 
biosecurity efforts. This is most important on Kauai because mongoose 
are not established there. It is only a matter of time before mongoose 
establish on Kauai; therefore, nene should remain classified as 
endangered.
    Our Response: We agree that there is a need for increased 
biosecurity efforts across the island, both for interisland crafts and 
those from overseas, to address introduction and movement of all 
invasive species. Currently, the Department of Health is actively 
implementing a mongoose detection program at Nawiliwili harbor (the 
location of the 2012 live mongoose capture), and has been for the past 
two years (Cecconi 2019, pers. comm.; KISC 2019). Additionally, Kauai 
has adopted the Kauai Mongoose Standard Operating Procedure to conduct 
island-wide State assessment and early detection rapid response 
(Phillips and Lucey 2016, entire). Please also see our response to 
comment (4).
    (35) Comment: One commenter stated that nene regulations are costly 
for businesses, due to bird droppings in restaurants and pools and nene 
eating of farm crops. As nene rebound, businesses are burdened. The 
4(d) rule will decrease this burden. Additionally, it is still against 
both Federal and State law to harm, abuse, or kill a nene.
    Our Response: Although this 4(d) rule provides select exceptions 
from section 9 of the Federal Endangered Species Act, any type of nene 
take is still prohibited by the Hawaii Endangered Species Law. Please 
also see our responses to comments (2) and (5).
    (36) Comment: One commenter stated that nene are a risk to aircraft 
and the ability to haze nene at the airport will reduce this risk.
    Our Response: We agree that nene, and other birds, are a risk to 
aircraft and aircraft passengers. The effect of this final rule is the 
exception of certain specific actions from the Act's section 9 
prohibitions on take. However, under 50 CFR 402.14, a 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

[[Page 69941]]

adversely affect the nene. Additionally, under State law, a permit is 
required to haze a federally or State-listed species at airports or 
elsewhere. Furthermore, State issuance of an incidental take license 
requires the development of an HCP (HRS 195D-21) or a safe harbor 
agreement (HRS 195D-22), and consultation with the State's Endangered 
Species Recovery Committee.

Determination of Nene Status

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species that is ``in danger of extinction throughout all or a 
significant portion of its range,'' and a ``threatened species'' as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' The Act requires that we determine whether a species meets the 
definition of ``endangered species'' or ``threatened species'' because 
of any of the following 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.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, 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 3,252 individuals, with the wild populations on 
the islands of Hawaii, Kauai, Maui, Molokai, and Oahu estimated to have 
1,104, 1,482, 627, 37, 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). 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), and nene may 
potentially be affected in the future by introduction of diseases such 
as West Nile virus (Factor C). 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 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.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. Because we have determined that the nene is likely to become 
an endangered species within the foreseeable future throughout all of 
its range, we find it unnecessary to proceed to an evaluation of 
potentially significant portions of the range. Where the best available 
information allows the Services to determine a status for the species 
rangewide, that determination should be given conclusive weight because 
a rangewide determination of status more accurately reflects the 
species' degree of imperilment and better promotes the purposes of the 
Act. Under this reading, we should first consider whether the species 
warrants listing ``throughout all'' of its range and proceed to conduct 
a ``significant portion of its range'' analysis if, and only if, a 
species does not qualify for listing as either an endangered or a 
threatened species according to the ``throughout all'' language. We 
note that the court in Desert Survivors v. Department of the Interior, 
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not 
address this issue, and our conclusion is therefore consistent with the 
opinion in that case.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the nene meets the definition of a 
threatened species. Therefore, we are listing the nene as a threatened 
species in accordance with sections 3(20) and 4(a)(1) of the Act.
    The Act does not define the term ``foreseeable future.'' For the 
purposes of this rule, we define the ``foreseeable future'' to be the 
extent to which we can reasonably rely on predictions about the future 
in making determinations about the future conservation status of nene. 
The degree of foreseeability varies with respect to the different 
various threats to nene. While nene are adversely affected by many 
types of direct and indirect threats, as outlined under Summary of 
Factors Affecting the Species, most of these threats are ongoing (e.g., 
predation by already established nonnative animals) and only abated by 
continued management, such that future threat impacts on nene 
populations are likely to be dependent on the availability of resources 
for management. For some potential threats (e.g., introduction of West 
Nile virus, establishment of mongoose on Kauai), we cannot predict 
whether or when they will manifest.
    The threats with the greatest potential to cause significant nene 
population declines relate to predation and loss and degradation of 
habitat (primarily due to ungulates and invasive plants). Both 
management (e.g., control of predators, ungulates, and invasive plant 
control) and biosecurity (e.g., predator and disease control at some 
ports) have improved the status of nene. However, continuing these 
efforts into the future is necessary to prevent substantial reductions 
in the species' viability since nene populations are expected to 
continue to be conservation-reliant. Thus, the foreseeable future in 
relation to management and biosecurity is largely dependent on the 
reliability of management commitments and funding for these purposes in 
coming decades.
    Most nene populations currently exist on lands managed by agencies 
that function under conservation mandates and have management plans in 
place (i.e., National Parks, National Wildlife Refuges, and some State 
lands).

[[Page 69942]]

Availability of funding for conservation of natural resources, 
including threatened and endangered species, is increasingly difficult 
to predict into the more distant future. However, management plans 
currently in effect are likely to continue for a decade or more (e.g., 
comprehensive conservation plans for National Wildlife Refuges and 
general management plans for National Parks function on a roughly 15-
year planning cycle [see Service Manual 602 FW 3; National Park 
Management Policies 2.3.1.12]), and given funding availability, 
predator management actions are likely to continue as a significant 
priority in future iterations based on established conservation 
mandates. Thus, we conclude that there is a reasonable likelihood of 
continued management for the benefit of nene on these lands over the 
next 15 to 30 years. Similar constraints apply to the level of 
foreseeability of governmental commitments to implementation of 
biosecurity measures (see Hawaii Interagency Biosecurity Plan).
    Over this time frame, we anticipate that threats to nene associated 
with climate change (e.g., increased duration and intensity of drought, 
increased frequency and intensity of hurricanes, and flooding 
associated with hurricanes and sea-level rise) to continue to increase, 
although we expect the primary issues driving nene population viability 
will continue to be predation and habitat degradation.
    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. This rule finalizes the 
reclassification of the nene from an endangered species to a threatened 
species.
    This final rule revises 50 CFR 17.11(h) to reclassify nene from 
endangered to threatened on the List of Endangered and Threatened 
Wildlife. 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. This rule 
formally recognizes 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. However, this 
reclassification does not significantly change the protection afforded 
this species under the Act. Other than the ``take'' that will be 
allowed for the specific activities outlined in the accompanying 4(d) 
rule, the regulatory protections of the Act will remain in place. 
Anyone taking, attempting to take, or otherwise possessing a nene, or 
parts thereof, in violation of section 9 of the Act will still be 
subject to penalties under section 11 of the Act, except for the 
actions covered under the 4(d) rule.

4(d) Rule

    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. The U.S. Supreme Court 
has noted that very similar statutory language demonstrates a large 
degree of deference to the agency. See Webster v. Doe, 486 U.S. 592 
(1988). Conservation is defined in the Act to mean ``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.'' Additionally, 
section 4(d) of the Act states that the Secretary ``may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1). . . . or 9(a)(2).'' Thus, regulations 
promulgated under section 4(d) of the Act provide the Secretary with 
wide latitude of discretion to select appropriate provisions tailored 
to the specific conservation needs of the threatened species. The 
statute grants particularly broad discretion to the Service when 
adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have approved rules 
developed under section 4(d) that include a taking prohibition for 
threatened wildlife, or include a limited taking prohibition. See Alsea 
Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 
2007); Washington Environmental Council v. National Marine Fisheries 
Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002). Courts have also 
approved 4(d) rules that do not address all of the threats a species 
faces. See State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988). 
As noted in the legislative history when the Act was initially enacted, 
``once an animal is on the threatened list, the Secretary has an almost 
infinite number of options available to him with regard to the 
permitted activities for those species. He may, for example, permit 
taking, but not importation of such species,'' or he may choose to 
forbid both taking and importation but allow the transportation of such 
species, as long as the prohibitions, and exceptions to those 
prohibitions, will ``serve to conserve, protect, or restore the species 
concerned in accordance with the purposes of the Act'' (H.R. Rep. No. 
412, 93rd Cong., 1st Sess. 1973).
    The Service has developed a species-specific 4(d) rule that is 
designed to address the nene's specific threats and conservation needs. 
Although the statute does not require the Service to make a ``necessary 
and advisable'' finding with respect to the adoption of specific 
prohibitions under section 9, we find that this regulation is necessary 
and advisable to provide for the conservation of the nene. As discussed 
above in the Summary of Factors Affecting the Species, the Service has 
concluded that the nene is at risk of extinction within the foreseeable 
future primarily due to predation (Factor C), loss and degradation of 
habitat (Factor A), and effects of human activities (Factor E) . 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) and nene may 
potentially be affected in the future by introduction of diseases such 
as West Nile virus (Factor C). This 4(d) rule targets activities to 
facilitate conservation and management of nene where they currently 
occur and may occur in the future by excepting the Federal take 
prohibition under certain conditions. This change is 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. 
The provisions of this 4(d) rule will promote conservation of nene and 
expansion of their range by increasing flexibility in management 
activities for our State and private landowners. The provisions of this 
rule are one of many tools that the Service will use to promote the 
conservation of the nene.

Provisions of the 4(d) Rule

    This 4(d) rule will provide for the conservation of the nene by 
specifically prohibiting the following actions that can affect nene, 
except as otherwise authorized or permitted: Import or export; take; 
possess and other acts with unlawfully taken specimens; deliver, 
receive, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce.

[[Page 69943]]

These prohibitions will result in regulating a range of human 
activities that have the potential to affect nene, including 
agricultural or urban development; energy development; recreational and 
commercial activities; introduction of predators; and direct capture, 
injury, or killing of nene. Regulating these activities will help 
preserve the species' remaining populations.

Prohibition of Import, Export, and Interstate and Foreign Commerce

    We have included the prohibition of import, export, interstate and 
foreign commerce, and sale or offering for sale in such commerce due in 
part to the increased risk of exposing nene to diseases such as West 
Nile virus. While there are currently no diseases present in Hawaii 
that jeopardize the viability of nene, unrestricted transport of 
captive nene in and out of the Hawaiian Islands would have the 
potential to result in introduction of new avian diseases to the wild 
population in the foreseeable future. As discussed under Factor C, the 
introduction of diseases such as West Nile virus could significantly 
impair the viability of nene in Hawaii. Additionally, although the nene 
population is currently stable, it is considered a conservation-reliant 
species and requires active management to maintain this stability. The 
nene is not thriving to the degree that its population is considered 
capable of sustaining unrestricted trade, and the resulting increased 
incentive for capture of nene from the wild, without the likelihood of 
negative impacts to the long-term viability of the species.

Prohibition of Possession and Other Acts With Unlawfully Taken 
Specimens

    Although the nene population is currently stable, it is considered 
a conservation-reliant species and requires active management to 
maintain this stability. The nene is not thriving to the degree that 
its population is considered capable of sustaining unrestricted capture 
or collection from the wild without the likelihood of negative impacts 
to the long-term viability of the species. Because capture and 
collection of nene remains prohibited as discussed below, maintaining 
the complementary prohibition on possession and other acts with 
illegally taken nene will further discourage such illegal take. Thus, 
the possession, sale, delivery, carrying, transporting, or shipping of 
illegally taken nene should continue to be prohibited in order to 
maintain the viability of the nene population.

Prohibition of Take

    ``Take'' means to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such conduct. 
Some of these provisions have been further defined in regulation at 50 
CFR 17.3. Take can result knowingly or otherwise, by direct and 
indirect impacts, intentionally or incidentally. Regulating incidental 
and intentional take will help preserve the nene's remaining 
populations.
    Although the statewide number of individual nene is stable, if not 
increasing, species experts consider the nene a conservation-reliant 
species. The nene is not thriving to the degree that its population is 
considered able to withstand unregulated take, either intentional or 
unintentional, without the likelihood of negative impacts to the long-
term viability of the species. There are a few circumstances in which 
allowing either intentional or unintentional take may benefit the nene 
as a species and further its recovery. We have outlined such 
circumstances below as exceptions to the prohibitions of take. By 
allowing take under specified circumstances, the rule will provide 
needed protection to the species while allowing management flexibility 
to benefit the species' long-term conservation. Harm or harassment that 
is likely to cause mortality or injury continues to be prohibited 
because allowing these forms of take is incompatible with restoring 
robust populations of nene and restoring and maintaining their habitat. 
Anyone taking, attempting to take, or otherwise possessing a nene, or 
parts thereof, in violation of section 9 of the Act will still be 
subject to a penalty under section 11 of the Act, except for the 
actions that are specifically excepted under the 4(d) rule.

Take Exceptions

    Under this 4(d) rule, take will generally continue to be 
prohibited, but the following specific take will be excepted under the 
Act, provided the additional measures described in the rule are adhered 
to:
     Take by landowners or their agents conducting intentional 
harassment in the form of hazing or other deterrent measures not likely 
to cause direct injury or mortality, or nene surveys;
     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.

Intentional Harassment Not Likely To Cause Mortality or Direct Injury

    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, and farms). 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 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 expect 
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 to promote expansion of the 
species' range into additional areas compatible with conservation of 
nene across the State.
    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

[[Page 69944]]

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 take. Under this 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), are classified as intentional 
harassment not likely to cause direct injury or mortality, and are 
allowed under Federal law. Such activities may include the use of 
predator effigies (including raptor kites, predator replicas, etc.), 
commercial chemical bird repellents, ultrasonic repellers, audio 
deterrents (noisemakers, pyrotechnics, etc.), herding or harassing with 
trained or tethered dogs, or access control (including netting, 
fencing, etc.). Harassment of nene in the course of surveys that 
benefit and further the recovery of nene is also considered to be 
within the scope of this 4(d) rule. This 4(d) rule does not apply to 
activities 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, this 4(d) rule 
does not cover hazing methods such as lasers or untrained dogs.
    Intentional harassment activities not likely to cause direct injury 
or mortality that are addressed in this 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. 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.
    This 4(d) rule addresses intentional harassment of nene by 
landowners and their agents that is not likely to result in mortality 
or direct injury, predator control, and habitat management. Excepting 
targeted activities that may normally result in take under the 
prohibitions of the Act will 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 expect that the actions and activities that are allowed under 
this 4(d) rule, while they may cause some minimal level of harm or 
disturbance to individual nene, will not cause mortality or direct 
injury, will not adversely affect efforts to conserve and recover nene, 
and in fact should facilitate these efforts because they will make it 
easier to implement recovery actions and redirect nene activity toward 
lands that are managed for conservation.

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., mongoose, dogs (feral and domestic), 
feral pigs, cats (feral and domestic), 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 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 by 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 4(d) rule, take 
resulting from actions implementing predator control activities to 
benefit nene are not 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 nene 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 for

[[Page 69945]]

conservation management purposes 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 for conservation 
purposes 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 4(d) 
rule, take resulting from habitat management activities is not 
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, and 
vehicle collisions).

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 4(d) rule excepts 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 dead nene. Law 
enforcement officers are 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.
    Under certain circumstances we may issue permits to carry out 
otherwise prohibited activities, including those described above, 
involving threatened wildlife. Regulations governing permits are 
codified at 50 CFR 17.32. With regard to threatened wildlife, a permit 
may be issued for the following purposes: Scientific purposes, to 
enhance propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act. There are 
also certain statutory exemptions from the prohibitions, which are 
found in sections 9 and 10 of the Act.
    The Service recognizes the special and unique relationship with our 
state natural resource agency partners in contributing to conservation 
of listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Services in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Services shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State Conservation Agency which is a party to a 
Cooperative Agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
will be able to conduct activities designed to conserve nene that may 
result in otherwise prohibited take without additional authorization.
    Nothing in this 4(d) rule will change in any way the recovery 
planning provisions of section 4(f) of the Act, the ability of the 
Service to enter into partnerships for the management and protection of 
the nene, or the consultation requirements under section 7 of the Act. 
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; this 4(d) rule does not alter the 
section 7 requirements, and Federal actions covered by this rule are 
still subject to those requirements. The effect of this rule is 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 will 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. 
Interagency cooperation may be further streamlined through planned 
programmatic consultations for the species between Federal agencies and 
the Service.
    This 4(d) rule addresses only Federal Endangered Species Act 
requirements, and does 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 except 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 (HRS 195D-21) or a safe harbor agreement (HRS 
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 this 4(d) rule. In addition, it is our 
understanding that current State regulations for endangered and 
threatened wildlife (HAR 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.

Required Determinations

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 final 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.

[[Page 69946]]

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.11(h) by removing the entry for ``Goose, Hawaiian'' 
and adding an entry for ``Goose, Hawaiian (Nene)'' in its place 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.                                             84 FR [insert Federal
                                                                                           Register page where
                                                                                           the document begins],
                                                                                           12/19/2019; 50 CFR
                                                                                           17.41(d) \4d\.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


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


Sec.  17.41  Special rules--birds.

* * * * *
    (d) Hawaiian goose (Branta sandvicensis) (nene). (1) Definitions. 
For the purposes of this paragraph (d):
    (i) Nene means the Hawaiian goose (Branta sandvicensis).
    (ii) Intentional harassment means an intentional act that 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.
    (iii) Person means a person as defined by section 3(13) of the Act.
    (iv) Qualified biologist means an individual with a combination of 
academic training in the area of wildlife biology or related discipline 
and demonstrated field experience in the identification and life 
history of nene.
    (2) Prohibitions. The following prohibitions apply to the nene 
except as provided under paragraph (d)(3) of this section and 
Sec. Sec.  17.4 through 17.6:
    (i) Import or export as provided in Sec.  17.21(b).
    (ii) Take as provided in Sec.  17.21(c)(1).
    (iii) Possession and other acts with unlawfully taken specimens as 
provided in Sec.  17.21(d)(1).
    (iv) Interstate or foreign commerce in the course of commercial 
activity as provided in Sec.  17.21(e).
    (v) Sale or offer for sale as provided in Sec.  17.21(f).
    (vi) Attempt to commit, solicit another to commit, or to cause to 
be committed, any of the acts described in paragraphs (d)(2)(i) through 
(v) of this section.
    (3) Exceptions from prohibitions. The following exceptions from 
prohibitions apply to the nene:
    (i) Authorization provided under Sec.  17.32.
    (ii) Take as provided in Sec.  17.21(c)(2) through (7). However, 
Sec.  17.21(c)(5)(i) through (iv) does not apply.
    (iii) Take incidental to an otherwise lawful activity caused by:
    (A) 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 bird repellents, ultrasonic repellers, audio 
deterrents (noisemakers, pyrotechnics, etc.), herding or harassing with 
trained or tethered dogs, or access control (including netting, 
fencing, etc.). Nene may also be harassed in the course of surveys that 
benefit and further the recovery of nene. Such harassment techniques 
must avoid causing direct injury or mortality to nene. Before 
implementation of any such 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)(4) of 
this section for contact information) 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;
    (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; and
    (3) The landowner must arrange follow-up surveys of the property by 
qualified biologists to assess the status of birds present.
    (B) 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 nene 
conservation purposes if reasonable care is practiced to minimize 
effects to the nene.
    (1) Nonnative predator control activities for the conservation of 
nene 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

[[Page 69947]]

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.
    (2) Habitat management activities for the conservation of nene 
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 
for conservation management purposes 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, and vehicle collisions).
    (C) Actions carried out by law enforcement officers in the course 
of official law enforcement duties. 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:
    (1) Aiding or euthanizing sick, injured, or orphaned nene;
    (2) Disposing of a dead specimen; or
    (3) Salvaging a dead specimen that may be used for scientific 
study; or
    (4) Possession and other acts with unlawfully taken specimens as 
provided in Sec.  17.21(d)(2) through (4)).
    (4) Reporting and disposal requirements. Any injury or mortality of 
nene associated with the actions excepted under paragraphs 
(d)(3)(iii)(A) through (C) 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 Office of Law 
Enforcement 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.
* * * * *

    Dated: November 27, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising 
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-26548 Filed 12-18-19; 8:45 am]
BILLING CODE 4333-15-P