Tuesday, June 10, 2003

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Blackburn’s Sphinx Moth; Final Rule

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\10JNR2.SGM 10JNR2 34710 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

DEPARTMENT OF THE INTERIOR present system for designating critical The consequence of the critical habitat has evolved since its original habitat litigation activity is that limited Fish and Wildlife Service statutory prescription into a process that listing funds are used to defend active provides little real conservation benefit, lawsuits, to respond to Notices of Intent 50 CFR Part 17 is driven by litigation and the courts (NOIs) to sue relative to critical habitat, RIN 1018–AH94 rather than biology, limits our ability to and to comply with the growing number fully evaluate the science involved, of adverse court orders. As a result, Endangered and Threatened Wildlife consumes enormous agency resources, listing petition responses, the Service’s and Plants; Designation of Critical and imposes huge social and economic own proposals to list critically Habitat for the Blackburn’s Sphinx costs. The Service believes that imperiled species, and final listing Moth additional agency discretion would determinations on existing proposals are allow our focus to return to those all significantly delayed. AGENCY: Fish and Wildlife Service, actions that provide the greatest benefit The accelerated schedules of court Interior. to the species most in need of ordered designations have left the ACTION: Final rule. protection. Service with almost no ability to provide for adequate public SUMMARY: We, the U.S. Fish and Role of Critical Habitat in Actual participation or to ensure a defect-free Wildlife Service (Service), designate Practice of Administering and rulemaking process before making critical habitat for the Blackburn’s Implementing the Act decisions on listing and critical habitat sphinx moth (Manduca blackburni), While attention to and protection of proposals due to the risks associated pursuant to the Endangered Species Act habitat is paramount to successful with noncompliance with judicially- of 1973, as amended (Act). A total of conservation actions, we have imposed deadlines. This in turn fosters approximately 22,440 hectares (55,451 consistently found that, in most a second round of litigation in which acres) fall within the boundaries of the circumstances, the designation of those who fear adverse impacts from 9 critical habitat units designated on the critical habitat is of little additional critical habitat designations challenge Hawaiian islands of Hawaii, Kahoolawe, value for most listed species, yet it those designations. The cycle of Maui, and Molokai for Blackburn’s consumes large amounts of conservation litigation appears endless, is very sphinx moth. This critical habitat resources. Sidle (1987) stated, ‘‘Because expensive, and in the final analysis designation requires the Service to the ESA can protect species with and provides relatively little additional consult under section 7 of the Act with without critical habitat designation, protection to listed species. regard to actions carried out, funded, or critical habitat designation may be The costs resulting from the authorized by a Federal agency. Section redundant to the other consultation designation include legal costs, the cost 4 of the Act requires us to consider requirements of section 7.’’ of preparation and publication of the economic and other relevant impacts designation, the analysis of the when specifying any particular area as Currently, only 306 species or 25% of economic effects and the cost of critical habitat. We solicited data and the 1,211 listed species in the U. S. requesting and responding to public comments from the public on all aspects under the jurisdiction of the Service comment, and in some cases the costs of our proposal, including data on have designated critical habitat. We of compliance with NEPA, all are part economic and other impacts of the address the habitat needs of all 1,211 of the cost of critical habitat designation. listed species through conservation designation. None of these costs result mechanisms such as listing, section 7 in any benefit to the species that is not DATES: This rule becomes effective on consultations, the Section 4 recovery July 10, 2003. already afforded by the protections of planning process, the Section 9 the Act enumerated earlier, and they ADDRESSES: Comments and materials protective prohibitions of unauthorized received, as well as supporting directly reduce the funds available for take, Section 6 funding to the States, direct and tangible conservation actions. documentation used in the preparation and the Section 10 incidental take of this final rule, will be available for Sidle, J.G. 1987. Critical Habitat permit process. The Service believes Designation: Is it Prudent? public inspection, by appointment, that it is these measures that may make during normal business hours at U.S. Environmental Management 11(4):429– the difference between extinction and 437. Fish and Wildlife Service, Pacific survival for many species. Islands Office, 300 Ala Moana Blvd., Background Room 3–122, P.O. Box 50088, Honolulu, Procedural and Resource Difficulties in Designating Critical Habitat Blackburn’s sphinx moth (moth) HI 96850–0001. (Manduca blackburni) is one of Hawaii’s FOR FURTHER INFORMATION CONTACT: Paul We have been inundated with largest native insects. We provided a Henson, Field Supervisor, Pacific lawsuits for our failure to designate detailed species description as well as a Islands Office, at the above address critical habitat, and we face a growing biogeographical overview of the (telephone 808/541–3441; facsimile number of lawsuits challenging critical Hawaiian islands in the proposed rule 808/541–3470). habitat determinations once they are (67 FR 40633), we incorporate that SUPPLEMENTARY INFORMATION: made. These lawsuits have subjected the information by reference in this final Service to an ever-increasing series of designation. Designation of Critical Habitat Provides court orders and court-approved Little Additional Protection to Species settlement agreements, compliance with Blackburn’s Sphinx Moth Biology and In 30 years of implementing the ESA, which now consumes nearly the entire Status the Service has found that the listing program budget. This leaves the Very few specimens of the moth have designation of statutory critical habitat Service with little ability to prioritize its been seen since 1940, and after a provides little additional protection to activities to direct scarce listing concerted effort by staff at the Bishop most listed species, while consuming resources to the listing program actions Museum to relocate this species in the significant amounts of available with the most biologically urgent late 1970s, it was considered to be conservation resources. The Service’s species conservation needs. extinct (Gagne´ and Howarth 1985). In

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34711

1984, a single population was Development from egg to adult can take The largest populations of rediscovered on Maui (Riotte 1986), and as little as 56 days, but pupae may Blackburn’s sphinx moths, on Maui and subsequently, populations on two other remain in a state of torpor (inactivity) in Hawaii, are associated with trees in the islands were rediscovered. Currently, the soil for up to a year. The growth genus Nothocestrum (Van Gelder and the moth is known only from rates of larvae for many closely related Conant 1998). For example, the large populations on Maui, Kahoolawe, and sphingid species are reported to stand of Nothocestrum trees within the Hawaii. Moth population numbers are decrease when their host plants lack Ka naio Natural Area Reserve (NAR), known to be small based upon past suitable water content. In fact, suitable Maui, is likely the largest in the State sampling results; however, no host plant water content can improve (Medeiros et al. 1993), and this fact may reasonably accurate estimate of the later fecundity of the adult stage explain why the moth occurs with such population sizes has been determinable (Murugan and George 1992). regularity in the Ka naio area (A. at this point because of the adult moth’s Adult moths have been found Medeiros, pers. comm. 1994). wide-ranging behavior and overall rarity throughout the year, and have been Nothocestrum is a genus of four species (Arthur Medeiros, U.S. Geological observed feeding on nectar from endemic to the Hawaiian Islands (Simon Survey-Biological Resources Division Ipomoea indica (koaliawa). Other likely 1999) which currently occur on Kauai, (USGS–BRD), pers. comm. 1998; Van native nectar-providing plants for the Oahu, Molokai, Lanai, Hawaii, and Gelder and Conant 1998). Before moth are other Ipomea species (spp.), Maui. One species, N. longifolium, humans arrived, dry and mesic Capparis sandwichiana (maiapilo), and primarily occurs in wet forests, but can shrubland and forest covered about Plubago zeylancia (iliee). Many occur in mesic forests as well. Three 823,283 hectares (ha) (2,034,369 acres sphingid studies have shown that air species, N. latifolium, N. brevifolium, (ac)) on all the main islands (Hawaii temperature restricts adult feeding and N. peltatum, occur in dry to mesic Natural Heritage Program (HHP) 2000), activity above a certain temperature forests, the habitat in which the moth and it is likely that the Blackburn’s (usually 30 degrees Celsius (86 degrees has been most frequently recorded. sphinx moth inhabited much of that Fahrenheit)) (Herrera 1992). During Van Moth larvae have been documented area (Riotte 1986). Reports by early Gelder and Conant’s captive-rearing feeding on two Nothocestrum spp., N. naturalists indicate the species was once study (1998), adult moth feeding was latifolium, and N. brevifolium; it is widespread and abundant, at least not observed and captive-reared adult likely that N. peltatum and N. during early European settlement on moths lived no longer than 12 days. In longifolium are suitable host plants for nearly all the main Hawaiian islands general, sphingids are known to live larval moths as well. This is supported (Riotte 1986). longer than most moths because of their not only by the fact that these two The moth has been recorded from the species are closely related to known ability to feed and take in water from a islands of Kauai, Kahoolawe, Oahu, larval hosts, but also because past variety of sources, rather than relying Molokai, Maui, and Hawaii, and has historical records document the moth as only upon stored fat reserves. Because been observed from sea level to 1,525 m occurring on the islands of Kauai and they live longer than most moths, (5,000 ft) elevation. Most historical Oahu, where N. latifolium is not female sphingid moths have less time records were from coastal or lowland abundant and N. brevifolium does not pressure to mate and lay eggs, and often dry forest habitats in areas receiving less occur. Furthermore, the species is will take more time in locating the best than 127 cm (50 in) of annual rainfall. known to feed on a variety of native and host plants for egg laying (B. Gagne´, On the island of Kauai, the moth was nonnative Solanaceae. recorded only from the coastal area of pers. comm. 1994; David Hopper, On Molokai, moth habitat includes Nawiliwili. Populations were known Service, in litt. 2000, 2002; Williams vegetation consisting primarily of from Honolulu, Honouliuli, and Makua 1931, 1947; Riotte 1986; Van Gelder and mixed-species mesic and dry forest on leeward Oahu, and Kamalo, Conant 1998; Kitching and Cadiou communities composed of native and Mapulehu, and Keopu on Molokai. On 2000). Because there are no studies introduced plants (HHP 2000). Although Hawaii, it was known from Hilo, Pahala, showing any sphingid-species adults Molokai is not known to currently Kalaoa, Kona, and Hamakua. It appears being short-lived, we believe that some contain a moth population, past moth that this moth was historically most unknown factor contributed to the brief sightings on Molokai have been common on Maui, where it was adulthood of the Blackburn’s sphinx reported. The island does contain native recorded on Kahului, Spreckelsville, moths observed during Van Gelder and Nothocestrum larval host plants, Makena, Wailuku, Kula, Lahaina, and Conant’s (1998) study. including N. longifolium and N. West Maui. Blackburn’s Sphinx Moth Habitat and latifolium, as well as adult host plants Blackburn’s sphinx moth larvae feed Range and restorable, manageable areas on plants in the nightshade family associated with these existing host (Solanaceae). The natural host plants are Plant species composition in the plants (Wood 2001a). Because of its native trees within the genus moth’s habitat varies considerably proximity to Maui (currently and Nothocestrum (aiea), on which the depending on location and elevation, historically home to the most persistent larvae consume leaves, stems, flowers, but some of the most common native and largest population) and the fact that and buds. However, many of the plants plants in areas where the moth occurs Molokai has in the past and presently recorded for this species are not native are the trees Diospyros sandwicensis supports N. latifolium, many to the Hawaiian Islands, and include (lama), Rauvolfia sandwicensis (hao), researchers believe the moth could re- Nicotiana tabacum (commercial Reynoldsia sandwicensis (ohe), Pouteria establish itself on the island and become tobacco), Nicotiana glauca (tree sandwicensis (alaa), the shrubs a viable population(s) in the future tobacco), Solanum melongena Erythrina sandwicensis (wiliwili), (Frank Howarth, Bishop Museum, pers. (eggplant), Lycopersicon esculentum Dodonaea viscosa (aalii), and comm. 2001). (tomato), and possibly Datura Myoporum sandwicense (naio) The endangered larval host plant, stramonium (Jimson weed). Sphingid (Roderick and Gillespie 1997; Van Nothocestrum brevifolium, as well as moths are known to exploit nutritious Gelder and Conant 1998; Wagner et al. adult host plants, occur in the areas on but low-density, low-apparency host 1999; Cabin et al. 2000; Wood 2001a, Hawaii Island that support populations plants such as vines and sapling trees. 2001b). of the moth (Marie Bruegmann, Service,

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34712 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

pers. comm. 1998), where there are moderate densities at Ka naio NEAR Nonnative Arthropods many recorded associations of eggs, (HHP 1993), there has been a complete The geographic isolation of the larvae, and adult moths with this plant lack of seedling survival and the stand Hawaiian Islands restricted the number species. This tree species is primarily is being degraded by goats (F. Howarth, of original successful colonizing threatened by habitat conversion pers. comm. 1994; Steven Montgomery, arthropods and resulted in the associated with development; pers. comm. 1994; Medeiros et al. 1993). development of an unusual fauna. Only competition from nonnative species Goats have played a major role in the 15 percent of the known insect families such as Schinus terebinthifolius destruction of dryland and mesic forests are represented by the native insects of (Christmas berry), Pennisetum setaceum throughout the Hawaiian Islands (Van Hawaii (Howarth 1990). Some groups (fountain grass), Lantana camera Riper and Van Riper 1982; Stone 1985). that often dominate continental Because the moth was once so (lantana), and Leucaena leucocephala arthropod faunas, such as social widespread and sphinx moths are (Kona hao le); browsing by cattle; fire; Hymenoptera (group-nesting ants, bees, known to be strong fliers, we believe it random environmental events such as and wasps), are entirely absent from the prolonged drought; and reduced is likely that inter-island dispersal of the species occurred to some degree prior to native Hawaiian fauna. Accidental reproductive potential resulting from introductions from commercial shipping the small number of existing individuals the loss of much of its historical habitat. Currently, the areas of dry to mesic and air cargo to Hawaii have now (59 FR 10325). resulted in the establishment of over Although Nothocestrum spp. are not shrub and forest habitats below 1,525 m (5,000 ft) elevation that are suitable for 2,500 species of alien arthropods currently reported from Kahoolawe, (Howarth 1990; Howarth et al. 1994), there were very few surveys of this Blackburn’s sphinx moth are approximately 148,585 ha (367,161 ac). with a continuing establishment rate of island prior to the intense ranching 10 to 20 new arthropod species per year activities, which began in the middle of Localized Extirpation (Nishida 1997). In addition to the the last century, and the subsequent use In addition to, or perhaps because of, accidental establishment of nonnative of the island as a weapons range for 50 species, private individuals and years. Prior to their removal, goats also habitat loss and fragmentation, Blackburn’s sphinx moths are also government agencies began importing played a major role in the destruction of and releasing nonnative predators and vegetation on Kahoolawe (Cheetah and susceptible to seasonal variations and weather fluctuations affecting their parasites for biological control of pests Stone 1990). It is likely that the as early as 1865. This resulted in the reappearance of some vegetation as a quality and quantity of available habitat and food. For example, during times of introduction of 243 nonnative species result of the removal of the goats and drought, nectar availability for adult between 1890 and 1985, in some cases the cessation of military bombing moths are expected to decrease. During with the specific intent of reducing activities have allowed the moth to times of decreased nectar availability, populations of native Hawaiian insects inhabit the island. On Kahoolawe, moth life spans of individuals may not be (Funasaki et al. 1988; Lai 1988). Alien larvae feed on the nonnative Nicotiana affected, but studies with butterflies arthropods, whether purposefully or glauca, which appears to adequately have shown marked decreases in accidentally introduced, pose a serious support production and growth of the reproductive capacity for many species threat to Hawaii’s native insects, larval stage during nondrought years. (Center for Conservation Biology 1994). through direct predation, parasitism, However, the native Nothocestrum are In another study, Jansen (1984) reported and competition for food or space more stable and drought-resistant than that host plant availability directly (Howarth and Medeiros 1989; Howarth the Nicotiana glauca, which dies back affected sphingid reproductive activity. and Ramsay 1991). significantly during especially dry years In fact, for some lepidopteran Ants (A. Medeiros, pers. comm. 2001). (butterflies and moths) species, if nectar Therefore, it appears likely that long- intake is cut in half, reproduction is also Ants are not a natural component of term survival of the moth on Kahoolawe cut approximately in half. Such Hawaii’s arthropod fauna, and native will require the planting of resource stress may occur on any time species evolved in the absence of Nothocestrum latifolium (A. Medeiros, scale, ranging from a few days to an predation pressure from ants. Ants can pers. comm. 1998). entire season, and a pattern of be particularly destructive predators Threats to the Conservation of continuous long-term adult feeding because of their high densities, Blackburn’s Sphinx Moth stress could affect the future viability of recruitment behavior, aggressiveness, a population (Center for Conservation and broad range of diet (Reimer 1993). Habitat Loss and Degradation Biology 1994). Because they are often generalist Dry to mesic forest habitats in Hawaii Often, habitat suitability for feeders, ants may affect prey have been severely degraded by past herbivorous insects is determined by populations independent of prey and present land management practices, factors other than host plant occurrence density, and may locate and destroy including ranching, the impacts of or density. Microclimatic conditions isolated individuals and populations introduced plants and animals, wildfire, (Thomas 1991; Solbreck 1995) and (Nafus 1993a). At least 36 species of and agricultural development (Cheetah predator pressure (Roland 1993; Roland ants have become established in the and Stone 1990). Because of these and Taylor 1995; Walde 1995) are two Hawaiian Islands, and three particularly factors, Nothocestrum peltatum on such widely reported factors. In a study aggressive species have severely affected Kauai and N. brevifolium on Hawaii are of moth population structure, habitat the native insect fauna (Zimmerman now federally listed as endangered patch size and the level of sun exposure 1948). species (59 FR 9327; 59 FR 10325). were shown to affect species occupancy, For example, in areas where the big- Although all Nothocestrum spp. are not while patch size and the distance from headed ant (Pheidole megacephala) is presently listed as endangered or the ocean coast were reported to affect present, native insects, including most threatened, the entire genus is declining moth density. Moth populations in moths, have been eliminated (Perkins and considered uncommon (Medeiros et small habitat patches were more likely 1913; Gagne´ 1979; Gillespie and Reimer al. 1993; HHP 2000). For example, while to become extinct (Forare and Solbreck 1993). The big-headed ant generally N. latifolium presently occurs at 1997). does not occur at elevations higher than

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34713

610 m (2,000 ft), and is also restricted larvae consume internal tissues, (Tothill et al. 1930; Howarth 1991; by rainfall, rarely being found in eventually killing the host. At least one Nafus 1993b). particularly dry (less than 35 to 50 cm species established in Hawaii, Parasitic Flies (15 to 20 in) annually) or wet (more than Hyposeter exiguae, is known to attack 250 cm (100 in) annually) areas (Reimer the tobacco hornworm and the related Hawaii has no native parasitic flies in et al. 1990). The big-headed ant is also tomato hornworm in North America the family Tachinidae (Nishida 1997). known to be a predator of eggs and (Carlson 1979). This wasp is recorded Two species of tachinid flies, Lespesia caterpillars of native Lepidoptera, and from all of the main islands except archippivora and Chaetogaedia can completely exterminate populations Kahoolawe and Lanai (Nishida 1997) monticola, were purposefully (Zimmerman 1958). This ant occurs on and is a recorded parasitoid of the lawn introduced to Hawaii for control of army worms (Funasaki et al. 1988; Nishida all the major Hawaiian Islands, armyworm (Spodoptera maurita) on tree 1997). These flies lay their eggs including those currently inhabited by tobacco on Maui (Swezey 1927). externally on caterpillars, and upon Blackburn’s sphinx moth and is a direct Because of the rarity of Blackburn’s hatching, the larvae burrow into the threat to these populations (Neil Reimer, sphinx moths, no documentation exists Hawaii Department of Agriculture host, attach to the inside surface of the of alien braconid and ichneumonid cuticle, and consume the soft tissues (HDOA), pers. comm. 2001; Medeiros et wasps parasitizing the species. al. 1993; Nishida 1997). (Etchegaray and Nishida 1975b). In Several additional ant species However, given the abundance and the North America, C. monticola is known threaten the conservation of Blackburn’s breadth of available hosts of these to attack at least 36 species of sphinx moth. The Argentine ant wasps, they are considered significant Lepidoptera in eight families, including (Linepithema humilis) has been reported threats to the moth (F. Howarth, pers. sphinx moths; L. archippivora is known on several islands, including Maui, comm. 1994; Howarth 1983; Gagne´ and to attack over 60 species of Lepidoptera Kahoolawe, and Hawaii (Adam Asquith, Howarth 1985; Howarth et al. 1994). in 13 families, including sphinx moths Service, pers. comm. 1998; A. Medeiros, Small wasps in the family (Arnaud 1978). These species are on pers. comm. 1998; Nishida 1997). The Trichogrammatidae parasitize insect record as parasites of a variety of long-legged ant (Anoplolepis longipes) eggs, with numerous adults sometimes Lepidoptera in Hawaii and are believed is reported on several islands, including developing within a single host egg. The to depress populations of at least two Hawaii and Maui (Hardy 1979). At least taxonomy of this group is confusing, native species of moths (Lai 1988). Over two species of fire ants, Solenopsis and it is unclear if Hawaii has any 40 percent of the caterpillars of the geminata and S. papuana, are also native species (John Beardsley, monarch butterfly (Danaus plexippus) important threats (Reagan 1986; University of Hawaii, pers. comm. 1994; on Oahu are parasitized by Lespesia Gillespie and Reimer 1993) and occur Nishida 1997). Several alien species are archippivora (Etchegaray and Nishida on many of the major islands (Reimer et established in Hawaii (Nishida 1997), 1975a), and the introduction of a related al. 1990; Nishida 1997). Ochetellus including Trichogramma minutum, species to Fiji resulted in the extinction glaber, a recently reported ant which is known to attack the sweet of a native moth there (Tothill et al. introduction, occurs on Maui, Hawaii, potato hornworm in Hawaii (Fullaway 1930; Howarth 1991). Both of these and Kahoolawe (A. Medeiros, pers. and Krauss 1945). In 1929, the wasp species occur on Maui and Hawaii comm. 1998; N. Reimer, pers. comm. Trichogramma chilonis was (Nishida 1997) and are direct threats to the Blackburn’s sphinx moth. 2001; Nishida 1997). purposefully introduced into Hawaii as Based on the findings discussed Parasitic Wasps a biological control agent for the Asiatic above, nonnative predatory and Hawaii also has a limited fauna of rice borer (Chilo suppressalis). This parasitic insects are considered native Hymenopteran wasp species, wasp parasitizes the eggs of a variety of important factors contributing to the with only two native species in the Lepidoptera in Hawaii, including reduction in range and abundance of the family Braconidae (Beardsley 1961), sphinx moths (Funasaki et al. 1988). Blackburn’s sphinx moth, and in neither of which is known to parasitize Williams (1947) found 70 percent of the combination with habitat loss and Blackburn’s sphinx moth. In contrast, eggs of Blackburn’s sphinx moth to be fragmentation, are a serious threat to its other species of Braconidae are common parasitized by a Trichogramma wasp continued existence. Some of these predators (parasitoids) on the larvae of that was probably T. chilonis. Over 80 nonnative species were intentionally the tobacco hornworm and the tomato percent of the eggs of the alien introduced by HDOA or other hornworm in North America (Gilmore grasswebworm (Herpetogramma agricultural agencies (Funasaki et al. 1938). There are now at least 74 licarsisalis) in Hawaii are parasitized by 1988) and importations and nonnative species, in 41 genera, of these wasps (Davis 1969). In Guam, augmentations of lepidopteran braconid wasps established in Hawaii, Trichogramma chilonis effectively parasitoids continues. Although the of which at least 35 species were limits populations of the sweet potato State of Hawaii requires new purposefully introduced as biological hornworm (Nafus and Schreiner 1986), introductions to be reviewed before control agents (Nishida 1997). Most and is considered under complete release (HDOA 1994), post-release species of alien braconid and biological control by this wasp in biology and host range cannot be ichneumonid wasps that parasitize Hawaii (Lai 1988). While this wasp predicted from laboratory studies moths are not host-specific, but attack probably affects Blackburn’s sphinx (Gonzalez and Gilstrap 1992; Roderick the caterpillars or pupae of a variety of moth in a density-dependent manner 1992), and the purposeful release or moths and have become the dominant (Nafus 1993a), and theoretically is augmentation of any lepidopteran larval parasitoids even in intact, high- unlikely to directly cause extinction of parasitoid is a potential threat to the elevation, native forest areas of the a population or the species, the conservation of the Blackburn’s sphinx Hawaiian Islands (Zimmerman 1948, availability of more abundant alternate moth (Gagne´ and Howarth 1985; 1978; Funasaki et al. 1988; Howarth et hosts (any other lepidopteran eggs) may Simberloff 1992). al. 1994). These wasps lay their eggs allow for the extirpation of Blackburn’s As Table 1 indicates, the assemblage within the eggs or caterpillars of sphinx moth by this or other egg of potential alien predators and Lepidoptera. Upon hatching, the wasp parasites as part of a broader host base parasites on each island may differ.

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34714 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

TABLE 1.—POTENTIAL NONNATIVE INSECT PREDATORS AND PARASITES OF BLACKBURN’S SPHINX MOTH

Major island(s) on which the spe- Major island(s) on which the spe- Order/family Genus/species cies has been reported cies has not been reported

Diptera/Tachinidae ...... Chaetogaedia monticola (fly)...... Hawaii, Kauai, Lanai, Maui, Kahoolawe. Molokai, Oahu. Diptera/Tachinidae ...... Lespesia archippivora (fly) ...... Hawaii, Kauai, Maui, Molokai, Oahu Kahoolawe, Lanai. Hymenoptera/Formicidae ...... Anoplolepis longipes (long-legged Hawaii, Kauai, Maui, Oahu ...... Kahoolawe, Lanai, Molokai. ant). Hymenoptera/Formicidae ...... Linepithema humilis (Argentine ant) Hawaii, Kahoolawe, Kauai, Lanai, Molokai, Oahu. Maui. Hymenoptera/Formicidae ...... Ochetellus glaber (ant)...... Hawaii, Kahoolawe, Kauai, Maui, Lanai, Molokai. Oahu. Hymenoptera/Formicidae ...... Pheidole megacephala (big-headed Hawaii, Kahoolawe, Kauai, Lanai, none. ant). Maui, Molokai, Oahu. Hymenoptera/Formicidae ...... Solenopsis geminita (fire ant) ...... Hawaii, Kauai, Lanai, Maui, Kahoolawe. Molokai, Oahu. Hymenoptera/Formicidae ...... Solenopsis papuana (fire ant) ...... Hawaii, Kauai, Lanai, Maui, Kahoolawe. Molokai, Oahu. Hymenoptera/Vespidae ...... Vespula pennsylvanica (yellow jack- Hawaii, Kauai, Maui, Oahu ...... Kahoolawe, Molokai. et wasp). Hymenoptera/Ichneumonidae Hyposeter exiguae (wasp) ...... Hawaii, Kauai, Maui, Molokai, Oahu Kahoolawe, Lanai. Hymenoptera/ Trichogramma chilonis (wasp) ...... Kauai, Oahu ...... Hawaii, Maui, Kahoolawe, Lanai, Trichogrammatidae. Molokai. Hymenoptera/ Trichogramma minutum (wasp) ...... Hawaii, Lanai, Molokai, Oahu ...... Kauai, Kahoolawe, Maui. Trichogrammatidae.

Furthermore, the arthropod abundance and threatening the species’ proposed rule to be held on the island community may differ from one area to continued existence (Funasaki et al. of Hawaii (67 FR 63064). On October 29, another, even on the same island, based 1988). 2002, we held a public hearing in Kailua-Kona, Hawaii. upon elevation, temperature, prevailing Previous Federal Action wind pattern, precipitation, or other On November 15, 2002, we published factors (Nishida 1997). Conserving and A summary of previous Federal a notice of the availability of, and restoring Blackburn’s sphinx moth actions on this species up to the time we invitation for, comments on the draft populations in multiple locations proposed this critical habitat economic analysis (DEA) for the should decrease the likelihood that the designation is found in the Federal proposed rule (67 FR 69179). The effect of any single alien parasite or Register notice proposing designation of second public comment period closed predator, or the combined pressure of this critical habitat (67 FR beginning on December 30, 2002. such species, could result in the page 40638). On June 13, 2002, we published a Summary of Comments and diminished vigor or extinction of the Recommendations moth. proposed rule for designation of critical habitat for Blackburn’s sphinx moth on Peer Review Because of the threats discussed approximately 40,240 ha (99,433 ac) of above, we do not believe the existing land on the islands of Hawaii, In accordance with our policy habitats containing Blackburn’s sphinx Kahoolawe, Maui, and Molokai (67 FR published on July 1, 1994 (59 FR moth populations are sufficient to 40633). The publication of the proposed 34270), we solicited, during a ensure the long-term survival of the rule opened a 60-day public comment prepublication peer review process, species. A diverse set of habitats and period, which closed on August 12, independent opinions from 15 climates within its former range is 2002. knowledgeable individuals with necessary to remove the long-term risk Subsequently, we determined that an expertise in one or several fields, of rangewide extinction of the species. additional extension of time was needed including familiarity with the species, Threats to the moth identified in the to complete this designation process. On the geographic region that the species final listing rule include vandalism and August 21, 2002, the District Court in occurs in, and the principles of collection, predation/parasitism by alien Hawaii approved another joint conservation biology. We received arthropods, and habitat alteration and stipulation extending the date for the comments from five reviewers. After loss from nonnative plant and ungulate final rule designating critical habitat for publication of the proposed rule, we invasion (65 FR 4770; February 1, 2000). Blackburn’s sphinx moth to May 30, solicited independent opinions from 27 Considering the rarity of the moth, small 2003. knowledgeable individuals with similar population size is also believed to be a On August 26, 2002, we published a expertise. We received 8 written factor that threatens the long-term notice (67 FR 54763) announcing the responses from those 27 individuals. All survival of the species, since random reopening of the comment period until eight reviewers generally supported our population fluctuations and December 30, 2002, and notice of a methodology and conclusion, and catastrophic events are more likely to public hearing on the proposed rule to supported the proposed critical habitat result in the extirpation of local be held on the island of Maui. On designation, although they recognized populations. Wildfire and feral ungulate September 12, 2002, we held a public the limitations of scientific knowledge pressure on the moth’s habitat, along hearing at the Maui Arts and Cultural of life history and population with direct pressure of alien predators Center Meeting Room, Kahului. characteristics of the Blackburn’s sphinx and parasites, are important factors On October 10, 2002, we published a moth. All of the reviewers supported currently reducing the moth’s range and notice of a public hearing on the including currently unoccupied habitat

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34715

within the designation. Several associated material were made available acceptable condition for conservation reviewers suggested specific locations on our Region 1 Fish and Wildlife Office efforts, or could be made acceptable where critical habitat should have been Internet site following its release on through appropriate management expanded; in most cases this was to November 15, 2002. actions; and would provide the space include additional mesic habitat areas We reviewed all comments received and distribution needed by the moth to for the moth. Several reviewers for substantive issues and new sustain itself in the future. specifically expressed concern with the information regarding the Blackburn’s The one unoccupied area designated identified primary constituent elements, sphinx moth. Similar comments were in this final rule is located on the island particularly pertaining to the fact that grouped into six general issue categories of Molokai. Although currently nonnative tree tobacco (Nicotiana relating specifically to the proposed unoccupied by the moth, the area glauca) was not identified as such. We critical habitat determination and DEA contains both larval stage and adult summarize and address comments on the proposed determination. moth native host plants. The area is received from the peer reviewers in the Comments have been incorporated close enough in proximity to the Maui following section. We considered all directly into the final rule or final moth population that many peer reviewers’ comments in developing the addendum to the economic analysis, reviewers stated it is feasible that the final rule. and/or they have been addressed in the area may again be repopulated by the In the June 13, 2002, proposed critical following summary. moth on its own. However, because it is habitat designation (67 FR 40633), we a separate island, some additional Issue 1: Biological Justification and requested all interested parties submit protection from a potential natural Methodology comments on the specifics of the catastrophe affecting, for example, the proposal, including information related (1) Comment: Multiple commenters, Maui population, may be afforded a to biological justification, policy, including one official with HDOA, future moth population on Molokai. economics, and proposed critical habitat stated that the Service should not Furthermore, as Molokai is the closest boundaries. We also contacted all designate unoccupied habitat for the island to Oahu, we believe that allowing appropriate Federal, State, and local moth, and that unoccupied areas should for a future moth population on Molokai agencies, scientific organizations, and be excluded from the designation. may facilitate the species’ dispersal and other interested parties and invited However, all peer reviewers of the provide a flight corridor for moths them to comment. The comment period proposed rule, including one with the eventually dispersing to the island of was scheduled to close on August 12, Hawaii Division of Forestry and Oahu, which is also part of its historical 2002. To allow for additional comments Wildlife (DOFAW) and one with HDOA, range. on the proposed designation and to were in support of the designation of Molokai was designated as critical allow for comments on the DEA of the unoccupied habitat. Many of the peer habitat in lieu of, or rather than, other proposed critical habitat, we extended reviewers stated that unoccupied habitat suitable unoccupied areas, because we the comment period until December 30, is essential since currently occupied determined, to the best of our abilities, 2002 (67 FR 54763). We received 30 areas would be inadequate for that it is the highest quality unoccupied individually written letters, from 10 conservation of the species. habitat essential to the conservation of designated peer reviewers, 4 State Our Response: Because of the the moth. Lastly, the designated agencies, and 16 individuals or comparatively limited current range of unoccupied area on Molokai may lack organizations. Approximately 715 this species, designating only occupied some of the serious potential threats to additional letters were submitted as part areas would not meet the conservation the moth (see Table 1). Conserving and of a mailing campaign, all of which requirements of the species. Many peer restoring Blackburn’s sphinx moth supported the proposed designation. reviewers agreed with this and stated populations in multiple locations We received three requests for a that currently occupied areas, as well as decreases the likelihood that the effect public hearing. We announced the date the similar habitat around them within of any single alien parasite or predator, and time of the public hearings and the designated units of critical habitat or the combined pressure of such invited comments in letters to that may be occupied in the future, species and other threats, could result in appropriate elected officials; Federal, cannot provide all of the essential life- the diminished vigor or extinction of the State, and local agencies; scientific cycle needs of the species, nor provide species. organizations; and other interested all of the habitat components essential (2) Comment: Critical habitat parties. We also published notices in for the conservation (primary designation should consider the several news sources, including the constituent elements) of this species. following: (1) The importance of Federal Register, Star Bulletin, West Therefore, providing the opportunity for designating the best remaining elements Hawaii Today, Hawaii Tribune Herald, expansion of this species to areas that of ecosystems for multispecies Honolulu Advertiser, Molokai were known to have been historically conservation; (2) the practicality of Advertiser News, and the Maui News. occupied (i.e., Molokai) is essential to managing and protecting scattered units Five individuals at the October 2002 its conservation, and should help to without apparent physical boundaries; Kahului, Maui, public hearing and 5 prevent the possibility of the species’ and (3) the importance of public/private individuals at the November 2002 extinction in the event that some partnerships for species conservation. Kailua-Kona, Hawaii, public hearing, populations are extirpated by Our Response: We agree that all these gave testimony on the Blackburn’s catastrophes such as large wildfires or factors are important for the sphinx moth critical habitat proposal. hurricanes. conservation of listed species. We have We provided notification of the DEA When designating currently designated only areas that are essential through letters and news releases faxed unoccupied habitat for this species, we for the conservation of the Blackburn’s and/or mailed to affected elected first evaluated lands that are suitable. Of sphinx moth, and which contain officials, media outlets, local this suitable habitat, we then identified primary constituent elements within the jurisdictions, and interest groups. We those areas essential for the highest quality remaining habitats. We also published notice of its availability conservation of the species if they also agree that public/private in the Federal Register (67 FR 69179; contained one or more of the primary partnerships are often essential for November 15, 2002), and the DEA and constituent elements; were either in species conservation. As an example,

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34716 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34717

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34718 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34719

of the absence of ‘darkness.’ Another Our Response: We are required under sphinx moth and numerous other listed reviewer with DOFAW questioned the Act to designate critical habitat on species. We believe there is a higher whether future development within the the basis of best available information. likelihood of beneficial conservation two proposed Kailua-Kona units, and Management needs for the species will activities occurring in those two areas the subsequent reduction of darkness, be addressed in the draft recovery plan without designated critical habitat than might negatively impact moth behavior that we are currently preparing. there would be with designated critical within that area. (15) Comment: Multiple commenters habitat in those locations. See Our Response: We agree that the expressed concern about the potential Exclusions Under Section 4(b)(2) for a quality of darkness might be an impacts to hunting activities and more detailed discussion of the important factor in the adult traditional gathering rights of native excluded areas. Blackburn’s sphinx moth’s behavior. Hawaiians as a result of the proposed critical habitat designation. One Issue 3: Site-Specific Biological However, at this time the we are Comments unaware of prior studies on this issue. commenter suggested the Service In the draft recovery plan for this should involve hunter groups in any (17) Comment: One peer reviewer species that we are currently preparing, relevant discussions should it be with DOFAW commented that the two we will include a research objective to determined that game animal proposed Kailua-Kona Units (5a and 5b) explore the importance of the ‘darkness’ management or hunting activities may may be too small and urbanized to be habitat quality to the moth. If provided be affected by the designation. effective for the long-term conservation with new information, we may revise Our Response: We agree that in many of the Blackburn’s sphinx moth. One the critical habitat designation in the circumstances a well-designed hunting commenter with the Housing and future. program can be an important Development Corporation of Hawaii component in the conservation of native (13) Comment: One peer reviewer (HCDCH), a State agency, provided more ecosystems in Hawaii by helping to recommended the identification of recent survey data that indicated the control excessive damage caused by additional primary constituent elements proposed Unit 5b no longer contained large populations of feral mammals. In living Nothocestrum brevifolium host for the adult Blackburn’s sphinx moth, preparation of this rule, we did conduct Scaevola sericea and S. coriacea, plants. Another commenter questioned public information meetings with State whether the proposed Unit 5a was located within coastal areas, and other agencies and hunting groups to address Scaevola spp. located within montane actually essential to the species. It was these kinds of concerns. suggested that the 1992 data used to areas. The reviewer had documented Unless there is Federal nexus to the indicate presence of the N. brevifolium several observations of similar sphingid activity, an activity by the State or host plants was outdated, and at any species taking nectar from Scaevola private landowner or individual, such rate, the presence of only two known N. spp., although no Blackburn’s sphinx as farming, grazing, logging, and brevifolium host plants failed to prove moths were observed feeding upon gathering, generally is not affected by a the area would be capable of supporting these species. Furthermore, within critical habitat designation, even if the coastal areas of proposed Unit 3, property is within the geographical a viable moth population. Furthermore, sphingid moths had been documented boundaries of the critical habitat. it was questioned whether inclusion of foraging during crepuscular (twilight) Recreational, commercial, and the area would actually facilitate hours on Scaevola spp. within less than subsistence activities on non-Federal dispersal of the moth to other proposed 50 m (164 ft) of Nicotiana glauca host lands, including hunting, are not areas, and ultimately whether the unit plants containing Blackburn’s sphinx regulated by this critical habitat would contribute to genetic exchange moth larvae. It was suggested it was designation. These activities may be between moth populations on the island highly likely that some of the observed impacted only where there is Federal of Hawaii. The commenter inquired as foraging adult moths could have been involvement in the action and the action to the number of past moth sightings Blackburn’s sphinx moth adults. is likely to destroy or adversely modify within the unit. One commenter Our Response: We agree that Scaevola critical habitat. requested that the proposed Units 5a spp. could potentially serve as a nectar (16) Comment: Some commenters and 5b be excluded from the food source for foraging adult moths. stated that critical habitat should be designation since the rule did not Flowers produced by this plant group consistent with current and ongoing demonstrate that exclusion would result share many of the characteristics of the conservation efforts in priority areas so in extinction of the moth. flowers of plants described as primary that resources are not directed Our Response: We have excluded constituent elements in this rule. We elsewhere in an uncoordinated manner. proposed Units 5a and 5b from the final will include a research objective to It was suggested that the Service and designation. See the Summary of explore the suitability of Scaevola spp. landowners and managers work together Changes from the Proposed Rule section as a moth nectar resource in the draft to develop approaches that are more for additional detail concerning the recovery plan for this species that is likely to lead to species conservation, exclusion of these units. currently being prepared. rather than a passive designation (18) Comment: One peer reviewer lacking management. suggested that it may be difficult to Issue 2: Effects of Designation Our Response: We agree and defend the inclusion of the Kahului (14) Comment: Multiple commenters recognize that the ultimate purpose of Airport runway safety zone within Unit stated that the designation of critical critical habitat is to contribute to the 3 because the area does not currently habitat alone will not prevent the loss conservation of listed species, a purpose support native Nothocestrum spp. host of remaining natural habitats, and that that can be best reached by cooperation plants. It is also unlikely to do so in the funds would be better spent on natural between ourselves and the community. future since any potentially outplanted resource management activities. As an example, we are excluding Nothocestrum spp. may not survive the Additionally, some reviewers, including portions of proposed Units 1 and 2 strong winds and salt spray prevalent one with DOFAW, stated that if because some private landowners are within the area. However, it was noted management is not realistic, it makes managing portions of their lands for the that the area could possibly support little sense to designate critical habitat. conservation benefit of Blackburn’s other native solanaceous plants such as

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34720 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34721

this unit. In this final rule, several As stated in the proposed rule and should not be excluded from critical portions of proposed Unit 1 were this final rule, existing manmade habitat. excluded from critical habitat it was features and structures within the Our Response: In accordance with determined that these areas lacked the boundaries of the mapped areas. This section 3(5)(A)(i) of the Act and moth’s primary constituent elements. includes features such as the following regulations at 50 CFR 424.12, in Other portions of proposed Unit 1 were that do not contain one or more of the determining which areas to propose as excluded because we decided that the primary constituent elements, and critical habitat, we are required to base benefits of excluding critical habitat therefore, are not included in the critical critical habitat determinations on the outweighed the benefits of including habitat designations: Buildings; roads; best scientific data available and to critical habitat. See Exclusions Under aqueducts and other water system consider those physical and biological Section 4(b)(2) for a more detailed features, including but not limited to features (primary constituent elements) discussion of the excluded areas. pumping stations, irrigation ditches, that are essential to the conservation of We did not include these additional pipelines, siphons, tunnels, water tanks, the species and that may require special lands in critical habitat Units 1 and 3 gauging stations (section in a stream management considerations or because we concluded that they were channel equipped with facilities for protection. If an area is covered by a not essential for the conservation of the obtaining streamflow data), intakes, and plan that already provides adequate Blackburn’s sphinx moth. This was wells; telecommunications towers and management, we believe it does not based on available information associated structures and equipment; constitute critical habitat as defined by concerning the status of the species in electrical power transmission lines and the Act because the primary constituent specific areas and the level of habitat associated rights-of-way; radars; elements found there are not considered degradation. We agree that some of telemetry antennas; missile launch sites; to be in need of special management or these additional lands may potentially arboreta and gardens; heiau (indigenous protection. We considered a plan to be harbor undocumented populations of places of worship or shrines); airports; adequate when it provides: (1) A Blackburn’s sphinx moth, and we also other paved areas; lawns; and other conservation benefit to the species, i.e., acknowledge that additional survey rural residential landscaped areas. the plan must maintain or provide for efforts are needed to ascertain the To further address concerns with the an increase in the species’ population, existence of potential moth or host plant potential costs of identifying or the enhancement or restoration of its populations in these areas and likely in nondesignated areas, the Economic habitat within the area covered by the Analysis Addendum (Addendum) plan; (2) assurances that the other areas as well. While new reports revisited the hour estimates presented management plan will be implemented, of moth sightings or other observations in the DEA. Chapter VI, section 4.I of i.e., those responsible for implementing of potentially suitable habitat provided the DEA indicated that the landowners the plan are capable of accomplishing by reviewers will be useful in focusing may want to learn how the designation the objectives, have an implementation future survey efforts and research needs, may affect: (1) the use of their land schedule in place, and/or have adequate we believe we have identified for (either through restrictions or new funding for the management plan; and designation, the best quality habitat obligations), and (2) the value of their (3) assurances that the conservation essential for the conservation of the land. Since no commenters provided an plan will be effective, i.e., it identifies moth. estimate of time or cost incurred in biological goals, has provisions for Issue 4: Mapping order to investigate implications of reporting progress, and is of a duration critical habitat, and because of the sufficient to implement the plan and (25) Comment: Two commenters reduction in acreage from proposed to achieve the plan’s goals and objectives. stated that greater precision is needed to designated, the Addendum revised the Therefore, if an area provides physical identify manmade structures and number of landowners downward, and biological features essential to the features such as roads, houses, and which resulted in a cost for landowners conservation of the species, and also is buildings already present within the of $173,000 to $618,000 to investigate covered by a plan that meets these proposed critical habitat designation the implication of critical habitat. criteria, then such an area would not areas. The DEA conceded that a lack of While some landowners may expend have constituted critical habitat, as clarity regarding excluded features and time and money to investigate the defined by the Act, because the physical structures could force landowners to implications of critical habitat on their and biological features found there do incur costs to investigate the land during the designation process, not require special management. implications of the regulations. many landowners may not do so until However, in the case of the moth no Our Response: The maps in the after final designation is complete. areas were found currently to be Federal Register are meant to provide a Thus, the DEA and the Addendum adequately managed, and therefore no general location and shape of critical treated these costs as a cost attributable areas have been excluded on that basis. habitat. The legal descriptions are to the final designation. As to future conservation agreement, readily plotted and transferable to a several owners have indicated that variety of mapping formats, and are Issue 5: Policy and Regulations including their lands in a critical habitat available electronically upon request for (26) Comment: One commenter stated designation would have a negative use with GIS programs. At the two that excluding any areas from impact on their existing and future public hearings, the maps were designation based on current voluntary conservation efforts for the expanded to wall size to assist the management would violate 16 U.S.C. moth and other species. After weighing public in better understanding the 1533(a)(3), and further stated that the benefits of including these areas as proposal. These larger scale maps were conservation efforts do not alter the critical habitat with the benefits of also provided to individuals upon habitat’s critical nature or the need to excluding them, we concluded that the request. Furthermore, we provided ensure its protection. Multiple designation of critical habitat would direct assistance in response to written commenters stated that areas already have a net negative conservation effect or telephone questions with regard to subject to conservation measures, or in some situations, and we excluded mapping and landownership within the which may be the subject of some of these areas from the final proposed designation. conservation agreements in the future, designation of critical habitat. See our

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34722 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34723

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34724 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

methods may be cruel and fact, designation of these areas would Our Response: The commenter environmentally unsound. seem more urgent. appears to be using the term Our Response: The designation of Our Response: Although we disagree ‘‘cumulative impacts’’ in the context of critical habitat does not give the Federal with the commenter, we have not found the National Environmental Policy Act government and its partners the any areas that are currently adequately (NEPA). We are required to consider authority to utilize any methodology managed for the moth. Therefore, we only the effect of the designation of they wish in dealing with feral animals. have not excluded areas on that basis. critical habitat for Blackburn’s sphinx Any potential animal control program Please also refer to our response to moth. The appropriate baseline for use would be subject to all applicable State, Comment 26. in this analysis is the regulatory Federal, and local laws. (35) Comment: The proposal violates environment without this regulation. (32) Comment: DATA commented the ‘‘commerce clause’’ because the Against this baseline, we attempt to that the Service has provided Blackburn’s sphinx moth is not related identify and measure the incremental inadequate support for its decision to to interstate commerce. Critical habitat costs and benefits associated with this reverse its prior determination that designation, and the underlying designation of critical habitat. When designation of critical habitat for the decision to list the species as critical habitat for other species has Blackburn’s sphinx moth is not endangered, are the subject of the already been designated, it is properly ‘‘prudent.’’ designation and exceed the considered part of the baseline for this Our Response: Our reasoning for constitutional limits of the Service’s analysis. Proposed and future critical determining that the designation of delegated authority. Congress enacted habitat designations for other species in critical habitat for the Blackburn’s the Act as an exercise of its Commerce the area will be part of separate Clause power and delegated exercise of sphinx moth is prudent is thoroughly rulemaking, and consequently, their that Commerce Clause power to the discussed in the final rule listing the economic effects will be considered Service to apply the Act by regulation. moth as an endangered species (65 FR separately. The listed species exists only in Hawaii 4770), which was published in the We have determined that an and does not cross State lines. Nor is it Federal Register on February 1, 2000, Environmental Assessment and/or an in commerce as the subject of any and is consistent with recent case law. Environmental Impact Statement, as economic endeavor and it lacks any defined under the authority of the (33) Comment: DATA stated that the commercial value. Therefore, the National Environmental Policy Act of proposed rule does not contain an Service’s regulations listing this species 1969, need not be prepared in analysis of the potential impacts to and designating critical habitat for it connection with regulations adopted aviation safety that might result from within Hawaii exceed the Federal power pursuant to section 4(a) of the Act, the designation of certain areas to regulate interstate commerce under which includes critical habitat contained within proposed Unit 3. The the governing precedents interpreting designations. A notice outlining our Service is required by law to analyze the Commerce Clause. reason for this determination was any relevant potential impacts when Our Response: The Federal published in the Federal Register on proposing a specific area as critical government has the authority under the October 25, 1983 (48 FR 49244). habitat. The commenter recommended Commerce Clause of the U.S. (37) Comment: The DEA lists that the proposed rule be withdrawn Constitution to apply the protections of economic impacts; however, there is no until an analysis of the potential the Act to species that occur within a indication that the Service has impacts to aviation safety has been single State. A number of court cases identified appropriate critical habitat conducted. have specifically addressed this issue. boundaries or modified the critical Our Response: As discussed in the The National Association of habitat boundaries in consideration of DEA (Chapter VI, section 3.h. Hawaii Homebuilders v. Babbitt, 130 F. 3d 1041 these economic impacts. Department of Transportation, Airports (D.C. Cir. 1997), cert. denied, 1185 S.Ct, Our Response: We considered the Division expressed concern about 2340 (1998), involved a challenge to economic impacts that were analyzed designating critical habitat within the application of Act’s prohibitions to and summarized in the DEA, and boundaries of Kahului Airport, due to protect the listed Delhi Sands flower- addendum, and excluded two units possible conflicts with safety loving fly (Rhaphiomidas terminatus (proposed Units 5a and 5b) from critical requirements. In this final rule, we have abdominalis). As with the species at habitat (see Exclusions Under Section not included Kahului Airport lands issue here, the Delhi Sands flower- 4(b)(2)). from critical habitat designation due to loving fly is endemic to only one State. (38) Comment: The DEA fails to a lack of primary constituent elements The court held that application of the distinguish potential costs resulting or because the areas were not essential ESA to this fly was a proper exercise of from the designation from those costs to the moth’s conservation (see Commerce Clause power because it resulting from listing the moth as Summary of Changes from the Proposed prevented loss of biodiversity and endangered. Nowhere does the draft Rule section). We are unaware of any destructive interstate competition. provide any analysis of what impacts, if other areas in which aviation safety may Similar conclusions have been reached any, designating critical habitat for the be an issue as a result of the designation in other cases, see Gibbs v. Babbitt, No. moth would impose above and beyond of critical habitat for the Blackburn’s 99–1218 (4th Cir. 2000) and Rancho those associated with the species’ sphinx moth. Viejo v. Norton, No. 01–5373 (D.C. Cir. listing. Because the DEA does not (34) Comment: The Service has 2003). distinguish between these costs, it misinterpreted the intent of the Act with cannot exclude proposed critical habitat exclusion of areas under 3(5)(A)(I). If a Issue 6: Economic Issues from a final critical habitat designation specific area of Blackburn’s sphinx (36) Comment: HDOA suggested that pursuant to section 4(b)(2). moth habitat is recognized to be critical the Service is required to conduct a Our Response: Our draft economic to the extent that management is already cumulative impacts analysis to analysis evaluated potential future taking place, the notion that such determine the economic impacts effects associated with the listing of management renders designation resulting from all critical habitat Blackburn’s sphinx moth as an unnecessary does not make sense. In designations on all the islands. endangered species under the Act, as

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34725

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34726 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34727

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34728 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34729

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34730 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34731

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34732 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34733

would be far reaching and affect all failed to analyze impacts due to the critical habitat determination, we have lands served by such water sources or circumstance in which a landowner reevaluated our proposed designations systems. The Service has an obligation qualifies for a Federal HCP but is unable and included several changes to the to thoroughly investigate this issue, and to obtain a State HCP. final designation of critical habitat. refrain from designating critical habitat Our Response: As discussed in These changes include the following: chapter III of the DEA, the Act allows us until it has determined whether its (1) We revised the list of manmade actions will affect water use and balance to permit take by private applicants that features that are excluded from the this against any benefit to the species. would otherwise be prohibited, designation in order to exclude One commenter stated that opponents of provided such taking is ‘‘incidental to, additional features based on information water diversions may use critical habitat and not [for] the purpose of, the carrying as a tool to delay, and effectively stop, out of an otherwise lawful activity.’’ received during the public comment many worthwhile water diversion Section 10(a)(1)(B) of the Act allows periods. The revised list is described in projects. non-Federal parties planning activities the Criteria Used to Identify Critical Our Response: Future (i.e., currently that have no Federal involvement, but Habitat section, and in regulatory unplanned) water diversion projects are which could result in the incidental language for section 17.95, ‘‘Critical most likely to be planned in taking of listed animals, to apply for an habitat— fish and wildlife,’’ described mountainous areas with significant incidental take permit. The application at the end of this document. rainfall or existing water resources. In must include an HCP laying out the (2) We made revisions to the unit other words, they are most likely to proposed actions, determining the boundaries based on information occur in areas already in the effects of those actions on affected fish supplied by commenters, as well as Conservation District and thus, would and wildlife species and their habitats information gained from field visits to (often including proposed or candidate be subject to discretionary approval by some of the sites, which indicated: (1) species), and defining measures to the BLNR. While development is The primary constituent elements were minimize and mitigate adverse effects. already limited within the Conservation not present in certain portions of the District, the designation of critical We must issue an incidental take permit if the incidental take is to be minimized proposed units; (2) certain changes in habitat would be relevant to BLNR’s land use had occurred on lands within determination of whether to grant a by reasonable and prudent measures and implementing terms and conditions the proposed critical habitat that would permit. More specifically, the preclude those areas from supporting designation of critical habitat could that are stipulated in the permit. The HESA has a comparable incidental take the primary constituent elements; or (3) make it more likely that BLNR would the areas were not essential to the find that a proposed land use would provision that also requires the permittee to show a net benefit to the conservation of the species. Specifically, cause substantial adverse impact to private landowners on the islands of existing natural resources within the species to receive the permit. The economic analysis considers the Molokai, Maui, and Hawaii provided us surrounding area (Hawaii economic impacts of section 7 with new information regarding current Administrative Rules 13–5–30). consultations related to critical habitat, land uses or prior land changes to some Therefore, it is possible that critical even if they are attributable co- to the proposed areas that allowed us to habitat designation could result in extensively to the listed status of the identify certain lands as not essential or additional environmental studies, species. In addition, the economic unsuitable for the long-term project delays, project modifications, analysis examines any indirect costs of conservation of the Blackburn’s sphinx and potential project denials (as critical habitat designation, such as moth. Likewise, the State provided us discussed generally in chapter VI, where critical habitat triggers the section 4.f. of the DEA). However, with new information regarding current applicability of a State or local statute. land uses or prior land changes to some without more specific information on However, where it is the listing of a the scope and location of a future (and proposed areas on islands of Maui, species that prompts action at the State Kahoolawe, and Hawaii that allowed us currently unplanned) water diversion or local level (e.g., further regulating the project, it is not possible to to identify portions of some proposed take of federally listed species), the units as not essential or unsuitable for meaningfully estimate the potential impacts are not attributable to critical indirect costs associated with these the long-term conservation of the moth. habitat designation and are not In addition, information obtained events. appropriately considered in the Moreover, no costs would be expected during the process of finalizing critical economic analysis of critical habitat habitat designations for plants on the to occur from such impacts to water designation. Take prohibitions under islands of Maui, Molokai, and Hawaii systems, because neither the Hawaii law are tied to the Federal helped us to identify some proposed Blackburn’s sphinx moth nor the host listing of the species and do not co- areas on those islands that are lacking plants on which it relies are stream- extensively occur because of critical the primary constituent elements, or are dependent for their survival and, habitat designation. Thus, the therefore, would not cause a reduction circumstance in which a landowner unsuitable for the long-term in existing water diversions. qualifies for a Federal HCP but is unable conservation of the moth. Lastly, some (64) Comment: A commenter stated to obtain a State HCP is outside the areas were excluded based on weighing the following: The DEA failed to scope of the economic analysis and was the benefits of inclusion versus consider the more restrictive Habitat not addressed by it. exclusion pursuant to section 4(b)(2) of Conservation Plan (HCP) guidelines the Act (see Economic Analysis section). under the Hawaii Endangered Species Summary of Changes From the A brief summary of the modifications Law (HRS 195D–4, HRS 195D–21) that Proposed Rule made to each unit is given below (see required the State HCP permittee show Based on a review of public also Figures 1–4). a net benefit to the species. The DEA comments received on the proposed BILLING CODE 4310–55–P

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34734 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4725 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.000 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34735

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4725 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.001 34736 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4725 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.002 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34737

BILLING CODE 4310–55–C

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.003 34738 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

Former Unit 1. Ahihi-Kinau NEAR— Cape Kinau; Unit 3, Ka naio; and Unit Ulupalakua—Auwahi—Ka naio Maui 4, Kahikinui) (see Table 2 and 3), which Meta Unit (Formerly 15,216 ha (37,599 resulted in a total net decrease of 7,393 ac)) ha (18,269 ac). This unit has been subdivided into three smaller separate units (Unit 2,

TABLE 2.—APPROXIMATE CRITICAL HABITAT AREA DESIGNATED BY UNIT, ISLAND AND LANDOWNERSHIP IN HECTARES AND ACRES

Critical habitat unit Island State Private Total

1. Puu O Kali ...... Maui ...... 1,503 ha 101 ha 1,604 ha 3,715 ac 250 ac 3,965 ac 2. Cape Kinau ...... Maui ...... 597 ha 6 ha 603 ha 1,475 ac 15 ac 1,490 ac 3. Ka naio ...... Maui ...... 2,416 ha 4 ha 2,420 ha 5,971 ac 10 ac 5,981 ac 4. Kahikinui ...... Maui ...... 4,783 ha 16 ha 4,799 ha 11,820 ac 39 ac 11,859 ac 5. Kanaha Pond ...... Maui ...... 56 ha 0 ha 56 ha 139 ac 0 ac 139 ac 6. Kanaha Park ...... Maui ...... 25 ha 0 ha 25 ha 62 ac 0 ac 62 ac 7. Upper Kahoolawe ...... Kahoolawe ...... 1,721 ha 0 ha 1,721 ha 4,252 ac 0 ac 4,252 ac 8. Puuwaawaa—Hualalai ...... Hawaii ...... 9,120 ha 835 ha 9,954 ha 22,535 ac 2,063 ac 24,598 ac 9 Kamoko Flats—Puukolekole ...... Molokai ...... 331 ha 926 ha 1,256 ha 817 ac 2,288 ac 3,105 ac

Total ...... 20,552 ha 1,888 ha 22,440 ha 50,786 a 4,665 ac 55,451 ac

TABLE 3.—APPROXIMATE FINAL CRITICAL HABITAT AREA IN HECTARES (ACRES), ESSENTIAL AREA, AND EXCLUDED AREA ON HAWAII, KAHOOLAWE, MAUI, AND MOLOKAI

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

Some areas from the original unit therefore not essential for the voluntary conservation activities on were excluded under section 4(b)(2) conservation of the species. their property. Additional area was because the benefits of designation of Former Unit 2. Puu O Kali Unit excluded because new information critical habitat are outweighed by the (formerly 2,750 ha (6,794 ac)) revealed that some lands in question did negative effect on the landowners’ not contain the moth’s adult or larval voluntary conservation activities on This unit was renamed Unit 1 Puu O stage primary constituent elements, or their property. Additional area was Kali, and is now 1,604 ha (3,965 ac) in were more seriously degraded than excluded because new information size (see Table 2). This unit’s boundary previously ascertained, and are revealed that some lands in question did was adjusted with a total net decrease therefore not essential for the not contain moth’s adult or larval stage of 1,145 ha (2,829 ac). Some areas from conservation of the species. primary constituent elements, or were the original unit were excluded under more seriously degraded than section 4(b)(2) because designation of previously ascertained, and are critical habitat would have had a negative effect on the landowners’

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34739

Former Unit 3. Kanaha Pond— therefore not essential for the constituent elements, as defined at 50 Spreckelsville Unit (formerly 226 ha conservation of the species. CFR 424.12(b)). Section 3(5)(C) of the (559 ac)) Act states that not all areas that can be Critical Habitat This unit has been subdivided into occupied by a species should be Critical habitat is defined in section 3 two smaller, separate units (Unit 5 designated as critical habitat unless the of the Act as—(i) the specific areas Kanaha Pond and Unit 6 Kanaha Park) Secretary determines that all such areas within the geographic area occupied by (see Table 2), which resulted in a total are essential to the conservation of the a species, at the time it is listed in net decrease of 145 ha (358 ac). Some species. Our regulations (50 CFR accordance with the Act, on which are areas from the original unit were 424.12(e)) also state that, ‘‘The Secretary found those physical or biological excluded because new information shall designate as critical habitat areas features (I) essential to the conservation revealed that some lands in question did outside the geographic area presently of the species, and (II) that may require not contain the moth’s adult or larval occupied by the species only when a special management considerations or stage primary constituent elements, or designation limited to its present range protection; and, (ii) specific areas were more seriously degraded than would be inadequate to ensure the outside the geographic area occupied by previously ascertained, and are conservation of the species.’’ a species at the time it is listed, upon therefore not essential for the Section 4(b)(2) of the Act requires that a determination that such areas are conservation of the species. we take into consideration the economic essential for the conservation of the impact, and any other relevant impact, Former Unit 4. Upper Kahoolawe Unit species. ‘‘Conservation,’’ as defined by of specifying any particular area as (formerly 1,878 ha (4,641 ac)) the Act, means the use of all methods critical habitat. We may exclude areas This unit was renamed Unit 7 Upper and procedures that are necessary to from critical habitat designation when Kahoolawe, and is now 1,721 ha (4,252 bring an endangered or a threatened the benefits of exclusion outweigh the ac) in size (see Table 2). This unit’s species to the point at which listing benefits of including the areas within boundary was adjusted with a total net under the Act is no longer necessary. critical habitat, provided the exclusion decrease of 157 ha (389 ac). Some areas Critical habitat receives protection will not result in extinction of the from the original unit were excluded under section 7 of the Act through the species. Section 4 requires that we because new information revealed that prohibition against destruction or designate critical habitat for a species, to some lands in question did not contain adverse modification of critical habitat the extent such habitat is determinable, the moth’s adult or larval stage primary with regard to actions carried out, at the time of listing. When we constituent elements, or were more funded, or authorized by a Federal designate critical habitat at the time of seriously degraded than previously agency. Section 7 also requires listing or under short court-ordered ascertained, and are therefore not conferences on Federal actions that are deadlines, we may not have sufficient essential for the conservation of the likely to result in the destruction or information to identify all the areas species (PBR Hawaii et al. 1995). adverse modification of proposed essential for the conservation of the critical habitat. species or alternatively, we may Former Unit 6. Puuwaawaa—Hualalai In our regulations at 50 CFR 402.02, inadvertently include areas that later Meta Unit (formerly 18,111 ha (44,753 we define destruction or adverse will be shown to be nonessential. ac)) modification as ‘‘* * * the direct or Nevertheless, we are required to This unit was renamed Unit 8 indirect alteration that appreciably designate those areas we believe to be Puuwaawaa—Hualalai, and is now diminishes the value of critical habitat critical habitat, using the best 9,954 ha (24,598 ac) in size (see Table for both the survival and conservation of information available to us. 2). This unit’s boundary was adjusted a listed species. Such alterations Our regulations state that ‘‘The with a total net decrease of 8,156 ha include, but are not limited to, Secretary shall designate critical habitat (20,155 ac). Some areas from the alterations adversely modifying any of outside the geographic areas presently original unit were excluded because those physical or biological features that occupied by the species only when a new information revealed that some were the basis for determining the designation limited to its present range lands in question did not contain the habitat to be critical.’’ However, in a would be inadequate to ensure the moth’s adult or larval stage primary March 15, 2001, decision of the United conservation of the species’ (50 CFR constituent elements, or were more States Court of Appeals for the Fifth 424.12(e)). Accordingly, when the best seriously degraded than previously Circuit (Sierra Club v. U.S. Fish and available scientific and commercial data ascertained, and are therefore not Wildlife Service et al., 245 F.3d 434), the do not indicate that the conservation essential for the conservation of the court found our definition of needs of the species require designation species. destruction or adverse modification as of critical habitat outside of occupied currently contained in 50 CFR 402.02 to areas, we will not designate critical Former Unit 7. Kamoko Flats— be invalid. In response to this decision, habitat in areas outside the geographic Puukolekole Unit (formerly 1,829 ha we are reviewing the regulatory area occupied by the species. (4,520 ac)) definition of adverse modification in Our Policy on Information Standards This unit was renamed Unit 9 relation to the conservation of the Under the Endangered Species Act, Kamoko Flats—Puukolekole, and is now species. published on July 1, 1994 (59 FR 1,256 ha (3,105 ac) in size (see Table 2). In order to be included in a critical 34271), provides criteria, establishes This unit’s boundary was adjusted with habitat designation, the habitat must procedures, and provides guidance to a total net decrease of 573 ha (1,415 ac). first be ‘‘essential to the conservation of ensure that our decisions represent the Some areas from the original unit were the species.’’ Critical habitat best scientific and commercial data excluded because new information designations identify, to the extent available. It requires our biologists, to revealed that some lands in question did known, using the best scientific and the extent consistent with the Act and not contain the moth’s adult or larval commercial data available, habitat areas with the use of the best scientific and stage primary constituent elements, or that provide at least one of the physical commercial data available, to use were more seriously degraded than or biological features essential to the primary and original sources of previously ascertained, and are conservation of the species (primary information as the basis for

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34740 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

recommendations to designate critical public hearings; recent biological extinction caused by random habitat. When determining which areas surveys and reports; and information fluctuations in population size and sex are critical habitat, a primary source of received in response to outreach ratio, and to catastrophes such as information should be the listing materials and from landowners, land hurricanes (Lande 1988). We believe the package for the species. Additional managers, and interested parties. existing Blackburn’s sphinx moth information may be obtained from The critical habitat unit approach in populations on Kahoolawe, Hawaii, and recovery plans, articles in peer-reviewed this rule addresses the numerous risks Maui are insufficient in size and too journals, conservation plans developed to the long-term survival and limited in range to ensure the by States and counties, scientific status conservation of Blackburn’s sphinx conservation of the species. While surveys and studies, and biological moth by employing two widely Blackburn’s sphinx moth population assessments or other unpublished recognized and scientifically accepted sizes may be naturally small, materials. methods for promoting viable establishing the species to a diverse set It is important to clearly understand populations of imperiled species—(1) of habitats and climates within its that critical habitat designations do not creation or maintenance of multiple former range is necessary to remove the signal that habitat outside the populations to reduce the possibility long-term risk of rangewide extinction designation is unimportant or may not that a single or series of catastrophic due to catastrophic events and the be required for conservation. Areas events could threaten to extirpate the numerous direct threats to the species outside the critical habitat designation species; and (2) increasing the size of and its habitat (Service 1997a). will continue to be subject to each population in the respective Janzen (1984) described the conservation actions that may be critical habitat units to a level where the characteristics of tropical sphingid implemented under section 7(a)(1) and threats of genetic, demographic, and moths found in a Costa Rican National to the regulatory protections afforded by normal environmental uncertainties are Park. In general, adult sphingids are the Act’s 7(a)(2) jeopardy standard and diminished (Tear et al. 1995; Meffe and nocturnal or crepuscular (dusk-flying) section 9 prohibitions, as determined on Carroll 1996; Service 1997a). and regularly drink with a long the basis of the best available In general, the larger the number of proboscis from many kinds of information at the time of the action. We populations and the larger the size of sphingophilous flowers while hovering specifically anticipate that federally each population, the lower the in front of them. Sphingophilus flowers funded or assisted projects affecting probability of extinction (Raup 1991; are characterized by lightly colored listed species outside their designated Meffe and Carroll 1996). This basic tubular corollas, evening anthesis critical habitat areas may still result in conservation principle of redundancy (opening), and nocturnal nectar and jeopardy findings in some cases. applies to Blackburn’s sphinx moth. By scent production (Haber and Frankie Similarly, critical habitat designations maintaining viable populations in the 1989). Fecundity was unknown, but made on the basis of the best available designated critical habitat units, the estimated in the hundreds if the female information at the time of designation threats represented by a fluctuating can feed freely. will not control the direction and environment are reduced and the Particularly helpful in understanding substance of future recovery plans, species has a greater likelihood of the conservation needs of sphingids is habitat conservation plans, or other achieving conservation. Conversely, loss Janzen’s (1984) description of the adult species conservation planning efforts if of a Blackburn’s sphinx moth critical moth biological characteristics, new information available to these habitat unit will result in an appreciable including that they have large planning efforts calls for a different increase in the risk that the species may latitudinal ranges, feed heavily over a outcome. Furthermore, we recognize not recover and survive. long period of time and extensively at that designation of critical habitat may The Blackburn’s sphinx moth is short- spatially particulate resources relatively not include all of the habitat areas that lived, extremely mobile, and rare; hence fixed in location, i.e., they feed on may eventually be determined to be population densities are not easily specific resources spread throughout the necessary for the conservation of the determined (A. Medeiros, pers comm., landscape, live for weeks to months, lay species. 1998; Janzen 1984; Roderick and few eggs per night, probably oviposit Gillespie 1997; Van Gelder and Conant (deposit eggs) on many host plant Methods 1998). Even if the threats responsible for individuals and repeatedly visit many of As required by section 4(b)(2) of the the decline of the moth were controlled, them, have less synchronous eclosion Act and regulations 50 CFR 424.12, we the persistence of existing populations (emergence from the pupa) during the used the best scientific information is hampered by the small number of rainy season than other moths, migrate, available to determine areas containing extant populations and the small and are highly mobile, repeatedly the physical and biological features that number of individuals in known returning to the same food plants. In are essential for the conservation of populations. These circumstances make another study of sphingids, adults were Blackburn’s sphinx moth. We evaluated the species more vulnerable to reported to travel greater distances to areas containing dry and mesic habitats extinction resulting from a variety of pollinate and visit flowers than those as well as data on known moth natural processes. Small populations are distances traveled by other insect occurrence. The best scientific particularly vulnerable to reduced pollinators or even hummingbirds information we analyzed included peer- reproductive vigor caused by inbreeding (Linhart and Mendenhall 1977). reviewed scientific publications; depression, and they may suffer a loss Sphingid caterpillars are known to unpublished reports by researchers; the of genetic variability over time due to feed heavily over a long time period and final rule listing the species (65 FR random genetic drift, resulting in eat limited types of foliage, typically 4770); the Blackburn’s sphinx moth decreased evolutionary potential and plants rich in toxic small molecules Recovery Outline (Service 2000); the decreased ability to cope with (e.g., in the family Solanaceae). They HHP database; island-wide GIS environmental change (Lande 1988; also have less synchronous eclosion coverages (e.g., vegetation, soils, annual International Union for Conservation of than other moths. Since sphingids rainfall, elevation contours, Nature and Natural Resources 1994). search widely for good local conditions, landownership); information received Populations small in size are also Janzen (1984) concluded that isolated during the public comment periods and demographically vulnerable to habitats may have difficulty supporting

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34741

sphingid populations, i.e., connectivity existing natural habitats needed to corridors for dispersing adult moths or between habitat areas is necessary to support viable populations of the moth as overflow habitat during particularly support wide-ranging sphingid species. are too small, isolated, and seriously fecund years, which could be very Ehrlich and Murphy (1987) noted that threatened to ensure its long-term important to the integrity of moth populations of herbivorous insects such conservation, particularly in light of the populations. For example, adult moths as lepidopterans are often regulated by foraging needs of adult sphingid moths observed at Cape Kinau (Unit 2) on environmental factors, such as weather (Janzen 1984) and the apparent wide- Maui may have originated from larval conditions, and thus small populations ranging Blackburn’s sphinx moth host plants located in the Kanaio NAR can be particularly at risk of extinction. foraging habits (Fern Duvall, DOFAW, (Unit 3). The moth populations Ehrlich and Murphy (1987) identified a pers. comm. 2001; B. Gagne, pers. inhabiting these habitat areas appear to number of principles important for the comm. 2001; D. Hopper, in litt. 2000, be taking advantage of lower elevation conservation of herbivorous insects. 2002; HHP 2000). adult native host plants and nonnative First, in most cases, a series of diverse Long-term conservation of the species host plants such as tree tobacco upon demographic units will typically be will require the protection and which the larval stage is completed needed to conserve a species. Second, subsequent restoration of additional and successfully. In addition, these habitat where possible, corridors among the larger areas of dry and mesic habitat that areas may be able to support persistent sites should be established to promote include the larval and adult primary moth populations independent of the re-colonizations in areas where the constituent elements at different reservoir areas, significantly species once occurred. Lastly, they elevational and rainfall gradients, in contributing to conservation of the noted that when populations are very order to improve the likelihood of species. sensitive to environmental changes and successful larval development and adult Molokai is an example of essential limited information is available on the moth foraging (A. Medeiros, pers. habitat because it provides for the species’ population biology, it is easy to comm. 1998; Roderick and Gillespie expansion of the species’ range and for underestimate the conservation needs of 1997; Van Gelder and Conant 1998). The improved connectivity of the different such insects. long-term persistence of the existing populations. While the designated unit Murphy et al. (1990) also noted that populations will likely improve if they on this island is not known to currently reviews of butterfly population ecology could be increased in size, and if the harbor a Blackburn’s sphinx moth demonstrate that environmental factors connectivity among the populations was population, preserving this habitat is play important roles in determining enhanced, thus promoting dispersal of important because some threats to the butterfly population dynamics. They individuals across intervening lands. species may be absent there (Table 1 stated that most documented population Restoring moth populations in multiple shows several of the potential moth extinctions have resulted from habitat locations would decrease the likelihood predators and parasites are not reported deterioration combined with extreme that the effect of any single alien on Molokai). Likewise, because of weather events. Decreases in the quality parasite, predator, or combined pressure Molokai’s distance from islands or abundance of larval host plants and of such species could result in the currently inhabited by the moth, we adult nectar sources are caused by diminished vigor or extinction of the believe the designated critical habitat on changes in plant community moth. this island will be extremely important composition, particularly changes Small habitats tend to support small for the species’ conservation as it will associated with succession, disturbance, populations, which frequently are help protect the species from extinction and grazing regimes. But, because many extirpated by events that are part of by catastrophic events, which could butterfly species are especially sensitive normal environmental variation. The impact other more closely grouped to thermal conditions, habitat changes continued existence of such satellite populations (e.g., those on Maui or the that disrupt micro-climatic regimes can populations requires the presence of one island of Hawaii). For these reasons, we cause habitat deterioration without or more large reservoir populations, find that inclusion of an area such as on elimination of plant resources. Ehrlich which may provide colonists to smaller, Molokai, identified as containing the and Murphy (1987) noted several outlying habitat patches (Ehrlich and primary constituent elements, is patterns within typical butterfly Murphy 1987). Based on recent field essential to the conservation of the populations: A number of observations of the Blackburn’s sphinx species even though it does not subpopulations within a given specie’s moth, we believe the species likely currently contain known Blackburn’s metapopulation (a set of local occurs within two regional populations sphinx moth populations. populations or breeding sites within an on separate islands, one centered in the Due to the species’ presently reduced area, where typically migration from area of leeward East Maui (Units 1–4 range, the Blackburn’s sphinx moth is one local population or breeding site to (see Unit Descriptions below)), and one now more susceptible to the variations other areas containing suitable habitat is centered near Puuwaawaa (Unit 8) on and weather fluctuations affecting possible, but not routine) are often Hawaii Island, north of Kailua-Kona (A. quality and quantity of available habitat extirpated and later re-colonized; and a Medeiros, pers. comm. 1998; F. and food. Furthermore, the moth is now given species may not be present in Howarth, pers. comm. 2001). Both of more susceptible to direct pressure from many of its habitat remnants, including these two areas contain populations of numerous nonnative insect predators within those containing the highest host the moth regarded as probable source and parasites. For these reasons, and the plant diversity. areas or ‘‘reservoirs’’ (Murphy et al. reasons discussed above, those areas Section 3(5)(A)(i) of the Act provides 1990) for dispersing or colonizing moth currently occupied would be inadequate that areas outside the geographical area adults. to ensure the conservation of the currently occupied by the species may Habitat areas close to the two large species, and we have designated 9 units meet the definition of critical habitat reservoir areas are also designated in on four islands. upon determination that they are order to promote genetic variability in We are developing a draft recovery essential for the conservation of the the Blackburn’s sphinx moth plan for this species. The overall species. Although our knowledge of the population, contributing to the long- objective of this recovery plan will be to Blackburn’s sphinx moth’s historical term persistence and conservation of the ensure the species’ long-term range is incomplete, we believe the species. These areas will serve as conservation and identify research

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34742 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

necessary so that the moth can be Ipomoea indica and other species primary constituent element for the reclassified to threatened and ultimately within the genus Ipomoea, Capparis designation of critical habitat at this removed from the list of endangered and sandwichiana, and Plumbago zeylanica, time. threatened species. Because a recovery and within the dry to mesic habitats Criteria Used To Identify Critical plan for the moth has not yet been between the elevations of sea level and Habitat completed, in making this 1,525 m (5,000 ft) and receiving between determination we evaluated the 25 and 250 cm (10 and 100 in) of annual We identified critical habitat areas remaining potential habitat, the precipitation. essential to the conservation of biological and life history characteristics Both the larval and adult food plants Blackburn’s sphinx moth in the primary of the moth, and the best available are found in undeveloped areas locations where it currently occurs or scientific information on conservation supporting mesic and dry habitats, has been known to occur. We have planning to determine what will be typically receiving less than 250 cm designated sufficient critical habitat at required to ensure viable populations of (100 in) of rain per year and are located each site to maintain self-sustaining this species. However, should our between the elevations of sea level and populations of Blackburn’s sphinx moth understanding of what areas support 1,525 m (5,000 ft). Vegetative at each of these locations. essential features for the conservation of communities in these areas include During the development of this rule, the moth change after completing the native plants, and in some instances, we considered the role of unoccupied recovery planning process, we may introduced plant species (A. Medeiros, habitat in the conservation of revise the existing critical habitat pers. comm. 1998; Roderick and Blackburn’s sphinx moth. Due to the designation accordingly. Gillespie 1997; Van Gelder and Conant historic loss of the habitat that supports 1998). this species, we believe that future Primary Constituent Elements Although Blackburn’s sphinx moth conservation and recovery of this taxon In accordance with section 3(5)(A)(i) larvae feed on the nonnative Nicotiana depends not only on protecting it in the of the Act and regulations at 50 CFR glauca, we do not consider this plant to limited area that it currently occupies, 424.12(b), in determining which areas to be a primary constituent element for the but also on providing the opportunity to designate as critical habitat, we are designation of critical habitat. As expand its distribution by protecting required to base critical habitat previously discussed, the native currently unoccupied habitat that determinations on the best scientific Nothocestrum species are more stable contains the necessary primary and commercial data available. We and persistent components of dry to constituent elements within its historic consider those physical and biological mesic forest habitats than Nicotiana range. features (primary constituent elements) glauca. Nicotiana glauca is a short-lived To help achieve our goal of that are essential to the conservation of species that may disappear from areas conservation of Blackburn’s sphinx the species and that may require special during prolonged drought (A. Medeiros, moth, we are including one critical management considerations or pers. comm. 1998), or during habitat unit on Molokai, despite the fact protection. These include, but are not successional changes in the plant that the moth has not been documented limited to: Space for individual and community (F. Howarth, pers. comm. there in recent years. The area is located population growth and for normal 2001; Symon 1999). Many studies have within dry to mesic forest on the behavior; food, water, or other shown that insects, and particularly southern uplands of Molokai and nutritional or physiological lepidopteran larvae, consume more food contains both larval and adult stage host requirements; cover or shelter; sites for when the food has a relatively high plants. By allowing the moth to recover breeding, reproduction, or egg laying; water content (Murugan and George to this area, either through its own and habitats that are protected from 1992). Relative consumption rate and ability or with assistance, the threat of disturbance or are representative of the growth have been reported to decrease extinction due to natural catastrophe historic geographical and ecological for many sphingids closely related to occurring within the currently, close- distributions of a species. the Blackburn’s sphinx moth when grouped populations will be minimized. The primary constituent elements for raised on host plants or diets with a We believe the site is essential to the the Blackburn’s sphinx moth include relatively low water content (Murugan conservation of the species because it is specific habitat components identified and George 1992). Nicotiana glauca’s the most appropriate site for a as essential for the primary biological vulnerability to drought conditions reestablishment effort. The combination needs of foraging, sheltering, suggests that its water content of limited range, few populations, and maturation, dispersal, breeding, and egg frequently may not be suitable for restricted habitat, makes the moth laying, and are organized by life cycle optimal growth of Blackburn’s sphinx susceptible to extinction or extirpation stage. The primary constituent elements moth larvae. due to random events, such as disease, required by the Blackburn’s sphinx The restoration of native host species hurricanes, or other occurrences moth larvae for foraging, sheltering, for the moth and other endangered (Shaffer 1981, 1987; Primack 1993; maturation, and dispersal are the two species may also require the control or Meffe and Carroll 1994). Such events are documented host plant species within elimination of nonnative vegetation, a concern when the number of the endemic genus Nothocestrum (N. potentially including Nicotiana. populations or the geographic latifolium and N. breviflorum), and the Additionally, unlike the Nothocestrum distribution of a species is severely dry and mesic habitats between the species, Nicotiana glauca is more likely limited, as is the case with Blackburn’s elevations of sea level and 1,525 m to occur in habitats less suitable due to sphinx moth. Establishment of the (5,000 ft) and receiving between 25 and their occupation by alien insect Molokai unit for the moth is likely to 250 cm (10 and 100 in) of annual predators (D. Hopper, in litt. 2000, 2002; prove important in reducing the risk of precipitation. The primary constituent Symon 1999). Therefore, in comparison extinction due to such catastrophic elements required by Blackburn’s with Nicotiana glauca, the native events. sphinx moth adults for foraging, Nothocestrum species better fulfill the Given the large size and strong flight sheltering, dispersal, breeding, and egg primary biological needs of the moth capabilities of the Blackburn’s sphinx production are native, nectar-supplying larvae. For all of these reasons, we are moth, the species is believed to use plants including, but not limited to, not considering Nicotiana glauca as a large areas of habitat. Therefore, moth

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34743

population linkages will likely be constituent elements are believed to be evaluated the proposed critical habitat enhanced if designated habitat occurs in necessary for successful conservation of units and modified the boundaries using large contiguous blocks or within a the sphingid species (Ehrlich and additional information from peer review matrix of undeveloped habitat (A. Murphy 1987; Shaffer 1987; Murphy experts and comments on the proposed Medeiros, pers. comm. 1998; S. and Weiss 1988; Murphy et al. 1990) in rule. We excluded areas that do not Montgomery, pers. comm. 2001; order to minimize the effects of annual contain one or more of the primary McIntyre and Barrett 1992; Roderick localized drought conditions throughout constituent elements, or that are highly and Gillespie 1997; Van Gelder and different areas of the species’ host plant degraded and thus not essential for the Conant 1998). To the extent possible range (Murugan and George 1992). conservation of the species. In addition, with the limited potential habitat Critical habitat is being designated on some areas were excluded under section remaining, we have attempted to those Hawaiian Islands where the 4(b)(2) of the Act (see Exclusions Under consider the wide-ranging behavior of Blackburn’s sphinx moth’s primary Section 4(b)(2)). The specific the Blackburn’s sphinx moth. Since the constituent elements are known to occur modifications are described above in the moth is believed to be a strong flier and and are considered essential for the Summary of Changes from the Proposed able to move many kilometers from one conservation of the species. This will Rule section. The boundaries of the final area to another, areas of larval or adult allow the species the ability to persist critical habitat units are described by presence and feeding may be separated and recolonize areas where it has their Universal Transverse Mercators from similar habitat areas and still serve become extirpated due to catastrophic (UTMs). important functions in maintaining events or demographic stochasticity Within the critical habitat boundaries, moth populations. (randomness) (Shaffer 1987). For section 7 consultation is generally Some small habitat areas are also example, on the island of Kauai in 1992, necessary, and adverse modification suitable for Blackburn’s sphinx moth Hurricane Iniki blew over large areas of could occur only if the primary larvae (e.g., Units 2, 5, 6, and 9 (see unit native forest, leaving open areas where constituent elements are affected. descriptions below)) and are critical for nonnative plants became established, Therefore, not all activities within the species’ conservation since such and created paths for further invasion of critical habitat would trigger an adverse habitats may facilitate adult moth nonnative animals, both of which have modification conclusion. In designating dispersal and promote genetic exchange been identified as threats to the survival critical habitat, we made an effort to between populations located on of the moth. avoid developed areas, such as towns different islands. These areas also Natural areas of suitable native, dry- and other similar lands, which are provide nectar resources and sheltering to-mesic habitat containing at least one unlikely to contribute to the opportunities required by the adult Nothocestrum plant adjacent to or near conservation of the species. However, moth. However, geographically isolated other Nothocestrum populations are the minimum mapping unit that we populations may be subject to decreased included in the critical habitat units. We used to approximate our delineation of viability caused by inbreeding have included suitable habitat without critical habitat for this species did not depression, reductions in effective Nothocestrum larval host plants, allow us to exclude all such developed population size due to random variation provided it contained the adult stage areas, or other areas unlikely to contain in sex ratio, and limited capacity to primary constituent elements including, the primary constituent elements from evolve in response to environmental but not limited to, Ipomoea species, the maps. In addition, existing change (Soule 1987). The adult moth is Capparis sandwichiana, or Plumbago manmade features and structures within dependent on its primary constituent zeylanica. This is especially true for the boundaries of the mapped unit, such element nectar source host plants for areas lying between or adjacent to large as the following, do not contain one or dispersal and migrating to and from populations of Nothocestrum spp. that more of the primary constituent various habitats. Because the factors could serve as a flight corridor to other elements, and are therefore excluded threatening the moth’s conservation are larger host plant habitat areas. An area under the terms of this regulation: often not so mobile, providing for access may also serve as a corridor when it buildings; roads; aqueducts and other to the moth’s adult stage primary contains adult native host plants, water system features, including but not constituent elements, and thereby thereby providing foraging limited to pumping stations, irrigation facilitating its ability to disperse, can opportunities for adults. Natural areas of ditches, pipelines, siphons, tunnels, minimize the effect of the various primarily native vegetation containing water tanks, gauging stations, intakes, threats. the larval or adult stage primary and wells; telecommunications towers Blackburn’s sphinx moth populations constituent elements and where habitat and associated structures and fluctuate from year to year and season could support a moth population and equipment; electrical power to season, apparently correlated with increase the potential for conservation transmission lines and associated rights- environmental and climatic variation. are also designated as critical habitat. of-way; radars; telemetry antennas; The moth is likely sensitive to thermal The designation and protection of a unit missile launch sites; arboreta and conditions and habitat changes that not known to currently contain a moth gardens; heiau (indigenous places of disrupt its microclimatic requirements. population (i.e., the unit on Molokai), worship or shrines); airports; other Therefore, the critical habitat units but which contains the primary paved areas; and other rural residential include dry and mesic habitats constituent elements and lacks some of landscaped areas. Federal actions containing the primary constituent the serious threats to the species (see limited to those areas would not trigger elements along wide elevational Table 1), will enhance population a section 7 consultation unless they gradients to better ensure adult moth expansion and connectivity, thereby affect the species or primary constituent foraging needs, up and downslope, improving the likelihood of the species’ elements in adjacent critical habitat. within their range. Furthermore, the conservation. The lack of scientific data on boundaries include elevational Blackburn’s sphinx moth life history gradients to better ensure larval host Mapping makes it impossible for us to develop a plant availability during periods of Following publication of the proposed quantitative model (e.g., population drought. Numerous habitat elevations critical habitat rule for Blackburn’s viability analysis) to identify the containing the various primary sphinx moth (67 FR 40633), we re- optimal number, size, and location of

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34744 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

critical habitat units (Ginzburg et al. recent decisions in the New Mexico ‘‘without section 7’’ baseline 1990; Menges 1990; Murphy et al. 1990; Cattlegrowers Association v. U.S. Fish represented the current and expected Karieva and Wennergren 1995; Taylor and Wildlife Service, 248 F.3d 1277 economic activity under all 1995; Bessinger and Westphal 1998). At (10th Cir. 2001). The DEA was made modifications except those associated this time, we are only able to conclude available for review on November 15, with section 7, including protections that the current size and distribution of 2002 (67 FR 69179). We accepted afforded the species under Federal and the extant populations are not sufficient comments on it until the comment State laws. The difference between the to expect a reasonable probability of the period closed on December 30, 2002. two scenarios measured the net change Blackburn’s sphinx moth’s long-term Our DEA evaluated the potential in economic activity attributable to the survival and conservation. Therefore, direct and indirect economic impacts implementation of section 7 for the we used the best available information associated with the proposed critical Blackburn’s sphinx moth. Because of to identify as critical habitat a habitat designation for Blackburn’s the uncertainty of the costs resulting reasonable number of additional units. sphinx moth on Hawaii, Kahoolawe, solely from critical habitat designation, The one unoccupied area designated Maui, and Molokai over the next 10 we believe it is reasonable to estimate in this final rule is located on the island years. Direct impacts are those related to the total impacts of section 7 of Molokai (Unit 9). Although currently consultations under section 7 of the Act. application. However, it is important to unoccupied by the moth, the area They include the cost of completing the note that inclusion of impacts contains both larval stage and adult section 7 consultation process and attributable co-extensively to listing moth native host plants. The area is potential project modifications resulting does not convert this economic analysis close enough in proximity to the Maui from the consultation. Indirect impacts into a tool to be used in making listing moth population that the area may again are secondary costs and benefits not decisions. be re-populated by the moth on its own, related to the specific provisions of the Following the close of the comment yet because it is a separate island, some Act. Examples of indirect impacts period on the DEA, an addendum was additional protection from a potential include potential effects to property completed that incorporated public natural catastrophe affecting, for values, redistricting of land from comments on the draft analysis and example, the Maui population, may be agricultural or urban to conservation, made other changes in the draft as afforded a future moth population on and social welfare benefits of ecological necessary. These changes were Molokai. Also, as Molokai is the closest improvements. primarily the result of information The categories of potential direct and island to Oahu, we believe that allowing received during the comment period indirect costs considered in the analysis for a future moth population on Molokai indicating that certain areas do not included the costs associated with: (1) may facilitate the species’ dispersal and contain the necessary primary Conducting section 7 consultations provide a flight corridor for moths constituent elements or are not essential associated with the listing or with the eventually migrating to the island of to the conservation of the species. critical habitat, including incremental Oahu, which is also part of its historical However, the Addendum did analyze consultations and technical assistance; range. the economic impacts of areas that have Molokai was designated as critical (2) modifications to projects, activities, been excluded pursuant to section habitat rather than other suitable or land uses resulting from the section 4(b)(2) in this final rule. Therefore, the unoccupied areas because we 7 consultations; (3) potential delays total area and the potential impacts determined, to the best of our abilities, associated with reinitiating completed evaluated in the Addendum are greater that it is the highest quality unoccupied consultations after critical habitat is than the total area designated as critical habitat essential to the conservation of finalized; (4) uncertainty and public habitat and the actual impacts. the moth. The designated unoccupied perceptions resulting in loss of land Together, the DEA as modified by the area on Molokai may lack some of the value from the designation of critical addendum constitute our final serious potential threats to the moth (see habitat; (5) potential effects on property economic analysis. The final economic Table 1). Conserving and restoring values including potential indirect costs analysis estimates that, over the next 10 Blackburn’s sphinx moth populations in resulting from the loss of hunting years, the designation may result in multiple locations decreases the opportunities and increased regulation potential direct economic costs ranging likelihood that the effect of any single related costs due to the interaction of from approximately $1,183,800 to alien parasite or predator, or the State and local laws; and (6) potential $1,739,000. This reduction of combined pressure of such species and offsetting benefits associated with approximately $27,399 to $175,400 from other threats, could result in the critical habitat, including educational the costs estimated in the DEA is diminished vigor or extinction of the benefits. The most likely economic primarily due to the reduction in species. effects of critical habitat designation are on activities funded, authorized, or acreage for biological reasons. Exclusions Under Section 4(b)(2) carried out by a Federal agency (i.e., Our final economic analysis for this Subsection 4(b)(2) of the Act allows direct costs). rule also includes an evaluation of us to exclude areas from critical habitat The DEA included an evaluation of potential indirect costs associated with designation where the benefits of such the economic impacts associated with the designation of critical habitat for the exclusions outweigh the benefits of implementation of the section 7 Blackburn’s sphinx moth. For example, designation, provided the exclusion will provisions of the Act for the Blackburn’s in the event that designation results in not result in the extinction of the sphinx moth. To quantify the proportion a rezoning of property from agricultural species. of total potential economic impacts district to conservation district a attributable to section 7 landowner could be expected to spend Economic Impacts implementation, including both the $50,000 to contest a potential re-zoning Following the publication of the section 7 listing provisions and the of their property, and a CDUA might proposed critical habitat designation on proposed critical habitat designation, cost as much as $100,000. Also, as June 13, 2002, a DEA was prepared to the analysis evaluated a ‘‘without described in section 4.e. of the estimate the potential economic impact section 7’’ baseline and compared it to Addendum, an estimate of the costs of the designation, in accordance with a ‘‘with section 7’’ scenario. The involved with investigation for the

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34745

intended designation ranges from partnership area. These activities, which auwahiensis and Zanthoxylum approximately $173,000 to $618,000. are described in more detail below, hawaiiense within the Puu Makua In addition, the final economic require substantial voluntary Partnership Project area and the Auwahi analysis discusses economic benefits in cooperation by Ulupalakua Ranch. Partnership Project area (see discussion qualitative terms rather than providing The following analysis describes the below). Current and likely future quantitative estimates because of the likely conservation benefits of a critical economic activities on the ranch lack of information available to estimate habitat designation compared to the include cattle grazing, diversified the economic benefits of endangered conservation benefits without critical agriculture such as strawberry and species preservation and ecosystem habitat designation. We paid particular papaya production, eco-tourism, wild improvements. attention to the following issues: fowl hunting, and lease of lands for A more detailed discussion of our Whether critical habitat designation cellular phone and radio transmission economic analysis is contained in the would confer regulatory conservation towers. The most likely future Federal DEA and the Addendum. Both benefits on this species; whether the involvement on these lands includes the documents are included in our designation would educate members of development of voluntary conservation administrative record and available for the public such that conservation efforts agreements between the ranch and inspection at the Pacific Islands Fish would be enhanced; and whether a Federal agencies such as the Service and and Wildlife Office (see ADDRESSES critical habitat designation would have NRCS. Additionally, it is possible the section). a positive, neutral, or negative impact ranch may apply for and receive Farm Although we do not find the on voluntary conservation efforts on this Service loans for land improvement economic costs to be significant, they privately owned land. projects pertaining to agricultural needs were considered in balancing the If excluding an area from a critical or to enhance habitat for wild fowl. benefits of including or excluding areas habitat designation will provide As a result of the low level of from critical habitat. The likely cost of substantial conservation benefits, and at previous Federal activity on Ulupalakua designating critical habitat for the the same time including the area fails to Ranch, and after considering the likely Blackburn’s sphinx moth is estimated to confer a counter-balancing benefit to the future Federal activities in this area, it be between $118,380 to $173,900 per species, then the benefits of excluding is our opinion that there is likely to be year over the next 10 years. the area from critical habitat outweigh a low number of future Federal Approximately 4,717 ha (11,656 ac) the benefits of including it. The results activities that would affect designated within two proposed critical habitat of this type of evaluation will vary Blackburn’s sphinx moth critical habitat units (Units 1 and 2) are located on significantly depending on the on Ulupalakua Ranch. Even if a Federal private lands owned by Ulupalakua and landowners, geographic areas, and action is proposed in the future, it Haleakala Ranches. We are excluding species involved. would likely be subject to section 7 both ranches from designation because (1) Benefits of Inclusion consultation because of the presence of the benefits provided by these two the moth. The Final Economic Analysis landowners’ voluntary conservation Critical habitat was proposed for (FEA) prepared for this rule does activities within and adjacent to these Blackburn’s sphinx moth on 3,533 ha discuss the possibility that a re-zoning units outweigh the benefits provided by (8,730 ac) in the Ulupalakua Ranch of some lands from agricultural status to a designation of critical habitat. portion of proposed Unit 1. The primary conservation status could occur which direct benefit of inclusion of this Ulupalakua Ranch might limit certain agricultural portion of proposed Unit 1 as final activities. However, the FEA concedes The portion of proposed Unit 1 on critical habitat would result from the that the possibility of re-zoning of Ulupalakua Ranch lands is occupied requirement under section 7 of the Act agricultural lands is low or unlikely. habitat for Blackburn’s sphinx moth. that Federal agencies consult with us to Furthermore, there are different levels of As discussed previously, conservation ensure that any proposed Federal conservation district land use of the moth will require self-sustaining, actions do not destroy or adversely categories, and in the event of a reproducing populations located in a modify critical habitat. Without critical potential re-zoning, activities such as geographic array across its range, with habitat, some site-specific projects grazing would likely continue. population numbers and population might not trigger consultation Therefore, we anticipate little direct locations of sufficient robustness to requirements under the Act in areas regulatory benefits from including withstand periodic threats due to where species are not currently present. Ulupalakua Ranch lands in critical natural disaster or biological threats. In contrast, Federal actions in areas habitat. The highest priority conservation tasks occupied by listed species would still Another possible benefit if including include active management, such as require consultation under section 7 of these lands is that the designation of host plant propagation and the Act. The portion of Unit 1 being critical habitat can serve to educate reintroduction, fire control, alien excluded is occupied by the moth, and landowners and the public regarding the species removal, and ungulate fencing. thus would be subject to consultation potential conservation value of an area. Failure to implement these active anyway. See e.g., 50 CFR section 402.12 This may focus and contribute to management measures, all of which (biological assessments are based on a conservation efforts by other parties by require voluntary landowner support list of species present in the action clearly delineating areas of high and participation, virtually assures the area). conservation value for certain species. extirpation of this moth species from Historically, we have conducted no Any information about the moth species those areas. Many of these types of formal or informal consultations under for which critical habitat was proposed conservation actions in this area of Maui section 7 on Maui for Blackburn’s in Unit 1 that reaches a wide audience, are carried out as part of Ulupalakua sphinx moth. We have conducted only including other parties engaged in Ranch’s participation with our Partners two informal intraservice consultations conservation activities, would be for Fish and Wildlife and other regarding Ulupalakua Ranch, and these considered valuable. landowner incentive-based programs, have been on the effects of fencing and However, we believe we have and by actions taken on the landowner’s outplanting of certain endangered plants achieved the same educational benefits initiative in areas outside the including Alectryon Micrococcus var. through ongoing conservation activities

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34746 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

and the critical habitat designation and other Hawaiian islands (Wilcove Restoration Project. We provided process. The portion of proposed Unit 1 and Chen 1998; Wilcove et al. 1998; $76,500 (matched by in-kind services that lies within Ulupalakua Ranch has Shogren et al. 1999). This is especially valued at $52,000) for this 8 ha (20 ac) been identified as essential to the important in areas where species or restoration effort adjacent to the Auwahi conservation of the Blackburn’s sphinx their essential habitat components, i.e., I project. This project is ongoing, and moth and has been addressed in this host plants, have been extirpated and will employ the same methods used at rule. In addition, the existing their recovery requires access and Auwahi I: Construct ungulate exclosure conservation activities being conducted permission for reintroduction or fence, remove ungulates, control within proposed Unit 1, as well as restoration efforts. For example, the nonnative plants, and outplant native within other areas of Ulupalakua Ranch, Blackburn’s sphinx moth’s larval stage species, including listed species. by the Service and other Federal host plant species, Nothocestrum Ulupalakua Ranch entered a agencies (e.g., NRCS), the State, and latifolium, associated with proposed partnership with Ducks Unlimited (DU), private organizations (e.g., Ducks Unit 1, are in decline on Ulupalakua a private conservation organization, and Unlimited, Incorporated (DU)) Ranch lands, and natural repopulation the NRCS’s Wetland Reserve Program demonstrates that the landowner and is likely not possible without human (WRP) in 2000, to create wetland the public is already aware of the assistance and landowner cooperation. complexes suitable for the Hawaiian importance of this area for the Ulupalakua Ranch is involved in goose, nene (Branta sandvicensis) and conservation of Blackburn’s sphinx several important voluntary Hawaiian duck, koloa (Anas wyvilliana). moth. conservation agreements, and is The NRCS WRP provided $100,000 for In summary, we believe that a critical currently carrying out some of these funding and technical support to habitat designation for Blackburn’s activities for the conservation of the develop the wetland complex, DU sphinx moth on Ulupalakua Ranch moth and its essential habitat provided funds and provided full lands would provide a relatively low components. For example, the Partners survey, design, construction level of additional regulatory for Fish and Wildlife Auwahi and Puu management and completion of wetland conservation benefits to the species. Makua agreements were entered into in development practices, and Ulupalakua Any regulatory conservation benefits 1997 and 1998 with the stated purpose Ranch provided fencing, equipment, would accrue through the benefit of protecting and restoring dryland labor or other in-kind serves as required associated with section 7 consultation. forest, including construction of to match the WRP funds. DU also Based on a review of past consultations exclosure fences, a greenhouse, access conducted waterfowl monitoring at the and consideration of the likely future road, and propagation and outplanting four ponds for 1 full year after pond activities in this area, there is little of native plants. Preservation of these construction. In 2001, a 14 ha (35 ac) Federal activity expected to occur on areas conserves critically endangered area was fenced and encompassed the this privately owned land that would species of plants and animals in one of four constructed ponds and associated trigger section 7 consultation. We also Hawaii’s most degraded ecosystem upland habitat at a 1,585 m (5,200 ft) believe that a final critical habitat types, the lowland dry forest. This elevation site. The ponds were created designation provides little additional management strategy is consistent with to attract nene and koloa pairs to forage educational benefits since the recovery of the Blackburn’s sphinx and nest within the protected pond/ conservation value is already known by moth. The Auwahi agreement is wetland area, which totals the landowner, the State, Federal between Ulupalakua Ranch, USGS– approximately 0.4 ha (1 ac) of surface agencies, and private organizations, and BRD, and the Service. We provided water, with 0.9–1.8 m (3–6 ft) depths the area has been identified as essential funding ($64,388) for fence materials, filled and maintained by natural to the conservation of Blackburn’s plant propagation and outplanting, and hydrology and rainfall. sphinx moth. Both the additional weed control, Ulupalakua Ranch In addition to the projects described regulatory conservation benefits to the provided labor and materials valued at above, to address the conservation species and the additional educational $18,000, and USGS–BRD provided needs of the species in a larger area, benefits appear marginal when materials and technical assistance as Ulupalakua Ranch has expanded their considering the past and likely future well as staff and volunteer labor. In the Partners for Fish and Wildlife projects conservation partnership opportunities 4 ha (10 ac) Auwahi project area, with the Service and in cooperation with this landowner. Through Ulupalakua Ranch has built the with the State NAR program for cooperative and creative land exclosure fence, outplanted native conserving additional areas, which restoration activities which have plants grown in the greenhouse include the following important occurred on the ranch and are likely to including Nothocestrum latifolium, voluntary actions by Ulupalakua Ranch: continue to occur, a significant amount removed the majority of non-native (1) Construction of exclosure fencing of land (hundreds of acres or more) can alien species within the fence, and around a portion of Ulupalakua Ranch and will likely be restored for the long- removed all ungulates. We provided and the Ka naio NAR (a portion of term conservation of the moth, its host $31,675, through an agreement with proposed Unit 1 (approximately 283 ha plant species, and other native Ulupalakua Ranch, for restoration work (700 ac)) with $50,000 provided us, Hawaiian ecosystem components. No at Puu Makua. Ulupalakua Ranch has matched by in-kind services (e.g., labor such future conservation partnerships provided in-kind labor and materials and materials) valued at $50,000; with this landowner are likely to occur valued at $37,055 to construct a fence (2) Active management of feral if the proposed portions of the ranch are around the 40 ha (100 ac) exclosure, ungulates that are negatively affecting designated as outlined by the landowner removal of ungulates, control of listed plants within the fenced areas; within several letters. nonnative plants and out-planting of (3) Active management of nonnative native plants. The first two tasks have grasses and other fire hazards, and (2) Benefits of Exclusion been completed, with weed control and development of fire control measures; Proactive voluntary conservation out-planting ongoing. and efforts on private lands are necessary to A third voluntary partnership project (4) Nursery propagation and planting prevent the extinction and promote the undertaken in cooperation with the of native flora, including Nothocestrum conservation of this species on Maui landowner is the Auwahi II Dryforest latifolium, within the fenced areas.

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34747

Currently, this is the only large-scale in the direct restoration and including it as critical habitat for planned nursery production of the conservation of approximately 10 Blackburn’s sphinx moth. This moth’s native larval host plants in the percent of the ranch’s property conclusion is based on the following State. proposed for designation. analysis: We believe that Blackburn’s sphinx As described earlier, Ulupalakua (1) Benefits of inclusion: There will be moth habitat and host plant populations Ranch has a history of entering into little Federal regulatory benefit to the originally included within the conservation agreements with various moth as a result of including ranch Ulupalakua Ranch portion of proposed Federal and State agencies and private property in the designation because, as Unit 1 will benefit substantially from organizations on biologically important described in the FEA and in this rule, these management actions. Specifically, portions of their lands. These there is a low likelihood that this the planned and current conservation arrangements have taken a variety of critical habitat unit will be negatively actions on 324 ha (800 ac) or forms. They include partnership affected to any significant degree by approximately 10 percent of the area commitments such as the Puu Makua Federal activities requiring section 7 originally proposed on ranch lands and the two Auwahi Dryland Forest consultation. The designation of critical should directly benefit the moth and its Restoration Partners for Fish and habitat can serve to educate the general host plants. These benefits include a Wildlife projects (in cooperation with public, as well as conservation reduction in ungulate browsing and USGS–BRD and funded through organizations regarding the potential habitat conversion, a reduction in Partners for Fish and Wildlife), wetland conservation value of an area. However, competition with nonnative weeds, a restoration/creation (in cooperation this goal has already been effectively reduction in risk of fire, and the with NRCS and DU), and the Ka naio accomplished through the identification potential for reintroduction of moth host Dry Forest Restoration Project (in of this area in the management plants currently extirpated from various cooperation with DOFAW and funded agreements described above. Lastly, areas. Also, these benefits include what through Partners for Fish and Wildlife even if any given ranch parcel were re- is current or currently planned only, and section 6 of the Act). zoned as conservation district as a result additional benefits could be derived Approximately 80 percent of of the designation, the FEA concluded from projects not yet conceived. imperiled species in the United States that grazing activities would likely On Maui, simply preventing ‘‘harmful occur partly or solely on private lands continue. Given the current Partners for activities’’ will not slow the extinction where we have little management Fish and Wildlife agreements between of listed species. Where consistent with authority (Wilcove et al. 1996). In ourselves and the landowner, we the discretion provided by the Act, we addition, recovery actions involving the believe the overall regulatory and believe it is necessary to provide reintroduction of listed species onto educational benefits of including the positive incentives to private private lands require the voluntary Ulupalakua Ranch lands portion of landowners to voluntarily conserve cooperation of the landowner (Knight proposed Unit 1 as critical habitat are natural resources. The FEA for this rule 1999; Main et al. 1999; Shogren et al. relatively small. concluded that the likelihood of any 1999; Norton 2000; Bean 2002; James (2) Benefits of exclusion: Excluding particular parcel being rezoned as 2002). Therefore, ‘‘a successful recovery Ulupalukua Ranch property from the conservation district was low. However, program is highly dependent on designation will result in the the potential costs of such a rezoning developing working partnerships with a elimination of uncertainty about should it occur, could entail additional wide variety of entities, and the decreased land values and potential costs to a landowner. For example, a voluntary cooperation of thousands of third party litigation. Potential costs to landowner could be expected to spend non-Federal landowners and others is the landowner resulting from the need $50,000 to contest a rezoning, and a essential to accomplishing recovery for to investigate the effect of designation or conservation district use application listed species’’ (Crouse et al. 2002). to contest potential conservation (CDUA) might cost as much as Because the Federal government owns rezoning, for example, will be $100,000. However, the FEA also relatively little land in the State of eliminated. Lastly, and perhaps, most conceded that some economic activities Hawaii, and because large tracts of land important for the conservation of the such as grazing would likely be suitable for conservation of threatened moth, excluding the properties from permitted to continue even with a and endangered species are owned by designation will ensure the landowner’s conservation district rezoning. Although private landowners, successful recovery continued voluntary participation in the FEA concludes that the potential of the Blackburn’s sphinx moth and proactive conservation agreements and effects of rezoning are anticipated to be other listed species in Hawaii is partnerships as the landowner has low, this landowner and other especially dependent upon working stated in several letters to the Service. commenters nevertheless believe there partnerships and the voluntary (3) In the past, Ulupalakua Ranch has is a risk that the critical habitat cooperation of non-Federal landowners. cooperated with us, the State, and other designation will result in the rezoning Thus, we believe it is essential for the organizations to implement voluntary of lands, a decrease in the Ulupalakua conservation of Blackburn’s sphinx conservation activities on their lands Ranch’s ability to remain economically moth to build on continued that have resulted in tangible competitive, and an increased risk of conservation activities such as these conservation benefits. The ranch has a third-party litigation. The landowner with a proven partner. long history of participation in has expressed concern over these conservation projects beginning in the potential negative impacts and has (3) The Benefits of Exclusion Outweigh 1960s through the present. A substantial stated in several letters that they would the Benefits of Inclusion amount (approximately 10 percent) of cease all voluntary conservation Based on the above considerations, the Ulupalakua Ranch portion of activities on ranch property. We believe and consistent with the direction proposed Unit 1 is currently being the ranch’s cooperation on all current provided in section 4(b)(2) of the Act, managed by the landowner on a and planned future conservation we have determined that the benefits of voluntary basis to achieve important projects on ranch property are necessary excluding the Ulupalakua Ranch conservation goals and which directly to conserve the moth. Current portion of proposed Unit 1 as critical benefits numerous native Hawaiian conservation projects alone will result habitat outweigh the benefits of plant and animal species including the

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34748 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

moth. For example, the landowner is (4) Exclusion of This Unit Will Not Haleakala Ranch currently cooperating with the Service Cause Extinction of the Species Most of the portion of proposed Units and the State to restore and actively 1 and 2 on Haleakala Ranch lands is manage approximately 324 ha (800 ac) In considering whether or not exclusion of this portion of proposed believed to be occupied habitat for of high quality habitat for the moth and Unit 1 might result in the extinction of Blackburn’s sphinx moth. its host plants. Blackburn’s sphinx moth, we The following analysis describes the Simple regulation of potential considered the impacts to the species. It likely conservation benefits of a critical ‘‘harmful activities’’ is not sufficient to is our conclusion that the current habitat designation compared to the conserve the Blackburn’s sphinx moth partnership agreements developed by conservation benefits without critical on private lands. Landowner Ulupalakua Ranch and the Service will habitat designation. We paid particular cooperation and support will be provide more net conservation benefits attention to the following issues: required to prevent its extirpation in than would be provided by designating Whether critical habitat designation this area of Maui and promote the the portion of proposed Unit 1 as would confer regulatory conservation recovery of the moth’s host plants in critical habitat. These agreements will benefits on this species; whether the designation would educate members of this area due to the need to implement provide tangible proactive conservation the public such that conservation efforts proactive conservation actions such as benefits that will result in the direct restoration and active management of would be enhanced; and whether a ungulate management, weed control, critical habitat designation would have fire suppression, and plant propagation 324 ha (800 ac) of habitat for the moth and its native host plants within a positive, neutral, or negative impact and reintroduction. This need for on voluntary conservation efforts on this landowner cooperation is especially proposed Unit 1. Specifically, the benefits will include the construction of privately owned land. important because the Ulupalakua If a critical habitat designation portion of proposed Unit 1 is part of the exclosure fencing around a large portion of high quality moth habitat, active reduces the likelihood that voluntary habitat for what is considered a core or management of feral ungulates and conservation activities will be carried metapopulation of the moth. In fact, nonnative grasses and weeds, out, and at the same time fails to confer some portions of the ranch’s property development of fire control methods, a counter-balancing positive regulatory currently being fenced and actively and nursery propagation of the moth’s or educational benefit to the species, managed for restoration include some of host plants. These benefits will reduce then the benefits of excluding such the highest quality moth habitat the likelihood of the moth’s extirpation areas from critical habitat outweigh the remaining anywhere in the State. Future in this area of Maui, reduce the benefits of including them. The results conservation efforts, such as likelihood of its extinction, and increase of this type of evaluation will vary maintaining and conserving Blackburn’s its likelihood of conservation overall. significantly depending on the sphinx moth host plant habitat in this Extinction of the Blackburn’s sphinx landowners, geographic areas, and area, will require the cooperation of moth as a consequence of this exclusion species involved. Ulupalakua Ranch. is unlikely because there are no known (1) Benefits of Inclusion threats in this portion of proposed Unit In conclusion, we find that the On Haleakala Ranch property, critical 1 due to any current or reasonably designation of critical habitat in the habitat was proposed for Blackburn’s anticipated Federal actions that might Ulupalakua Ranch portion of proposed sphinx moth on 393 ha (972 ac) for be regulated under section 7 of the Act. Unit 1 would most likely have a net proposed Unit 1 and 791 ha (1,955 ac) Implementation of the partnership negative conservation effect on the for proposed Unit 2. The primary direct agreements between the landowner and recovery and conservation of benefit of inclusion of this portion of the Service, and the exclusion of the Blackburn’s sphinx moth. As described proposed Units 1 and 2 as final critical portion of proposed Unit 1, have the above, the overall benefits to this moth habitat would result from the highest likelihood of preventing requirement under section 7 of the Act of a critical habitat designation for this extinction of this species and enhancing that Federal agencies consult with us to portion of Unit 1 are relatively small. its conservation. We conclude there is a greater ensure that any proposed Federal likelihood of beneficial conservation In addition, critical habitat is being actions do not destroy or adversely designated in other areas of Maui and activities occurring on this area of Maui modify critical habitat. on the islands of Hawaii, Kahoolawe, without designated critical habitat than Historically, there have been no and Molokai for Blackburn’s sphinx there would be with designated critical formal consultations of informal moth. These other designations identify habitat in this location. We reached this consultations under section 7 involving conservation areas for the maintenance Haleakala Ranch lands, except the conclusion because the landowner is and expansion of existing populations. more likely to continue and increase consultation in the process of being their ongoing voluntary conservation In summary, the above analysis completed for the Puu Pahu indicates there is a much greater conservation project that we are funding efforts for the moth and other listed likelihood of the landowner undertaking in part. species if their property is not conservation actions on Maui to prevent Current and likely future economic designated as critical habitat. In fact, the extinction, such as the outplanting of activities on the ranch include cattle landowner has stated in several letters moth host plants to expand and grazing, diversified agriculture, eco- to the Service that all voluntary establish additional populations, tourism, hunting, and lease of lands for conservation activities will cease if without the Ulupalakua Ranch portion cellular phone and radio transmission ranch property is designated. Therefore, of proposed Unit 1 being designated as towers. Likely future Federal it is our conclusion that the net benefits critical habitat. Therefore, the exclusion involvement includes the development of excluding this portion of proposed of this portion of proposed Unit 1 will of voluntary conservation agreements Unit 1 from critical habitat for the not cause extinction and should in fact between the ranch and Federal agencies Blackburn’s sphinx moth outweigh the improve the chances of conservation for such as the Service and NRCS. benefits of including it. Blackburn’s sphinx moth. Additionally, it is possible the ranch

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34749

may apply for and receive Farm Service sphinx moth on Haleakala Ranch lands (47,000 ac) (Waikamoi Preserve) in loans for land improvement projects would provide a relatively low level of order to protect its native forest pertaining to agricultural needs or to additional regulatory conservation resources and watershed from damage enhance habitat for wild fowl. benefits to the species. Any regulatory caused by pigs and cattle. Haleakala As a result of this low level of Federal conservation benefits would accrue Ranch Company has been working with activity on Haleakala Ranch, and after through the benefit associated with the Central Maui Soil and Water considering the likely future Federal section 7 consultation. Based on a Conservation District to address soil and activities in this area, it is our opinion review of past consultations and resource issues. In cooperation with the that there is likely to be a low number consideration of the likely future NRCS Environmental Quality Incentives of future Federal activities that would activities in this area, there is little Program (EQIP), Haleakala Ranch affect designated Blackburn’s sphinx Federal activity expected to occur on Company has been implementing a moth critical habitat on Haleakala this privately owned land that would weed control program that has been Ranch. Even if a Federal action is trigger section 7 consultation. In ongoing for over 80 years. Eight years proposed in the future, it would likely addition, we believe that the critical ago, the Haleakala Ranch Company be subject to section 7 consultation habitat proposal and final designation Directors created and filled a Land because of the presence of the moth. provides some conservation benefits by Steward position in order to shepherd The FEA prepared for this rule does educating the public on the site-specific conservation efforts of the ranch and discuss the possibility that a rezoning of areas on Maui essential to the update the conservation plans for all some lands from agricultural status to conservation of the Blackburn’s sphinx Haleakala Ranch lands. conservation status could occur which moth. Both the additional regulatory The Partners for Fish and Wildlife might limit certain agricultural conservation benefits to the species and Puu Pahu agreement was begun in 2001 activities. However, the FEA concedes the additional educational benefits with the stated purpose of protecting that the possibility of rezoning of appear marginal when considering the and restoring native subalpine dry agricultural lands is low or unlikely. past and likely future conservation shrubland including construction of a Furthermore, there are different levels of partnership opportunities with this 6.9 kilometers (km) (4.3 miles (mi)) conservation district land use landowner. Through cooperative and exclosure fence, and removal of categories, and in the event of a creative land restoration activities ungulates within the area in order to potential rezoning, activities such as which have occurred and are likely to allow the already semi-intact native grazing would likely continue. continue to occur on the ranch, a vegetation to regenerate. Preservation of Therefore, we anticipate little regulatory significant amount of land (hundreds of this area conserves critically endangered benefits from including Haleakala acres or more) can and will likely be species of plants and animals in one of Ranch lands in critical habitat. restored for the long-term conservation Hawaii’s most restricted ecosystem Another possible benefit of including of the moth, its host plant species, and types, subalpine dry shrubland. The these lands is that the designation of other native Hawaiian ecosystem agreement is between Haleakala Ranch, critical habitat can serve to educate components. No such future the Service, and NRCS. The Service and landowners and the public regarding the conservation partnerships with this NRCS provided funding for fencing potential conservation value of an area. landowner are likely to occur if the materials ($91,418 from us), and are This may focus and contribute to proposed portions of the ranch are providing technical assistance on the conservation efforts by other parties by designated as outlined by the landowner conservation of certain native plants clearly delineating areas of high within several letters. and restoration of the subalpine dry conservation value for certain species. shrubland, whereas Haleakala Ranch is This outcome would be important for (2) Benefits of Exclusion building the fence and removing the the Blackburn’s sphinx moth. Any Proactive voluntary conservation ungulates (in-kind cost-share valued at information about the species and its efforts on private lands are necessary to $28,875). This work is to be completed habitat that reaches a wide audience, prevent the extinction and promote the by August 30, 2003. Haleakala Ranch including other parties engaged in conservation of this species on Maui has also been working with DOFAW for conservation activities, would be and other Hawaiian islands (Wilcove the past 2 years on an ungulate free considered valuable. and Chen 1998; Wilcove et al. 1998; reserve for native habitat regeneration in However, we believe we have Shogren et al. 1999). This is especially the Waiopae area. Haleakala Ranch is achieved the same educational benefits important in areas where species or fencing the area for better grazing through ongoing conservation actions their essential habitat components, i.e., management from the forest to the and the critical habitat designation host plants, have been extirpated and shoreline. These actions will include process. The portion of proposed Units their recovery requires access and riparian protection to improve habitat 1 and 2 that lie within Haleakala Ranch permission for reintroduction or for native plants and watershed has been identified as essential to the restoration efforts. For example, the management. The area contains high conservation of the Blackburn’s sphinx Blackburn’s sphinx moth’s host plant quality habitat for both the moth’s larval moth. In addition, the existing species, associated with proposed Units and adult stage host plants, and when conservation activities being conducted 1 and 2 are either extirpated or in completed, it would involve the within proposed Units 1 and 2, as well decline on Haleakala Ranch lands, and conservation, restoration, and as within other areas of Haleakala natural repopulation is likely not management of approximately 445 ha Ranch, by the Service and other Federal possible without human assistance and (1,100 ac) of moth habitat. agencies (e.g., NRCS), the State, and landowner cooperation. Through voluntary agreements with private organizations (e.g., The Nature Haleakala Ranch is involved in our Partners for Fish and Wildlife and Conservancy (TNC)) demonstrates that several important voluntary the NRCS Wildlife Habitat Incentives the landowner and the public is already conservation agreements, some of which Programs (WHIP), and in cooperation aware of the importance of these areas benefit the moth. For example, in the with the Native Hawaiian Plant Society, for the conservation of the moth. mid-1980s, Haleakala Ranch Company USGS-BRD and DOFAW, Haleakala In summary, we believe that a critical sold to TNC a perpetual conservation Ranch is assisting with the fencing and habitat designation for Blackburn’s easement that included over 19,000 ha exclusion of feral axis deer in the Puu

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34750 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34751

there is a low likelihood that this conserve the Blackburn’s sphinx moth benefits that may result in the direct critical habitat unit will be negatively on private lands. Landowner restoration and active management of affected to any significant degree by cooperation and support will be 445 ha (1,100 ac) of habitat for the moth Federal activities requiring section 7 required to prevent its extirpation in and its native host plants within consultation. The designation of critical this area of Maui and promote the proposed Units 1 and 2. Specifically, habitat can serve to educate the general recovery of the moth’s host plants in the benefits would include the public, as well as conservation this area due to the need to implement construction of exclosure fencing organizations regarding the potential proactive conservation actions such as around a large portion of high quality conservation value of an area. However, ungulate management, weed control, moth habitat, active management of this goal has already been effectively fire suppression, and plant propagation feral ungulates and nonnative grasses accomplished through the identification and reintroduction. This need for and weeds, and development of fire of this area in the management landowner cooperation is especially control methods. These benefits will agreements described above. Lastly, important because the Haleakala Ranch reduce the likelihood of the moth’s even if any given ranch parcel were re- portion of proposed Units 1 and 2 is extirpation in this area of Maui, reduce zoned as conservation district as a result part of the habitat for what is considered the likelihood of its extinction, and of the designation, the FEA concluded a core or metapopulation of the moth. increase its likelihood of conservation that grazing activities would likely Future conservation efforts, such as overall. Extinction of the Blackburn’s continue. Given the current Partners for maintaining and conserving Blackburn’s sphinx moth as a consequence of this Fish and Wildlife agreements between sphinx moth host plant habitat in this exclusion is unlikely because there are ourselves and the landowner, we area, will require the cooperation of no known threats in this portion of believe the overall regulatory and Haleakala Ranch. proposed Units 1 and 2 due to any educational benefits of including the In conclusion, we find that the current or reasonably anticipated Haleakala Ranch lands portion of designation of critical habitat in the Federal actions that might be regulated proposed Units 1 and 2 as critical Haleakala Ranch portion of proposed under section 7 of the Act. habitat are relatively small. Units 1 and 2 would most likely have Implementation of the partnership (2) Benefits of exclusion: Excluding a net negative conservation effect on the agreements between the landowner and Haleakala Ranch property from the recovery and conservation of the Service, and the exclusion of the designation will result in the Blackburn’s sphinx moth. As described portion of proposed Units 1 and 2, have elimination of uncertainty about above, the overall benefits to this moth the highest likelihood of preventing decreased land values and potential of a critical habitat designation for this extinction of this species and enhancing third party litigation. Potential costs to portion of Units 1 and 2 are relatively its conservation. the landowner resulting from the need small. We conclude there is a greater In addition, critical habitat is being to investigate the effect of designation or likelihood of beneficial conservation designated in other areas of Maui and to contest potential conservation activities occurring within this area of on the islands of Hawaii, Kahoolawe, rezoning, for example, will be Maui without designated critical habitat and Molokai for Blackburn’s sphinx eliminated. Lastly, and perhaps, most than there would be with designated moth. These other designations identify important for the conservation of the critical habitat in this location. We conservation areas for the maintenance moth, excluding the properties from reached this conclusion because the and expansion of existing populations. designation will ensure the landowner’s landowner is more likely to continue In summary, the above analysis continued voluntary participation in and increase their ongoing voluntary indicates there is a much greater proactive conservation agreements and conservation efforts for the moth and likelihood of the landowner undertaking partnerships as the landowner has other listed species if their property is conservation actions on Maui to prevent stated in several letters to the Service. not designated as critical habitat. In fact, extinction, such as the restoration and (3) In the past, Haleakala Ranch has the landowner has stated in several management of moth host plant habitat, cooperated with us, the State, and other letters to the Service that all voluntary without the Haleakala Ranch portion of organizations to implement voluntary conservation activities will cease if proposed Units 1 and 2 being conservation activities on their lands ranch property is designated. Therefore, designated as critical habitat. Therefore, that have resulted in tangible it is our conclusion that the net benefits the exclusion of this portion of conservation benefits. Currently only a of excluding this portion of proposed proposed Units 1 and 2 will not cause small percentage of the Haleakala Ranch Units 1 and 2 from critical habitat for the species’ extinction and should, in portion of proposed Units 1 and 2 are the Blackburn’s sphinx moth outweigh fact, improve the chances of being restored or managed for the moth. the benefits of including it. conservation for Blackburn’s sphinx However, a substantial amount moth. (approximately 30 percent) of the (4) Exclusion of This Unit Will Not ranch’s portion of proposed Units 1 and Cause Extinction of the Species Other Private Lands 2 is within the planning stage to be In considering whether or not Approximately 567 acres of State and restored and managed by the landowner exclusion of this portion of proposed private land within two proposed on a voluntary basis to achieve Units 1 and 2 might result in the critical habitat units (Units 5A and 5B) important conservation goals, and to extinction of Blackburn’s sphinx moth, are excluded because the economic directly benefit numerous native we considered the impacts to the impacts of their inclusion outweigh the Hawaiian plant and animal species species. It is our conclusion that the benefits provided by a designation of including the moth. For example, the current partnership agreements critical habitat. The economic analysis landowner is currently planning with developed and planned by Haleakala indicates that activities already planned the Service and the State to restore and Ranch and the Service will provide for these two units, including the State actively manage approximately 445 ha more net conservation benefits than VOLA master planned community with (1,100 ac) of high quality habitat for the would be provided by designating the over 1,000 units of affordable housing, moth and its host plants. portion of proposed Units 1 and 2 as and the Kaloko Properties projects, Simple regulation of potential critical habitat. These agreements will could incur indirect costs ranging ‘‘harmful activities’’ is not sufficient to provide tangible proactive conservation between $49.9 and $61.9 million. While

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34752 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

there is no certainty that any or all of planning for a preserve for the listed costs, and the affordable housing units these indirect costs would be incurred, plants within the VOLA development that would have been constructed. these figures are illustrative of the order which will provide ongoing educational Although the final addendum to the of magnitude of the indirect impacts benefits regarding the habitat of listed economic analysis assigns a cost to the that could occur from the designation. species. loss of the affordable units of $2.7 million, there could well be (1) Benefits of Inclusion (2) Benefits of Exclusion considerable non-monetary social costs These areas proposed for There are two development projects as well, particularly inasmuch as the development or other uses are proposed currently planned within the pre- available information indicates that Units 5A and 5B. Proposed Unit 5A exclusion boundaries of proposed Units there are no other affordable housing absent this exclusion would consist of 5A and 5B which could suffer projects planned within the next 10 226 acres of State and private land. significant economic impacts due to years. Proposed Unit 5B absent this exclusion indirect effects of the critical habitat The second project within the would consist of 232 acres of State land. designation. excluded areas is known as the Kaloko Both units are unoccupied by the moth. The Housing and Community Properties/Kaloko Town Center. This If these areas were designated as Development Corporation of Hawaii has project has been underway since 1987, critical habitat, any Federal agency since 1990 had a master-planned and covers 1,150 acres, of which 240, or which proposed to approve, fund or community development project known 21%, is within the preexclusion undertake any action which might as ‘‘Villages at Laiopua’’ (VOLA), much boundary of the proposed units. The adversely modify the critical habitat of which is within the pre-exclusion developers have already expended over would be required to consult with us. boundary of proposed Unit 5B. This $20 million for infrastructure This is commonly referred to as a includes a planned 570 ‘‘affordable improvements, engineering and related ‘‘Federal nexus’’ for requiring the housing’’ homes within the area costs, which approximately $4.2 (by consultation. Since the areas in question proposed for designation. The State of percentage allocation) is associated with are not occupied by the plants, this Hawaii has already invested $30 million the portion of the project within the consultation would not be required in infrastructure costs, including roads, proposed critical habitat. This project absent the critical habitat designation. utilities, a High School, planning and will need both redistricting from the The draft economic analysis and final expanding the local waste-water State and rezoning from the county for addendum indicate no projects within treatment plant, and some of the project portions of the land. The final the areas proposed for exclusion which has been constructed. addendum to the economic analysis have a Federal nexus, and thus there is There are real but undeterminable finds there is a reasonably foreseeable no expectation that there would be any possibilities that designation of these chance that the designation of critical section 7 consultations if these areas areas as critical habitat would lead to habitat would affect this development. were designated as critical habitat for loss or significant restriction of the In the worst-case scenario, the State or the moth. project through actions not under the county might decide not to grant the Another possible benefit of a critical control of the Federal government but discretionary approvals needed for the habitat designation is education of resulting from the critical habitat project—redistricting and rezoning—or landowners and the public regarding the designation. These include redistricting might be prevented from doing so by potential conservation value of these of land, rezoning and other regulatory litigation. This could lead to loss of the areas. This may focus and contribute to approvals, and litigation related to both. $4.2 million in sunk costs for the conservation efforts by other parties by Hawaii has statewide land portion of the property within the clearly delineating areas of high classifications of Urban, Rural, proposed critical habitat, or of the entire conservation values for certain species. Agricultural and Conservation, with $20 million investment. In addition, However, we believe that this restrictions on what type of activities there would be an estimated loss of educational benefit has largely been can be conducted within the different future profits from the land proposed for achieved. These units have already been classifications. The State Department of inclusion within the critical habitat of identified through the draft proposal Land and Natural Resources commented between $40 to $80 million. Using a and final designation. In addition, the on this proposal that they would be present value discount, the loss would State has included a preserve for listed required to initiate rezoning of lands range between $13 and $25 million. plants within its VOLA development designated as critical habitat into the project, which will contribute to the ‘‘Conservation’’ classification, which (3) The Benefits of Exclusion Outweigh long-term educational benefit of prohibits development. the Benefits of Inclusion conserving the habitat of listed species. While there is a low probability that The VOLA project has already been In summary, we believe that a critical the State Land Use Commission would troubled by litigation and defaulting habitat designation for the moth on finally vote to redistrict the lands developers; additional regulatory or these properties would provide relative proposed for the VOLA project, that legal uncertainties arising from this low additional Federal regulatory possibility exists. In addition, there designation could well cause further benefits. There is no Federal activity could well be litigation designed to delays or kill the project altogether. If which might trigger the section 7 either force the Commission to act or to this were to occur, the Housing and consultation process for these species have a court make the decision. Community Development Corporation known or anticipated for the lands to be The VOLA project has already been would lose the $30 million in sunk excluded. The additional educational troubled by litigation and defaulting costs, and the affordable housing units benefits which might arise from critical developers; additional regulatory or that would have been constructed. habitat designation are largely legal uncertainties arising from this Although the final addendum to the accomplished through the notice and designation could well cause further economic analysis assigns a cost to the comments which accompanied the delays or kill the project altogether. If loss of the affordable units of $2.7 development of this regulation, and the this were to occur, the Housing and million, there could well be proposed critical habitat is known to the Community Development Corporation considerable non-monetary social costs landowners. In addition, the State is would lose the $30 million in sunk as well, particularly inasmuch as the

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34753

available information indicates that Harbor agreement with us; and (4) to Blackburn’s sphinx moth and the there are no other affordable housing enter into a memorandum of special management needs of this projects planned within the next 10 understanding or cooperative agreement species, and are based on the best years. to address habitat protection, scientific and commercial information We accordingly do not find that the monitoring and management actions for available. We publish this final rule benefits from the designation of critical the remainder of their property relating acknowledging that we have incomplete habitat for lands within the VOLA to Blackburn’s sphinx moth and two information regarding many of the project, as discussed above, exceed the species of endangered plants. primary biological and physical benefits of avoiding the possible Due to the court-ordered date by requirements for this species. However, economic and social costs which could which this designation must be both the Act and the relevant court well arise from this designation. completed, we were unable to conclude orders require us to proceed with For the Kaloko Properties/Kaloko such an agreement with the developers designation at this time based on the Town Center, there is also the real or to enter into a Safe Harbor agreement best information available. As new possibility that the designation of with the State prior to issuing this information accrues, we may consider critical habitat could lead to loss of notice and regulation. However, if we reevaluating the boundaries of areas that necessary regulatory approvals. This in had been, these are the types of warrant critical habitat designation. turn could lead to loss of the $4.2 agreements for which we have found in Descriptions of Critical Habitat Units million in sunk costs for the portion of other cases that the benefits of the the property within the proposed agreement exceed the benefits of The approximate areas of the critical habitat, or of the entire $20 designation and thus warrant exclusion designated critical habitat by million investment. In addition, there (See previous discussions of exclusions landownership or jurisdiction are would be an estimated loss of future under section 4(b)(2)). shown in Table 2. profits from the land proposed for It has been our policy not to make Critical habitat includes habitat for inclusion within the critical habitat of exclusions under section 4(b)(2) based the Blackburn’s sphinx moth on the between $40 to $80 million. Using a on offers of conservation agreements, islands of Hawaii, Kahoolawe, Maui, present value discount, this loss would and we are not doing so in either case and Molokai. Lands designated as range between $13 and $25 million. here. However, we find it highly critical habitat have been divided into 9 (There could also be the loss of all unlikely that either party would pursue units. A brief description of each unit is project revenues in the event the them absent the exclusions, and note presented below. inability to utilize the lands within the the ability to pursue the agreements as Unit 1: Puu O Kali (Maui) critical habitat designation caused the a secondary benefit of the exclusions. A failure of the entire project.) decision by the developers to follow Unit 1 consists of approximately The possibility of significant through on their offer and by the State 1,604 ha (3,965 ac) on State and private economic impacts to this project, while to pursue a Safe Harbor agreement land, encompassing portions of the not certain, clearly exist. As noted might well be in both their and the leeward slope of Haleakala and adjacent above, we cannot find offsetting benefits species best interest. portions of the upper southeast isthmus. from the designation of critical habitat The unit is bounded on the north and in these two units which exceed the (4) Exclusion Will Not Cause Extinction the south by pasture lands, on the east benefits of avoiding these possible of the Species by the lower slopes of Haleakala below economic costs. In considering whether or not the area of Kula, and on the west by the There are two other factors of which exclusion of this portion of the coastal town of Kihei. Natural features we take note but upon which our proposed critical habitat might result in within the unit include widely spread, decision does not rest. First, in June the extinction of Blackburn’s sphinx remnant dry forest communities, rugged 2002, the State enacted legislation moth, we considered the impacts on the aa lava flows, and numerous allowing State entities to enter into Safe species. Given that the units in question cindercones, including the highly Harbor agreements and Habitat are unoccupied, we find, based on all of visible Puu O Kali. Vegetation consists Conservation Plans for three designated the information available to us, that the primarily of mixed-species mesic and areas, including the VOLA project. projects proposed for the areas to be dry forest communities composed of There were previously specimens of the excluded will not adversely impact native and introduced plants (HHP moth’s larval host plant, which existing populations of the moth. 1993). presumably could be reintroduced. The exclusions will provide an Along with Units 2, 3, and 4, this unit There are also populations of the opportunity to pursue beneficial contains what is probably the largest various plants on which adult moths conservation agreements with the extant Blackburn’s sphinx moth feed. This area is thus a candidate for a landowners, as noted above, that most population or metapopulation. This unit Safe Harbor agreement. Absent the likely would not exist without the is essential to the species’ conservation exclusion, it is highly unlikely the State exclusions. because it is occupied and contains the would pursue these conservation Critical habitat for the moth is also native larval host plant Nothocestrum options. designated on Molokai, Maui, and latifolium, and other nectar-supplying Secondly, the developers of this Kahoolawe, and in other locations on plants for adult moths. In addition to project contacted us after the close of the island of Hawaii. providing essential habitat for the Maui the comment period offering to We accordingly find no basis for any metapopulation, areas within this unit undertake a number of actions designed conclusion that these exclusions would provide temporary (ephemeral) habitat to provide conservation benefits to the cause extinction of the species. for migrating Blackburn’s sphinx moths. species. Specifically, the offer included: (1) To set aside 100 to 130 acres within Critical Habitat Designation Unit 2: Cape Kinau (Maui) the proposed Unit 13; (2) enter into The critical habitat areas described Unit 2 consists of approximately 603 good faith negotiations with the Federal, below constitute our best assessment of ha (1,490 ac) on State and private land, State or county entities for acquisition the physical and biological features encompassing Cape Kinau and the of the area; (3) agree to enter into a Safe needed for the conservation of entire Ahihi-Kinau NAR. The unit is

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34754 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

bounded on the north by Puu Naio, to Haleakala Volcano, to the south by the Medeiros, pers. comm. 1998; S. the south by the ocean, to the east by La ocean, to the east by Poopoo Gulch, and Montgomery, pers. comm. 2001; Perouse Bay, and on the west by Ahihi on the west by Lualailua Hills. Natural McIntyre and Barrett 1992; Roderick Bay. Natural features within the unit features within the unit include widely and Gillespie 1997; Van Gelder and include widely spread, remnant dry spread, remnant dry forest communities, Conant 1998). forest communities, and numerous rocky coastline, numerous cindercones, Unit 6: Kanaha Park (Maui) rugged aa lava flows. Vegetation and some of the most recent lava flows consists primarily of mixed-species dry on Maui. Vegetation consists primarily Unit 6 consists of approximately 25 forest communities composed of native of mixed-species mesic and dry forest ha (62 ac) of State land, entirely and introduced plants, with smaller communities composed of native and comprised of coastal land on Maui. It is amounts of dry coastal shrubland (HHP introduced plants, with smaller bounded on the south by the Kahului 1993). amounts of dry coastal shrubland (HHP Airport, on the north by the ocean, on Along with Units 1, 3, and 4, this unit 1993). the east by other coastal lands, and contains what is probably the largest Along with Units 1, 2, and 3, this unit immediately to the west by the Kanaha extant Blackburn’s sphinx moth contains what is probably the largest Pond State Sanctuary. Natural features population or metapopulation. This unit extant Blackburn’s sphinx moth within the unit include remnant coastal is essential to the species’ conservation population or metapopulation. This unit dune communities. Vegetation consists because it is occupied and contains the is essential to the species’ conservation primarily of mixed-species, dry coastal native larval host plant Nothocestrum because it is occupied and contains the shrub land communities composed of latifolium, and other nectar-supplying native larval host plant Nothocestrum native and introduced plants, including plants for adult moths. In addition to latifolium, and other nectar-supplying nonnative larval host plants (HHP providing essential habitat for the Maui plants for adult moths. In addition to 2000). metapopulation, areas within this unit providing essential habitat for the Maui We have no recent and verified provide ephemeral habitat for migrating metapopulation, areas within this unit Blackburn’s sphinx moth observations Blackburn’s sphinx moths. provide ephemeral habitat for migrating within this unit. However, the unit is Blackburn’s sphinx moths. considered essential to the species’ Unit 3: Kanaio (Maui) conservation because it is within the Unit 3 consists of approximately Unit 5: Kanaha Pond (Maui) geographical area occupied by the 2,421 ha (5,982 ac) on State and private Unit 5 consists of approximately 56 species at the time of listing and land, encompassing portions of the ha (139 ac) on State land, entirely contains the moth’s adult stage primary leeward slope of Haleakala and adjacent comprised of the Kanaha Pond State constituent elements. Furthermore, portions of the upper southeast isthmus. Sanctuary on Maui. It is bounded on the recent observations of both larvae and The unit is bounded on the north by south by the Kahului Airport, on the adults have been documented within pasture lands, to the south by ocean, to north by the ocean, on the east by the adjacent Kanaha Pond State the east by the Kanaio NAR boundary coastline, and to the west by the town Sanctuary and in the nearby Kanaha- and Puu Hokukano, and on the west by of Kahului. Natural features within the Spreckelsville area. Although this unit the Kanaio Homesteads and Cape unit includes Kanaha Pond and remnant is lower in elevation than areas Hanamanioa. Natural features within coastal dune communities. Vegetation currently containing Nothocestrum the unit include widely spread, remnant consists primarily of mixed-species, dry plants, the persistent occurrence of dry forest communities, rugged aa lava coastal shrub land communities Blackburn’s sphinx moth within the flows, and numerous cindercones composed of native and introduced nearby Kanaha Pond State Sanctuary, including the highly visible Puu Pimoe. plants, including nonnative larval host and other nearby areas, indicates this Vegetation consists primarily of mixed- plants (HHP 2000). site provides habitat for this area’s moth species mesic and dry forest Although devoid of naturally population and plays an important role communities composed of native and occurring Nothocestrum spp., the unit is in the species’ population dynamics. introduced plants, with smaller essential to the species’ conservation Based upon an understanding of this amounts of dry coastal shrubland (HHP because it contains adult Blackburn’s species and other moth species’ flight 1993). sphinx moth primary constituent capabilities and migrational needs, we Along with Units 1, 2, and 4, this unit elements, and recent observations of believe that designation of this area contains what is probably the largest both larvae and adults have been contributes to the available matrix of extant Blackburn’s sphinx moth documented within the sanctuary. undeveloped habitat necessary as population or metapopulation. This unit Although this unit is lower in elevation refugia for adult Blackburn’s sphinx is essential to the species’ conservation than areas currently containing moths migrating to other areas of because it is occupied and contains the Nothocestrum plants, the persistent existing suitable host plant habitat on native larval host plant Nothocestrum occurrence of Blackburn’s sphinx moth Maui in order to forage or lay eggs (A. latifolium, and other nectar-supplying within the Kanaha Pond State Sanctuary Medeiros, pers. comm. 1998; S. plants for adult moths. In addition to and other nearby areas indicates this Montgomery, pers. comm. 2001; providing essential habitat for the Maui site provides habitat for this area’s moth McIntyre and Barrett 1992; Roderick metapopulation, areas within this unit population, and plays an important role and Gillespie 1997; Van Gelder and provide ephemeral habitat for migrating in the species’ population dynamics. Conant 1998). Blackburn’s sphinx moths. Based upon an understanding of this species and other moth species’ flight Unit 7: Upper Kahoolawe (Kahoolawe) Unit 4: Kahikinui (Maui) capabilities and migrational needs, we Unit 7 consists of approximately Unit 4 consists of approximately believe that designation of this area 1,721 ha (4,252 ac) on State land, 4,799 ha (11,859 ac) on State and private contributes to the available matrix of encompassing portions of the upper land, encompassing portions of the undeveloped habitat necessary as elevational contour of Kahoolawe, leeward slope of Haleakala. The unit is refugia for Blackburn’s sphinx moths approximately above 305 m (1,000 ft) in bounded on the northeast by the 1,525 migrating to other areas of existing elevation. Kahoolawe is located m (5,000 ft) elevation contour of suitable host plant habitat on Maui (A. approximately 11 km (6.7 mi) south of

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34755

Maui and is approximately 11,655 ha comm.1998; S. Montgomery, pers. Designating critical habitat within this (28,800 ac) in total land area. Natural comm. 2001; McIntyre and Barrett 1992; area on Molokai is complementary to features within the unit include the Roderick and Gillespie 1997; Van existing and planned management main caldera, Lua Makika, and Puu Gelder and Conant 1998). activities of the landowners. The critical Moaulaiki. Vegetation within the unit habitat unit lies within a larger existing Unit 9: Kamoko Flats—Puukolekole consists primarily of mixed-species, (Molokai) conservation area to be managed for mesic and dry grass and shrubland watershed conservation and the communities composed of primarily Unit 9 consists of approximately conservation of endangered and rare introduced plants and some native plant 1,256 ha (3,105 ac) on State and private species. The landowners, State and species (HHP 2000). land, encompassing portions of the Federal resource agencies, and local This unit contains a large Blackburn’s higher, yet drier portions of east citizens groups are involved with these sphinx moth population, which may or Molokai. It is bounded on the north by planned natural resource management may not be part of the larger Maui wet forests, to the south by drier coastal activities on Molokai. populations. Adult host plants land, to the east by rugged, dry gullies identified as primary constituent and valleys, and to the west by dry to Effects of Critical Habitat Designation elements are numerous within this area. mesic lowland forest. Natural features Section 7(a) of the Act requires Because the unit is occupied, harbors within the unit include numerous Federal agencies, including the Service, adult native host plants, and is in close forested ridges and gullies. Vegetation to ensure that actions they fund, proximity to the large Maui moth consists primarily of mixed-species authorize, or carry out do not destroy or population, this unit is essential for mesic and dry forest communities adversely modify critical habitat. Blackburn’s sphinx moth conservation composed of native and introduced Destruction or adverse modification of and would improve dispersal and plants (HHP 2000). critical habitat occurs when a Federal This unit is part of the historical range migration corridors and thus expand action directly or indirectly alters of the moth. Unit 9 is not known to population recruitment potential (P. critical habitat to the extent that it currently contain a Blackburn’s sphinx Higashino, pers. comm. 2001). appreciably diminishes the value of moth population, but it does contain critical habitat for the conservation of Unit 8: Puuwaawaa—Hualalai (Hawaii) native Nothocestrum host plants, Unit 8 consists of approximately including N. longifolium and N. the species. Individuals, organizations, 9,954 ha (24,597 ac) on State and private latifolium (Wood 2001a), as well as States, local governments, and other land, encompassing portions of the adult native host plants. Because Unit 9 non-Federal entities are affected by the flows and northwest slopes of Hualalai contains both larval and adult native designation of critical habitat when volcano on the island of Hawaii. It is host plants and is in close proximity to their actions occur on Federal lands, bounded on the south by the Kailua- the large Maui population, it is essential require a Federal permit, license, or Kona region and large expanses of for Blackburn’s sphinx moth other authorization, or involve Federal barren lava flows, on the north by conservation. It would allow the species funding. Parker Ranch and large expanses of to expand into a former part of its Section 7(a) of the Act requires nonnative grass lands, to the east by the historical range in very close proximity Federal agencies, including the Service, upper slopes of Hualalai volcano, and to to its current range on the island of to evaluate their actions with respect to the west by lava flows and coastal land. Maui. Furthermore, it may facilitate any species that is proposed or listed as Natural features within the unit include dispersal and provide a flight corridor endangered or threatened, and with Puuwaawaa cindercone and significant for moths eventually migrating to the respect to its critical habitat, if any is stands of native dry forest including the island of Oahu, which is also part of its designated or proposed. Regulations adult Blackburn’s sphinx moth’s nectar historical range. implementing this interagency food plants and large numbers of Due to its proximity to the island of cooperation provision of the Act are Nothocestrum breviflorum host plants Maui where the current and presumed codified at 50 CFR part 402. Section (Perry 2001). Vegetation consists highest historical concentration of 7(a)(4) of the Act requires Federal primarily of mixed-species mesic and Blackburn’s sphinx moth occurred, and agencies to confer with us on any action dry forest communities composed of because this unit contains currently and that is likely to jeopardize the continued native and introduced plants, with historically known dry and mesic existence of a species proposed for smaller amounts of dry coastal habitats to support the larval and adult listing, or result in destruction or shrubland (HHP 2000). native host plants, scientists believe that adverse modification of proposed This unit is essential to the species’ the Blackburn’s sphinx moth will re- critical habitat. Conference reports conservation because frequent and establish itself on this unit over time (F. provide conservation recommendations persistent observations of both Howarth, pers. comm. 2001). to assist the action agency in Blackburn’s sphinx moth larvae and Furthermore, this unit lacks some of the eliminating conflicts that may be caused adults throughout this unit indicate that serious potential threats to the moth, by the proposed action. The Unit 8 contains the largest population of three ant, and one wasp species (see conservation measures in a conference Blackburn’s sphinx moth on the island Table 1). Conserving and restoring report are advisory. We may issue a of Hawaii. In addition to providing Blackburn’s sphinx moth populations in formal conference report, if requested by habitat for this area’s population, Unit 8 multiple locations decreases the the Federal action agency. Formal provides refugia for moths migrating to likelihood that the effect of any single conference reports include an opinion other areas of existing suitable host alien parasite or predator or the that is prepared according to 50 CFR plant habitat. As previously discussed, combined pressure of such species and 402.14, as if the species was listed or given the large size and strong flight other threats could result in the critical habitat designated. We may capabilities of the Blackburn’s sphinx diminished vigor or extinction of the adopt the formal conference report as moth, support for moth population moth. Including this unit also reduces the biological opinion when the species linkages requires habitat in large the possibility of the species’ extinction is listed or critical habitat designated, if contiguous blocks or within a matrix of from catastrophic events impacting the no substantial new information or undeveloped habitat (A. Medeiros, pers. existing populations on other islands. changes in the action alter the content

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34756 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

and conclusion(s) of the opinion (50 (FEMA), Environmental Protection Required Determinations CFR 402.10(d)). Agency (EPA), or Department of Regulatory Planning and Review If a species is listed or critical habitat Energy); regulation of airport is designated, section 7(a)(2) of the Act improvement activities by the FAA; and In accordance with Executive Order requires Federal agencies to ensure that construction of communication sites 12866, the Office of Management and actions they authorize, fund, or carry licensed by the Federal Budget (OMB) has determined that this out are not likely to jeopardize the Communications Commission (FCC)) critical habitat designation is not a continued existence of such a species or will also continue to be subject to the significant regulatory action. This rule destroy or adversely modify its critical section 7 consultation process. Federal will not have an annual economic effect habitat. If a Federal action may affect a actions not affecting listed species or of $100 million or more or adversely listed species or its critical habitat, the critical habitat, and actions on non- affect any economic sector, responsible Federal action agency must Federal lands that are not federally productivity, competition, jobs, the enter into consultation with us. Through funded, authorized, or permitted do not environment, or other units of this consultation, the action agency require Section 7 consultation. government. This designation will not would ensure that the actions do not create inconsistencies with other Section 4(b)(8) of the Act requires us destroy or adversely modify critical agencies’ actions or otherwise interfere to briefly describe and evaluate in any habitat. with an action taken or planned by Regulations at 50 CFR 402.16 require proposed or final regulation that another agency. It will not materially Federal agencies to reinitiate designates critical habitat those affect entitlements, grants, user fees, consultation on previously reviewed activities involving a Federal action that loan programs, or the rights and actions under certain circumstances, may adversely modify such habitat or obligations of their recipients. Finally, including instances where critical that may be affected by such this designation will not raise novel habitat is subsequently designated and designation. We note that such activities legal or policy issues. Accordingly, the Federal agency has retained may also jeopardize the continued OMB has not formally reviewed this discretionary involvement, or control existence of the species. final critical habitat designation. has been retained or is authorized by Activities that, when carried out, Regulatory Flexibility Act (5 U.S.C. 601 law. Consequently, some Federal funded, or authorized by a Federal et seq.) agencies may request reinitiation of agency, may directly or indirectly consultation or conferencing with us on destroy or adversely modify critical Under the Regulatory Flexibility Act actions for which formal consultation habitat include, but are not limited to: (RFA) (as amended by the Small Business Regulatory Enforcement has been completed. (1) Overgrazing; maintenance of feral If we issue a biological opinion Fairness Act (SBREFA) of 1996), ungulates; clearing or cutting of native concluding that a project is likely to whenever a Federal agency is required live trees and shrubs, whether by result in the destruction or adverse to publish a notice of rulemaking for burning or mechanical, chemical, or modification of critical habitat, we also any proposed or final rule, it must other means (e.g., woodcutting, provide ‘‘reasonable and prudent prepare and make available for public bulldozing, construction, road building, alternatives’’ to the project, if any are comment a regulatory flexibility mining, herbicide application); identifiable. Reasonable and prudent analysis that describes the effect of the introducing or enabling the spread of alternatives are defined at 50 CFR rule on small entitiesm, i.e., small 402.02 as alternative actions identified nonnative species; and taking actions businesses, small organizations, and during consultation that can be that pose a risk of fire; small governmental jurisdictions. implemented in a manner consistent (2) Recreational activities that However, no regulatory flexibility with the intended purpose of the action, appreciably degrade vegetation; analysis is required if the head of the that are consistent with the scope of the (3) Introducing or encouraging the agency certifies that the rule will not Federal agency’s legal authority and spread of nonnative plant species into have a significant economic impact on jurisdiction, which are economically critical habitat units; and a substantial number of small entities. and technologically feasible, and which SBREFA amended the RFA to require (4) Importation of nonnative species the Director believes would avoid Federal agencies to provide a statement for research, agriculture, and destruction or adverse modification of of the factual basis for certifying that a aquaculture, and the release of critical habitat. Reasonable and prudent rule will not have a significant biological control agents that would alternatives can vary from slight project economic impact on a substantial have unanticipated effects on the listed modifications to extensive redesign or number of small entities. relocation of the project. species and the primary constituent Based on the information in our Federal activities that may affect elements of its habitat. economic analysis (DEA and Blackburn’s sphinx moth or its critical If you have questions regarding Addendum), we are certifying that the habitat will require consultation under whether specific activities will likely critical habitat designation for section 7 of the Act. Activities on constitute adverse modification of Blackburn’s sphinx moth will not have private or State lands requiring a permit critical habitat, contact the Field a significant effect on a substantial from a Federal agency, such as a permit Supervisor, Pacific Islands Ecological number of small entities because a from the U.S. Army Corps of Engineers Services Field Office (see ADDRESSES substantial number of small entities are (Corps) under section 404 of the Clean section). Requests for copies of the not affected by the designation. Water Act (33 U.S.C. 1344 et seq.), the regulations on listed plants and animals, Small entities include small Department of Housing and Urban and inquiries about prohibitions and organizations, such as independent Development, or a section 10(a)(1)(B) permits may be addressed to the U.S. nonprofit organizations, and small permit from us; or some other Federal Fish and Wildlife Service, Branch of governmental jurisdictions, including action (funding or authorization from Endangered Species/Permits, 911 NE. school boards and city and town the Federal Highway Administration, 11th Ave., Portland, OR 97232–4181 governments that serve fewer than Federal Aviation Administration (FAA), (telephone 503/231–2063; facsimile 50,000 residents, as well as small Federal Emergency Management Agency 503/231–6243). businesses. The RFA/SBREFA requires

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34757

that agencies use the Small Business farm loan programs). The DEA on competition, employment, Administration’s definition of ‘‘small concluded that these entities did not investment, productivity, innovation, or business’’ that has been codified at 13 represent a substantial number of small the ability of U.S.-based enterprises to CFR 121.201. Small businesses include entities in their respective fields or compete with foreign-based enterprises. manufacturing and mining concerns industries. Because estimated section 7 Refer to the final addendum to the with fewer than 500 employees, costs associated with possible lessee economic analysis for a discussion of wholesale trade entities with fewer than participation in the Housing and Urban the effects of this determination. 100 employees, retail and service Development loan insurance and Executive Order 13211 businesses with less than $5 million in guarantee program are no longer annual sales, general and heavy expected, the Addendum estimates that On May 18, 2001, the President issued construction businesses with less than the one to two lending institutions on Executive Order 13211, on regulations $27.5 million in annual business, Maui would no longer be impacted by that significantly affect energy supply, special trade contractors doing less than critical habitat designation, and no new distribution, and use. Executive Order $11.5 million in annual business, and small entities were identified as being 13211 requires agencies to prepare agricultural businesses with annual potentially impacted. Thus, the Statements of Energy Effects when sales less than $750,000. The RFA/ Addendum concluded that the critical undertaking certain actions. Although SBREFA defines ‘‘small governmental habitat designation would not have a this rule is a significant regulatory jurisdiction’’ as the government of a significant economic impact on a action under Executive Order 12866, it city, county, town, school district, or substantial number of small entities in is not expected to significantly affect special district with a population of less Hawaii. energy production supply and than 50,000. By this definition, neither These conclusions are supported by distribution facilities because no energy Maui nor Hawaii County is a small the history of consultations on the production, supply, and distribution governmental jurisdiction because both Blackburn’s sphinx moth. Since the facilities are included within designated counties had populations exceeding species was listed in February 2000, critical habitat. Further, for the reasons 50,000 in 2000. Although certain State there have been no formal section 7 described in the economic analysis, we agencies, such as the DLNR, may be consultations and only five informal do not believe the designation of critical affected by this critical habitat section 7 consultations concerning the habitat for Blackburn’s sphinx moth on designation, State governments are not species, specifically on the island of the islands of Hawaii, Kahoolawe, Maui, considered small governments, for the Kahoolawe and entirely involved the and Molokai will affect future energy purposes of the RFA. SBREFA further Department of the Navy. The Navy is production. Therefore, this action is not defines ‘‘small organization’’ as any not not a small entity. a significant energy action and no for profit enterprise that is Even where the requirements of Statement of Energy Effects is required. independently owned and operated and section 7 might apply due to critical is not dominant in its field. habitat, based on our experience with Unfunded Mandates Reform Act (2 The RFA/SBREFA does not explicitly section 7 consultations for all listed U.S.C. 1501 et seq.) define either ‘‘substantial number’’ or species, virtually all projects—including In accordance with the Unfunded ‘‘significant economic impact.’’ those that, in their initial proposed Mandates Reform Act (2 U.S.C. 1501 et Consequently, to assess whether a form, would result in jeopardy or seq.): ‘‘substantial number’’ of small entities is adverse modification determinations (a) For reasons described in the affected by this designation. This under section 7—can be implemented economic analysis, this rule will not analysis considers the relative number successfully with, at most, the adoption produce a Federal mandate on State or of small entities likely to be impacted in of reasonable and prudent alternatives. local governments or the private sector an area. In addition, Federal courts and These measures by definition must be of $100 million or greater in any year, Congress have indicated that an RFA/ economically feasible and within the that is, it is not a ‘‘significantly SBREFA is properly limited to impacts scope of authority of the Federal agency regulatory action’’ under the Unfunded to entities directly subject to the involved in the consultation. Mandates Reform Act. The designation requirements of the regulation (Service For these reasons, we are certifying of critical habitat imposes no direct 2002). Therefore, entities not directly that the designation of critical habitat obligations on State or local regulated by the listing or critical for the Blackburn’s sphinx moth will governments. habitat designation are not considered not have a significant economic impact (b) This rule will not ‘‘significantly or in this section of the analysis. on a substantial number of small uniquely’’ affect small governments so a The primary projects and activities entities. Therefore, a regulatory Small Government Agency Plan is not that might be affected by the designation flexibility analysis is not required. required. Small governments will not be that could affect small entities include affected unless they propose an action Small Business Regulatory Enforcement ranching operations and conservation requiring Federal funds, permits, or Fairness Act (5 U.S.C. 804(2)) projects. Our DEA found that the only other authorizations. Any such activities small or potentially small entities that Under the Small Business Regulatory will require that the Federal agency could be impacted by the listing of Enforcement Fairness Act (5 U.S.C. 801 ensure that the action will not adversely Blackburn’s sphinx moth and critical et seq.), this rule is not a major rule. Our modify or destroy designated critical habitat designation were: (1) Ka Ohana detailed assessment of the economic habitat. O Kahikinui on Maui (participation in effects of this designation are described residential loan program; conservation in the DEA and final addendum to the Takings activities; development of water economic analysis. Based on the effects In accordance with Executive Order collection system); (2) one to two identified in these documents, we 12630 (‘‘Government Actions and lending institutions on Maui (loans for believe that this rule will not have an Interference with Constitutionally Department of Hawaiian Home Lands effect on the economy of $100 million Protected Private Property Rights’’), we residential development); and (3) one or more, will not cause a major increase have analyzed the potential takings farmer or rancher on Maui, Molokai, or in costs or prices for consumers, and implications of designating critical the island of Hawaii (participation in will not have significant adverse effects habitat for Blackburn’s sphinx moth on

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 34758 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

the islands of Hawaii, Kahoolawe, Maui, requirements of sections 3(a) and 3(b)(2) government-to-government basis. We and Molokai in a takings implication of the Order. We have designated have determined that there are no Tribal assessment. The takings implications critical habitat in accordance with the lands essential for the conservation of assessment concludes that this final rule provisions of the Endangered Species the Blackburn’s sphinx moth. Therefore, does not pose significant takings Act. The rule uses standard property designation of critical habitat for this implications. descriptions and identifies the primary species does not involve any Tribal constituent elements within the lands. Federalism designated areas to assist the public in References Cited In accordance with Executive Order understanding the habitat needs of 13132, this final rule does not have Blackburn’s sphinx moth. A complete list of all references cited significant federalism effects or impose Paperwork Reduction Act of 1995 (44 in this final rule is available upon substantial direct compliance costs on U.S.C. 3501 et seq.) request from the Pacific Islands Fish State and local governments. This and Wildlife Office (see ADDRESSES designation requires Federal agencies to This rule does not contain any section). ensure that their actions do not information collection requirements for Authors adversely modify critical habitat; it does which OMB approval under the not impose direct obligations on State or Paperwork Reduction Act is required. The primary author of this final rule local governments. A federalism An agency may not conduct or sponsor, is Mike Richardson, Pacific Islands Fish assessment is not required. In keeping and a person is not required to respond and Wildlife Office (see ADDRESSES with Department of Interior policy, we to, a collection of information unless it section). requested information from appropriate displays a valid OMB control number. List of Subjects in 50 CFR Part 17 State agencies in Hawaii. The economic National Environmental Policy Act analysis does address possible impacts Endangered and threatened species, We have determined that we do not Exports, Imports, Reporting and to State programs (e.g. hunting, airport need to prepare an Environmental recordkeeping requirements, operations) that may receive Federal Assessment and/or an Environmental Transportation. funding. However, it does not conclude Impact Statement as defined by the that there will be substantial costs to National Environmental Policy Act of Regulation Promulgation those programs due to the designation of 1969 in connection with regulations ■ critical habitat. adopted pursuant to section 4(a) of the Accordingly, we hereby amend part The designations may have some Endangered Species Act. We published 17, subchapter B of chapter I, title 50 of benefit to these governments, in that the a notice outlining our reason for this the Code of Federal Regulations as set areas essential to the conservation of the determination in the Federal Register forth below: moth are more clearly defined, and the on October 25, 1983 (48 FR 49244). This PART 17—[AMENDED] primary constituent elements of the determination does not constitute a habitat necessary to the survival of this major Federal action significantly ■ 1. The authority citation for part 17 species are specifically identified. While affecting the quality of the human continues to read as follows: this definition and identification do not environment. alter where and what federally Authority: 16 U.S.C. 1361–1407; 16 U.S.C. sponsored activities may occur, they Government-to-Government 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– may assist these local governments in Relationship With Tribes 625, 100 Stat. 3500; unless otherwise noted. long-range planning, rather than waiting In accordance with the President’s ■ 2. Amend § 17.11(h) by revising the for case-by-case section 7 consultation memorandum of April 29, 1994, entry for ‘‘Moth, Blackburn’s Sphinx’’ to occur. ‘‘Government-to-Government Relations under INSECTS in the List of with Native American Tribal Civil Justice Reform Endangered and Threatened Wildlife to Governments’’ (59 FR 22951) Executive read as follows: In accordance with Executive Order Order 13175 and the Department of the 12988, the Department of the Interior’s Interior’s manual at 512 DM 2, we § 17.11 Endangered and threatened Office of the Solicitor has determined readily acknowledge our responsibility wildlife. that this rule does not unduly burden to communicate meaningfully with * * * * * the judicial system and does meet the recognized Federal Tribes on a (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habita trules

******* INSECTS

******* Moth, Blackburn’s Manduca blackburni U.S.A. (HI) ...... NA ...... E 682 17.95(I) NA sphinx.

*******

■ 3. Amend § 17.95(i) by adding critical alphabetical order as this species occurs § 17.95 Critical habitat-fish and wildlife. habitat for the Blackburn’s sphinx moth in § 17.11(h), to read as follows: * * * * * (Manduca blackburni), in the same

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34759

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4725 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.004 34760 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

(ii) Unit 1: Island of Maui, Puu O Kali 768598, 2281510; 768687, 2281391; 786089, 2283760; 782956, 2282353; (1,604 ha; 3,965 ac): 768737, 2281399; 768836, 2281460. 783312, 2282399; 784167, 2282606; (A) Unit 1 consists of the following 38 768738, 2279820. Coast. 784764, 2282682; 785521, 2282878; boundary points: Start at 770230, (B) Note: Unit 2 is depicted below on Map 786198, 2283068; 786227, 2282882; 2293671; 769969, 2293640; 769876, 2—Units 1, 2, 3, and 4—Island of Maui. 786706, 2282953; 786657, 2283206; 2293794; 769523, 2293779; 769444, 787388, 2283424; 787555, 2283500; 2293784; 769146, 2293904; 769358, (iv) Unit 3: Island of Maui, Kanaio (2,420 ha; 5,981 ac): 788907, 2284087; 789388, 2283321; 2294451; 769492, 2294471; 769569, 789534, 2283053; 788185, 2282559; 2294563; 770123, 2294379; 770384, (A) Unit 3 consists of the following 45 786399, 2281761; 785563, 2281400; 2294317; 770707, 2294517; 770169, boundary points: 777366, 2282219; 785715, 2281039; 786057, 2280754; 2294794; 769629, 2295149; 769732, 777421, 2281595; 777453, 2281235; 2295410; 770032, 2295219; 769985, 777531, 2280334; 777588, 2279661; 786112, 2280548; 779950, 2278500; 2295371; 770360, 2295328; 769892, 777719, 2278166; 770402, 2278173; 779720, 2280135; 779703, 2280237; 2295671; 770362, 2295705; 770578, 770445, 2278268; 770936, 2279194; 779617, 2280887; 779412, 2282307; 2295954; 771492, 2296086; 772138, 771208, 2279714; 771289, 2279691; 779402, 2282377; 779372, 2282585; 2296102; 772522, 2296179; 772876, 771211, 2279314; 771211, 2278906; 779368, 2282602; 779376, 2282933; 2295933; 773384, 2295733; 773324, 771368, 2278922; 771525, 2279173; 779427, 2285142; 779549, 2285133; 2296764; 775265, 2296040; 775041, 771854, 2279424; 772011, 2279707; 779550, 2285007; 780604, 2285092; 2295484; 774484, 2295757; 774033, 772231, 2279974; 772357, 2280335; 781898, 2285373; 781956, 2285061; 2294844; 774654, 2294538; 774448, 772451, 2280445; 772514, 2280351; 781923, 2284848; 781966, 2284607; 2294006; 774392, 2292779; 773825, 772561, 2280068; 772687, 2279848; 781902, 2284320; 782032, 2283672; 2291760; 772032, 2292639; 770772, 772938, 2279801; 773221, 2279817; 782491, 2282783; 782731, 2282340; 2293255; 770524, 2293353; return to 773425, 2280021; 773676, 2280335; 783230, 2282514; 783112, 2282850; starting point. 773676, 2280665; 773888, 2280993; 782587, 2283565; 782996, 2283744; 773606, 2281355; 774253, 2281430; (B) Note: Unit 1 is depicted below on Map 783721, 2283912; 784941, 2284106; 774897, 2280433; 775340, 2281119; 2—Units 1, 2, 3, and 4—Island of Maui. 784823, 2284611; 785088, 2284724; 774662, 2281499; 775105, 2281701; 785012, 2285109; 784719, 2285271; (iii) Unit 2: Island of Maui, Cape 775435, 2282376; 775590, 2284264; 784639, 2285526; 784482, 2285613; Kinau (603 ha; 1,490 ac): 776004, 2284678; 776020, 2285055; (A) Unit 2 consists of the following 36 776484, 2284998; 776553, 2285169; 784385, 2285910; 786498, 2286367; boundary points: 769419, 2281688; 776691, 2285141; 776878, 2283402; 787288, 2286710; 787415, 2286765; 769716, 2281856; 769854, 2281648; 777021, 2282206; 777227, 2278017. 787506, 2286804; 787311, 2286772; 769726, 2281351; 769548, 2281173; Coast. 782285, 2285909; 782162, 2286366; 769433, 2280683; 769312, 2280406; (B) Unit excludes an area (1 ha; 2 ac) 781651, 2286291; 781569, 2286457; 769251, 2280342; 769175, 2280353; consisting of the following 6 boundary 782827, 2286695; 786589, 2287817; 769073, 2280442; 768954, 2280466; points: 771887, 2277914; 771944, 787091, 2287913; 787800, 2286248; 768791, 2280406; 768658, 2280329; 2277910; 771986, 2277995; 771948, 787893, 2286297; 787957, 2285636; 768621, 2280282; 768645, 2279874; 2277989; 771909, 2277980; 771870, 788105, 2285388; 788261, 2285257; 768737, 2279820; 767046, 2281800; 2277975. 788481, 2284803; 788363, 2284742; 767136, 2281768; 767208, 2281837; 786517, 2283943; 786510, 2283966; 767139, 2281940; 767151, 2281994; (C) Note: Unit 3 is depicted below on Map 767136, 2282020; 767607, 2282308; 2—Units 1, 2, 3, and 4—Island of Maui. 786068, 2283893; 779965, 2278394. 767710, 2282266; 767837, 2282318; (v) Unit 4: Island of Maui, Kahikinui Coast. 767857, 2282291; 768160, 2282410; (4,799 ha; 11,859 ac): (B) Note: Unit 4 is depicted on Map 2— 769380, 2282944; 769746, 2282588; (A) Unit 4 consists of the following 79 Units 1, 2, 3, and 4—Island of Maui, which 769429, 2282400; 769103, 2282123; boundary points: 786068, 2283893; follows:

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34761

(vi) Unit 5: Island of Maui, Kanaha 2312093; 765213, 2312118; 765183, (vii) Unit 6: Island of Maui, Kanaha Pond (56 ha; 139 ac): 2312109; 765157, 2312091; 765106, Park (25 ha; 62 ac): (A) Unit 5 consists of the following 35 2312075; 765069, 2312044; 765036, (A) Unit 6 consists of the following 7 boundary points: Start at 764695, 2312036; 764954, 2311971; 764872, boundary points: 766783, 2313583; 2311927; 764845, 2311912; 764588, 2312624; 764849, 2312615; 765062, 766781, 2313351; 766330, 2313141; 2311880; 764530, 2311946; 764474, 2312636; 765174, 2312639; 765226, 765776, 2312874; 765717, 2312838; 2311988; 764424, 2312038; 764390, 2312636; 765201, 2312573; 765221, 765689, 2312823; 765557, 2313073. 2312534; 765223, 2312502; 765259, 2312140; 764336, 2312293; 764397, Coast. 2312452; 765291, 2312304; 765287, 2312539; 764542, 2312565; 764615, 2312260; 765291, 2312223; 765281, 2312613; return to starting point. (B) Note: Unit 6 is depicted on Map 3— 2312190; 765356, 2312144; 765352, (B) Note: Unit 5 is depicted below on Map Units 5 and 6—Island of Maui, which 2312121; 765325, 2312090; 765284, 3—Units 5 and 6—Island of Maui. follows:

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.005 34762 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.006 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34763

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.007 34764 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

2193492; 199103, 2193552; 199015, 2192943; 203665, 2192930; 203692, 2191461; 191923, 2191548; 191871, 2193608; 198931, 2193619; 198910, 2192935; 203681, 2193005; 203695, 2191672; 191850, 2191864; 191834, 2193717; 198753, 2193867; 198735, 2193038; 203743, 2193045; 203751, 2192269; return to starting point. 2193951; 198805, 2193972; 198889, 2193024; 203738, 2192991; 203747, (B) This unit excludes three areas: 2193941; 198942, 2193853; 199005, 2192970; 203800, 2192948; 203810, (1) Unit excludes an area (292 ha; 723 2193794; 199050, 2193829; 199001, 2192905; 203819, 2192867; 203833, ac) consisting of the following 53 2193880; 199029, 2193930; 199092, 2192838; 203878, 2192830; 203916, boundary points: Start at 194866, 2193962; 199110, 2194004; 199025, 2192790; 203944, 2192724; 203935, 2189663; 194567, 2189462; 194355, 2194133; 199012, 2194241; 198896, 2192680; 203951, 2192655; 203968, 2189326; 194325, 2189306; 194187, 2194308; 198861, 2194399; 198799, 2192628; 203952, 2192587; 203978, 2189261; 193786, 2189183; 193790, 2194485; 198862, 2194479; 198938, 2192535; 203975, 2192477; 203992, 2189211; 193677, 2189413; 193430, 2194378; 199015, 2194329; 198987, 2192466; 204025, 2192444; 204044, 2189605; 193325, 2189528; 192941, 2194392; 198934, 2194434; 198931, 2192404; 204086, 2192392; 204133, 2190012; 192773, 2190361; 192668, 2194472; 198798, 2194560; 198795, 2192395; 204170, 2192417; 204186, 2190673; 192763, 2190854; 192807, 2194672; 198749, 2194749; 198623, 2192474; 204162, 2192528; 204130, 2191149; 192721, 2191436; 192600, 2194860; 198553, 2194937; 198550, 2192602; 204129, 2192641; 204081, 2191671; 192527, 2191928; 192513, 2195004; 198637, 2195060; 198683, 2192714; 204046, 2192717; 204022, 2192089; 192642, 2191999; 192658, 2195074; 198746, 2195175; 198714, 2192755; 204021, 2192835; 204057, 2191915; 192697, 2191881; 192913, 2195256; 198707, 2195340; 198588, 2192840; 204076, 2192827; 204105, 2191886; 193004, 2191923; 193133, 2195399; 198497, 2195417; 198402, 2192829; 204151, 2192846; 204218, 2191855; 193180, 2191784; 193280, 2195429; 198344, 2195490; 198302, 2192835; 204283, 2192808; 204311, 2191621; 193278, 2191563; 193175, 2195511; 198274, 2195563; 198179, 2192754; 204327, 2192655; 204350, 2191653; 193109, 2191763; 193075, 2195584; 198172, 2195658; 198127, 2192684; 204434, 2192709; 204459, 2191789; 192949, 2191779; 192960, 2195703; 198641, 2195878; 198662, 2192700; 204478, 2192684; 204469, 2191622; 193028, 2191556; 193012, 2195829; 198714, 2195780; 198732, 2192614; 204482, 2192593; 204485, 2191490; 193102, 2191393; 193291, 2195665; 198809, 2195633; 198970, 2192570; 204478, 2192547; 204485, 2191346; 193364, 2191272; 193540, 2195626; 199047, 2195549; 199075, 2192512; 204523, 2192529; 204540, 2191230; 193782, 2191099; 193918, 2195469; 199141, 2195427; 199087, 2192511; 204553, 2192479; 204294, 2190994; 193958, 2190933; 193989, 2195235; 199101, 2195127; 199124, 2191977; 203325, 2189871; 203670, 2190799; 193984, 2190718; 194048, 2194955; 199208, 2194840; 199267, 2189403; 203884, 2188867; 203876, 2190643; 194008, 2190547; 194039, 2194675; 199270, 2194567; 199260, 2188804; 204461, 2186966; 204241, 2190466; 194149, 2190358; 194304, 2194504; 199263, 2194437; 199310, 2186814; 203491, 2186573; 202905, 2190298; 194449, 2190177; 194695, 2194460; 199347, 2194479; 199306, 2186615; 201914, 2186332; 201935, 2189967; 194808, 2189833; 194848, 2194541; 199326, 2194591; 199424, 2186229; 201876, 2186192; 201969, 2189683; return to starting point. 2194595; 199508, 2194525; 199522, 2186029; 201914, 2185947; 201962, (2) Unit excludes an area (15 ha; 38 2194441; 199582, 2194392; 199598, 2185871; 201921, 2185754; 201866, ac) consisting of the following 12 2194329; 199643, 2194295; 199662, 2185830; 201776, 2185816; 201838, boundary points: Start at 202034, 2194406; 199599, 2194462; 199596, 2185534; 201270, 2183971; 200424, 2189562; 202141, 2189566; 202153, 2194588; 199515, 2194853; 199368, 2183478; 194641, 2182859; 194391, 2189649; 202308, 2189645; 202298, 2195011; 199260, 2195319; 199312, 2182952; 194378, 2183030; 194326, 2189564; 202339, 2189548; 202329, 2195434; 199235, 2195476; 199274, 2183157; 194456, 2183246; 194375, 2189219; 202193, 2189187; 202230, 2195696; 199169, 2195847; 199138, 2183319; 194389, 2183392; 194641, 2189088; 202042, 2189024; 202020, 2195938; 199071, 2196039; 199663, 2183400; 195006, 2183522; 195441, 2189151; 202024, 2189554; return to 2196234; 199977, 2195921; 200985, 2183574; 195719, 2183591; 196066, starting point. 2194989; 201320, 2194454; 201268, 2183591; 196362, 2183670; 196372, (3) Unit excludes an area (11 ha; 28 2194305; 201289, 2194176; 201150, 2183812; 195923, 2185051; 195805, ac) consisting of the following 23 2193708; 201809, 2193212; 202487, 2185370; 195527, 2186175; 195324, boundary points: Start at 199447, 2192751; 202713, 2192557; 202794, 2186794; 195333, 2187189; 195544, 2195793; 199533, 2195796; 199635, 2192559; 203007, 2192869; 203088, 2187388; 195515, 2187690; 195450, 2195736; 199639, 2195696; 199701, 2192979; 203136, 2192967; 203139, 2187775; 193517, 2187814; 192035, 2195643; 199708, 2195591; 199713, 2192921; 203197, 2192911; 203224, 2187735; 191436, 2188145; 191395, 2195537; 199743, 2195499; 199737, 2192943; 203218, 2192991; 203264, 2188201; 191330, 2188228; 191183, 2195444; 199746, 2195368; 199725, 2193014; 203275, 2193130; 203278, 2188413; 191053, 2188549; 192020, 2195312; 199732, 2195273; 199753, 2193165; 203253, 2193224; 203277, 2188888; 192202, 2189030; 192137, 2195207; 199772, 2195162; 199732, 2193250; 203296, 2193248; 203321, 2189101; 192046, 2189432; 191945, 2195181; 199706, 2195245; 199646, 2193200; 203355, 2193261; 203340, 2189652; 191926, 2189817; 192000, 2195283; 199615, 2195345; 199573, 2193353; 203398, 2193434; 203487, 2189918; 191994, 2190055; 192009, 2195368; 199509, 2195416; 199449, 2193372; 203534, 2193296; 203580, 2190194; 191926, 2190322; 191954, 2195478; 199437, 2195611; 199430, 2193267; 203611, 2193247; 203631, 2190387; 191972, 2190616; 191961, 2195734; return to starting point. 2193197; 203661, 2193126; 203650, 2190800; 191953, 2190938; 191917, (C) Note: Unit 8 is depicted on Map 5–Unit 2193032; 203644, 2192994; 203649, 2191094; 191981, 2191296; 191943, 8—Island of Hawaii, which follows:

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations 34765

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.008 34766 Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules and Regulations

points: Start at 712804, 2337632; points: Start at 712742, 2337968; 712360, 2337661; return to starting 712923, 2337724; 712990, 2337608; 712839, 2337857; 712748, 2337850; point. 712917, 2337600; 712748, 2337553; 712646, 2337870; 712632, 2337823; (C) Note: Unit 9 is depicted on Map 6–Unit return to starting point. 712481, 2337590; 712425, 2337550; 9–Island of Molokai, which follows: (2) Unit excludes an area (5 ha; 13 ac) 712313, 2337564; 712299, 2337574; consisting of the following 10 boundary

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

VerDate Jan<31>2003 15:36 Jun 09, 2003 Jkt 200001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\10JNR2.SGM 10JNR2 ER10JN03.009