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.