[Federal Register: April 18, 2000 (Volume 65, Number 75)]
[Rules and Regulations]               
[Page 20760-20769]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE51

Endangered and Threatened Wildlife and Plants; Final Rule To List 
as Endangered the O`ahu `Elepaio From the Hawaiian Islands and 
Determination of Whether Designation of Critical Habitat Is Prudent

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
the O`ahu `elepaio (Chasiempis sandwichensis ibidis) to be an 
endangered species under the Endangered Species Act of 1973, as amended 
(Act). This bird is endemic to the island of O`ahu, Hawaiian Islands, 
where it was formerly found in all forested areas on the island. The 
O`ahu `elepaio is currently found in greatly reduced numbers and is 
restricted to seven isolated populations occurring primarily in mid-
elevation forests in portions of the Ko`olau and Wai`anae Mountains. 
The O`ahu `elepaio is

[[Page 20761]]

threatened primarily by disease, including avian pox virus and malaria, 
and predation by nonindigenous mammals. Other known threats include 
storms with heavy rainfall and high winds that destroy nests; habitat 
degradation and loss, including habitat fragmentation due primarily to 
human impacts; and destruction of foraging habitat by feral pigs 
(VanderWerf 1993).
    In light of new biological information provided during the public 
comment period, we have reanalyzed our original determination that 
designation of critical habitat was not prudent for this species. In 
summary, we find the O`ahu `elepaio may benefit from the designation of 
critical habitat by indicating new areas for consultation under section 
7 of the Act, and by providing educational benefits. Thus, we have 
determined that the designation of critical habitat is prudent for this 

EFFECTIVE DATE: This rule takes effect on May 18, 2000.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, Pacific Islands Ecoregion, 300 Ala Moana Boulevard, 
Room 3-122, Box 50088, Honolulu, Hawai`i 96850.

Supervisor-Endangered Species, Pacific Islands Ecoregion, at the above 
address (telephone 808/541-3441, FAX 808/541-3470).



    The Hawaiian archipelago consists of eight main islands and the 
shoals and atolls of the northwest Hawaiian Islands. The islands were 
formed sequentially by basaltic lava that emerged from a crustal hot 
spot located near the southeast coast of the island of Hawai`i (Stearns 
    The second oldest main island, O`ahu, is 2.5 million to 3.5 million 
years old and is heavily weathered. O`ahu has two principal mountain 
ranges, the Ko`olau and Wai`anae Mountains. The Ko`olau Mountains 
extend 60 kilometers (km) (37 miles (mi)) from southeast to northwest 
along the eastern half of the island. The windward (northeast) slope of 
these mountains is characterized by steep cliffs and short ridges less 
than 6 km (4 mi) long. Leeward ridges as long as 18 km (11 mi) parallel 
each other to the southwest and west, alternating with steep-sided 
stream valleys. The peak elevation in the Ko`olau Mountains occurs at 
Pu`u Konahua Nui (955 meters (m); 3,100 feet (ft)). The Wai`anae 
Mountains run from southeast to northwest in a 32-km (20-mi) arc along 
the western coast of O`ahu. The leeward (western) cliffs of the 
Wai`anae Mountains are steep; both windward and leeward ridges are less 
than 5 km (3 mi) in length. The peak elevation occurs at Mt. Ka`ala 
(1,230 m; 4,000 ft).
    Currently, approximately 36 percent (134,300 ac) of O`ahu is 
forested (Buck et al. 1988). Of these forested lands, approximately 49 
percent is considered native (dominated by koa (Acacia koa) and ohia 
(Metrosideros spp.) forests) with the remainder (51 percent) dominated 
by introduced species, e.g., common guava (Psidium guajava), strawberry 
guava (P. cattleianum), Java plum (Eugenia cumini), mango (Mangifera 
indica), and several species of Eucalyptus (Buck et al. 1988).
    The O`ahu elepaio is a member of the monarch flycatcher family, 
Monarchidae (American Ornithologists' Union 1997), and is most likely 
related to the genus Monarcha (Mayr 1943, Conant 1977). The ancestors 
that gave rise to `elepaio were probably of Melanesian origin with 
colonization of Hawai`i occurring through Polynesia or Micronesia 
(Baker 1951).
    A physical description of the O`ahu `elepaio is provided by 
VanderWerf (1998b). O`ahu `elepaio have a blunt, medium-length bill 
that is mostly black and a long tail, which is often held up at an 
angle. Body length is about 15 centimeters (cm) (6 inches (in)) long, 
and weight varies between 11 and 15 grams (0.4 and 0.5 ounces). Males 
are usually 10 percent larger than females. Adults have a dark brown 
crown and back, and white underparts with the upper breast streaked 
very lightly with brown. The eyebrow and forehead are rufous, lores 
(area between a bird's eye and the base of the bill) are white, and the 
auricular (the feathers covering the opening of a bird's ear) is mostly 
black, forming a contrasting pattern. Distinctive field marks of adults 
are the white wing bars, rump, and tail-tips. Males are usually more 
black on the throat than females, especially the chin; however, this 
difference is not always detectable, and some overlap occurs. Immature 
birds are rufous on the head, back, upper breast, and wing bars.
    The `elepaio from the island of O`ahu has been recognized as a 
distinct taxonomic entity since Stejneger first described it as 
Chasiempis ibidis in 1887. Wilson (1891) described the bird as C. gayi, 
but, as pointed out by Olson (1989), the epithet ibidis has priority 
over gayi. Various taxonomic treatments of the Hawaiian `elepaio have 
described from one to six species and up to five subspecies (Sclater 
1885, Stejneger 1887, Wilson and Evans 1890-1899, Wilson 1891, 
Rothschild 1892-1900, Henshaw 1902, Perkins 1903, MacCaughey 1919, 
Bryan and Greenway 1944, Pratt 1979 and 1980, Olson 1989, Olson and 
James 1991). The taxonomy used in this rule follows Pyle (1992) and 
recognizes only a single species of `elepaio in Hawai`i (Chasiempis 
sandwichensis) with three subspecies, each of which is endemic to a 
different island. The three island-specific subspecies are the Kau`ai 
`elepaio (C. s. sclateri Ridgeway 1882), O`ahu `elepaio (C. s. ibidis 
Stejneger 1887), and Hawai`i `elepaio (C. s. sandwichensis Gmelin 
1789). These subspecies differ considerably in plumage coloration and 
somewhat in vocalizations, but are quite similar in ecology and 
behavior (Conant 1977, Pratt 1980, VanderWerf 1998b).
    Based upon the geographic variation among the three subspecies of 
`elepaio, species status might be appropriate for each subspecies 
(Conant et al. 1998). Systematic investigation of genetic, 
morphological, and vocal variation of each subspecies has begun and 
will help identify whether each taxon should be considered a distinct 
species (VanderWerf 1998b).
    Comments by early naturalists indicate that the O`ahu `elepaio was 
once widespread in forested areas throughout O`ahu at all elevations. 
Perkins (1903) remarked that ``the universal distribution over the 
islands they severally inhabit, from the lowest bounds to the uppermost 
edge of continuous forest, as well as their extreme abundance and 
obtrusive familiarity, has caused them to be noticed by many persons 
who have seen no other native bird.'' Bryan (1905) noted that the 
`elepaio ``remains the most abundant Hawaiian species on the 
mountainside all the way from the sea to well up into the higher 
elevations,'' while MacCaughey (1919) said ``the altitudinal range * * 
* on * * * O`ahu is approximately from 800 ft to the highest summits.''
    The earliest described historical range, however, was likely to 
have been somewhat modified by habitat destruction. MacCaughey (1919) 
noted, ``[o]riginally, when the forests covered much more of the 
lowlands than at present, and extended down to the strand in many 
districts, the `elepaio was abundant at the lower levels * * *'' 
Despite their descriptions of reduced range, naturalists were 
optimistic about the `elepaio's chances for survival. Henshaw (1902) 
wrote ``* * * it is probable that when most of the Hawaiian birds are 
extinct the `elepaio will long continue to maintain itself in scarcely 
diminished numbers.'' MacCaughey (1919) wrote, ``[t]he one

[[Page 20762]]

indigenous forest bird that appears to successfully withstand the 
devastating influences of `civilization' is the Hawaiian Flycatcher or 
`elepaio.'' Munro (1944) was similarly optimistic about the `elepaio, 
reporting that ``[i]t is holding its own well in the O`ahu forests from 
which so many of the native birds have long disappeared.''
    Early observations indicate that the O`ahu `elepaio was widely 
distributed and extremely abundant. Rothschild (1893) called the 
`elepaio ``one of the commonest, if not the commonest, of all the small 
native birds on O`ahu.'' Similarly, Seale (1900) said the `elepaio was 
``the commonest native land bird to be found on the island.'' 
MacCaughey (1919) stated it was ``the most abundant representative of 
the native woodland avifauna,'' and ``abundant in all parts of its 
range.'' However, Bryan (1905) found it to be ``much more frequently 
met within the Wai`anae mountains than in the Ko`olau range back of 
Honolulu,'' which may indicate that the species' optimum habitat is 
dry, rather than wet, forest.
    Based on the above range descriptions, the O`ahu `elepaio was 
historically very general in its habitat requirements, and occupied all 
types of forest at most elevations. Several authors noted that `elepaio 
reached their greatest abundance in valleys at middle elevations. For 
example, Seale (1900) said that ``its usual haunt is the densely wooded 
canons at an elevation of from 800 to 1,300 feet.'' MacCaughey (1919) 
observed that the `elepaio is ``a bird of the humid and mesophytic 
forests,'' and said it ``is most plentiful in the protected wooded 
ravines and on the valley slopes.''
    The generalized habitat requirements of the O`ahu `elepaio are also 
shown by its ability to forage for arthropods and nest in a variety of 
different plant species, including nonnative species. Perkins (1903) 
believed that ``to the changes wrought by civilization they are less 
susceptible than any other bird, and they may be seen feeding and even 
nesting in dense thickets of the introduced guava, or amongst masses of 
the prickly lantana, as contentedly as amongst the native vegetation.'' 
Conant (1977) studied a population that existed in a forest of entirely 
introduced plant species. The species shows extremely versatile 
foraging behavior and uses all available plant species and all heights 
in forests of native plant species (Conant 1981, VanderWerf 1993 and 
1994). `elepaio use all available substrates for foraging, including 
the ground and fallen logs, vertical trunks, branches, twigs, leaves, 
and the air (VanderWerf 1998b). The proportion of the substrates used 
for foraging depends upon the habitat. For example, in dense forests, 
`elepaio use the ground more, and, in open forests, they use the air 
and leaves more (VanderWerf 1994).
    O`ahu `elepaio occur primarily in mesic mixed-species forests with 
a tall canopy and well-developed understory (VanderWerf et al. 1997; 
VanderWerf 1998b). The O`ahu `elepaio appears to be most common in 
valleys and on slopes between 200 m (656 ft) and 800 m (2,625 ft) 
elevation (VanderWerf 1998b). Valleys may support more `elepaio than 
ridges or slopes because they contain taller forest and are, therefore, 
more humid and protected from desiccating winds and large temperature 
fluctuations (VanderWerf et al. 1997). The species is less numerous in 
drier forests and on ridges (VanderWerf 1998b). O`ahu `elepaio are not 
found in very wet, stunted forest on high windswept ridges and summits, 
in very dry scrubby forest, in forests that lack a subcanopy, or in 
monotypic forests (Shallenberger and Vaughn 1978; VanderWerf 1998b). 
`Elepaio occur between 200 m (656 ft) and 500 m (1,641 ft) in the 
Ko`olau Mountain range and between 550 m (1,805 ft) and 850 m (2,789 
ft) in the Wai`anae Mountain range (VanderWerf 1998b). O`ahu `elepaio 
will also occur as low as 90 m (295 ft) elevation in the southern 
Ko`olau Mountains (VanderWerf et al. 1997).
    The distribution and abundance of O`ahu `elepaio do not appear to 
be related to the amount of native vegetation or species composition, 
but apparently to forest structure (VanderWerf et al. 1997). During an 
intensive bird survey of the central Ko`olau Mountains on O`ahu in 
1978, Shallenberger and Vaughn (1978) found the greatest abundance of 
`elepaio in alien forests, particularly areas with kukui (Aleurites 
moluccana) and guava trees, and in mixed alien-native forest. The 
occurrence of `elepaio was lower in forests of entirely native species, 
primarily ohia and koa. The lesser abundance in native forest found by 
Shallenberger and Vaughn (1978) is unlikely to be a sampling artifact 
since the greatest effort was made in areas of native forest. The 
lesser abundance is likely due to a preference for certain elevations 
and diverse forest structure, rather than particular plant species. 
Also, more recent surveys conducted in the southern Ko`olau Mountains 
(VanderWerf et al. 1997) indicate that forest structure and density are 
more important components of O`ahu `elepaio habitat than plant species 
composition. O`ahu `elepaio were found to be most abundant in valleys 
between 200 m (656 ft) and 400 m (1,312 ft) elevation, with mesic 
forest that contained a tall canopy and well-developed understory. 
`Elepaio were found in shorter, drier forests on slopes and ridges, but 
were less common in this type of habitat and were not found in areas 
where there was no understory. Many of the plant species found at the 
study site were introduced species that sometimes dominated the 
overstory and understory. Of 70 locations sampled, 49 percent of the 
locations had overstories that were composed entirely of introduced 
species, while 50 percent had a mixture of native and introduced 
species. Only 1 percent had an overstory that was mostly composed of 
native vegetation. Within the understory, 44 percent of sites comprised 
only introduced species, 56 percent had a mixture of native and 
introduced species, and none had only native species. Native plants 
that are common throughout the current range of the O`ahu `elepaio 
include koa, papala kepau (Pisonia umbellifera), mamaki (Pipturus 
albidus), and lama (Diospyros sandwicensis) (VanderWerf et al. 1997). 
Introduced plants that are common where `elepaio occur include kukui, 
common guava, strawberry guava, mango, ti (Cordyline terminalis), and 
Christmasberry (Schinus terebinthifolius) (VanderWerf et al. 1997).
    Conant (1995) identified 598 separate observations of O`ahu 
`elepaio dating from 1883 to 1995. Many of these sightings occurred in 
the same location, but over a period of years. By consolidating 
observations made at the same location, researcher could identify 83 
site-specific locations where `elepaio had been seen. Sixty-nine of 
these sites (84 percent) have been revisited between 1990 and 1995. Of 
these revisited sites, only 31 (45 percent) still have `elepaio 
present. In 1995, the 31 extant sites were thought to be distributed 
among only 6 isolated populations in the southern Ko`olau Mountains and 
the central Wai`anae Mountains. Further analysis of both these data and 
the writings of early naturalists indicates that the `elepaio 
originally inhabited 75 percent of O`ahu's land mass. By 1960, only 30 
percent of the original habitat was still occupied. Fifteen years 
later, in 1975, the distribution had declined to 14 percent of the 
original distribution. The O`ahu `elepaio currently occupies an area of 
4,700 ha (11,600 ac). This amount represents approximately 4 percent of 
its original range.
    While a collapse of the O`ahu `elepaio's range has clearly 
occurred, decline in population density in the remaining populations 
has been more

[[Page 20763]]

difficult to determine. Williams (1987) examined the decline of O`ahu 
`elepaio using Christmas Bird Counts from 1944 to 1985. Using 
standardized data (one census per year with number of birds per hour of 
observation), Williams documents a clear downward trend in `elepaio 
observations. The data show a sharp decline in O`ahu `elepaio 
observations beginning in the late 1950s and continuing through the 
1960s, when observations were one or fewer birds per observer hour, 
dropping to less than 0.5 birds per party hour after 1974.
    In a 1992 report on Hawai`i forest bird conservation assessment and 
management, Ellis et al. (1992) estimated the O`ahu `elepaio population 
at 200 to 500 birds. This report further stated that two subpopulations 
of O`ahu `elepaio existed, one in the Wai`anae Mountains and the other 
in the Ko`olau Mountains. A systematic range-wide count of O`ahu 
`elepaio was conducted from 1995 to 1998. Currently, the O`ahu `elepaio 
population is estimated at 1,500 birds (VanderWerf 1999). Island-wide 
surveys are nearly complete, and the possibility that any large 
populations of O`ahu `elepaio have been overlooked is unlikely 
(VanderWerf 1997). There are seven geographically isolated populations: 
three in the Ko`olau Mountains and four in the Wai`anae Mountains 
(VanderWerf 1997). Ellis et al. (1992) estimated that 20 percent of the 
population occurred in the Wai`anae Mountains and 80 percent in the 
Ko`olau Mountains. According to the 1997 estimate, 59 percent of the 
population occurs in the Wai`anae Mountains and 41 percent in the 
Ko`olau Mountains.
    The present populations of O`ahu `elepaio occur on lands owned by 
Federal, State, and private parties. Analyses of major land ownership 
patterns identify 69 percent of the current range in privately held 
lands, 18 percent is federally owned or leased, and 13 percent occurs 
in State-owned areas. Ownership patterns vary among the seven 
populations. Five populations have between 66 and 99 percent private 
ownership within their ranges, one population occurs on land primarily 
owned by the State, and one population occurs on Federal land. Ninety-
nine percent of the current O`ahu `elepaio range occurs within State-
designated Conservation Districts. This designation offers varying 
degrees of protection and may permit human activities that may be 
detrimental to the `elepaio. Sixteen percent of the land designated as 
a Conservation District occurs in a subzone designated by the State as 
Protective. This subzone includes State Natural Area Reserves and The 
Nature Conservancy of Hawai`i's Honouliuli Preserve and aims to protect 
valuable resources such as wildlife sanctuaries.

Previous Federal Action

    We were petitioned by Mr. Vaughn Sherwood on March 22, 1994, to 
list the O`ahu `elepaio as an endangered or threatened species with 
critical habitat. The November 15, 1994, Animal Notice of Review (59 FR 
58991) classified the O`ahu `elepaio (Chasiempis sandwichensis gayi) as 
a category 1 candidate. Category 1 candidates were those species for 
which we had sufficient data in our possession to support a listing 
proposal. On June 12, 1995 (60 FR 30827), we published a 90-day 
petition finding stating that the petition presented substantial 
information that listing may be warranted. In the February 28, 1996 (61 
FR 7596), and September 19, 1997 (62 FR 49398), notices, we 
discontinued category designations and the O`ahu `elepaio was listed as 
a candidate species. Candidate species are those for which we have on 
file sufficient information on biological vulnerability and threats to 
support proposals to list as threatened or endangered. On October 6, 
1998 (63 FR 53623), we published the proposed rule to list the O`ahu 
`elepaio as an endangered species. Because C. s. gayi is a synonym of 
C. s. ibidis, the proposed rule constituted the final 12-month finding 
for the petitioned action.
    The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and imminent 
risk to its well-being (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of this final rule is a 
Priority 2 action.

Summary of Comments and Recommendations

    In the October 6, 1998, proposed rule and associated notifications, 
we requested all interested parties to submit factual reports or 
information that might contribute to the development of a final rule. 
The public comment period closed on December 7, 1998 (63 FR 53623). We 
contacted appropriate Federal and State agencies, county governments, 
scientific organizations, and other interested parties and requested 
them to comment. We also published newspaper notices in the Honolulu 
Star-Bulletin and Honolulu Advertiser on October 26, 1998, inviting 
general public comment.
    In response to the open comment period, we received 15 comments on 
the proposed rule. Three Federal agencies provided comments, two 
supporting listing and one neither supporting nor opposing the 
proposal. Four Hawai`i State agencies provided comments, one supporting 
the proposal and three neutral. One Honolulu County agency commented 
that the agency supports the listing. The proposal was supported by 
five individuals and one conservation organization and opposed by one 
nonprofit legal foundation. Relevant information provided by these 
commenters has been incorporated into this rule.
    Written opposition to listing of the O`ahu `elepaio was based on 
our supposed lack of jurisdiction to enact the proposed rule and 
beliefs that the rule should be withdrawn because of a presumption that 
no connection exists between regulation of this bird and a substantial 
effect on ``interstate commerce.'' The Federal Government has the 
authority under the Commerce Clause of the U.S. Constitution to protect 
this species, for reasons given in Judge Wald's opinion and Judge 
Henderson's concurring opinion in National Association of Homebuilders 
v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 
2340 (1998). That case involved a challenge to application of 
Endangered Species Act prohibitions to protect the listed Delhi Sands 
flower-loving fly. As with the O`ahu `elepaio , the Delhi Sands flower-
loving fly is endemic to only one State. Judge Wald held that 
application of the Endangered Species Act's prohibition against taking 
of endangered species to this fly was a proper exercise of Commerce 
Clause power to regulate: (1) Use of channels of interstate commerce; 
and (2) activities substantially affecting interstate commerce, because 
it prevented loss of biodiversity and destructive interstate 
competition. Judge Henderson upheld protection of the fly because doing 
so prevents harm to the ecosystem upon which interstate commerce 
depends, and because doing so regulates commercial development that is 
part of interstate commerce.
    The Federal Government also has authority under the Property Clause 
of the Constitution to protect this species.

[[Page 20764]]

The O`ahu`elepaio occurs on Federal land on the U.S. Army's Makua 
Military Reservation and Schofield Barracks Military Reservation. If 
this species were to become extinct, the diversity of wildlife on the 
Makua and Schofield Barracks Military Reservations would be diminished. 
The courts have long recognized Federal authority under the Property 
Clause to protect Federal resources in such circumstances. See, e.g., 
Kleppe v. New Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 
U.S. 264 (1927); Camfield v. United States, 167 U.S. 518 (1897); United 
States v. Lindsey, 595 F.2d 5 (9th Cir. 1979). Therefore, our 
application of the Act to the O`ahu `elepaio (Chasiempis sandwichensis 
ibidis), a bird endemic to the island of O`ahu in the Hawaiian Islands, 
is constitutional.
    We solicited the expert opinions of four qualified and independent 
specialists regarding pertinent scientific and/or commercial data and 
assumptions relating to the taxonomy, demography, and supportive 
biological and ecological information for the O`ahu `elepaio. We 
received written comments from two of these experts and incorporated 
their comments into the final rule.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that the O`ahu `elepaio should be 
classified as an endangered species. Section 4 of the Act and 
regulations (50 CFR part 424) issued to implement the listing 
provisions of the Act set forth the procedures for adding species to 
the Federal Lists. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1) of the Act. These factors and their application to the 
O`ahu `elepaio (Chasiempis sandwichensis ibidis) are as follows:

A. The present or threatened destruction, modification, or curtailment 
of its habitat or range.

    Historical habitat loss due to factors discussed below has 
undoubtedly reduced the range of O`ahu `elepaio. Although `elepaio 
appear to be generalized in habitat use and can adapt to a variety of 
plant species, this species may be sensitive to severe changes in 
forest structure, such as clearing of the understory or creation of 
monospecific, even-aged plantations. Feral pigs may pose another threat 
by destroying ground cover, which provides foraging habitat for 
`elepaio. The spread of certain alien plants, such as the velvet tree 
(Miconia calvescens), dramatically alters forest structure and/or 
diversity and poses a potential threat to the survival of O`ahu 
    Alteration of forested areas, including changes in forest 
composition and forest structure and resulting habitat loss, has 
impacted the O`ahu `elepaio. Early Hawaiians significantly altered the 
native vegetation of O`ahu, particularly in valleys used for taro 
cultivation. In uncultivated areas, trees were cut for firewood and 
construction, and fire was used to encourage the growth of grasses used 
for thatch (Kirch 1982). Destruction of the low-elevation forest 
resulted in the extinctions of numerous birds and land snails on O`ahu 
(Olson and James 1982, Kirch 1982). After European contact in 1778, 
habitat loss accelerated and began to occur at higher elevations. The 
sandalwood trade, which played a key role for O`ahu, required firewood, 
and completely eliminated native forests in the vicinity of Honolulu 
(Cuddihy and Stone 1990). From 1840 to about 1920, vast areas of low-
and mid-elevation forest in Hawai`i were cleared for sugarcane 
cultivation. By the 1970s, more than 100,000 ha (274,000 acres) were 
under sugarcane cultivation. In contrast to early Hawaiian cultivation 
that was largely concentrated in mesic valleys and plains, sugarcane 
cultivation displaced native forest in dry leeward areas, and wide 
ridges and slopes such as the Leilehua Plateau between the Ko`olau and 
Wai`anae Mountains on O`ahu. Between 1900 and 1950, pineapple 
cultivation on O`ahu also resulted in a significant loss of native 
forests (Cuddihy and Stone 1990). Some of the areas cleared of native 
forest have either been replanted with exotic trees or regrown in alien 
vegetation. According to some estimates, approximately 36 percent of 
the land area on O`ahu is now covered by forest, but only about 49 
percent of these forested areas is considered native vegetation (Buck 
et al. 1988).
    O`ahu is the population center of the Hawaiian Islands, with about 
40 percent of the State's population residing in Honolulu alone. The 
fastest growing areas on O`ahu, however, are suburban areas and new 
city development (such as creation of so-called ``second cities'' 
outside the city limits of Honolulu). Development can have significant 
impacts on O`ahu `elepaio habitat through modification of forest 
structure and diversity. Although 99 percent of lands within the 
`elepaio's range are within State-designated Conservation Districts, 
designation as such only offers varying degrees of protection and may 
allow activities, such as construction of individual houses, forestry-
related activities, hunting, and recreational uses, that may be 
detrimental to the `elepaio. Other types of development can also 
eliminate habitat. A portion of the H-3 freeway completed in 1997 runs 
through Halawa Valley, which supports a relatively large population of 
O`ahu `elepaio (VanderWerf 1997). The effect of the freeway upon this 
population is unknown as no monitoring has occurred. Also, amenities 
such as golf courses may displace native and nonnative forests used by 
the O`ahu `elepaio.
    Military activities and related impacts on federally owned and 
leased lands may also affect the O`ahu `elepaio. O`ahu `elepaio 
currently occupy the upper slopes of Makua Valley in and adjacent to 
the U.S. Army's Makua Military Reservation. The lower section of Makua 
Valley is used as a live firing range, and the facility has a history 
of ordnance-induced fires (Hawai`i Heritage Program-The Nature 
Conservancy of Hawai`i (HHP-TNCH) 1994a). Prescribed burning 
occasionally results in large fires that, along with construction of 
firebreaks, destroys `elepaio habitat and potentially threatens the 
birds. A large part of the `elepaio range in the eastern Wai`anae 
Mountains occurs on the West Range of Schofield Barracks Military 
Reservation, where live firing also occurs and ordnance-induced fires 
can pose a significant threat to O`ahu `elepaio habitat (Hawai`i 
Heritage Program, 1994b).
    Miconia calvescens (velvet tree) is a recently naturalized species 
native to tropical America. This species has become invasive on islands 
of Hawai`i, Maui, O`ahu, and Kau`ai. Velvet tree is potentially the 
most invasive and damaging weed of rainforests of Pacific islands 
(Medeiros et al. 1997). This plant has the potential to greatly disrupt 
forest canopy and understory structure and significantly alter 
biological diversity. In moist conditions, this plant grows rapidly up 
to 15 m (49 ft) tall. This shade-tolerant tree produces abundant seed 
that is effectively dispersed by birds and accumulates in a large, 
persistent seed bank, and develops monospecific stands that eliminate 
understory plant species by shading and crowding (Medeiros et al. 
1997). In Tahiti, it has become a dominant plant species in habitats 
similar to those of Hawai`i (Almeda 1990, Cuddihy and Stone 1990). 
Medeiros et al. (1997) state that velvet tree now dominates the forest 
in 65 percent of the island of Tahiti through the establishment of 
large, monospecific stands. This plant is now naturalized on

[[Page 20765]]

O`ahu at three locations in the southeastern Ko`olau Mountain range, 
including Manoa Valley (Medeiros et al. 1997), where one population of 
O`ahu `elepaio is located.
    Pigs (Sus scrofa) were introduced to Hawai`i by the Polynesian 
ancestors of Hawaiians, and later by western immigrants. The Polynesian 
strain of pig was comparatively small, and seems to have had a minimal 
impact on the native forests. The European strain of pig escaped 
domestication and invaded primarily wet and mesic forests on Kau`ai, 
O`ahu, Moloka`i, Maui, and Hawai`i. These pigs are large animals that 
threaten the continued existence of native plants and animals within 
these forest habitats. While foraging, pigs root and trample the forest 
floor. Given that O`ahu `elepaio rely on diverse groundcover for 
foraging, the disturbance caused by pigs could have a major impact on 
the species. In a study conducted at the Hakalau Forest National 
Wildlife Refuge on the island of Hawai`i, researchers found that areas 
where the ground cover had been destroyed by feral pigs were used less 
frequently by the Hawai`i Island subspecies of `elepaio for foraging 
(VanderWerf 1994). Expecting the same results on O`ahu is reasonable.

B. Overutilization for commercial, recreational, scientific, or 
educational purposes

    Overutilization is not known to threaten the O`ahu `elepaio.

C. Disease and predation

    Disease and predation are considered the primary threats 
responsible for the severe decline of the O`ahu `elepaio in the last 
few decades. Disease is believed the primary reason for reduced adult 
survival, and nest predation by introduced mammals, mainly black rats 
(Rattus rattus), is the primary reason for low reproductive success 
(VanderWerf 1998a).
    Avian malaria (Plasmodium relictum) and poxvirus (Avipox virus sp.) 
are two documented serious disease threats to O`ahu `elepaio, as well 
as all native Hawaiian forest birds (VanderWerf 1998b). Malaria and pox 
are transmitted by the night-biting mosquito, Culex quinquefasciatus, 
which uses wallows created by feral pigs as breeding grounds. Avian pox 
can also be spread through physical contact with infected birds or 
surfaces (VanderWerf 1998b). Avian pox causes lesions on the feet, 
legs, and bill. Five populations of O`ahu `elepaio sampled for disease 
had birds with pox-like lesions (VanderWerf 1998b). Culex mosquitos, 
and thus malaria and pox, are more abundant at lower elevations. 
Although larvae do not develop well at colder temperatures, mountain 
elevations on O`ahu are not high enough to preclude mosquitos; 
therefore, diseases may be more prevalent on this island (VanderWerf 
1998b). According to VanderWerf (1998b), 70 percent of O`ahu `elepaio 
within low-elevation valleys have pox-like lesions. Although its 
effects on the O`ahu `elepaio remain unknown, malaria may also be an 
important factor for the species' decline (VanderWerf 1998a).
    Avian pox is known to increase adult mortality and reduce 
reproductive success of O`ahu `elepaio (VanderWerf 1997, 1998a, and 
1998b). O`ahu `elepaio with pox-like lesions are thought to be 
seriously affected by poxvirus and have lower survival than either 
healthy `elepaio or those with healed pox sores (VanderWerf 1998a). 
Birds with pox likely become more vulnerable to predation or exposure 
due to the virus weakening the bird (VanderWerf 1998b). Survival rates 
of birds with healed pox sores were compared with those of apparently 
healthy birds, and researchers found that if `elepaio can survive the 
initial infection, their future survival is not adversely affected 
(VanderWerf 1998a). Poxvirus also affects reproductive success. Pairs 
having at least one individual actively infected with pox produced 
fewer fledglings than healthy pairs or those consisting of at least one 
individual with healed pox lesions (VanderWerf 1998a).
    Because disease, which in many cases is difficult to control, is a 
factor in the decline of the O`ahu `elepaio , the existence and 
survival of genetically resistant individuals is essential to the 
survival of this taxon. If captive propagation is necessary for the 
recovery of this species, capture of disease-resistant birds may 
improve the success of a captive propagation program and increase the 
survival of birds released into the wild.
    A potential factor contributing to the spread of avian disease is 
the expansion of the range of introduced birds. Introduced birds may 
act as a reservoir for diseases such as avian pox. Thus, expansion of 
the range of introduced birds infected with avian pox into the range of 
O`ahu `elepaio is likely to have occurred and contributed to the 
decline of O`ahu `elepaio. Another potential factor contributing to the 
spread of avian disease is feral cats (Felis catus). Cats may be 
considered a significant carrier and/or vector of disease. For example, 
cats are known hosts of the parasite Taxoplasma gondii, which is known 
to be fatal to some native Hawaiian birds (e.g., Hawaiian crow (Corvus 
hawaiiensis)) (Wallace 1973). Stray cats on O`ahu are known to carry 
Taxoplasma antibodies (Wallace 1973), however how this parasite affects 
O`ahu `elepaio is unknown.
    The Hawaiian short-eared owl, or pueo (Asio flammeus), is the 
natural predator of O`ahu `elepaio, but given the limited number of 
pueo left on O`ahu, the pueo has very little impact on the O`ahu 
`elepaio. The main predator of O`ahu `elepaio nests is believed to be 
the black rat (VanderWerf 1998a). Predation of O`ahu `elepaio nests by 
black rats has lowered reproductive success and increased mortality of 
female O`ahu `elepaio (VanderWerf 1998a). Reproductive success of 
`elepaio, measured by the number of fledglings per pair, is higher in 
areas where rats were removed, compared to an area where rats were not 
removed (VanderWerf 1998a). Other known nonnative predators include 
barn owls (Tyto alba), feral cats, small Indian mongoose (Herpestes 
auropunctatus), Polynesian rats (Rattus exulans), and Norway rats 
(Rattus norwegicus) (VanderWerf 1998b). Research indicates that removal 
of predators (e.g., rats, cats, and mongooses) from O`ahu `elepaio 
territories may increase the survival of female `elepaio. Available 
results indicate that survival of males was similar in areas where rat 
removal was conducted and where it was not conducted. For those same 
areas, female `elepaio survival appeared slightly higher in areas where 
rats were removed. However, sample sizes were not large enough, and 
more data are needed to verify these results (VanderWerf 1998a). 
Although male and female `elepaio share incubation responsibilities of 
the eggs during the day, only females incubate at night (VanderWerf 
1998b). Thus, females are more vulnerable than males to predation on 
nests by rats, which are primarily nocturnal (VanderWerf 1998a).
    Introduction of alien animals into Hawai`i is a major continual 
threat to all native flora and fauna. Predation associated with alien 
introductions could significantly and negatively affect the remaining 
populations of O`ahu `elepaio. The threat of the accidental 
introduction of the brown tree snake (Boiga irregularis) from Guam, 
Saipan, or the Solomon Islands is of particular concern. The brown tree 
snake is an aggressive predator of birds that has caused a significant 
decline in avifauna on Pacific islands where this snake has become 
established. In December 1994, a live brown tree snake was found in a 
Schofield Barracks warehouse on the island of O`ahu. This snake was

[[Page 20766]]

associated with a shipment of U.S. Army materials from Tinian via Guam.

D. The Inadequacy of Existing Regulatory Mechanisms

    Currently, the O`ahu `elepaio is protected under State (Hawai`i 
Revised Statutes (HRS), Sect. 13-124-3A) and Federal laws (Migratory 
Bird Treaty Act of 1918, 16 U.S.C. 703-712, 40 Stat. 755, as amended). 
These laws protect the taxon from capture and collection (without 
appropriate permits) of individuals, nests, and eggs, but do not afford 
protection to the habitat of this species.

E. Other Natural or Manmade Factors Affecting its Continued Existence

    Storms with heavy rain and strong winds have been known to 
contribute to mortality of O`ahu `elepaio eggs and nestlings. On O`ahu, 
`elepaio nests, especially those high in trees, and their contents have 
been destroyed by March storms (VanderWerf 1998b). Prolonged heavy rain 
can also cause adults to abandon the nests; small fledglings are 
vulnerable to extended periods of intense rain (VanderWerf 1998b). For 
example, overall reproductive success in 1998 was lower than the 
previous year due to inclement weather experienced in late March and 
early April, when many nests contained eggs or small nestlings 
(VanderWerf 1998a). Several nests failed because they were blown out of 
the trees by winds in excess of 40 miles per hour (VanderWerf 1998a).
    Naturally occurring events, such as hurricanes, may affect the 
continued existence of the O`ahu `elepaio. Because the subspecies now 
exists only as seven small isolated populations, rather than one large, 
continuous, interbreeding population, a population decline could be 
exacerbated by random genetic, environmental, and demographic events. 
Small population size can reduce reproductive rates, increase rates of 
inbreeding and inbreeding depression (the expression of deleterious 
recessive genes occurring in the population), and facilitate the loss 
of future plasticity or evolutionary potential. Loss of genetic 
variability through genetic drift reduces the ability of small 
populations to cope with ecological and environmental stresses such as 
habitat modification and alien species.
    If populations continue to decline and become extremely small, 
demographic events take on greater significance. For example, if 
weather events (e.g., El Nino episodes) cause reproductive failure for 
one or more years, and are followed by a period of high predation, a 
small population has less resiliency and is vulnerable to extirpation. 
Hurricanes may cause large or total population loss through direct 
mortality, habitat destruction or modification, and dispersal of 
invasive alien plants. Although birds in the Hawaiian Islands have long 
endured hurricanes, major hurricanes in concert with low population 
numbers and other factors could severely affect the survival of O`ahu 
    Another potential factor contributing to the decline of the O`ahu 
`elepaio may be the competition for food or space with introduced birds 
such as the Japanese white-eye (Zosterops japonicus), white-rumped 
shama (Copsychus malabaricus), and the red-vented and red-whiskered 
bulbuls (Pycnonotus cafer and P. jocosus) (VanderWerf et al. 1997; 
VanderWerf 1998). Although the extent of competition has not been 
carefully studied, limited anecdotal and circumstantial evidence 
indicate that competition occurs with any alien bird species 
(VanderWerf et al. 1997; VanderWerf 1998).
    The Japanese white-eye, introduced to Hawai`i in the 1930s, has 
expanded its range into remote areas within the last 2 decades. This 
species is probably the most abundant bird in Hawai`i (Pratt et al. 
1987). Scott et al. (1986) demonstrated that distribution of the 
Japanese white-eye was negatively correlated with the distributions of 
native birds, including `elepaio. `elepaio have frequently been known 
to chase Japanese white-eyes from the area surrounding their nest 
(Conant 1977). Additionally, the red-vented bulbul was introduced to 
O`ahu in 1965 and greatly increased in numbers after 1970 (Williams 
1987). This species is now extremely abundant in forested habitats. 
While primarily a fruit-eater, red-vented bulbuls take insect prey 
(Sheila Conant, pers. comm., 1995) and, as a particularly aggressive 
species, are known to chase other birds (Berger 1981).
    In summary, we have carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this species in determining to make this rule 
final. Based on this evaluation, the preferred action is to list the 
O`ahu `elepaio as endangered. The most recent estimates indicate that 
1,500 O`ahu `elepaio remain, occurring in 7 small and geographically 
isolated populations (VanderWerf 1998 and 1999). This bird is primarily 
threatened by disease, including avian pox-virus and malaria, and 
predation by nonindigenous mammals. Other known threats include storms 
with high winds that destroy nests and their contents; habitat 
degradation and loss, including habitat fragmentation due primarily to 
human impacts; and destruction of foraging habitat by feral pigs. 
Potential threats include the introduction and spread of alien species, 
such as the brown tree snake, and alien plants that alter the structure 
and diversity of forested areas and competition with introduced birds. 
Small total population size, limited distribution, and population 
fragmentation make this taxon particularly vulnerable to reduced 
reproductive vigor and the effects of naturally occurring events. 
Because the O`ahu `elepaio is in danger of extinction throughout all or 
a significant portion of its range, it fits the definition of 
endangered as defined in the Act. Therefore, the determination of 
endangered status for the O`ahu `elepaio is appropriate.

Critical Habitat

    Critical habitat is defined in section 3, paragraph (5)(A) of the 
Act as the specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features essential to the 
conservation of the species and that may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by a species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the Act is no longer necessary.
    Critical habitat designation, by definition, directly affects only 
Federal agency actions through consultation under section 7(a)(2) of 
the Act. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed species or destroy or 
adversely modify its critical habitat.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that designation of critical habitat is not prudent 
when one or both of the following situations exist--(1) the species is 
threatened by

[[Page 20767]]

taking or other activity and the identification of critical habitat can 
be expected to increase the degree of threat to the species or (2) such 
designation of critical habitat would not be beneficial to the species.
    In the proposed rule, we indicated that designation of critical 
habitat for this species was not prudent because we believed a critical 
habitat designation would not provide any additional benefit beyond 
that provided through listing as endangered.
    In this final rule, however, we find that designation of critical 
habitat is prudent for the O`ahu `elepaio (Chasiempis sandwichensis 
ibidis). In the last few years, a series of court decisions have 
overturned Service determinations regarding a variety of species that 
designation of critical habitat would not be prudent (e.g., Natural 
Resources Defense Council v. U.S. Department of the Interior, 113 F. 3d 
1121 (9th Cir. 1997); Conservation Council for Hawai`i v. Babbitt, 2 F. 
Supp. 2d 1280 (D. Hawai`i 1998)). Based on the standards applied in 
those judicial opinions, we believe that the designation of critical 
habitat for this species would be prudent.
    In the absence of a finding that critical habitat would increase 
threats to a species, if any benefits would result from critical 
habitat designation, then a prudent finding is warranted. In the case 
of this species, some benefits may result from designation of critical 
habitat. The primary regulatory effect of critical habitat is the 
section 7 requirement that Federal agencies refrain from taking any 
action that destroys or adversely modifies critical habitat. While a 
critical habitat designation for habitat currently occupied by this 
species would not be likely to change the section 7 consultation 
outcome because an action that destroys or adversely modifies such 
critical habitat would also be likely to result in jeopardy to the 
species, in some instances section 7 consultation might be triggered 
only if critical habitat is designated. Examples could include 
unoccupied habitat or occupied habitat that may become unoccupied in 
the future. Designating critical habitat may also provide some 
educational or informational benefits. Therefore, we find that critical 
habitat is prudent for the O`ahu `elepaio.
    However, we cannot propose critical habitat designations for this 
subspecies at this time. Our Hawaiian field office, which would have 
the lead for such a proposal, is in the process of complying with the 
court order in Conservation Council for Hawai`i v. Babbitt, CIV NO. 97-
00098 ACK (D. Haw. Mar. 9 and Aug. 10, 1998). In that case, the United 
States District Court for the District of Hawai`i remanded to the 
Service its ``not prudent'' findings on critical habitat designation 
for 245 species of Hawaiian plants. The court ordered us not only to 
reconsider these findings, but also to designate critical habitat for 
any species for which we determine on remand that critical habitat 
designation is prudent. Proposed designations or nondesignations for 
100 species are to be published by November 30, 2000. Proposed 
designations or nondesignations for the remaining 145 species are to be 
published by April 30, 2002. Final designations or nondesignations are 
to be published within 1 year of each proposal. Compliance with this 
court order is a huge undertaking involving critical habitat 
determinations for over one-fifth of all species that have ever been 
listed under the Endangered Species Act, and over one-third of all 
listed plant species. In addition, we have agreed to include in this 
effort critical habitat designations for an additional 10 plants that 
are the subject of another lawsuit. See Conservation Council for 
Hawai`i v. Babbitt, CIV. NO. 99-00283 HG. We cannot develop proposed 
critical habitat designations for the Oahu elepaio without significant 
disruption of the field office's intensive efforts to comply with the 
Conservation Council for Hawai`i v. Babbitt remand.
    To attempt to do so could also affect the listing program Region-
wide. Administratively, the Service is divided into seven geographic 
regions. This subspecies is under the jurisdiction of Region 1, which 
includes California, Oregon, Washington, Idaho, Nevada, Hawaii, and 
other Pacific Islands. About one-half of all listed species occur in 
Region 1. Region 1 receives by far the largest share of listing funds 
of any Service region because it has the heaviest listing workload. 
Region 1 must also expend its listing resources to comply with existing 
court orders or settlement agreements. In fact, in the last fiscal 
year, all of the Region's funding allocation for critical habitat 
actions was expended to comply with court orders. If we were to 
immediately prepare proposed critical habitat designations for this 
subspecies notwithstanding the court order pertaining to 245 Hawaiian 
plant species, efforts to provide protection to many other species that 
are not yet listed would be delayed. While we believe some benefits may 
result from designating critical habitat for this subspecies, these 
benefits are significantly fewer in comparison to the benefits of 
listing a species under the Endangered Species Act because, as 
discussed above, the primary regulatory effect of critical habitat is 
limited to the section 7 requirement that Federal agencies refrain from 
taking any action that destroys or adversely modifies critical habitat.
    As explained in detail in the Final Listing Priority Guidance for 
FY2000 (64 FR 57114), our listing budget is currently insufficient to 
allow us to immediately complete all of the listing actions required by 
the Act. We plan to employ a priority system for deciding which 
outstanding critical habitat designations should be addressed first. We 
will focus our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. Deferral of a 
proposal to designate critical habitat for the Oahu elepaio will allow 
us to concentrate our limited resources on higher priority critical 
habitat and other listing actions, while allowing us to put in place 
protections needed for the conservation of the Oahu elepaio without 
further delay. Therefore, given the current workload in Region 1 and, 
particularly, the Hawaiian field office, we expect that we will be 
unable to develop a proposal to designate critical habitat for the Oahu 
elepaio until FY2004.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. Recognition through listing encourages 
public awareness and results in conservation actions by Federal, State, 
and private agencies, groups, and individuals. The Act provides for 
possible land acquisition and cooperation with the State and requires 
that recovery actions be carried out for all listed species. Funding 
may be available through section 6 of the Act for the State to conduct 
recovery activities. The protection required of Federal agencies and 
the prohibitions against certain activities involving listed animals 
are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing

[[Page 20768]]

this interagency cooperation provision of the Act are codified at 50 
CFR part 402. Section 7(a)(4) requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) requires Federal agencies to insure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with us, under section 7(a)(2) of 
the Act.
    Federal agency actions that may require conference and/or 
consultation as described in the preceding paragraph include military 
activities, such as military training and troop movements, taking place 
on federally owned or leased lands; the involvement of the Army Corps 
of Engineers in projects subject to section 404 of the Clean Water Act 
and section 10 of the Rivers and Harbors Act of 1899, such as the 
construction of roads and bridges and dredging projects; U.S. 
Environmental Protection Agency-authorized discharges under the 
National Pollutant Discharge Elimination System; U.S. Department of 
Agriculture/Natural Resources Conservation Service projects; U.S. 
Department of Housing and Urban Development projects; and other 
activities with a possible Federal nexus, such as golf course and 
firebreak construction.
    Several of the remaining populations of this bird are located on 
State land utilized for military training, particularly by the U.S. 
Army. In the Wai`anae Mountains, those populations are found in the 
following areas: Pahole to Makaha, including both leeward and windward 
sides, and Schofield to Palehua, on the windward side. In the Ko`olau 
Mountains, only a fraction of the area occupied by one `elepaio 
population (Aiea ridge south to the Kahauiki Stream) is under military 
control. Therefore, section 7 consultation will be required before any 
military activities that may impact the O`ahu `elepaio , such as 
military training and troop movements, may take place.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions of section 9(a)(2) of the Act, implemented 
by 50 CFR 17.21 for endangered species, make it illegal for any person 
subject to the jurisdiction of the United States to take (includes 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect; or to attempt any of these), import or export, ship in 
interstate or foreign commerce in the course of a commercial activity, 
or sell or offer for sale in interstate or foreign commerce any 
endangered wildlife species. It is also illegal to possess, sell, 
deliver, carry, transport, or ship any such wildlife that has been 
taken illegally. Certain exceptions apply to agents of the Service and 
State conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22 and 17.23. Such permits 
are available for scientific purposes, to enhance the propagation or 
survival of the species, and/or for incidental take in the course of 
otherwise lawful activities. Requests for copies of the regulations 
regarding listed wildlife and inquiries about permits and prohibitions 
may be addressed to the U.S. Fish and Wildlife Service, Endangered 
Species Permits, 911 Northeast 11th Avenue, Portland, Oregon 97232-4181 
(telephone 503-231-6241; facsimile 503-231-6243).
    As published in the Federal Register on July 1, 1994, (59 FR 
34272), our policy is to identify, to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
be likely to constitute a violation of section 9 of the Act. The intent 
of this policy is to increase public awareness of the effect of the 
listing on proposed and ongoing activities within a species' range. 
Likely activities that we believe could potentially result in a 
violation of section 9 of the Act include, but are not limited to, the 
following: road or firebreak construction, military troop training, or 
other activities that disturb the normal behavior (e.g., breeding, 
nesting, feeding) of O`ahu `elepaio or damage habitat used by the 
species. Activities that we believe would not likely result in a 
violation of section 9 of the Act include, but are not limited to, 
nondestructive activities in areas occupied by O`ahu `elepaio, such as 
hiking, collecting plants for cultural usage (e.g., hula halau), and 
hunting game animals. Activities that occur under a valid incidental 
take permit or in accordance with a section 7 consultation would not 
violate section 9.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Act should be directed to the Manager of 
the Pacific Islands Ecoregion (see ADDRESSES section).
    By giving the O`ahu `elepaio Federal protection under the Act, the 
State of Hawai`i Endangered Species Act (HRS, Sect. 195D-4(a)) is 
automatically invoked, prohibiting taking and encouraging conservation 
by State government agencies. Hawai`i's Endangered Species law states, 
``Any species of aquatic life, wildlife, or land plant that has been 
determined to be an endangered species pursuant to the Act shall be 
deemed to be an endangered species under the provisions of this chapter 
and any indigenous species of aquatic life, wildlife, or land plant 
that has been determined to be a threatened species pursuant to the Act 
shall be deemed to be a threatened species under the provisions of this 
chapter.'' Further, the State may enter into agreements with Federal 
agencies to administer and manage any area required for the 
conservation, management, enhancement, or protection of endangered 
species (HRS, Sect. 195D-5(c)). Funds for these activities could be 
made available under section 6 of the Act (State Cooperative 
Agreements). Thus, the Federal protection afforded to the O`ahu 
`elepaio by listing as an endangered species will be reinforced and 
supplemented by protection under State law.

National Environmental Policy Act

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

Required Determinations

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
endangered species, see 50 CFR 17.22.

References Cited

    A complete list of all references cited herein is available upon 
request from the Pacific Islands Ecoregion (see ADDRESSES section).

[[Page 20769]]


    The primary author of this final rule is Leila Gibson, U.S. Fish 
and Wildlife Service (see ADDRESSES section). Recent data regarding the 
O`ahu `elepaio were provided by Eric VanderWerf of the University of 

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Regulation Promulgation

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


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

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

    2. Section 17.11(h) is amended by adding the following, in 
alphabetical order under BIRDS, to the List of Endangered and 
Threatened Wildlife:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                       Species                                                   Vertebrate
------------------------------------------------------                        population where                                    Critical     Special
                                                          Historic range       endangered or          Status       When listed    habitat       rules
           Common name              Scientific name                              threatened

          *                  *                  *                  *                  *                  *                  *
`Elepaio, O`ahu.................  Chasiempis           U.S.A. (HI)........  Entire.............  E                 ...........           NA           NA

          *                  *                  *                  *                  *                  *                  *

    Dated: April 5, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-9684 Filed 4-17-00; 8:45 am]