Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Rota Bridled White-Eye (Zosterops rotensis, 54335-54349 [05-18051]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 177 (Wednesday, September 14, 2005)]
[Proposed Rules]
[Pages 54335-54349]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-18051]



[[Page 54335]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU32


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Rota Bridled White-Eye (Zosterops rotensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Rota bridled white-eye (Zosterops 
rotensis) pursuant to the Endangered Species Act of 1973, as amended 
(Act). In total, approximately 3,958 acres (ac) (1,602 hectares (ha)) 
fall within the boundaries of the proposed critical habitat designation 
on the island of Rota, Commonwealth of the Northern Mariana Islands 
(CNMI).

DATES: We will consider comments from all interested parties received 
by November 14, 2005. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by October 31, 
2005.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of the following methods:
    1. You may submit comments and information on this proposed rule to 
Patrick Leonard, Field Supervisor, Pacific Islands Fish and Wildlife 
Office (PIFWO), U.S. Fish and Wildlife Service, 300 Ala Moana 
Boulevard, Room 3-122, Box 50088, Honolulu, HI 96850.
    2. You may hand-deliver written comments and information to our 
PIFWO at the address given above.
    3. You may send comments by electronic mail (e-mail) to RBWE--
CritHab@fws.gov. For directions on how to submit electronic filing of 
comments, see the ``Public Comments Solicited'' section.
    4. You may fax your comments to 808/792-9581.
    All comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at our PIFWO at the above address.

FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, 
PIFWO, at the above address (telephone: 808/792-9400; facsimile: 808/
792-9581).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal be as 
accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments are 
particularly sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of Rota 
bridled white-eye habitat, and what features are essential to the 
conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities; and
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to RBWE--CritHab@fws.gov in 
ASCII file format and avoid the use of special characters or any form 
of encryption. Please also include ``Attn: Rota bridled white-eye'' in 
your e-mail subject header and your name and return address in the body 
of your message. If you do not receive a confirmation from the system 
that we have received your Internet message, contact us directly by 
calling our PIFWO at 808/792-9400. Please note that the Internet 
address RBWE--CritHab@fws.gov will be closed at the termination of the 
public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 473 species, or 37 percent 
of the 1,264 listed species in the U.S. under the jurisdiction of the 
Service, have designated critical habitat.
    We address the habitat needs of all 1,264 listed species through

[[Page 54336]]

conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434, and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service). In response to these decisions, we are 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the Rota bridled white-eye, refer to the final listing 
rule published in the Federal Register on January 22, 2004 (69 FR 
3022).

Previous Federal Action

    We published the final rule to list the Rota bridled white-eye as 
endangered in the Federal Register on January 22, 2004 (69 FR 3022). 
This listing was based on a variety of factors including habitat loss 
and degradation, avian disease, introduced predators, and pesticides. A 
final recovery plan for this species has not yet been completed. 
However, a recovery plan is being drafted, and a recovery outline was 
completed and signed by the Regional Director on October 25, 2004 
(Service 2004).
    At the time of listing, we concluded that designating critical 
habitat for the Rota bridled white-eye was prudent and that we would 
publish a proposed rule in accordance with other priority listing 
actions when funding became available. On May 20, 2004, a lawsuit was 
filed against the Department of Interior (DOI) and the Service by the 
Center for Biological Diversity challenging our failure to propose 
critical habitat for the Rota bridled white-eye. On September 14, 2004, 
a stipulated settlement agreement was filed in the U.S. District Court 
for Hawaii (Center for Biological Diversity v. Norton, Case No. C-04-
00326 SPK LEK) stating that the Service will submit for publication in 
the Federal Register a proposed critical habitat designation for the 
Rota bridled white-eye no later than September 7, 2005, and a final 
critical habitat designation no later than September 7, 2006. Between 
March 10 and 15, 2005, the Service met with resource managers on Rota 
and Saipan to obtain additional information on management activities 
and suitability of certain habitat areas for the Rota bridled white-
eye. For more information on previous Federal actions, see the final 
listing rule (January 22, 2004; 69 FR 3022).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) The 
specific areas within the geographic 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 (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are ``essential to the conservation of the species.'' Critical habitat 
designations identify, to the extent known using the best scientific 
and commercial data available, habitat areas that provide essential 
life cycle needs of the species (i.e., areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. (As discussed below, 
such areas may also be excluded from critical habitat pursuant

[[Page 54337]]

to section 4(b)(2).) Accordingly, when the best available scientific 
and commercial data do not demonstrate that the conservation needs of 
the species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species at the time of 
listing. An area currently occupied by the species but was not known to 
be occupied at the time of listing will likely be essential to the 
conservation of the species, and therefore, included in the critical 
habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific and commercial data available. They require Service 
biologists to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information is generally the listing 
package for the species. Additional information sources include the 
recovery plan for the species, articles in peer-reviewed journals, 
conservation plans developed by the Commonwealth and local government, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge. All 
information is used in accordance with the provisions of Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-554; H.R. 5658) and the associated Information 
Quality Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of designation. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that are 
essential to the conservation of the Rota bridled white-eye. We have 
also reviewed available information that pertains to the habitat 
requirements of the species. This information included: peer-reviewed 
scientific publications (e.g., Craig and Taisacan 1994; Fancy and 
Snetsinger 2001; Amidon et al. 2004); the final listing rule (January 
22, 2004; 69 FR 3022); unpublished reports by the CNMI Division of Fish 
and Wildlife (DFW) and Service (Engbring et al. 1986; Engbring 1987; 
Reichel and Glass 1988; Engbring 1989); aerial photographs and 
satellite imagery of Rota; personal communications with scientists and 
resource managers familiar with the species and habitats; and 
information obtained during meetings with CNMI officials. Specific 
information we used from these sources includes estimates of historical 
and current distribution and abundance, as well as data on resource and 
habitat requirements. We also considered possible recovery objectives 
and assessments of habitat necessary to meet these objectives.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements (PCEs)) 
that are essential to the conservation of the species, and that may 
require special management considerations and protection. These 
include, but are not limited to: space for individual and population 
growth and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, and rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distributions of a species.
    Since the first islandwide forest bird survey in 1982, Rota bridled 
white-eyes have been recorded primarily above 490 feet (ft) (150 meters 
(m)) elevation in the Sabana region, the large plateau located in the 
south-central portion of Rota (Engbring et al. 1986; Engbring 1987; 
Engbring 1989; Amidon 2000; Fancy and Snetsinger 2001; USFWS unpubl. 
data). Sightings of Rota bridled white-eyes have been recorded in 
limestone forest (i.e., native forest growing on a limestone 
substrate), introduced Acacia confusa (sosugi) forest, introduced 
Leucaena leucocephala (tangantangan) forest, and secondary vegetation 
(Craig and Taisacan 1994; Amidon 2000; Fancy and Snetsinger 2001; 
Amidon unpubl. data). However, the majority of the Rota bridled white-
eye sightings have been recorded in limestone forest. For example, of 
the survey stations where Rota bridled white-eyes were detected in 1982 
(n = 44 stations) (Engbring et al. 1986) and 1987 (n = 24) (Engbring 
1987), 89 percent (n = 39) of the stations in 1982 and 79 percent (n = 
19) of the stations in 1987 were classified as limestone forest within 
160 ft (50 m) of the survey station by Falanruw et al. (1989). Of the 
remaining stations with Rota bridled white-eye detections in 1982, 8 
percent (n = 4) were in areas with mixed vegetation types that included 
some limestone forest and 2 percent (n = 1) were in forest other 
habitat types (e.g., Cocos nucifera (coconut palm) plantation and 
secondary vegetation). Of the remaining stations with Rota bridled 
white-eye detections in 1987, 21 percent (n = 5) were in areas with 
mixed vegetation types that included some limestone forest. Further, of 
the stations with Rota bridled white-eye detections in limestone forest 
in 1982 (n = 39) and 1987 (n = 19), over 60 percent of the areas were 
dominated by mature limestone forest with large diameter trees (> 30 
centimeters [cm] diameter at breast height [dbh]; > 12 inches [in] 
dbh), high density, and over 70 percent

[[Page 54338]]

canopy cover (Falanruw et al. 1989). A similar pattern observed during 
the 1996 survey by Fancy and Snetsinger (2001) was that 73 percent of 
the white-eye locations (n = 62) were recorded in areas classified as 
mature limestone forest by Falanruw et al. (1989).
    In 1998 and 1999, Rota bridled white-eye abundance and habitat 
relationships were assessed within their current range and across the 
Sabana region as part of a two-year study by Amidon (2000). Forested 
areas with high densities of Rota bridled white-eyes ( >=2 white-eyes 
per ha) had relatively high epiphytic plant volumes (approximately 11 
percent versus 5 percent in lower-density areas), such as Asplenium 
nidus and Davallia solida, and were primarily composed of Elaeocarpus 
joga (yoga), Hernandia labyrinthica (oschal), Merrilliodendron 
megacarpum (faniok), Pandanus tectorius (kafu), and Premna obtusifolia 
(ahgao) trees. Other tree species that were regularly recorded in Rota 
bridled white-eye high density areas include Aglaia mariannensis 
(mapunyao), Artocarpus atilis (lemai), Ficus prolixa (nunu), F. 
tinctoria (hodda), Guettarda speciosa (panao), Macaranga thompsonii 
(pengua), and Pisonia umbellifera. Within the Rota bridled white-eye's 
range, white-eyes were found to be more abundant in areas with higher 
densities of yoga and were also positively correlated with the 
abundance of faniok. In addition, white-eyes were found to be more 
abundant across the Sabana in areas with high densities of oschal and 
where groundcover species of Elatostema and Procris spp. were present.
    Rota bridled white-eyes primarily feed on insects, which are 
typically gleaned from the leaves and branches of trees in the forest 
canopy (Craig and Taisacan 1994; Amidon 2000). Of 97 systematically 
recorded observations of Rota bridled white-eyes foraging, the majority 
of observations were reported in yoga (34 percent), oschal (13 
percent), pengua (10 percent), faniok (9 percent), and ahgao (9 
percent) trees (Amidon 2000; F. Amidon, unpubl. data). However, Rota 
bridled white-eye were also recorded foraging in Pipturus argenteus 
(amahadyan), Persea americana (avocado), panao, hodda, sosugi, 
mapunyao, Eugenia thompsonii (atoto), nunu, Tarenna sambucina (sumac-
lada), and Tristiropsis obtusangula trees and Bambusa vulgaris (piao) 
(F. Amidon, unpubl. data). Of these species, only sosugi, avocado, and 
piao are not native to the island of Rota (Raulerson and Rinehart 
1991). In addition, two of these species, oschal and faniok, are found 
only on Rota in the Sabana region (Amidon 2000). Rota bridled white-
eyes have also been observed foraging on the fruits of amahadyan and 
pengua trees and probing the flowers, presumably to feed on nectar of 
yoga, oschal, pengua, avocado, ahgao, and atoto trees (F. Amidon, 
unpubl. data).
    Rota bridled white-eyes have been reported nesting in oschal (n = 7 
nests), yoga (n = 7), faniok (n = 5), and sosugi (n = 3) between 1,050 
and 1,509 ft (320 and 460 m) elevation (Lusk and Taisacan 1997; Amidon 
et al. 2004; F. Amidon, unpubl. data). Pratt (1985) also reported 
finding a nest in a Hernandia sp. tree (presumably oschal based on the 
location where the nest was found). Nest heights above the ground for 
23 nests ranged from 9 to 43 ft (3 to 13 m) with an average height of 
26 ft (8 m) (Pratt 1985; Lusk and Taisacan 1997; Amidon et al. 2004). 
The height of 18 nest trees ranged from 9 to 49 ft (3 to 15 m) with an 
average height of 33 ft (10 m) and the mean diameter at breast height 
(dbh) for 19 nest trees ranged from 1 to 20 in (2 to 50 cm) with an 
average diameter of 11 in (28 cm) (Pratt 1985; Lusk and Taisacan 1997; 
and Amidon et al. 2004). The majority of the nests (87 percent, n = 20 
nests) were found in areas classified as limestone forest (Falanruw et 
al. 1989). However, nesting was also recorded in sosugi forest, which 
is dominated by sosugi trees and is found on volcanic soils in the 
Sabana region. This forest type has a very limited distribution and 
encompasses approximately 42 ac (17 ha) of the Sabana region.
    Based on our current knowledge of the life history, biology, and 
ecology of the species, we have determined that the primary constituent 
elements required by the Rota bridled white-eye for the biological 
needs of foraging, sheltering, roosting, nesting, and rearing of young 
are:
    (1) Forest above 490 ft (150 m) in elevation containing a midstory 
and canopy layer, high epiphytic plant volume (typically 11 percent), 
Elatostema and Procris spp. on the ground, and yoga, oschal, faniok, 
kafu, and/or ahgao trees as dominant forest components for foraging, 
sheltering, roosting, nesting, and/or rearing of young. In addition, 
the habitat should contain the specific forest components for foraging 
or nesting or both, as follows:
    (a) Yoga, oschal, faniok, pengua, ahgao, amahadyan, avocado, hodda, 
mapunyao, atoto, sosugi, and/or sumac-lada trees, and/or piao, in the 
canopy or subcanopy for foraging; and
    (b) Yoga, oschal, faniok, and/or sosugi trees 10 to 49 ft (3 to 15 
m) tall and 1 to 24 in (2 to 60 cm) dbh for nesting.

Criteria Used To Identify Critical Habitat

    We considered several factors in identifying and selecting lands 
proposed for designation as critical habitat for the Rota bridled 
white-eye. First, we assessed the possible recovery goals for the 
species to help determine the amount of habitat needed to conserve the 
species. The recovery considerations are based on minimum viable 
population information from Reed et al. (2003). Reed et al. (2003) 
reviewed minimum viable population sizes for 102 vertebrate species, 
including one white-eye species, and estimated that 7,000 breeding 
adults had a 99 percent likelihood of persisting for 40 generations. We 
then used data on Japanese white-eyes (Zosterops japonicus) (van Riper 
2000) and silvereyes (Zosterops lateralis) (Kikkawa and Wilson 1983; 
Catterall et al. 1989) to apply Reed et al.'s findings to the Rota 
bridled white-eye. We used the data on these two more closely related 
white-eye species because similar population parameter estimates are 
not available for the Rota bridled white-eye. Based on the information, 
a potential benchmark for recovery of this species would be a single 
population of at least 16,000 Rota bridled white-eyes on the island of 
Rota (Kikkawa and Wilson 1983; Catterall et al. 1989; van Riper 2000; 
Reed et al. 2003; USFWS in prep.). To determine the approximate 
quantity of habitat that would be occupied by a population of this 
size, we reviewed Rota bridled white-eye density estimates from 1996 
(Fancy and Snetsinger 2001) and 1999 (Amidon 2000) surveys.
    The maximum Rota bridled white-eye densities recorded by Fancy and 
Snetsinger (2001) in 1996, and Amidon (2000) in 1999, were 
approximately 3 and 4 white-eyes per ac (7 and 10 white-eyes per ha), 
respectively. The higher Rota bridled white-eye densities reported by 
Amidon (2000) are likely a result of differing survey methods and not 
an increase in Rota bridled white-eye densities over the years. The 
Fancy and Snetsinger (2001) estimates were based on a single set of 
surveys in the Rota bridled white-eye's range involving area searches. 
The Amidon (2000) estimates were based on multiple point count surveys 
conducted in 1998 and 1999.
    Based on these density estimates, we believe that 4 white-eyes per 
ac (10 white-eyes per ha) is a conservative estimate of the number of 
Rota bridled white-eyes a forested area could support if the threats to 
the species were controlled. Utilizing this density

[[Page 54339]]

estimate, we then divided the population recovery benchmark (16,000 
Rota bridled white-eyes) (Kikkawa and Wilson 1983; Catterall et al. 
1989; van Riper 2000; Reed et al. 2003; USFWS, in prep.) by 4 birds per 
ac (10 birds per ha) and estimated that approximately 4,000 ac (1,600 
ha) of forest would be needed to conserve the Rota bridled white-eye. 
This was then used as a guideline for selecting approximately how much 
habitat was essential to the Rota bridled white-eye for the proposed 
designation.
    When selecting areas for proposed designation, we first selected 
all of the forested areas (approximately 638 ac (258 ha)) that 
contained high densities of Rota bridled white-eyes in 1996 (Fancy and 
Snetsinger 2001) and 1999 (Amidon 2000). These areas are primarily 
limestone forest or introduced forest with sosugi trees or piao. We 
then selected low density areas that had large numbers of white-eyes in 
1982, 1987, 1989, and 1994, and large tracts of mature limestone forest 
identified by Falanruw et al. (1989). These areas were prioritized 
because they contain the primary constituent elements needed by the 
species and have supported larger white-eye populations. When defining 
proposed critical habitat boundaries, we avoided areas not known to 
contain primary constituent elements essential for Rota bridled white-
eye conservation, such as agricultural lands and other developed lands.
    We are proposing to designate critical habitat on lands that 
contain the features that are essential to the conservation of the Rota 
bridled white-eye. As such, these areas have the primary constituent 
elements described above and were considered to be occupied at the time 
the species was listed (69 FR 3022; January 22, 2004) (Fancy and 
Snetsinger 2001). A brief discussion of each area proposed as critical 
habitat is provided in the unit descriptions below.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the features 
essential for conservation may require special management 
considerations or protections. As we undertake the process of 
designating critical habitat for a species, we first evaluate lands 
defined by those physical and biological features essential to the 
conservation of the species for inclusion in the designation pursuant 
to section 3(5)(A) of the Act. Secondly, we evaluate lands defined by 
those features to assess whether they may require special management 
considerations or protection.
    As stated in the final listing rule (69 FR 3022; January 22, 2004), 
the primary threats to the Rota bridled white-eye are habitat loss and 
degradation and predation by introduced rats (Rattus spp.) and birds 
(black drongos (Dicrurus macrocercus)). In addition, the small 
population size and limited distribution of the species also make it 
vulnerable to extinction from random environmental events (e.g., 
typhoons). To address these threats and conserve the species, the 
following special management actions may be needed: (1) Protection of 
the remaining stands of mature limestone forest from clearing and 
modification; (2) restoration of degraded areas; (3) invasive plant 
control; and (4) rat and black drongo control. For additional 
information about the threats to the Rota bridled white-eye, see final 
listing rule (69 FR 3022; January 22, 2004).

Proposed Critical Habitat Designation

    We are proposing one unit as critical habitat of approximately 
3,958 ac (1,602 ha) of forested land for the Rota bridled white-eye 
(see Map 1 in the rule portion of this document). This area, described 
below, constitutes our best assessment at this time of the areas we 
determined to be occupied at the time of listing, contain the primary 
constituent elements, may require special management, and contain the 
features essential to the conservation of the Rota bridled white-eye. 
This area contains forested areas on 3,700 ac (1,498 ha) of public and 
258 ac (104 ha) of private lands along the slopes and top of the Sabana 
plateau. Approximately 62 percent (2,292 ac; 928 ha) of the public land 
within this proposed designation is within the Sabana Conservation 
Area. This unit is composed of limestone forest, introduced forest, and 
secondary vegetation that together contain the full range of primary 
constituent elements needed for long-term conservation of the Rota 
bridled white-eye. This area was considered occupied at the time the 
Rota bridled white-eye was listed (69 FR 3022; January 22, 2004) (Fancy 
and Snetsinger 2001) contains the high-density areas identified by 
Fancy and Snetsinger (2001), as the only known nesting areas for the 
Rota bridled white-eye (Pratt 1985; Lusk and Taisacan 1997; Amidon et 
al. 2004); and contains the areas where large numbers of Rota bridled 
white-eyes have been regularly observed during surveys since 1982.
    The proposed critical habitat unit includes all or part of the 
Telang, Palii, Finata, As Rosalia, Fanlagon, Minachage, Mananana, As 
Mundo, Uyulan Hulo, Isang, Tagalo Ogso, Sagua Pakpak, As Pupuenge, 
Lupok, and Alesna regions of Rota (Figure 1 below), which are all 
considered part of the Sabana region. Each of these individual regions 
contain or are exposed to the threats to the Rota bridled white-eye 
(introduced rats, black drongos, and habitat degradation and loss 
(Engbring et al. 1986; Amidon 2000; Fancy and Snetsinger 2001) and 
require special management (see Special Management Considerations or 
Protections above). Proposed critical habitat in the Telang and Palii 
regions includes forested areas between 650 and 1,300 ft (200 and 400 
m) elevation. These forested areas include one of the high-density 
white-eye areas identified by Fancy and Snetsinger (2001) and contain 
oschal, yoga, and other tree species important to the Rota bridled 
white-eye (Amidon 2000). Proposed critical habitat in the Finata and As 
Rosalia regions includes forested areas between 650 and 1,300 ft (200 
and 400 m) elevation. These forested areas include one of the high-
density white-eye areas identified by Fancy and Snetsinger (2001), 
locations where Rota bridled white-eyes were observed in 1987 (Engbring 
1987), and locations where Rota bridled white-eye nesting was recorded 
(Amidon et al. 2004). These forested areas also contain oschal, yoga, 
and other tree species and forest components important to the Rota 
bridled white-eye (Amidon 2000, unpubl. data). Proposed critical 
habitat in the Fanlagon and Minachage regions includes forested areas 
between 650 and 1,540 ft (400 and 470 m). These forested areas include 
locations where large numbers of Rota bridled white-eyes were recorded 
in 1982 (Engbring et al. 1986), 1987 (Engbring 1987), and 1989 
(Engbring 1989), and lower numbers were recorded in 1994 (USFWS unpubl. 
data). These forested areas also contain oschal, yoga, and other trees 
species and forest components important to the Rota bridled white-eye 
(Amidon unpubl. data). Proposed critical habitat in the Mananana, As 
Mundo, and Uyulan Hulo regions includes forested areas between 490 and 
1,500 ft (150 and 450 m). These forested areas include two high-density 
white-eye areas identified by Fancy and Snetsinger (2001), locations 
where Rota bridled white-eye nesting was recorded (Lusk and Taisacan 
1997; Amidon et al. 2001), and faniok, oschal, yoga, and other tree 
species and forest components important to the Rota bridled white-eye 
(Amidon 2000). Proposed critical habitat in the Isang, Tagalo Ogso, and 
Sagua Pakpak regions includes forested areas between 650 and 1,300 ft 
(200 and 400 m). These forested areas include locations where Rota 
bridled white-eyes were recorded in 1982 (Engbring et al. 1986), 1987

[[Page 54340]]

(Engbring 1987), and 1989 (Engbring 1989), and oschal, yoga, and other 
tree species and forest components important to the Rota bridled white-
eye (Amidon 2000, unpubl. data). Proposed critical habitat in the As 
Pupuenge, Lupok, and Alesna regions includes forested areas between 
approximately 650 and 1,500 ft (200 and 450 m). These forested areas 
include a high-density white-eye area identified by Fancy and 
Snetsinger (2001) and locations where Rota bridled white-eye nesting 
was recorded (Pratt 1985; Amidon et al. 2001). These forested areas 
also include oschal, yoga, sosugi, and other tree species and forest 
components important to the Rota bridled white-eye (Amidon 2000, 
unpubl. data).
[GRAPHIC] [TIFF OMITTED] TP14SE05.000

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In response 
to the Ninth Circuit's decision on Gifford Pinchot, the Service has 
provided direction regarding the analysis of adverse modification of 
critical habitat. Such alterations include, but are not limited to: 
Alterations adversely modifying any of those physical or biological 
features that were the basis for determining the habitat to be 
critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, 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 proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. We may issue a formal conference 
report if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain an opinion that is prepared according 
to 50 CFR 402.14, as if critical habitat were designated. We may adopt 
the formal conference report as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). The conservation recommendations in a conference report are 
advisory.
    If a species is listed or critical habitat is designated, 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 such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that their actions

[[Page 54341]]

do not destroy or adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the Rota bridled white-eye or 
its critical habitat will require section 7 consultation. Activities on 
private or Commonwealth lands requiring a permit from a Federal agency, 
such as a permit from the U.S. Army Corps of Engineers under section 
404 of the Clean Water Act, a section 10(a)(1)(B) permit from the 
Service, or some other Federal action, including funding (e.g., Federal 
Highway Administration or Federal Emergency Management Agency funding), 
will also continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non-Federal and private lands that are not Federally funded, 
authorized, or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the Rota bridled 
white-eye. Federal activities that, when carried out, may adversely 
affect critical habitat for the Rota bridled white-eye include, but are 
not limited to:
    (1) Actions that would reduce the amount of limestone forest above 
490 ft (150 m) elevation in the Sabana region. Such activities could 
include vegetation clearing and fires. These activities could eliminate 
or reduce foraging and breeding habitat.
    (2) Actions that would increase the fragmentation of limestone 
forest above 490 ft (150 m) elevation in the Sabana region. Such 
activities could include vegetation clearing and fires. These 
activities could reduce connectivity between areas utilized by Rota 
bridled white-eyes for foraging and breeding and increase the amount of 
forest edge exposed to the potential impacts (tree uprooting, limb 
damage, etc.) of typhoons thereby further reducing the availability of 
breeding and foraging habitat.
    (3) Actions that would degrade limestone forest above 490 ft (150 
m) elevation in the Sabana region. Such activities could include 
spreading or introducing invasive weed species, like Coccina grandis 
(scarlet gourd), which inhibit the natural regeneration of native 
forest utilized by Rota bridled white-eyes for breeding and foraging.
    We consider the entire critical habitat unit to be occupied by the 
species because it contains the high-, low-, and very-low density 
white-eye areas identified by Fancy and Snetsinger (2001; note: authors 
did not identify any medium-density areas) and areas where white-eyes 
were reported by Amidon (2000) in 1998 and 1999.

Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species and (ii) which may require special 
management considerations or protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential for the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species that do not require special management or 
protection also are not, by definition, critical habitat. To determine 
whether an area requires special management, we first determine if the 
essential features located there generally require special management 
to address applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule and adequate funding 
for implementing the management plan); and (3) the plan provides 
assurances that the conservation strategies and measures will be 
effective (i.e., it identifies biological goals, has provisions for 
reporting progress, and is of a duration sufficient to implement the 
plan and achieve the plan's goals and objectives).
    Pursuant to section 4(b)(2) of the Act, we must consider relevant 
impacts in addition to economic ones. We determined that the lands 
within the designation of critical habitat for Rota bridled white-eye 
are not owned or managed by the Department of Defense and do not 
include any Tribal lands or trust resources. Although there have been 
some initial efforts on an islandwide habitat conservation plan, there 
are currently no habitat conservation plans for the Rota bridled white-
eye. In 1994, a local law was passed to set up a conservation area in 
the Sabana region of Rota (Sabana Conservation Area). This law required 
that regulations be developed for the management of the conservation 
area. In 1995, a Sabana Protected Area Committee was established to 
develop a management plan and regulations for the area. An initial plan 
was completed in 1996, but was not implemented because the regulations 
required to manage the area were not promulgated. At this time no 
regulations for management of this area have been

[[Page 54342]]

developed, and the management plan is now considered obsolete.
    We anticipate no impact to national security, Tribal lands, 
partnerships, or habitat conservation plans from this critical habitat 
designation.

Economic Analysis

    An analysis of the economic impacts of proposed critical habitat 
for the Rota bridled white-eye will be prepared. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. At that time, 
copies of the draft economic analysis will be available for downloading 
from the Internet at https://pacificislands.fws.gov, or by contacting 
the Pacific Islands Fish and Wildlife Office directly (see ADDRESSES 
section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
scientific conclusions relevant to the proposed designation of critical 
habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 
hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? (5) What 
else could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240. You 
may e-mail your comments to this address: Exsec@iod.doi.gov.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. We 
are preparing a draft economic analysis of this proposed action, which 
will be available for public comment, to determine the economic 
consequences of designating the specific area as critical habitat. This 
economic analysis also will be used to determine compliance with 
Executive Order 12866, Regulatory Flexibility Act, Small Business 
Regulatory Enforcement Fairness Act, and Executive Order 12630.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation. The availability of the 
draft economic analysis will be announced in the Federal Register so 
that it is available for public review and comments. The draft economic 
analysis can be obtained from the Internet Web site at https://
www.fws.gov/pacific/pacificislands/ or by contacting the Pacific 
Islands Fish and Wildlife Office directly (see ADDRESSES section).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Our assessment of economic effect will be completed prior to final 
rulemaking based upon review of the economic analysis prepared pursuant 
to section 4(b)(2) of the Act and Executive Order 12866. This analysis 
is for the purposes of compliance with the Regulatory Flexibility Act 
and does not reflect our position on the type of economic analysis 
required by New Mexico Cattle Growers Assn. v. U.S. Fish and Wildlife 
Service 248 F.3d 1277 (10th Cir. 2001).
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the Act 
and Executive Order 12866. This draft economic analysis will provide 
the required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, the Service will publish a notice of 
availability of the draft economic analysis of the proposed designation 
and reopen the public comment period for the proposed designation for 
an additional 60 days. The Service will include with the notice of 
availability, as appropriate, an initial regulatory flexibility 
analysis or a certification that the rule will not have a significant 
economic impact on a substantial number of small entities accompanied 
by the factual basis for that determination. The Service has concluded 
that deferring the RFA finding until completion of the draft economic 
analysis is necessary to meet the purposes and requirements of the

[[Page 54343]]

RFA. Deferring the RFA finding in this manner will ensure that the 
Service makes a sufficiently informed determination based on adequate 
economic information and provides the necessary opportunity for public 
comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O.) 
13211 on regulations that significantly affect energy supply, 
distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
proposed rule to designate critical habitat for the Rota bridled white-
eye is not a significant regulatory action under E.O. 12866, and it is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State/Commonwealth, local, 
tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State/
Commonwealth, local, and tribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding'' and the 
State/Commonwealth, local, or tribal governments ``lack authority'' to 
adjust accordingly. At the time of enactment, these entitlement 
programs were: Medicaid; AFDC work programs; Child Nutrition; Food 
Stamps; Social Services Block Grants; Vocational Rehabilitation State 
Grants; Foster Care, Adoption Assistance, and Independent Living; 
Family Support Welfare Services; and Child Support Enforcement. 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
to State/Commonwealth governments.
    (b) Due to current public knowledge of the species' protection, the 
prohibition against take of the species both within and outside of the 
designated areas, and the fact that critical habitat provides no 
incremental restrictions, we do not anticipate that this rule will 
significantly or uniquely affect small governments. As such, Small 
Government Agency Plan is not required. We will, however, further 
evaluate this issue as we conduct our economic analysis and revise this 
assessment if appropriate.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with the Department of Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed critical habitat designation with 
appropriate Commonwealth resource agencies in the CNMI. The designation 
of critical habitat in areas currently occupied by the Rota bridled 
white-eye imposes no additional restrictions to those currently in 
place and, therefore, has little incremental impact on Commonwealth and 
local governments and their activities. The designation may have some 
benefit to these governments in that the areas essential to the 
conservation of the species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the survival of the 
species are specifically identified. While making this definition and 
identification does not alter where and what Federally sponsored 
activities may occur, it may assist the Commonwealth and local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Endangered Species Act. This 
proposed rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the Rota bridled white-
eye.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State/
Commonwealth or local governments, individuals, businesses, or 
organizations. 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 OMB control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit of the U.S. 
Court system, we do not need to prepare environmental analyses as 
defined by the NEPA in connection with designating critical habitat 
under the Endangered Species Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This assertion was upheld in the courts of the 
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 
1995), cert. denied 116 S. Ct. 698 (1996).

[[Page 54344]]

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands essential for the conservation of the Rota 
bridled white-eye. Therefore, designation of critical habitat for the 
Rota bridled white-eye has not been proposed on Tribal lands.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Field Supervisor, Pacific Islands Fish 
and Wildlife Office (see ADDRESSES section).

Author

    The primary author of this package is the Pacific Islands Fish and 
Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

    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. In Sec.  17.11(h), revise the entry for ``White-eye, Rota 
bridled'' under ``BIRDS'' in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

-