Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for `I`iwi, 79942-79975 [2022-27544]

Download as PDF 79942 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R1–ES–2022–0144; FF09E21000 FXES1111090FEDR 234] RIN 1018–BG61 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for ‘I‘iwi Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the federally threatened ‘i‘iwi (Drepanis coccinea) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 275,647 acres (111,554 hectares) on the islands of Kaua‘i, Maui, and Hawai‘i, in the State of Hawaii, fall within the boundaries of the proposed critical habitat designation. We also announce a public informational meeting and public hearing and the availability of a draft economic analysis of the proposed critical habitat designation. SUMMARY: Comment submission: We will accept comments received or postmarked on or before February 27, 2023. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. eastern time on the closing date. Public informational meeting and public hearing: On February 10, 2023, we will hold a public informational meeting from 6 to 6:45 p.m., Hawaii Time, followed by a public hearing from 6:45 to 8 p.m., Hawaii Time. See Public Hearing, in SUPPLEMENTARY INFORMATION, for more information. ADDRESSES: Written comments: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. In the Search box, enter FWS–R1–ES–2022–0144, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment.’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R1–ES–2022–0144, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 DATES: VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on https:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information). Availability of supporting materials: The species status report and other materials relating to this critical habitat designation, including coordinates or plot points or both from which the maps are generated, are included in the decision file and are available at https:// www.regulations.gov under Docket No. FWS–R1–ES–2022–0144. Public informational meeting and public hearing: We are holding the public informational meeting and public hearing via the Zoom online video platform and via teleconference. See Public Hearing and Reasonable Accommodation, below, for more information. Earl Campbell, Project Leader, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard Room 3–122, Honolulu, HI 96850; telephone 808–792–9400. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-ofcontact in the United States. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Executive Summary Why we need to publish a rule. Under the Act, to the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species. Designations of critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.). What this document does. This rule proposes to designate approximately 275,647 acres (111,554 hectares) as critical habitat for the federally threatened ‘i‘iwi on three islands (Kaua‘i, Maui, Hawai‘i) in the State of Hawaii. The basis for our action. Under section 4(a)(3) of the Act, if we determine that a species is an endangered or threatened species we PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 must, to the maximum extent prudent and determinable, designate critical habitat. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native Hawaiian organizations, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments for the islands of Kaua‘i, Maui, and Hawai‘i, in the State of Hawaii concerning: (1) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act (16 U.S.C. 1531 et seq.), including information regarding the following factors that the current regulations identify as reasons why designation of critical habitat may be not prudent: (a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (b) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules (d) No areas meet the definition of critical habitat; or (e) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. In addition, we seek comment regarding whether and how this information would differ under the factors that the pre-2019 regulations identify as reasons why designation of critical habitat may be not prudent. (2) Specific information on: (a) The amount and distribution of ‘i‘iwi habitat; (b) Any additional areas occurring within the range of the species in the State of Hawaii, including on the islands of Moloka‘i and O‘ahu, that should be included in the designation because they (i) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection, or (ii) are unoccupied at the time of listing and are essential for the conservation of the species; and (c) Special management considerations or protection that may be needed in the critical habitat areas we are proposing, including managing for the potential effects of climate change; and (d) To evaluate the potential to include areas not occupied at the time of listing, we particularly seek comments regarding whether occupied areas are adequate for the conservation of the species. Additionally, please provide specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. We also seek comments or information regarding whether areas not occupied at the time of listing qualify as habitat for the species. (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (4) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas. (5) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and any additional information regarding probable VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 economic impacts that we should consider. (6) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act, in particular for those based on a conservation program or plan. These may include Federal, Tribal, State, county, local, or private lands with permitted conservation plans covering the species in the area such as habitat conservation plans, safe harbor agreements, or conservation easements, or non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. Detailed information regarding these plans, agreements, easements, and partnerships is also requested, including: (a) The location and size of lands covered by the plan, agreement, easement, or partnership; (b) The duration of the plan, agreement, easement, or partnership; (c) Who holds or manages the land; (d) What management activities are conducted; (e) What land uses are allowable; and (f) If management activities are beneficial to the ’i’iwi and its habitat. If you think we should exclude any additional areas, please provide information supporting a benefit of exclusion. (7) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. Section 4(b)(2) of the Act directs that the Secretary shall designate critical habitat on the basis of the best scientific information available. You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 79943 comments only by the methods described in ADDRESSES. If you submit information via https:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov. Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. Based on the new information we receive (and any comments on that new information), our final critical habitat designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, or may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species. Public Hearing We will hold a public informational meeting and public hearing on the date and at the times listed in DATES. We are holding the public informational meeting and public hearing via the Zoom online video platform and via teleconference so that participants can attend remotely. To listen and view the meeting and hearing via Zoom, listen to the meeting and hearing by telephone, or provide oral public comments at the public hearing via Zoom or by telephone, you must register. For information on how to register, or if you encounter problems joining Zoom the day of the meeting, visit https:// empsi.zoom.us/webinar/register/WN_ kg1fCOfUTxOXaznf1ezIig. Registrants will receive the Zoom link and the telephone number for the public informational meeting and public hearing. If applicable, interested members of the public not familiar with the Zoom platform should view the Zoom video tutorials (https:// support.zoom.us/hc/en-us/articles/2066 18765-Zoom-video-tutorials) prior to the public informational meeting and public hearing. The public hearing will provide interested parties an opportunity to present verbal testimony (formal, oral E:\FR\FM\28DEP2.SGM 28DEP2 79944 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules comments) on this proposed rule. While the public informational meeting will be an opportunity for dialogue with the Service, no such opportunity will be available at the public hearing. The purpose of the public hearing is to provide a forum for accepting formal verbal testimony, which will then become part of the record for the proposed rule. In the event there is a large attendance, the time allotted for verbal testimony may be limited. Therefore, anyone wishing to provide verbal testimony at the public hearing is encouraged to provide a prepared written copy of their statement to us through the Federal eRulemaking Portal or by U.S. mail (see ADDRESSES, above). There are no limits on the length of written comments submitted to us. Again, anyone wishing to provide verbal testimony at the public hearing must register before the hearing (https:// empsi.zoom.us/webinar/register/WN_ kg1fCOfUTxOXaznf1ezIig). The use of a virtual public hearing is consistent with our regulations at 50 CFR 424.16(c)(3). ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Reasonable Accommodation The Service is committed to providing access to the public informational meeting and public hearing for all participants. Closed captioning will be available during the public informational meeting and public hearing. Further, a full audio and video recording and transcript of the public hearing will be posted online at https:// www.fws.gov/pacificislands after the hearing. Participants will also have access to live audio during the public informational meeting and public hearing via their telephone or computer speakers. Persons with disabilities requiring reasonable accommodations to participate in the meeting and/or hearing should contact the person listed under FOR FURTHER INFORMATION CONTACT at least 5 business days prior to the date of the meeting and hearing to help ensure availability. An accessible version of the Service’s public informational meeting presentation will also be posted online at https://www.fws.gov/pacificislands prior to the meeting and hearing (see DATES, above). See https://www.fws.gov/ pacificislands for more information about reasonable accommodation. Previous Federal Actions Please refer to the final listing rule for the i’iiwi, which published in the Federal Register on September 20, 2017 (82 FR 43873), for a detailed description of previous Federal actions concerning this species. VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 Peer Review In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, 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 proposed critical habitat designation is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed designation of critical habitat. We will consider all comments and information we receive during the comment period on this proposed rule during our preparation of a final determination. Accordingly, our final decision may differ from this proposal. Background The ’i’iwi is a bird endemic to the Hawaiian Islands whose name is often anglicized to ‘‘iiwi.’’ We prefer to, and will, include Hawaiian language spellings, including diacritical marks, to the degree possible and appropriate in the preambles of our Federal Register documents. For the text to be codified in the Code of Federal Regulations (CFR), however, we will omit diacritical marks to ensure that no errors are inadvertently incorporated during the codification process. Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features: (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species’ occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis (e.g., PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not 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 also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would likely result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement ‘‘reasonable and prudent alternatives’’ to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the species status report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; and (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. 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 (HCPs), or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome. Prudency Determination 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, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. As discussed in the final listing rule (82 FR 43873; September 20, 2017), PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 79945 there is currently no imminent threat of collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our species status report and final listing determination for the ‘i‘iwi, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to ‘i‘iwi and that those threats in some way can be addressed by the Act’s section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because the Secretary has not identified other circumstances for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the ‘i‘iwi. Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the ‘i‘iwi is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Data sufficient to perform required analyses are lacking, or (ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of ‘‘critical habitat.’’ When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the ‘i‘iwi. Physical or Biological Features Essential to the Conservation of the Species In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and which E:\FR\FM\28DEP2.SGM 28DEP2 79946 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules ddrumheller on DSK6VXHR33PROD with PROPOSALS2 may require special management considerations or protection. The regulations at 50 CFR 424.02 define ‘‘physical or biological features essential to the conservation of the species’’ as the features that occur in specific areas and that are essential to support the lifehistory needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary earlysuccessional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species. In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the lifehistory needs, condition, and status of the species. These characteristics 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, or rearing (or development) of offspring; and habitats that are protected from disturbance. Habitats Representative of the Historical, Geographical, and Ecological Distributions of the Species The ‘i‘iwi is an endemic Hawaiian forest bird belonging to the honeycreeper subfamily, Drepanidinae, of the Fringillidae (finch family). Historical abundance estimates are not available, but the ‘i‘iwi was considered VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 one of the most common of the native forest birds in Hawaii by early naturalists and was found from sea level to the tree line across all the major islands (Banko 1981, pp. 1–2). In the late 1800s, ‘i‘iwi began to disappear from low-elevation forests due to habitat loss and avian diseases (Banko 1981, pp. 2–3), and by the mid-1900s, the species was largely absent from sea level to midelevation forests (Munro 1944, p. 94). Today ‘i‘iwi are no longer found on Lanai and only a few individuals may be found on O’ahu, Moloka’i, and west Maui. Remaining populations of ‘i‘iwi are restricted to high-elevation forests above 3,937 feet (ft) (1,200 meters (m)) on Hawai‘i Island, east Maui, and Kaua‘i because these areas contain temperatures low enough to reduce or inhibit the spread of avian malaria and avian pox, carried by Culex mosquitoes. At the time of listing, the rangewide population estimate was approximately 600,000 individuals. An estimated 90 percent of ‘i‘iwi occur on Hawai‘i Island, with the remainder distributed on east Maui (about 10 percent), and Kaua‘i (less than 1 percent). Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements ‘I‘iwi are found primarily in closed canopy, montane wet or mesic forests of tall stature, dominated by native ‘o¯hi‘a (Metrosideros polymorpha) or ‘o¯hi‘a and koa (Acacia koa) trees. ‘I‘iwi are nectarivorous; their diet consists predominantly of nectar from the flowers of ‘o¯hi‘a, but they may also feed on ma¯mane (Sophora chrysophylla), and plants in the lobelia family (Campanulaceae) (Fancy and Ralph 1998, p. 4). They also feed opportunistically upon insects and spiders (Fancy and Ralph 1998, pp. 4– 5). The ‘i‘iwi’s long, curved bill is a result of coevolution with native Hawaiian plants in the lobelia family, which have long, curved corollas (groups of petals that encircle the reproductive structures of a flower) (Fancy and Ralph 1998, p. 4, and references therein). Hawaiian lobelioids in the subfamily Lobelioideae, provide an important food source for ‘i‘iwi and represent the largest plant radiation on any island archipelago with 126 species in six genera (Givnish et al. 2008, p. 410). However, many of Hawai‘i’s lobelioids are impacted by feral ungulates and contain few defenses against herbivory. ‘I‘iwi now feed primarily on ‘o¯hi‘a flowers, which have stamens that extend 1–3 cm (0.4–1.2 in) out from the flower and give the blossoms a pompom, brush, or hairlike appearance (Fancy and Ralph 1998, p. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 4). ‘I‘iwi are strong fliers that move long distances to locate nectar sources, and are well known for their seasonal movements in response to the availability of flowering ‘o¯hi‘a (Fancy and Ralph 1998, p. 3.) The ‘i‘iwi’s seasonal movement to lower elevation areas in search of nectar sources is an important factor in the exposure of the species to avian diseases, particularly malaria. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring On the islands of Hawai‘i, Kaua‘i, and Maui, the three islands that currently support populations of ‘i‘iwi, the species breeds and winters in mesic and wet forests that are dominated by ‘o¯hi‘a and koa trees (Fancy and Ralph 1998, p. 3). ‘I‘iwi do not demonstrate high fidelity to a local breeding area (Fancy and Ralph 1998, p. 9); rather, individual birds switch breeding sites from year to year to take advantage of localized nectar availability (Fancy and Ralph 1998, p. 9). ‘I‘iwi pairs remain together during the breeding season and defend a small area around their nest, but disperse after breeding and raising young (Fancy and Ralph 1998, p. 2). The ‘i‘iwi breeding season starts as early as October and continues through to the following August (Fancy and Ralph 1998, p. 7). However, the majority of breeding occurs from February through June, coinciding with peak flowering of ‘o¯hi‘a (Fancy and Ralph 1998, p. 2). ‘I‘iwi construct cup-shaped nests comprised of twigs and lined with lichens and moss in the upper canopy of ‘o¯hi‘a trees at an average nest height of 23.6 ft (7.2 m) (Fancy and Ralph 1998, p. 8). Space for Individual and Population Growth and for Normal Behavior ¯ hi‘a and other flowering trees and ‘O shrubs are distributed across the landscape and flower asynchronously (Ralph and Fancy 1995, pp. 735–741). ‘I‘iwi require large areas of suitable habitat for foraging. They are strong fliers that move long distances to locate nectar sources (Fancy and Ralph 1998, p. 3;). ‘I‘iwi move several miles (several kilometers) in search of large forest patches of seasonally asynchronous flowering trees or shrubs (Guillaumet et al. 2017, p. 1). ‘I‘iwi forage in flocks of two to nine ‘i‘iwi and with other Hawaiian honeycreeper species such as ‘Apapane (Himatione sanguinea), particularly after the breeding season (Fancy and Ralph 1998, p. 7). ‘I‘iwi move according to available nector sources, and other than defending a small area around their nest when E:\FR\FM\28DEP2.SGM 28DEP2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules breeding, ‘I‘iwi are not territorial, nor do they have a defined home range. ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Summary of Essential Physical or Biological Features We derive the specific physical or biological features essential to the conservation of ‘i‘iwi from studies of the species’ habitat, ecology, and life history as described below. Additional information can be found in the species status report (Service 2016, entire; available on https:// www.regulations.gov at Docket No. FWS–R1–ES–2022–0144). We have determined that the following physical or biological features are essential to the conservation of ‘i‘iwi: (1) Multiple patches of seasonally flowering trees including ‘o¯hi‘a and ma¯mane and/or shrubs that collectively provide a year-round nectar source. The number of patches of flowering trees and shrubs needed may be few if patch size is large. For example, a few large contiguous areas of forest containing seasonally asynchronously flowering trees and shrubs that are several square miles (several kilometers) in size, or many small patches with concentrated, seasonally asynchronously flowering trees and shrubs would meet the ‘i‘iwi’s year-round nectar source needs. Patches can be close together, such as individual flowering trees a few hundred feet (hundred meters) apart in an open landscape, or far apart, such as large forest patches of seasonally asynchronous flowering trees or shrubs as much as several miles (several kilometers) apart. (2) Tall stature trees (height taller than 26 ft (8 m)) characteristic of a mesic and wet forest ecosystem, including ‘o¯hi‘a and koa for nesting. We define tall stature forest as forest with a minimum canopy height of 26 ft (8 m) based on mean nest height for ‘i‘iwi of 24 feet. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. As discused above, ‘i‘iwi habitat is characterized by mesic and wet forests that are dominated by ‘o¯hi‘a and koa trees. This ecosystem is a multi-layered structure of tall canopy trees, secondary shrubs (e.g., Lobelioids) and fern layers, and ground-hugging mosses and lichens. The functionality of this system is dependent on native plant regeneration, pollination, and seed VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 dispersal. A keystone species in this ¯ hi‘a are system is the ‘o¯hi‘a tree. ‘O specificially adapted for bird pollination because they produce copius nectar; newly secreted nectar has low sugar concentration, and flowers are predominantly red in color (Carpenter 1976, p. 1139.) Red flowers, the most common type of ‘o¯hi‘a blossoms are partially self-incompatible and require an animal pollinator for high-levels of fruit set and good seed set (Carpenter 1976, p. 1134.) The Hawaiian honeycreepers, including ‘i‘iwi, serve an important role as pollinators in Hawai‘i’s mesic and wet forest ecosystem and are necessary to ensure the health of this ecosystem. Unfortunately, Hawaiian honeycreepers, especially ‘i‘iwi, are highly susceptible to avian disease. For example, a single bite from the southern house mosquito (Culex quinquefasciatus) carrying avian malaria can be fatal to individuals of the Hawaiian honeycreeper genera (Atkinson et al. 1995, p. S65; Atkinson et al. 2000, p. 199). Climate change exacerbates the threat of mosquito-borne avian disease by increasing forest temperatures allowing cold-intolerant mosquitos to climb higher in elevation, constricting the range of Hawaiian honeycreepers. Degradation and fragmentation of forests caused by nonnative plants, ungulates, fire, and plant pathogens are also threats to ‘i‘iwi habitat. For a detailed discussion of threats to ‘i‘iwi and its habitat, see the final listing rule published in the Federal Register on September 20, 2017 (82 FR 43873). Any stressors that result in further degradation or fragmentation of the forests on which the ‘i‘iwi relies for foraging and nesting are likely to exacerbate the impacts of avian disease on the species and directly affect habitat features which ‘i‘iwi rely on for their life history processes. These stressors include invasive plants, which outcompete and displace native ‘o¯hi‘a. Several species of nonnative grasses are widely documented to fuel a grass/fire cycle of intrusion into Hawai‘i’s native ‘o¯hi‘a forests, further degrading biodiversity. In addition, feral ungulates including pigs (Sus scrofa), cattle (Bos taurus), sheep (Ovis aries), and axis deer (Axis axis) degrade ‘o¯hi‘a forest habitat by spreading nonnative plant seeds, grazing and trampling native vegetation, contributing to erosion, and creating mosquito breeding habitat (Mountainspring 1986, p. 95; Camp et al. 2010, p. 198). In addition to the effects of nonnative plants and animals on ‘o¯hi‘a and its habitat, ‘o¯hi‘a forest is impacted by several diseases and PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 79947 natural processes including ‘o¯hi‘a dieback, ‘o¯hi‘a rust, and rapid ‘o¯hi‘a death caused by the Ceratocystis fungus. Features essential to the conservation of ‘i‘iwi may require special management considerations to reduce the following threats: (1) extirpation of native avian pollinators by mosquitoborne diseases which negatively impact mesic and wet forest health and persistence; (2) degradation of forest habitat by nonnative ungulates; (3) establishment and spread of habitataltering nonnative plants; and (4) spread of nonnative pathogens including those that cause rapid ‘o¯hi‘a death, a fungal wilt disease. Management actions that could minimize or ameliorate these threats include, but are not limited to, removal of mosquito breeding sources (such as application of larvicides to standing water), control or eradication of significant habitat-modifying invasive plants, ungulate removal and exclusion fencing, reduction of the spread of rapid ‘o¯hi‘a death and other plant pathogens, and habitat restoration to encourage multiple types of native flowering plants at higher elevations. These management actions would result in the enhancement of ‘i‘iwi breeding and foraging areas. In addition, the incompatible insect technique may be used in some areas to limit southern house mosquito populations. This technique involves the release of male southern house mosquitoes infected with Wolbachia bacteria, which renders them incapable of producing viable offspring when they mate with wildtype females, thereby reducing mosquito populations that carry avian diseases (Pagendam et al. 2020, entire). Criteria Used To Identify Critical Habitat As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. The area of occupied ‘i‘iwi habitat fulfills the species’ recovery criteria for size and distribution of forest and shrubland E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 79948 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules habitat needed for recovery (Service 2021, pp. 110–112). Therefore, the areas occupied by the ‘i‘iwi are adequate to ensure the conservation of the species. For areas within the geographic area occupied by the species at the time of listing, we used the methodology described below to delineate critical habitat unit boundaries. To determine the area occupied at the time of listing, we relied primarily on a summary of abundance, distribution, and trends compiled by the U.S. Geological Survey (Paxton et al. 2013, entire). This dataset represents the most recent and best available dataset for ‘i‘iwi populations. Where this summary was incomplete, specifically within the Kula region of Maui, we used information provided by the National Park Service and the Maui Forest Bird Recovery Project (Judge et al. 2019, p. 34). Rangewide, ‘i‘iwi are constrained to a narrow band of montane forest at an elevation of 4,265–6,233 ft (1,300–1,900 m). Most ‘i‘iwi are found on the island of Hawai‘i (90 percent), followed by east Maui (about 10 percent), and Kaua‘i (less than 1 percent). Relict populations may exist on O‘ahu, west Maui, and Moloka‘i (Paxton et al. 2013, p. 10). Within occupied areas, we identified the areas that support the highest densities of ‘i‘iwi. Areas of ‘i‘iwi abundance are proxies for patches of flowering ‘o¯hi‘a and other nectar sources within mesic and wet forest ecosystems. ‘I‘iwi are known to undertake seasonal movements that mirror ‘o¯hi‘a flowering periods. Due to the variability of mesic and wet forest ecosystems and the limitations of satellite imagery to distinguish physical and biological features, ‘i‘iwi abundance was used as a proxy for seasonal flowering ‘o¯hi‘a and other nectar sources. Therefore, forest bird surveys conducted during the late 1970s and early 1980s (Scott et al. 1986, entire) were our primary source of information for delineating high-density areas. More recent surveys (Paxton et al. 2013, entire) show some contraction of the species’ range, particularly at lower elevations. However, the high-density bands described in Paxton et al. 2013 correspond closely with 1970s-80s density maps. Because of this close correspondence and because the older mapped densities provide more detailed information for locations of high-density populations, both across and along the elevation contour, we relied primarily on the older dataset to delineate the highest density areas. We also considered the most recent surveys for the Kula region on Maui conducted by the National Park Service and Maui VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 Forest Bird Recovery Project (Judge et al. 2019, p. 34). ‘I‘iwi foraging behavior required that we delineate critical habitat areas that are large enough to ensure regionally resilient populations. To ensure redundancy and representation of the species at a rangewide scale, we determined that the islands of Kaua‘i, Maui, and Hawai‘i should be included in the critical habitat designation. These three islands represent the functional distribution of the species and are separated by enough distance that if one island suffered a catastrophic population decline due to a hurricane or other environmental catastrophe, populations on other islands would likely be spared. Populations across this distribution also represent the genetic, ecological, and behavioral diversity of the species. For Maui and Hawai‘i, the two islands that support multiple populations, we also considered redundancy and representation at an island scale. Maintaining habitat to support multiple regional populations on each island safeguards against the effects of smaller-scale catastrophic events and ensures inclusion of diverse habitats that represent the behavioral and ecological diversity of the species. Based on the Scott et al. (1986) dataset, we included all areas with a maximum mapped density of 100 birds per square kilometer (birds/km2), a density that maximized connectivity between the highest density population centers within a region, therefore promoting resiliency. This resulted in delineation of areas within seven geographical regions, i.e., critical habitat units distributed across the islands of Kaua‘i, Maui, and Hawai‘i. In addition, we delineated areas within the Kula Unit on east Maui based on the National Park Service and Maui Forest Bird Recovery Project dataset (Judge et al. 2019, p. 34), as this area was not well surveyed until recently and, therefore, was not included in the Scott et al. 1986 dataset. Next, within each of the units, we determined whether the area delineated was large enough to support a highly resilient population of ‘i‘iwi. Although the viable population size of ‘i‘iwi is unknown, a population of 5,000 is a generalized estimate of population size required for long-term viability for a range of vertebrate species (Traill et al. 2010, p. 31). We used this estimate to ensure that, within each unit, the designation included sufficient habitat to support highly resilient populations. We calculated the area required to support a highly resilient population by multiplying regionally specific population densities by 5,000. For all units except the Alaka‘i Plateau Unit on PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 Kaua‘i, we used the current highest density estimate for that respective unit. In the Alaka‘i region,‘i‘iwi range contraction and population decline has been precipitous over the last 20 years due to avian disease; however, abundant habitat still exists and carrying capacity is high, therefore we used historical densities to maintain this critical habitat area for ‘i‘iwi. Specifically, we used the average of the interior and exterior survey densities for the Alaka‘i Plateau survey area from the year 2000 as the most representative of ‘i‘iwi density and habitat carrying capacity (Paxton et al. 2013, p. 57). Year 2000 survey data were used for the Alaka‘i Plateau area because this survey data point represents the most recent survey data prior to the rapid population decline of ‘i‘iwi beginning around year 2000, due primarily to avian disease. Through further analysis, including a review of satellite imagery and the area required to support long-term viability for a range of vertebrate species (Traill et al. 2010, p. 31), we determined that two geographical regions, the West Maui region and the Kohala region on Hawai‘i Island, were not large enough to support a population of 5,000 birds. Therefore, we did not delineate critical habitat within these two regions. Because our critical habitat areas concentrate on areas of high ‘i‘iwi density as surveyed in the 1970s and 80s, we used satellite imagery and land management information to refine the larger contiguous areas containing high ‘i‘iwi densities. Specifically, we removed all parcels that were smaller than 1,235 acres (ac) (500 hectares (ha)), unless they were owned by a State or Federal agency, or already managed for conservation. Small private parcels were found to have negligible identified physical or biological features essential for ‘i‘iwi conservation and represented a small proportion of the area that otherwise meets our criteria for critical habitat designation. In order to provide for adequate ‘i‘iwi foraging areas encompassing one or more physical and biological features and prevent an artificial range constriction of high densities of ‘i‘iwi, the delineated critical habitat area in every region is greater than the habitat area needed to support the conservation of the species. In summary, for areas within the geographic area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria: 1. Habitat contains primarily mesic and wet forest ecosystem dominated by ‘o¯hi‘a and koa; 2. Area has high population density of ‘i‘iwi, defined as more than 100 birds/ E:\FR\FM\28DEP2.SGM 28DEP2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules km2, which is a proxy for multiple patches of seasonally flowering trees including ‘o¯hi‘a and ma¯mane and/or shrubs that collectively provide a yearround nectar source; and 3. Each regional area meeting criteria 1 and 2 above is able to support at least 5,000 birds. We then removed the smallest parcels (less than 1,235 ac (500 ha)) in private ownership within larger contiguous areas and all areas that were smaller than 62 ac (25 ha) and discontinuous from larger habitat units. When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for ‘i‘iwi. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (i.e., currently occupied) and that contain one or more of the physical or biological features that are essential to support life-history processes of the species. Seven units are proposed for designation based on one or more of the physical or biological features being present to support ‘i‘iwi. Some units contain only some of the physical or biological features necessary to support the ‘i‘iwi’s use of that habitat. All units contain at least one of the identified physical or biological features and support multiple life-history processes for ‘i‘iwi. The proposed critical habitat designation is defined by the map or 79949 maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on https:// www.regulations.gov at Docket No. FWS–R1–ES–2022–0144. Proposed Critical Habitat Designation We are proposing seven units as critical habitat for the ‘i‘iwi. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the ‘i‘iwi. The seven units we propose as critical habitat are: (1) Alaka‘i Plateau; (2) Kula; (3) East Haleakala¯; (4) Windward Hawai‘i; (5) Ka‘u¯; (6) South Kona; and (7) North Kona. All units were occupied at the time of listing and are currently occupied. Table 1 shows the proposed critical habitat units, their ownership, and the approximate area of each unit. TABLE 1—PROPOSED CRITICAL HABITAT UNITS FOR ‘I‘IWI [Area estimates reflect all land within critical habitat units] Unit Occupied Landowner Total area (ac (ha)) Area of overlap with existing critical habitat (ac (ha)) Alaka‘i Plateau (Kaua‘i Island) Alaka‘i Plateau .................................................................... Alaka‘i Plateau .................................................................... Yes ............... Yes ............... State ............. Private .......... 10,359 (4,192) 2,150 (870) 9,262 (3,748) 131 (53) Total ............................................................................. ...................... ...................... 12,510 (5,063) 9,393 (3,801) Kula (Maui Island) Kula ..................................................................................... Kula ..................................................................................... Yes ............... Yes ............... State ............. Private .......... 4,396 (1,779) 830 (336) 4,346 (1,759) 825 (334) Total ............................................................................. ...................... ...................... 5,226 (2,115) 5,171 (2,093) East Haleakala¯ (Maui Island) East Haleakala¯ .................................................................... East Haleakala¯ .................................................................... East Haleakala¯ .................................................................... Yes ............... Yes ............... Yes ............... Federal ......... State ............. Private .......... 5,670 (2,294) 10,283 (4,162) 3,440 (1,392) 5,666 (2,293) 10,265 (4,154) 20 (8) Total ............................................................................. ...................... ...................... 19,393 (7,848) 15,951 (6,455) ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Windward Hawai‘i (Hawai‘i Island) Windward ............................................................................ Windward ............................................................................ Windward ............................................................................ Yes ............... Yes ............... Yes ............... Federal ......... State ............. Private .......... 34,694 (14,040) 91,547 (37,048) 14,844 (6,007) 24,061 (9,737) 36,202 (14,650) 514 (208) Total ............................................................................. ...................... ...................... 141,085 (57,095) 60,777 (24,595) 32,059 (12,974) 399 (162) 5,498 (2,225) 0 (0) Ka‘u¯ (Hawai‘i Island) Ka‘u¯ ..................................................................................... Ka‘u¯ ..................................................................................... VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 PO 00000 Yes ............... Yes ............... Frm 00009 Fmt 4701 State ............. Private .......... Sfmt 4702 E:\FR\FM\28DEP2.SGM 28DEP2 79950 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules TABLE 1—PROPOSED CRITICAL HABITAT UNITS FOR ‘I‘IWI—Continued [Area estimates reflect all land within critical habitat units] Unit Total ............................................................................. Occupied Landowner ...................... ...................... Total area (ac (ha)) Area of overlap with existing critical habitat (ac (ha)) 32,458 (13,136) 5,498 (2,225) South Kona (Hawai‘i Island) South Kona ......................................................................... South Kona ......................................................................... South Kona ......................................................................... Yes ............... Yes ............... Yes ............... Federal ......... State ............. Private .......... 8,234 (3,332) 8,357 (3,382) 34,785 (14,077) 3,447 (1,395) 2,861 (1,158) 148 (60) Total ............................................................................. ...................... ...................... 51,376 (20,791) 6,456 (2,613) North Kona (Hawai‘i Island) North Kona .......................................................................... North Kona .......................................................................... Yes ............... Yes ............... State ............. Private .......... 9,457 (3,827) 4,142 (1,676) 2,982 (1,207) 47 (19) Total ............................................................................. ...................... ...................... 13,599 (5,503) 3,029 (1,226) We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the ‘i‘iwi, below. ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Alaka‘i Plateau Unit The Alaka‘i Plateau Unit consists of 12,510 ac (5,063 ha) of montane wet forest ecosystem from Koke‘e State Park to the summit of Mount Wai‘ale‘ale, in Kaua‘i County. The unit consists of State lands within Alaka‘i Wilderness Preserve, Na¯ Pali-Kona Forest Reserve, and Hono O Na¯ Pali Natural Area Reserve, and some private land. State lands comprise approximately 83 percent and private land approximately 17 percent of the Alaka‘i Plateau Unit. Approximately 75.1 percent, or 9,393 ac (3,801 ha) of the Alaka‘i Plateau Unit is within already designated critical habitat for species other than the ‘i‘iwi. This unit is essential for maintaining the geographical range of the ‘i‘iwi and, therefore, contributing to the redundancy and representation necessary for species’ recovery. In particular, the Kaua‘i ‘i‘iwi population is important for maintaining the species’ genetic diversity, as it is likely there is little or no genetic exchange between ‘i‘iwi on Kaua‘i Island and Maui Island, the nearest island to Kaua‘i with a substantial ‘i‘iwi population. ‘I‘iwi is not known to fly long distances over open water and the two islands are separated by over 200 miles (mi) (322 kilometers (km)) of open ocean. Threats identified within Alaka‘i Plateau Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystemaltering invasive plants; and the rapid ‘o¯hi‘a death fungal disease. Special management considerations or VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 protection measures to reduce or alleviate threats may include mosquito control, feral ungulate control, invasive plant control, and measures to reduce the spread of rapid ‘o¯hi‘a death (see Special Management Considerations or Protection, above). There are five land parcels defined by landownership within Alaka’i Plateau Unit: State of Hawaii Department of Land and Natural Resources (DLNR), Alaka‘i Wilderness Preserve and Na¯ Pali-Kona Forest Reserve and Hono O Na¯ Pali Natural Area Reserve total 10,359 ac (4,192 ha); Alexander & Baldwin, Inc. total 203 ac (82 ha); and Robinson Family Partners total 1,948 ac (788 ha). Kula Unit The Kula Unit consists of 5,226 ac (2,115 ha) on the west slope of Haleakala¯ Volcano, in Maui County. This unit consists of State lands within Kula Forest Reserve and the Papa‘anui Tract of Kahikinui Forest Reserve, and some private land. State lands comprise approximately 84 percent, and private land approximately 16 percent, of the Kula Unit. Approximately 99 percent, or 5,171 ac (2,093 ha), of the Kula Unit is within already designated critical habitat for species other than the ‘i‘iwi. The Kula Unit is comprised of mixed introduced/native mesic montane forest with sub-alpine shrubland (Judge et al. 2019, p. 7), representing different habitat types than other units, which are predominantly native wet montane forest. This unit is essential for maintaining the geographical range, as well as the ecological and behavioral diversity, of the species, therefore contributing to the redundancy and representation necessary for species’ recovery. Threats identified within Kula PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystemaltering, invasive plants; and fire. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control, invasive plant control, and fire management planning and wildfire response (see Special Management Considerations or Protection, above). There are three land parcels defined by landownership within Kula Unit: DLNR, Kula Forest Reserve and Papa‘anui Tract of Kahikinui Forest Reserve total 3,518 ac (1,424 ha); DLNR, Kula Forest Reserve is 878 ac (355 ha); and Ka‘ono‘ulu Ranch is 830 ac (336 ha). East Haleakala¯ Unit The East Haleakala¯ Unit consists of 19,393 ac (7,848 ha) on the north and east slopes of Haleakala¯ Volcano, Maui County. This unit consists of Federal lands within Haleakala¯ National Park; State lands within Ko‘olau Forest Reserve, Ha¯na Forest Reserve, Kı¯pahulu Forest Reserve, and Hanawı¯ Natural Area Reserve; and some private lands. Federal lands comprise approximately 29 percent, State lands approximately 53 percent, and private land approximately 18 percent of the East Haleakala¯ Unit. Approximately 82 percent, or 15,951 ac (6,455 ha), of the Haleakala¯ Unit is within already designated critical habitat for species other than the ‘i‘iwi. The Haleakala¯ Unit is comprised predominantly of native wet montane forest and some native sub-alpine shrubland. This unit is essential for maintaining the geographical range, as well as the ecological and behavioral diversity of E:\FR\FM\28DEP2.SGM 28DEP2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules ddrumheller on DSK6VXHR33PROD with PROPOSALS2 the species, therefore contributing to the redundancy and representation necessary for species’ recovery. Threats identified within East Haleakala¯ Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystemaltering, invasive plants; and fire. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control, invasive plant control, and fire management planning and wildfire response (see Special Management Considerations or Protection, above). There are seven land parcels defined by landownership within East Haleakala¯ Unit: Haleakala¯ Ranch Company is 1,113 ac (451 ha); East Maui Irrigation, Inc. is 2,327 ac (942 ha); DLNR, Ko‘olau Forest Reserve is 4,780 ac (1,934 ha); DLNR, Hanawı¯ Natural Area Reserve is 3,145 ac (1,273 ha); DLNR, Ha¯na Forest Reserve is 2,006 ac (812 ha); DLNR, Kı¯pahulu Forest Reserve is 352 ac (142 ha); and Haleakala¯ National Park is 5,670 ac (2,294 ha). Windward Hawai‘i Unit The Windward Hawai‘i Unit consists of 141,085 ac (57,095 ha) on the east slopes of Mauna Kea and Mauna Loa Volcanos, Hawai‘i County. This unit consists of Federal lands within Hawai‘i Volcanoes National Park and Hakalau Forest National Wildlife Refuge, Hakalau Forest Unit; State lands within Kapa¯pala Forest Reserve, Upper Waia¯kea Forest Reserve, Hilo Forest Reserve, Manowaiale‘e Forest Reserve, Mauna Kea Forest Reserve, Pu‘u Maka‘ala Natural Area Reserve, and Laupa¯hoehoe Natural Area Reserve; and lands administered by the Department of Hawaiian Homelands (DHHL); and some private lands. Federal lands comprise approximately 25 percent, State lands approximately 67 percent, and private land approximately 8 percent of the Windward Hawai‘i Unit. Approximately 43 percent, or 60,777 ac (24,595 ha) of the Windward Hawai‘i Unit is within already designated critical habitat for species other than the ‘i‘iwi. The Windward Hawai‘i Unit is comprised predominantly of native wet montane forest and some higher elevations native mesic montane forest. The Windward Hawai‘i Unit contains more than half of the ‘i‘iwi population Statewide and has the highest ‘i‘iwi densities within the State (Scott et al. 1986, p. 160). Approximately 348,579 ‘i‘iwi, or 57.8 percent of the entire Statewide ‘i‘iwi population occupy the Windward Hawai‘i Unit (Paxton et al. 2013, p. 10). This unit is essential for maintaining the species’ geographical VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 range, contributing to the redundancy and representation necessary for its recovery. Threats identified within Windward Hawai‘i Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystem-altering, invasive plants; fire; and rapid ‘o¯hi‘a death. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control, invasive plant control, fire management planning and wildfire response; and measures to reduce the spread of rapid ‘o¯hi‘a death (see Special Management Considerations or Protection, above). There are eighteen land parcels defined by landownership within Windward Hawai’i Unit: Hawai‘i Volcanoes National Park total 9,463 ac (3,830 ha) over two parcels; Kamehameha Schools total 13,308 ac (5,386 ha) over two parcels; DLNR, Kapa¯pala Forest Reserve is 588 ac (238 ha); DLNR, Upper Waia¯kea Forest Reserve and Pu‘u Maka‘ala Natural Area Reserve is 71,836 ac (29,071 ha); Hakalau Forest National Wildlife Refuge, Hakalau Forest Unit is 25,231 ac (10,211 ha) over two parcels; DLNR, Hilo Forest Reserve, Kaiwiki Section is 71 ac (29 ha); DLNR, Hilo Forest Reserve, Piha Section is 2,420 ac (979 ha); DLNR, Hilo Forest Reserve, Laupa¯hoehoe Section and Laupa¯hoehoe Natural Area Reserve is 7,680 ac (3,108 ha); Department of Hawaiian Homelands is 4,035 ac (1,633 ha) over two parcels; DLNR, Hilo Forest Reserve, Humu‘ula Section is 2,768 ac (1,120 ha); DLNR, Manowaiale‘e Forest Reserve is 672 ac (272 ha); DLNR, Mauna Kea Forest Reserve is 1,477 ac (598 ha); Ku¯ka‘iau Ranch is 87 ac (35 ha); and Parker Ranch is 1,449 ac (586 ha). Ka‘u¯ Unit The Ka‘u¯ Unit consists of 32,458 ac (13,136 ha) on the southeast slope of Mauna Loa Volcano, Hawai‘i County. This unit consists of State lands within Ka‘u¯ Forest Reserve and Kapa¯pala Forest Reserve, and some private lands. State lands comprise approximately 99 percent, and private land approximately 1 percent of the Ka‘u¯ Unit. Approximately 17 percent, or 5,498 ac (2,225 ha), of the Ka‘u Unit is within already designated critical habitat for species other than the ‘i‘iwi. The Ka‘u¯ Unit is comprised of native wet montane forest in the southern portion, transitioning to native mesic montane forest in the northern portion of the unit. Native forest in the Ka‘u¯ Unit provides habitat connectivity between ‘i‘iwi that inhabit the Windward Hawai‘i Unit and ‘i‘iwi that inhabit the South Kona Unit. The Ka‘u¯ Unit is PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 79951 essential for maintaining the geographical range of the species and redundancy and representation necessary for species’ recovery. Threats identified within Ka‘u¯ Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystem-altering, invasive plants; fire; and rapid ‘o¯hi‘a death. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control, invasive plant control, fire management planning and wildfire response; and measures to reduce the spread of rapid ‘o¯hi‘a death (see Special Management Considerations or Protection, above). There are five land parcels defined by landownership within Ka‘u¯ Unit: DLNR, Ka‘u¯ Forest Reserve is 31,414 ac (12,713 ha); DLNR, Kapa¯pala Forest Reserve is 546 ac (221 ha); DLNR, Ka‘u¯ Forest Reserve is 99 ac (40 ha); and The Nature Conservancy total 399 ac (162 ha) over two parcels. South Kona Unit The South Kona Unit consists of 51,376 ac (20,791 ha) on the west slope of Mauna Loa Volcano, Hawaii County. This unit consists of Federal lands within Hakalau Forest National Wildlife Refuge, Kona Forest Unit; State lands within South Kona Forest Reserve, Waiea Natural Area Reserve, and Kipa¯hoehoe Natural Area Reserve; and private lands. Federal lands comprise approximately 16 percent, State lands comprise approximately 16 percent, and private land approximately 68 percent of the South Kona Unit. Approximately 13 percent, or 6,456 ac (2,613 ha), of the South Kona Unit is within already designated critical habitat for species other than the ‘i‘iwi. The South Kona Unit is comprised of native wet lowland forest at lower elevations and native wet and mesic montane forest at middle and upper elevations. Unlike other units, the South Kona Unit contains large areas of native wet lowland forest at elevations as low as 2,500 ft (762 m), representing the species’ behavioral and ecological diversity. This unit is essential for maintaining the geographical range, as well as the diversity, of the species, therefore contributing to the redundancy and representation necessary for species’ recovery. Threats identified within South Kona Unit include avian disease, habitat degradation due to rooting by feral ungulates; intrusion of ecosystemaltering, invasive plants; fire; and rapid ‘o¯hi‘a death. Special management considerations or protection measures to reduce or alleviate threats may include mosquito control, ungulate control, E:\FR\FM\28DEP2.SGM 28DEP2 79952 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules ddrumheller on DSK6VXHR33PROD with PROPOSALS2 invasive plant control, fire management planning and wildfire response; and measures to reduce the spread of rapid ‘o¯hi‘a death (see Special Management Considerations or Protection, above). There are eighteen land parcels defined by landownership within South Kona Unit: Kealakekua Mountain Reserve LLC total 5,801 ac (2,348 ha) over two parcels; Kamehameha Schools total 16,209 ac (6,560 ha) over three parcels; Kealia Ranch is 1,758 ac (712 ha); Hakalau Forest National Wildlife Refuge, Kona Forest Unit is 8,234 ac (3,332 ha) over two parcels; DLNR, Waiea Natural Area Reserve is 939 ac (380 ha); DLNR, South Kona Forest Reserve, Ka‘ohe Section is 1,052 ac (426 ha); DLNR, South Kona Forest Reserve, Kukuiopa‘e Section is 2,416 ac (978 ha); DLNR, South Kona Forest Reserve, ‘Olelomoana Ophihihali Section is 1,392 ac (563 ha); Yee Hop Ltd., Yee Hop Ranch is 5,317 ac (2,152 ha) over two parcels; DLNR, Kipa¯hoehoe Natural Area Reserve is 225 ac (91 ha); The Nature Conservancy is 5,700 ac (2,307 ha); DLNR, South Kona Forest Reserve, Kapua-Manuka¯ Section is 1,010 ac (409 ha); and DLNR, Manuka¯ Natural Area Reserve is 1,323 ac (535 ha). North Kona Unit The North Kona Unit consists of 13,599 ac (5,503 ha) on the north, west, and south slopes of Huala¯lai Volcano, Hawaii County. This unit consists of State lands within the Pu‘u Wa‘awa‘a Forest Bird Sanctuary, Pu‘u Wa‘awa‘a Forest Reserve, and Honua‘ula Forest Reserve, and some private lands. State lands comprise approximately 70 percent, and private land approximately 30 percent of the North Kona Unit. Approximately 22 percent, or 3,029 ac (1,226 ha), of the North Kona Unit is within already designated critical habitat for species other than the ‘i‘iwi. The North Kona Unit is comprised of mesic montane forest on the north slope and native wet and mesic montane forest on the west and south slopes of Huala¯lai Volcano. Collectively, the North Kona Unit is essential for maintaining the geographical range, as well as the ecological and behavioral diversity, of the species, therefore contributing to the redundancy and representation necessary for species’ recovery. Threats identified within North Kona Unit include habitat degradation due to rooting by feral ungulates; intrusion of ecosystemaltering, invasive plants; fire; and rapid ‘o¯hi‘a death. Special management considerations or protection measures to reduce or alleviate threats may include ungulate control, invasive plant control, fire management planning and wildfire VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 response; and measures to reduce the spread of rapid ‘o¯hi‘a death (see Special Management Considerations or Protection, above). There are four land parcels defined by landownership within North Kona Unit: DLNR, Pu‘u Wa‘awa‘a Forest Bird Sanctuary and Pu‘u Wa‘awa‘a Forest Reserve total 4,214 ac (1,705 ha); DLNR, Honua‘ula Forest Reserve is 5,243 ac (2,122 ha); and Kamehameha Schools total 4,142 ac (1,676 ha) over two parcels. Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. 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. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Compliance with the requirements of section 7(a)(2) is documented through our issuance of: PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Service Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying 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 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law) and, subsequent to the previous consultation: (1) if the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action. E:\FR\FM\28DEP2.SGM 28DEP2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules ddrumheller on DSK6VXHR33PROD with PROPOSALS2 In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but Congress also enacted some exceptions in 2018 to the requirement to reinitiate consultation on certain land management plans on the basis of a new species listing or new designation of critical habitat that may be affected by the subject federal action. See 2018 Consolidated Appropriations Act, Public Law 115–141, Div, O, 132 Stat. 1059 (2018). Application of the ‘‘Destruction or Adverse Modification’’ Standard The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation. Activities that we may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to, actions that would significantly diminish foraging and nesting opportunities for the ‘i‘iwi. While we are currently unaware of any planned activities involving Federal actions that are of sufficient magnitude to impact the essential physical or biological features, known activities that have the potential to impact components of these features include, but are not limited to, road construction, development, crop production, cattle grazing, and forest extraction. In addition to the direct effects of tree removal on ‘i‘iwi habitat, these activities also contribute to habitat degradation through the introduction and spread of nonnative species and compounding factors including diseases. Invasive plants outcompete and displace native ‘o¯hi‘a and koa trees used by native forest birds for foraging and nesting. Feral ungulates degrade native forest by spreading nonnative plant seeds and grazing on and VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 trampling native vegetation, contributing to soil erosion (Mountainspring 1986, p. 95; Camp et al. 2010, p. 198). In addition, ‘o¯hi‘a trees are impacted by several diseases and natural processes, including ‘o¯hi‘a dieback, ‘o¯hi‘a rust, and rapid ‘o¯hi‘a death (ROD), the effects of which are likely compounded by each other and with nonnative species and climate change (Mueller-Dombois 1986, pp. 238–239; Anderson 2012, pp. 1–2; Friday et al. 2015, pp. 1–3; Keith et al. 2015, p. 1). Exemptions Application of Section 4(a)(3) of the Act Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. No DoD lands with a completed INRMP are within the proposed critical habitat designation. Consideration of Impacts Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the ‘‘2016 Policy’’; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service. We also refer to a 2008 Department of the Interior Solicitor’s opinion entitled, ‘‘The Secretary’s Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act’’ (M–37016). We explain each decision to potentially exclude these areas, as well as decisions not to potentially exclude, to demonstrate that PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 79953 the decision is reasonable. We will make a final determination in the final rule on whether or not we will exclude these areas. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts. Consideration of Economic Impacts Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). Therefore, the baseline represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The ‘‘with critical habitat’’ scenario describes the incremental E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 79954 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis. Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. Section 3(f) of E.O. 12866 identifies four criteria when a regulation is considered a ‘‘significant’’ rulemaking, and requires additional analysis, review, and approval if met. The criterion relevant here is whether the designation of critical habitat may have an economic effect of greater than $100 million in any given year (section 3(f)(1)). Therefore, our consideration of economic impacts uses a screening analysis to assess whether a designation of critical habitat for the ‘i‘iwi is likely to exceed the economically significant threshold. For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the ‘i‘iwi (Industrial Economics, Incorporated 2021). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The presence of the listed species in occupied areas of critical habitat means that any destruction or adverse modification of those areas is also likely to jeopardize the continued existence of the species. Therefore, designating occupied areas as critical habitat typically causes little if any incremental economic impact above and beyond the impacts of listing the species. Therefore, the screening analysis focuses on areas of unoccupied critical habitat. If there are any unoccupied units in the proposed critical habitat designation, the screening analysis assesses whether any additional management or conservation efforts may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis (DEA) of the proposed critical habitat designation for the ‘i‘iwi; our DEA is summarized in the narrative below. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the ‘i‘iwi, first we identified, in the IEM dated July 29, 2022, probable incremental economic impacts associated with the following categories of activities: (1) landscape-level avian malaria control; (2) emergency response during volcanic activity; and (3) activities on forest reserve lands, including vegetation management along roadways, water lines, and utility lines; tree removal for building maintenance and removal of hazard trees; harvest of forest products; operation of recreational vehicles; and native plant collection for cultural purposes. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the ‘i‘iwi is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, our consultations would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat. In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the ‘i‘iwi’s critical habitat. The following specific circumstances help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would likely adversely affect the essential physical or biological features of occupied critical habitat are also likely to adversely affect the species itself. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat. The proposed critical habitat designation for the ‘i‘iwi includes 7 units, subdivided into 60 subunits, totaling approximately 275,647 ac (111,554 ha). Lands within the designation are under Federal (18 percent), State (60 percent), and private (22 percent) ownership. All units and subunits were occupied at the time of listing and are currently occupied. The incremental costs of designating critical habitat for the ‘i‘iwi are likely to include additional administrative effort associated with section 7 consultations, as well as project modifications. There may also be incremental costs outside of the section 7 consultation process. The additional administrative effort associated with considering adverse modification during the section 7 consultation process was estimated using historical consultation data. We estimate up to 11 technical assistances, 5 informal consultations, and 3 formal annually over the next 10 years. The maximum annual cost associated with these consultations is estimated not to E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules exceed $34,000 annually (2022 dollars). Therefore, the annual administrative burden is very unlikely to exceed $100 million or be considered economically significant. In many instances, critical habitat designation is not likely to change our recommendation for project modification during future consultations. However, in some instances, we may recommend modifications associated specifically with avoiding adverse modification to critical habitat. • For activities with a Federal nexus that would involve entry into critical habitat susceptible to rapid ‘o¯hi‘a death, we anticipate recommending disinfecting gear to limit the transmission of fungal pathogens associated with rapid ‘o¯hi‘a death and limiting access into pristine areas. While we would not make these recommendations during a consultation that only considered jeopardy, they are part of best practices promoted by the Service and widely adopted by other agencies and conservation organizations. Therefore, the recommendations are unlikely to result in incremental costs because they are likely already part of standard protocols absent critical habitat. • For activities with a Federal nexus involving koa thinning and ‘o¯hi‘a harvest, we may recommend limiting forest extraction year-round to avoid adverse modification. Absent critical habitat, we would likely only recommend limiting forest extraction during the ‘i‘iwi breeding season. Data are not available to develop a potential range of costs per year associated with this limitation. However, given that the Statewide value of forest extraction is estimated to be only $47.6 million (2022 dollars), and that baseline forest extraction in proposed critical habitat is likely to constitute a small fraction of the total forest extraction across the State, it is very unlikely that the costs attributable to critical habitat for the ‘i‘iwi will exceed $100 million annually. • In unpredictable cases, a Federal agency may need to act in response to volcanic activity to save human lives and would subsequently consult with the Service under emergency consultation provisions. Data are not available to forecast costs associated with modifications to or restoration activities following emergency response efforts during volcanic activity. Even if historical costs were available, the incremental costs associated with any given emergency response activity are likely to be highly context-specific. VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 Incremental costs may occur outside of the section 7 consultation process if the designation of critical habitat triggers additional requirements or project modifications under State or local laws, regulations, or management strategies. These types of costs typically occur if the designation increases awareness of the presence of the species or the need for protection of its habitat. Designation of critical habitat for the ‘i‘iwi has the potential to result in (1) a decrease in recreational access allowed in State-managed forest reserves, and (2) an increase in permitting requirements for development in proposed critical habitat. Although we acknowledge the potential for these types of costs, the likelihood of these potential future effects is uncertain, and data with which to estimate incremental costs is unavailable. Similarly, there may be economic impacts associated with the perceived effects of critical habitat on land values. However, the likelihood and magnitude of such effects for this purpose are uncertain. In summary, while the specific costs of critical habitat designation for the ‘i‘iwi are subject to uncertainty, it is unlikely that, if adopted as proposed, the rulemaking would generate costs exceeding $100 million in a single year. Therefore, this proposed rule is unlikely to meet the threshold for an economically significant rule, with regard to costs, under E.O. 12866. We are soliciting data and comments from the public on the DEA discussed above, as well as on all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. Consideration of National Security Impacts Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 79955 4(a)(3)(B)(i), then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of ‘‘critical habitat.’’ However, the Service must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, or we have otherwise identified national-security or homeland-security impacts from designating particular areas as critical habitat, we generally have reason to consider excluding those areas. However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homelandsecurity impacts, we must conduct an exclusion analysis if the Federal requester provides information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security E:\FR\FM\28DEP2.SGM 28DEP2 79956 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules ddrumheller on DSK6VXHR33PROD with PROPOSALS2 concerns in analyzing the benefits of exclusion. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for ‘i‘iwi are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security. Consideration of Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are permitted conservation plans covering the species in the area—such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs)—or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-togovernment relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, social, or other impacts that might occur because of the designation. When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. In the case of ‘i‘iwi, the benefits of critical habitat include public awareness of the presence of ‘i‘iwi and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for ‘i‘iwi due to protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan, which provides conservation equal to or more than the protections that result from a VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 critical habitat designation, would reduce those benefits of including that specific area in the critical habitat designation. After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation. Watershed Partnerships—An important factor for our decision to consider an area for proposed exclusion is whether the landowner participates in a watershed partnership. In 2003, the State of Hawaii formally established the Hawai‘i Association of Watershed Partnerships consisting of over 60 public and private landowners throughout the State, committed to longterm protection and conservation of watershed areas. These watershed partnerships each have a conservation management plan, which is updated every several years to include measurable objectives and a budget. Financial support for the watershed partnerships include various long-term State funds, and other Federal and private sources. Of the 10 watershed partnerships in operation, 3 have lands within the proposed critical habitat designation: Kaua‘i Watershed Alliance, Mauna Kea Watershed Alliance, and Three Mountain Alliance. These watershed partnerships fund and conduct conservation efforts that support the ‘i‘iwi, including ungulate control and removal, and invasive weed management. Private or Other Non-Federal Conservation Plans Related to Permits Under Section 10 of the Act HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with nonFederal entities to minimize and mitigate impacts to listed species and their habitats. In some cases, HCP permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone. We place great value on the partnerships that are developed during the preparation and implementation of HCPs. CCAAs and SHAs are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 exchange for actions that contribute to the conservation of species on nonFederal lands, participating property owners are covered by an ‘‘enhancement of survival’’ permit under section 10(a)(1)(A) of the Act, which authorizes incidental take of the covered species that may result from implementation of conservation actions, specific land uses, and, in the case of SHAs, the option to return to a baseline condition under the agreements. We also provide enrollees assurances that we will not impose further land—, water—, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the agreements. When we undertake a discretionary section 4(b)(2) exclusion analysis based on permitted conservation plans (such as HCPs, SHAs, and CCAAs), we anticipate consistently excluding such areas if incidental take caused by the activities in those areas is covered by the permit under section 10 of the Act and the HCP/SHA/CCAA meets all of the following three factors (see the 2016 Policy for additional details): a. The permittee is properly implementing the HCP/SHA/CCAA and is expected to continue to do so for the term of the agreement. An HCP/SHA/ CCAA is properly implemented if the permittee is and has been fully implementing the commitments and provisions in the HCP/SHA/CCAA, implementing agreement, and permit. b. The species for which critical habitat is being designated is a covered species in the HCP/SHA/CCAA, or is very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the HCP/SHA/CCAA would also protect the habitat features of the similar species. c. The HCP/SHA/CCAA specifically addresses that species’ habitat and meets the conservation needs of the species in the planning area. This proposed critical habitat designation includes areas that are covered by the following permitted plan providing for the conservation of ‘i‘iwi: Safe Harbor Agreement Trustees of the Estate of Bernice P. Bishop, DBA Kamehameha Schools Keauhou and Kı¯lauea Forest Lands Hawai‘i Island, Hawaii (Kamehameha Schools Keauhou and Kı¯lauea Forest Lands Safe Harbor Agreement)—The permit holder for this SHA is Kamehameha Schools. Kamehameha Schools was established in 1887, through the will of Princess Bernice Pauahi Paki Bishop. Kamehameha Schools owns over E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules 362,000 ac (146,496 ha) of land throughout Hawaii and part of Kamehameha Schools’ mission is to protect Hawaii’s environment through recognition of the significant cultural value of this land and its unique flora and fauna. In 2017, the SHA was approved by the Service and Hawai‘i Department of Land and Natural Resources for the Kamehameha School’s Keauhou and Kı¯lauea Forest lands, which comprise 32,280 ac (13,063 ha) on the east slope of Mauna Loa Volcano, on the island of Hawai‘i. Under the SHA, koa (Acacia koa) tree silviculture will be conducted, including stand improvement through selective harvest and establishment of new or improvement of existing forest in formerly logged areas and degraded pasture lands. Koa forestry, as described in the SHA, increases soil-water retention capacity and provides nesting and foraging habitat for Hawaiian forest birds, including the ‘i‘iwi (Kamehameha Schools 2017, pp. 22–23). Kamehameha Schools has agreed to conduct silviculture practices in a way to ensure minimal impact to covered forest birds (‘i‘iwi, akiapo¯la¯‘a¯u (Hemignathus wilsoni), Hawaii creeper (Loxops mana), Hawaii ‘a¯kepa (Loxops coccineus), and Hawaiian hawk or ‘io (Buteo solitarius)) if those species become established in koa stands, through avoidance of harvest when birds are nesting. We have identified the following areas that we have reason to consider excluding because of the SHA: Windward Hawai‘i Unit— (Kamehameha Schools)—The Kamehameha Schools are responsible for 13,308 ac (5,386 ha) of land included in the proposed designation for ‘i‘iwi within the Windward Hawai‘i Unit. Conservation management actions on these lands occur under the Kamehameha Schools Keauhou and Kı¯lauea Forest Lands SHA. This SHA is implemented effectively and specifically addresses ‘i‘iwi habitat and meets the conservation needs of ‘i‘iwi in the planning area. In addition to this SHA, these lands in the Windward Hawai‘i Unit are also covered under two non-permitted conservation plans, the ¯ ina Pauahi Kamehameha Schools ‘A Natural Resources Management Program and the Three Mountain Alliance Management Plan. Both of these nonpermitted conservation plans are summarized below in Non-Permitted Conservation Plans, Agreements, or Partnerships. We are considering 13,308 ac (5,386 ha) in the Windward Hawai‘i Unit for exclusion from the final critical habitat designation for the ‘i‘iwi because conservation actions occurring on the ground, including forest restoration, VerDate Sep<11>2014 20:53 Dec 27, 2022 Jkt 259001 invasive predator control, ungulate fence installation and maintenance, and control of invasive introduced plants, are providing a conservation benefit to ‘i‘iwi. We will work with Kamehameha Schools and the Three Mountain Alliance Watershed Partnership throughout the public comment period and during development of the final designation of critical habitat for ‘i‘iwi. We seek comments on whether the existing management and conservation efforts of Kamehameha Schools and the Three Mountain Alliance partners meet our criteria for exclusion from the final designation under section 4(b)(2) of the Act. Non-Permitted Conservation Plans, Agreements, or Partnerships We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service. Shown below is a non-exhaustive list of factors that we consider in evaluating how non-permitted plans or agreements affect the benefits of inclusion or exclusion. These are not required elements of plans or agreements. Rather, they are some of the factors we may consider, and not all of these factors apply to every plan or agreement. (i) The degree to which the record of the plan, or information provided by proponents of an exclusion, supports a conclusion that a critical habitat designation would impair the realization of the benefits expected from the plan, agreement, or partnership. (ii) The extent of public participation in the development of the conservation plan. (iii) The degree to which agency review and required determinations (e.g., State regulatory requirements) have been completed, as necessary and appropriate. (iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) compliance was required. (v) The demonstrated implementation and success of the chosen mechanism. (vi) The degree to which the plan or agreement provides for the conservation PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 79957 of the essential physical or biological features for the species. (vii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented. (viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information. The proposed critical habitat designation includes areas that are covered by the following non-permitted management plans providing for the conservation of ‘i‘iwi: Kaua‘i Watershed Alliance Management Plan, Overall Management Strategy (2012)—The Kaua‘i Watershed Alliance was formed in 2003, including major landowners within the conservation district boundary on Kaua‘i and encompassing most land with native forest on the island of Kaua‘i (Kaua‘i Watershed Alliance 2012, entire). The Kaua‘i Watershed Alliance Management Plan is designed to protect over 25,000 ac (10,117 ha) of forest land through construction of ungulate fences; ungulate removal; fence line surveys; and control of invasive, introduced plants (Kaua‘i Watershed Alliance 2012, entire). These conservation actions are beneficial in conserving native and introduced forests used for nesting and foraging by ‘i‘iwi. Kaua‘i Forest Bird Recovery Project— The Kaua‘i Forest Bird Recovery Project is a joint collaborative program between the State of Hawaii’s Division of Forestry and Wildlife and the Pacific Studies Cooperative Unit of the University of Hawai‘i. It is funded and supported by numerous partners including the Service, Division of Forestry and Wildlife, and several other organizations and individuals (Kaua‘i Forest Bird Recovery Project 2022, entire). The Kaua‘i Forest Bird Recovery Project is committed to monitoring Kaua‘i forest bird reproductive success, conducting invasive predator control, and promoting knowledge, appreciation, and conservation of Kaua‘i’s native forest birds and the potential of different management strategies for recovering their populations. These conservation actions are beneficial in educating the public and conserving native forest that is used for nesting and foraging by ‘i‘iwi. Kula Forest Reserve and the Papa‘anui Tract of Kahikinui Forest Reserve Management Plan—The State of Hawaii’s Division of Forestry and Wildlife manages the Kula Conservation Game Management Area on the south E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 79958 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules slope of Haleakala¯ Volcano, east Maui, under the Kula Forest Reserve and the Papa‘anui Tract of Kahikinui Forest Reserve Management Plan (DOFAW 2017, entire). Management of feral ungulates by public hunting on the conservation game management area benefits mixed introduced and native forest and native shrublands by reducing ungulate grazing and rooting and trampling of trees, shrubs, and other vegetation. Ungulate control within the conservation game management area benefits habitat ‘i‘iwi use for nesting and foraging by improving forest regeneration and reducing breeding sites for introduced southern house mosquitoes that carry avian malaria. Leeward Haleakala¯ Watershed Restoration Partnership—Formed in 2003, the Leeward Haleakala Watershed Restoration Partnership is a coalition of 11 private and public landowners and supporting agencies that are working to protect and restore watershed areas on leeward Haleakala¯ Volcano, east Maui (Leeward Haleakala¯ Watershed Restoration Partnership 2022, entire). The partnership’s land management goals for the leeward Haleakala¯ watershed include: (1) restore native koa forests to provide increased water quantity and quality, (2) conserve unique endemic plants and animals, (3) protect important Hawaiian cultural resources, and (4) allow diversification of Maui’s rural economy. Large areas of mesic koa forest and mixed koa/‘ohi‘i a forest of leeward east Maui was degraded by cattle grazing over the last century, reducing the amount of available habitat for ‘i‘iwi. The Leeward Haleakala¯ Watershed Restoration Partnership’s efforts to restore koa forests and conserve endemic plants and animals that comprise native ecosystems benefit ‘i‘iwi by improving regeneration of forest and shrubland habitats used by the species for nesting and foraging. The Nature Conservancy Waikamoi Preserve, Long-Range Management Plan, Fiscal Years 2019–2024—The Nature Conservancy Waikamoi Preserve was established on east Maui in 1983 when Haleakala¯ Ranch granted a perpetual conservation easement on 5,140 ac (2,080 ha) of ranch lands to The Nature Conservancy, and the preserve was expanded in 2013, when The Nature Conservancy obtained a conservation easement on 3,721 ac (1,506 ha) of East Maui Irrigation Co. Ltd. (EMI) lands adjacent to the existing preserve. The management program for the Waikamoi Preserve is documented in The Nature Conservancy Waikamoi Preserve, LongRange Management Plan, Fiscal Years 2019–2024 (The Nature Conservancy VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 2018, entire). This plan details management measures that protect, restore, and enhance rare plants and animals and their habitats within the Waikamoi Preserve and in adjacent areas. Primary management goals for the Waikamoi Preserve are to: (1) Prevent degradation of native forest and shrubland by reducing feral ungulate damage; (2) improve or maintain the integrity of native ecosystems in selected areas of the preserve by reducing the effects of nonnative plants; (3) conduct small mammal control and reduce the negative impacts of small mammals where possible; (4) monitor and track the biological and physical resources in the preserve, evaluate changes in these resources over time, and encourage biological and environmental research; (5) prevent extinction of rare species in the preserve; (6) build public understanding and support for the preservation of natural areas and enlist volunteer assistance for preserve management; and (7) protect the resources from fires in and around the preserve. Ungulate control benefits habitat ‘i‘iwi use for nesting and foraging by improving forest regeneration and reducing breeding sites for introduced southern house mosquitoes that carry avian malaria. Fire suppression benefits forest and shrubland habitats ‘i‘iwi use by minimizing damage to these habitats by fire. Nonnative plant control improves recruitment of native trees, and control of small mammals, particularly rats (Rattus spp.), reduces potential for predation of nesting ‘i‘iwi. Collectively, these actions are effective in conserving native forest and shrubland ‘i‘iwi use for nesting and foraging. East Maui Watershed Partnership— The East Maui Watershed Partnership, formed in 1991, is a coalition of private and public landowners and supporting agencies that are working to protect and restore watershed areas on windward Haleakala¯ Volcano, east Maui (East Maui Watershed Partnership 2022, entire). The partnership’s management goals for the East Maui Watershed Partnership include: (1) watershed resource monitoring; (2) feral animal control; (3) control of invasive, introduced plants; (4) development and maintenance of management infrastructure; and (5) development and implementation of public education and awareness programs. Since 1991, the East Maui Watershed Partnership has constructed over 7 mi (11 km) of ungulate fences protecting remote watershed areas and has removed feral ungulates from fenced areas. Ungulate control benefits habitat ‘i‘iwi use for PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 nesting and foraging by improving forest regeneration and reducing mosquito breeding sites. Nonnative plant control improves recruitment of native trees. Maui Forest Bird Recovery Project— The Maui Forest Bird Recovery Project (MFBRP) is a joint collaborative program between the State of Hawaii’s Division of Forestry and Wildlife and the Pacific Studies Cooperative Unit of the University of Hawai‘i. MFBRP is funded and supported by numerous partners including the Service, Division of Forestry and Wildlife, and several other organizations and individuals (Maui Forest Bird Recovery Project 2022, entire). The mission of the Maui Forest Bird Recovery Project is to develop and implement techniques that recover Maui’s endangered forest birds and to restore their habitats through research, development, and application of conservation techniques. These conservation actions are beneficial in conserving native forest that is used for nesting and foraging by ‘i‘iwi. ¯ ina Pauahi Kamehameha Schools ‘A Natural Resources Management Program—Kamehameha Schools owns over 362,000 ac (146,496 ha) of land throughout Hawaii. Part of Kamehameha Schools’ mission is to protect Hawaii’s environment through recognition of the significant cultural value of this land and its unique flora and fauna. Accordingly, Kamehameha Schools established a sustainable stewardship policy to guide the use of ¯ ina Pauahi its lands through their ‘A Natural Resources Management Program that includes the protection and conservation of natural resources, water resources, and ancestral places (Kamehameha Schools 2022, entire). Between 2000 and 2015, Kamehameha Schools increased active stewardship of native ecosystems by over 35-fold, from 3,000 ac (1,124 ha) to 136,000 ac (55,037 ha), engaged in community collaborations to leverage external resources in support of culturally appropriate land stewardship, and developed and implemented its 2012 natural resource and cultural resource management plans representing Kamehameha Schools’ responsibility to conduct prudent stewardship of the ‘a¯ina (land). Kamehameha Schools manages some of its forested lands for income generation through sustainable koa and ‘iliahi or sandalwood (Santalum album) forestry and collaborates with county and other landowners in fire response planning to protect natural resources from fires. These actions promote regeneration of native forests ‘i‘iwi use for nesting and foraging and improve soil-water retention capacity and ecosystem E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules resilience to drying climate conditions. Fire suppression benefits forest and shrubland habitats ‘i‘iwi use for nesting and foraging by minimizing damage to these habitats by wildfire. Three Mountain Alliance Management Plan, December 31, 2007— The Three Mountain Alliance Watershed Partnership is a coalition of private and public landowners and supporting agencies that are working to protect and restore watershed areas on Hawai‘i Island (Three Mountain Alliance 2007, entire). Lands that are managed by the Three Mountain Alliance are 1,116,300 ac (451,751 ha) on Mauna Loa, Kı¯lauea, and Huala¯lai Volcanoes or roughly 45 percent of the island of Hawai‘i. Project funding for the Three Mountain Alliance currently comes from Three Mountain Alliance members (primarily the Service, Hawaii’s Division of Forestry and Wildlife, and Kamehameha Schools) and outside grants. Other Three Mountain Alliance members provide inkind services to accomplish priority projects (e.g., inmate labor, sharing personnel and equipment) (Three Mountain Alliance Management Plan, December 31, 2007, p. 56). Management under the Three Mountain Alliance Management Plan includes the following conservation actions: (1) strategic fencing and removal of ungulates; (2) regular monitoring for ungulates after fencing; (3) monitoring of habitat recovery; (4) surveys for rare taxa prior to new fence installations; (5) invasive, nonnative plant control; (6) reestablishment of native plant species; and (7) activities to reduce the threat of wildfire. Ungulate control reduces damage to o¯hi‘a forests, maintains the health of tall stature trees used for ‘i‘iwi nesting, and prevents ungulates from creating breeding sites for introduced southern house mosquitoes that carry avian malaria. Control of nonnative, invasive plants and out-planting of native plants improves recruitment of native trees. Fire suppression activities reduce the damage from wildfires and protect forest and shrubland habitat ‘i‘iwi use for nesting and foraging. Department of Hawaiian Homelands ¯ ina Mauna Legacy Program—The ‘A Department of Hawaiian Homelands is governed by the Hawaiian Homes Commission Act of 1920, enacted by the U.S. Congress to protect and improve the lives of native Hawaiians. The act created an Hawaiian Homes Commission to administer certain public lands, called Hawaiian homelands, for homesteads. The primary responsibilities of Department of Hawaiian Homelands are to serve its beneficiaries and to manage its VerDate Sep<11>2014 20:53 Dec 27, 2022 Jkt 259001 extensive land trust, which consists of over 200,000 ac (80,937 ha) on the islands of Hawai‘i, Maui, Moloka‘i, La¯na‘i, O‘ahu, and Kaua‘i. The goal of the Department of Hawaiian ¯ ina Mauna Legacy Homelands’ ‘A Program is to restore and protect approximately 56,000 ac (22,662 ha) of native Hawaiian forest on Mauna Kea Volcano on the island of Hawai‘i that is ecologically, culturally, and economically self-sustaining for the Hawaiian Homelands Trust, its beneficiaries, and the community (Department of Hawaiian Homelands 2022, pp. 1–2). The Department of ¯ ina Mauna Hawaiian Homelands ‘A Legacy Program describes activities to be conducted on Department of Hawaiian Homelands lands over the next 100 years, including native forest restoration and sustainable koa forestry; invasive plant control and remnant invasive species eradication; nonnative wildlife control and management (i.e., feral ungulate control); road system, fencing, and water systems infrastructure development and maintenance; and research and community outreach. Some forest areas ¯ ina in lands managed under the ‘A Mauna Legacy Program are degraded by history of cattle grazing. Koa tree silviculture is in initial stages and will be conducted (at least during the next 100 years) on lands under this management designation, including stand improvement through selective harvest and establishment of new or improved forest in formerly logged areas and degraded pasture lands. Koa silviculture benefits habitat ‘i‘iwi use for nesting and foraging by establishing new or improved forest, increasing soilwater retention capacity, and improving ecosystem resilience to drying climate conditions. Ungulate control reduces damage to ‘o¯hi‘ a forests, maintains the health of tall stature trees used for ‘i‘iwi nesting, and prevents ungulates from creating breeding sites for introduced southern house mosquitoes that carry avian malaria. Control of nonnative, invasive plants and out-planting of native plants improves recruitment of native trees. Mauna Kea Watershed Alliance—The Mauna Kea Watershed Alliance Watershed Partnership is a coalition of private and public landowners and supporting agencies working to protect and restore watershed areas on Mauna Kea Volcano, Hawai‘i (Mauna Kea Watershed Alliance 2022, entire). Lands that are managed by the Mauna Kea Watershed Alliance include over 500,000 ac (202,343 ha) on Mauna Kea Volcano on the island of Hawai‘i. The PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 79959 Mauna Kea Watershed Alliance shared vision is to protect and enhance watershed ecosystems, biodiversity, and natural resources through responsible management while promoting economic sustainability and providing recreational, subsistence, educational, and research opportunities. Staff of the Mauna Kea Watershed Alliance work cooperatively with members of the alliance to achieve this shared vision. Accordingly, fencing and ungulate control, control of introduced plants that are invasive, and reforestation efforts are conducted on lands within the Mauna Kea Watershed Alliance. Ungulate control benefits habitat ‘i‘iwi use for nesting and foraging by improved forest regeneration and reduction of breeding sites for introduced southern house mosquitoes that carry avian malaria. Nonnative plant control improves recruitment of native trees, and reforestation provides ‘i‘iwi nesting and foraging habitat and increases soil-water retention capacity improving ecosystem resilience to drying climate conditions. Ku¯ka‘iau Ranch Conservation Easement with The Nature Conservancy and Hawai‘i Island Land Trust— Ku¯ka‘iau Ranch is a 10,200-ac (4,128-ha) ranch on the east slope of Mauna Kea. In 2009, ranch owners donated a conservation easement on 4,500 ac (1,821 ha) of the ranch’s property to The Nature Conservancy and Hawai‘i Island Land Trust (College of Tropical Agriculture and Human Resources 2009, entire). The easement covers the highest elevation areas of the ranch that comprise mostly intact native forest. The land under easement has two dominant tree species, ma¯mane and koa. Since the conservation easement was signed in 2009, Ku¯ka‘iau Ranch has worked with The Nature Conservancy, Hawai‘i Island Land Trust, and the U.S. Department of Agriculture’s Natural Resources Conservation Service (NRCS) to build ungulate fencing, remove pigs and goats, and restore native plant species. In addition, Ku¯ka‘iau Ranch collaborates with the county and other landowners in fire response planning to protect its adjacent landowners’ natural resources from fires. Ungulate control benefits habitat ‘i‘iwi use for nesting and foraging by improved forest regeneration and reduction of breeding sites for introduced southern house mosquitoes that carry avian malaria. Control of invasive, introduced plants improves recruitment of native trees. Fire suppression benefits forest and shrubland habitats ‘i‘iwi use for nesting and foraging by minimizing damage to these habitats by wildfire. E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 79960 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules Parker Ranch Sustainable Forestry Initiative—Parker Ranch was founded in 1847, and currently encompasses over 100,000 ac (40,469 ha) of land in the Hamakua, North Kohala, and South Kohala Districts on Mauna Kea and the Kohala Mountains on the island of Hawai‘i. Parker Ranch recognizes forest health as a key indicator of overall ecosystem health and, as result, announced in 2021 that it is seeking to collaborate with public and private partners to develop sustainable forestry programs on its lands (Parker Ranch 2021, entire). For its Waipunalei lands on the east slope of Mauna Kea, Parker Ranch is developing a sustainable koa forestry program and is seeking to rehabilitate forest areas damaged by history of cattle grazing (Parker Ranch 2022, entire). Koa forestry benefits forest habitat ‘i‘iwi use for nesting and foraging by establishing new or improved forest in formerly logged areas and degraded pasture lands, increasing soil-water retention capacity, and improving ecosystem resilience to drying climate conditions. The Nature Conservancy Ka‘u¯ Preserve Hawai‘i Island, Long-Range Management Plan, Fiscal Years 2013– 2018—The Nature Conservancy Ka‘u¯ Preserve was established in 2002, in the Ka‘u¯ District of the island of Hawai‘i. Ka‘u¯ Preserve is comprised of 3,511 ac (1,421 ha) in four management units within Ka‘u¯ Forest Preserve on the southern slope of Mauna Loa Volcano. The management program for Ka‘u¯ Preserve is documented in the The Nature Conservancy Ka‘u¯ Preserve, Long-Range Management Plan, Fiscal Years 2013–2018 (The Nature Conservancy 2012, entire). Primary management goals for the preserve are to: (1) prevent degradation of native forest by reducing feral ungulate damage; (2) improve or maintain the integrity of native ecosystems by reducing the effects of nonnative plants; (3) conduct small mammal, including rodent, control and reduce the negative impacts of small mammals; (4) monitor and track the biological and physical resources in the preserve, evaluate changes in these resources over time, and encourage biological and environmental research; (5) prevent extinction of rare species in the preserve; and (6) build public understanding and support for the preservation of natural areas, and enlist volunteer assistance for preserve management. Ungulate control reduces damage to ‘o¯hi‘a forests, maintains the health of tall stature trees used for ‘i’iwi nesting, and prevents ungulates from creating breeding sites for introduced VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 southern house mosquitoes that carry avian malaria. Fire suppression reduces the damage from wildfires and provides protection for forest and shrubland habitat that ‘i‘iwi use for nesting and foraging. Invasive plant control improves recruitment of native trees, and small mammal control, particularly for rats (Rattus spp.), reduces the potential for predation on nesting ‘i‘iwi. Kealakekua Mountain Reserve Forest Legacy Program Conservation Easement with the State of Hawaii’s Department of Land and Natural Resources—Once a former ranch, the Kealakekua Mountain Reserve, LLC, established the Kealakekua Mountain Reserve Forest Legacy Program Conservation Easement (conservation easement) with the State of Hawaii’s Department of Land and Natural Resources in 2011 (DLNR 2022, p. 4). The conservation easement protects mesic and dryland native forest and native species on Kealakekua Mountain Reserve lands on leeward Mauna Loa Volcano on the island of Hawai‘i and covers 9,000 ac (3,642 ha) of Kealakekua Mountain Reserve lands under the State’s Forest Legacy Program, a Federal grant program that aids States in identification and conservation of important private forest lands that are threatened by development or fragmentation (DLNR 2022, entire). The Kealakekua Mountain Reserve management plan under the conservation easement requires harvesting limitations to ensure regeneration of native forest on its properties (do¯Terra 2018, entire). In order to protect the growth and regeneration of ‘iliahi or sandalwood trees, the management plan allows collection only of dead or severely damaged trees; no living sandalwood trees will be harvested at this time, which will allow existing healthy trees to grow to full maturity before they are harvested under sustainable tree management practices. The Kealakekua Mountain Reserve operates a large nursery, and various native Hawaiian trees from the nursery, including ‘o¯hi‘a, as well as trees and shrubs that serve as hosts for sandalwood including koa, a’ali’i (Dodonaea viscosa), and hoawa (Pittosporum spp.), are being outplanted at the Kealakekua Mountain Reserve. These management actions conserve and enhance forest habitat ‘i‘iwi use for nesting and foraging, increase soil-water retention capacity, and improve ecosystem resilience to drying climate conditions. ¯ ina Forest Restoration Ha¯loa ‘A ¯ ina is a Native Agreement—Ha¯loa ‘A Hawaiian family-owned business dedicated to restoring native dryland forest. In 2019, Kamehameha Schools PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 entered into an agreement with Ha¯loa ¯ ina aimed at developing a financial ‘A and ecological model to restore remnant ‘iliahi or sandalwood and ma¯mane (Sophora chrysophylla) forest on Kamehameha Schools lands in South Kona on the leeward side of Mauna Loa on the island of Hawai‘i (Big Island Video News 2019, entire). Under a 5year license, the project will improve the native ecosystems consisting of ‘iliahi and ma¯mane on formerly degraded agricultural lands. Revenues generated from the harvest of dead and senescent sandalwood trees are directly reinvested in the property with a focus on conservation management. Ha¯loa ¯ ina markets products made from ‘A sandalwood material (oil, dust, etc.) and allocate a percentage of gross sales to ¯ ina is Kamehameha Schools. Ha¯loa ‘A actively propagating ‘iliahi, ma¯mane, and koa trees in its greenhouses for outplanting on Kamehameha Schools lands in South Kona. These management actions conserve and enhance forest habitat ‘i‘iwi use for nesting and foraging, increase soil-water retention capacity, and improve ecosystem resilience to drying climate conditions. The Nature Conservancy Forest Stewardship Management Plan for the Kona Hema Preserve—The Nature Conservancy Kona Hema Preserve was established in 1999 in the South Kona District of the island of Hawai‘i and is comprised of 8,076 ac (3,268 ha) in four management units. The management program for Kona Hema Preserve is documented in The Nature Conservancy’s Forest Stewardship Management Plan for the Kona Hema Preserve, which details management measures to protect, restore, and enhance rare plants and animals and their habitats within the preserve and in adjacent areas (The Nature Conservancy 2017, entire). Primary management goals for the Kona Hema Preserve are to: (1) prevent degradation of native forest and shrubland by reducing feral ungulate damage; (2) improve or maintain the integrity of native ecosystems in selected areas of the preserve by reducing the effects of nonnative plants; (3) conduct small mammal control and reduce the negative impacts of small mammals where possible; (4) monitor and track the biological and physical resources in the preserve, evaluate changes in these resources over time, and encourage biological and environmental research; (5) prevent extinction of rare species in the preserve; (6) build public understanding and support for the preservation of natural areas, and enlist volunteer assistance for preserve E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules management; and (7) protect the resources from fires in and around the preserve. Ungulate control reduces damage to ‘o¯hi‘a forests, maintains the health of tall stature trees used for ‘i‘iwi nesting, and prevents ungulates from creating breeding sites for introduced southern house mosquitoes that carry avian malaria. Fire suppression reduces the damage from wildfires and provides protection for forest and shrubland habitat that ‘i‘iwi use for nesting and foraging. Invasive plant control improves recruitment of native trees, and small mammal control, particularly rat (Rattus spp.) control, reduces the potential for predation on nesting ‘i‘iwi. Paniolo Tonewoods, LLC, Forest Restoration Agreement with Kamehameha Schools—In 2019, Kamehameha Schools entered into an agreement with Paniolo Tonewoods, LLC, to manage 1,300 ac (526 ha) of Kamehameha Schools forest lands upslope of Ho¯naunau Forest Reserve on the leeward slopes of Huala¯lai Volcano in North Kona on the island of Hawai‘i (Big Island Video News 2019, entire). The pilot project, based on the exchange of goods for services known as ‘‘stewardship contracting,’’ is designed to demonstrate the concept of conservation offsetting costs of stewardship. Under the license terms, Paniolo Tonewoods’ partner, Forest Solutions, Inc., is providing restoration services including koa tree propagation and koa out-planting in exchange for a fixed number of selected koa trees to be harvested under Kamehameha Schoolsdetermined standards. The value of the harvested timber removed by Paniolo Tonewoods as part of the restoration/ stewardship project will offset the costs of the conservation services and the final product of the processed koa wood is high-quality guitars. These management actions conserve and enhance forest and shrubland habitat ‘i‘iwi use for nesting and foraging, increase soil-water retention capacity, and improve ecosystem resilience to drying climate conditions. After considering the factors described above, we have identified the following areas that we have reason to consider excluding because of nonpermitted plans, agreements, or partnerships. Our consideration of an area for exclusion is based on all nonpermitted plans, agreements, and/or partnerships for the area and the overall benefit these planning documents and associated conservation actions provide for the protection, maintenance, enhancement, and/or restoration of habitat ‘i‘iwi use for nesting and foraging. In all cases, we are considering excluding areas where private VerDate Sep<11>2014 20:40 Dec 27, 2022 Jkt 259001 landowners are actively participating in the restoration or management of habitats essential to conservation of iiwi, allowing surveys or monitoring of iiwi and its habitat, or taking steps to protect and increase numbers of iiwi that occur on their properties. Specific benefits of conservation management and rationale for considering exclusion are described below. We welcome any information regarding planning documents or other information we may have overlooked pertaining to the areas we are considering for exclusion and areas we are not considering for exclusion. We will work with landowners throughout the public comment period and during development of the final designation of critical habitat for ‘i‘iwi and seek comments on whether the existing management and conservation efforts of landowners meet our criteria for exclusion from the final designation under section 4(b)(2) of the Act. Alaka‘i Plateau Unit—Alexander & Baldwin, Inc.—The Nature Conservancy manages two parcels of land (142 ac (58 ha) and 61 ac (25 ha)) owned by Alexander & Baldwin, Inc., included in the proposed critical habitat designation for ‘i‘iwi, Alaka‘i Plateau Unit. Conservation management activities on these lands include those associated with the Kaua‘i Watershed Alliance Management Plan Update, Overall Management Strategy (2012) and Kaua‘i Forest Bird Recovery Project. The Nature Conservancy Wainiha Preserve was established by a conservation easement with Alexander & Baldwin, Inc., and is comprised of 7,050 ac (2,853 ha) in Wainiha Valley and is part of the Alaka‘i Plateau. The management program of the Wainiha Preserve under the above described management plans includes preventing degradation of watershed and forest ecosystems by reducing feral ungulate damage, controlling invasive plants, monitoring and tracking the biological and physical resources in the preserve, preventing extinction of rare species in the preserve, and building public understanding and support for the preservation of natural areas. In addition, The Nature Conservancy is a member of the Kaua‘i Watershed Alliance, whose goals include to conserve forest watershed and unique endemic plants and animals by construction of ungulate fences, ungulate removal, fence line surveys, and weed control. The Nature Conservancy also collaborates with the Kaua‘i Forest Bird Recovery Project, which conducts research to understand the ecology of native forest birds, the threats they face, and the application of PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 79961 management strategies for recovering their populations. The conservation actions occurring within Alaka‘i Plateau Unit under management by The Nature Conservancy, including Wainiha Preserve, the Kaua‘i Watershed Alliance, and the Kaua‘i Forest Bird Recovery Project, conserve and protect habitat important for ‘i‘iwi nesting and foraging. These conservation actions reduce breeding sites of introduced southern house mosquitoes that carry avian malaria, encourage native forest regeneration, and reduce small mammal predator populations through control activities. Based on The Nature Conservancy’s management under the Kaua‘i Watershed Alliance Management Plan Update, Overall Management Strategy (2012), and collaboration with Kaua‘i Watershed Alliance and the Kaua‘i Forest Bird Recovery Project, we are considering excluding Alexander & Baldwin, Inc., lands from the final critical habitat designation for the ‘i‘iwi because forest habitat used by ‘i‘iwi within lands owned by Alexander & Baldwin, Inc. is protected from degradation by ungulate fencing and ungulate removal, and control of nonnative plants. Kula Unit—Ka‘ono‘ulu Ranch—The Ka‘ono‘ulu Ranch manages 830 ac (336 ha) of land included in the proposed critical habitat designation for the ‘i‘iwi within the Kula Unit. Conservation management activities on these lands include those associated with the Kula Forest Reserve and the Papa‘anui Tract of Kahikinui Forest Reserve Management Plan and Leeward Haleakala¯ Watershed Restoration Partnership. Ka‘ono‘ulu Ranch is a member of the Leeward Haleakala¯ Watershed Restoration Partnership, a watershed partnership that manages lands on leeward east Maui to conserve endemic plants and animals and conducts watershed protection (including native forest reforestation and wildfire response planning and fire suppression) to improve forest and shrubland habitats that ‘i‘iwi use for nesting and foraging. Ka‘ono‘ulu Ranch has been and continues to be an active partner with the State of Hawaii’s Department of Land and Natural Resources to reduce the numbers of feral ungulates and promote native plant regeneration across Leeward Haleakala¯. The conservation actions of Ka‘ono‘ulu Ranch benefit habitat ‘i‘iwi use for nesting and foraging by promoting forest regeneration and reducing breeding sites for introduced southern house mosquitoes that carry avian malaria. Based on Ka‘ono‘ulu Ranch’s management under the Kula Forest E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 79962 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules Reserve and the Papa‘anui Tract of Kahikinui Forest Reserve Management Plan and participation in the Leeward Haleakala¯ Watershed Restoration Partnership, we are considering excluding Ka‘ono‘ulu Ranch lands from the final critical habitat designation for the ‘i‘iwi. East Haleakala¯ Unit—Haleakala¯ Ranch—The Nature Conservancy manages 1,113 ac (451 ha) of land owned by Haleakala¯ Ranch included in the proposed critical habitat designation for ‘i‘iwi within the East Haleakala¯ Unit. Conservation management activities on these lands include those associated with: The Nature Conservancy’s Waikamoi Preserve Long-Range Management Plan, Fiscal Years 2019– 2024; the Leeward Haleakala¯ Watershed Restoration Partnership; and Maui Forest Bird Recovery Project. Conservation actions being conducted in Waikamoi Preserve include control of feral ungulate populations; control of nonnative mammals, including rats (Rattus spp.), cats (Felis catus), mongoose (Herpestes auropunctatus), and dogs (Canis familiaris), that have been known to prey on ‘i‘iwi; control of habitat-modifying, nonnative plants in intact native communities and prevention of the introduction of additional nonnative plants; and natural resource monitoring and research to address the need to track the biological and physical resources of the preserve and evaluate changes in these resources to guide management programs. In addition, as fire is a threat in shrubland areas, management includes wildfire preparedness, including annually updating wildfire management plans and ensuring that staff is provided with fire suppression training, roads are maintained for fire break access, and equipment is supplied as needed to allow immediate response to fire threats. In addition, Haleakala¯ Ranch and The Nature Conservancy Waikamoi Preserve are members of the Leeward Haleakala¯ Watershed Restoration Partnership that conducts conservation management to conserve unique endemic plants and animals, monitor watershed resources, and control feral animals and invasive plants. The Nature Conservancy also collaborates with the Maui Forest Bird Recovery Project that conducts research to understand the ecology of native forest birds, the threats they face, and the application of management strategies for recovering their populations. The conservation actions of The Nature Conservancy Waikamoi Preserve benefit habitat ‘i‘iwi use for nesting and foraging by improving forest regeneration, reducing breeding sites of introduced southern VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 house mosquitoes that carry avian malaria, controlling feral ungulates, conducting fire suppression activities that benefit forest and shrubland ‘i‘iwi habitat, controlling nonnative plants to improve recruitment of native trees, controlling small mammals to reduce predation on nesting ‘i‘iwi, and conducting research to understand threats to native forest birds and ways to address those threats. Based on The Nature Conservancy’s management of the Waikamoi Preserve under the Waikamoi Preserve LongRange Management Plan, Fiscal Years 2019–2024; collaboration with the Maui Forest Bird Recovery Project and Haleakala¯ Ranch; and The Nature Conservancy’s participation in the Leeward Haleakala¯ Watershed Restoration Partnership, we are considering excluding lands owed by Haleakala¯ Ranch from the final critical habitat designation for the ‘i‘iwi. East Haleakala¯ Unit—East Maui Irrigation, Inc.—The Nature Conservancy manages 2,327 ac (942 ha) of land owned by East Maui Irrigation, Inc., in the proposed critical habitat designation for ‘i‘iwi within the East Haleakala¯ Unit. Conservation management activities on these lands include those associated with The Nature Conservancy’s Waikamoi Preserve Long-Range Management Plan, Fiscal Years 2019–2024; the East Maui Watershed Partnership; and Maui Forest Bird Recovery Project. Conservation actions being conducted in Waikamoi Preserve include bringing feral ungulate populations to zero within the preserve as rapidly as possible and preventing domestic livestock from entering the preserve; controlling or preventing entry of nonnative mammals, such as rats (Rattus spp.), cats (Felis catus), mongoose (Herpestes auropunctatus), and dogs (Canis familiaris), on the preserve as these mammals have negative impacts on reproduction and persistence of native plants and animals; controlling habitat-modifying, nonnative plants in intact native communities and preventing the introduction of additional nonnative plants; and conducting natural resource monitoring and research to address the need to track the biological and physical resources of the preserve and evaluate changes in these resources to guide management programs. In addition, as fire is a threat in shrubland areas, management includes wildfire preparedness, including annually updating wildfire management plans and ensuring that staff is provided with fire suppression training, roads are maintained for fire break access, and PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 equipment is supplied as needed to allow immediate response to fire threats. In addition, Haleakala¯ Ranch and The Nature Conservancy Waikamoi Preserve are members of the Leeward Haleakala¯ Watershed Restoration Partnership that conducts conservation management to conserve unique endemic plants and animals, watershed resource monitoring, and feral animal and invasive plant control. The Nature Conservancy also collaborates with the Maui Forest Bird Recovery Project that conducts research to understand the ecology of native forest birds, the threats they face, and the application of management strategies for recovering their populations. The conservation actions of The Nature Conservancy Waikamoi Preserve benefit habitat ‘i‘iwi use for nesting and foraging by improving forest regeneration, reducing breeding sites of introduced southern house mosquitoes that carry avian malaria, controlling feral ungulates, conducting fire suppression activities to benefit forest and shrubland ‘i‘iwi habitat, conducting weed control to improve recruitment of native trees, conducting small mammal control to reduce predation on nesting ‘i‘iwi, and conducting research to understand threats to native forest birds and ways to address those threats. Based on The Nature Conservancy’s management of the Waikamoi Preserve under the Waikamoi Preserve, LongRange Management Plan, Fiscal Years 2019–2024; collaboration with the Maui Forest Bird Recovery Project; and participation with East Maui Irrigation, Inc., in the East Maui Watershed Partnership, we are considering excluding lands owned by East Maui Irrigation, Inc. from the final critical habitat designation for the ‘i‘iwi. Windward Hawai‘i Unit—Department of Hawaiian Homelands—The Department of Hawaiian Homeland manages two parcels (1,631 ac (660 ha) and 2,404 ac (973 ha)) of land included in the proposed designation for ‘i‘iwi the Windward Hawai‘i Unit. Conservation management activities on these lands include those under Department of Hawaiian Homelands’ ¯ ina Mauna Legacy Program, and ‘A Mauna Kea Watershed Alliance. The Department of Hawaiian ¯ ina Mauna Legacy Homelands’ ‘A Program is a conservation initiative to restore and protect approximately 56,000 ac (22,662 ha) of native forest on Mauna Kea that is ecologically, culturally, and economically self-sustaining for the Hawaiian Homelands Trust, its beneficiaries, and the community (Department of Hawaiian Homelands 2022, pp. 1–2). E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules Program actions and planning include native forest restoration and sustainable koa forestry, invasive plant control, and feral ungulate control. Department of Hawaiian Homelands is also a member of the Mauna Kea Watershed Alliance, which conducts conservation actions to protect and enhance watershed ecosystems, including fencing and ungulate removal; nonnative, invasive plants control; and native forest restoration. In addition, the Mauna Kea Watershed Alliance is partnering with the NRCS on forest recovery and abatement of threats to native forest (Natural Resources Conservation Service 2022, entire). The conservation actions of Department of Hawaiian Homelands provide benefits to habitat ‘i‘iwi use for nesting and foraging by promoting forest regeneration and reducing breeding sites of introduced southern house mosquitoes that carry avian malaria, controlling feral ungulates, conducting weed control to improve recruitment of native trees, and establishing new or improving existing koa forests that provide habitat for ‘i‘iwi nesting and foraging. Based on Department of Hawaiian Homelands’s management under Department of Hawaiian Homelands’ ¯ ina Mauna Legacy Program, and ‘A participation in the Mauna Kea Watershed Alliance, we are considering excluding these areas from the final critical habitat designation for the ‘i‘iwi. These areas are held in trust for Hawaiian beneficiaries for the protection of native forest surrounding Mauna Kea. Windward Hawai‘i Unit—Ku¯ka‘iau Ranch—The Ku¯ka‘iau Ranch manages 87 ac (35 ha) of land included in the proposed designation for ‘i‘iwi within the Windward Hawai‘i Unit. Conservation management activities on these lands include those associated with the Ku¯ka‘iau Ranch conservation easement with The Nature Conservancy and Hawai‘i Island Land Trust, and the Mauna Kea Watershed Alliance. The Ku¯ka‘iau Ranch conservation easement with The Nature Conservancy and Hawai‘i Island Land Trust provides for conservation work including fencing, removal of pigs and goats, and restoration of native plant species. In addition, Ku¯ka‘iau Ranch is a member of the Mauna Kea Watershed Alliance, which conducts conservation activities to protect and enhance watershed ecosystems, including fencing and ungulate removal, nonnative plant control, and native forest restoration. In addition, Ku¯ka‘iau Ranch collaborates with county and other landowners in fire response planning to protect its and adjacent landowners’ natural resources VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 from fires. Since 2009, when the conservation easement with The Nature Conservancy and Hawai‘i Island Land Trust was signed (College of Tropical Agriculture and Human Resources 2009, entire), Ku¯ka‘iau Ranch has built ungulate fencing, removed pigs and goats, and restored native plant species on its conservation lands. The conservation actions of Ku¯ka‘iau Ranch benefit habitat ‘i‘iwi use for nesting and foraging by promoting forest regeneration and reduction of breeding sites for introduced southern house mosquitoes that carry avian malaria, nonnative plant control that improves recruitment of native trees, and fire suppression that benefits forest and shrubland habitat ‘i‘iwi use for nesting and foraging by minimizing damage to these habitats from wildfire. Based on Ku¯ka‘iau Ranch’s management under the Ku¯ka‘iau Ranch conservation easement with The Nature Conservancy and Hawai‘i Island Land Trust, participation in the Mauna Kea Watershed Alliance, and collaboration with the State of Hawaii’s Department of Forestry and Wildlife and adjacent landowners in wildfire response, we are considering excluding this area from the final critical habitat designation for the ‘i‘iwi. Windward Hawai‘i Unit—Parker Ranch Waipunalei, LLC—Parker Ranch manages 1,449 ac (586 ha) of land included in the proposed designation for ‘i‘iwi within the Windward Hawai‘i Unit. Conservation management activities on these lands include those associated with Parker Ranch’s sustainable koa forestry initiative and the Mauna Kea Watershed Alliance. Parker Ranch manages over 100,000 ac (40,469 ha) of land in the Ha¯ma¯kua, North Kohala, and South Kohala Districts on Mauna Kea and the Kohala Mountains on the island of Hawai‘i, and in 2021, the ranch announced it is seeking to collaborate with public and private partners to develop sustainable forestry programs on some of these lands (Parker Ranch 2021, entire). For its Waipunalei lands, Parker Ranch is developing a sustainable koa forestry program to rehabilitate forest areas damaged by cattle grazing (Parker Ranch 2022, entire). Parker Ranch is a member of the Mauna Kea Watershed Alliance, whose shared vision is to protect and enhance watershed ecosystems, biodiversity, and natural resources through responsible management while promoting economic sustainability and providing recreational, subsistence, educational, and research opportunities. The conservation measures of Parker Ranch through its sustainable koa forestry initiative provide benefits to PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 79963 habitat ‘i‘iwi use for nesting and foraging by promoting koa forest regeneration, increasing soil-water retention capacity and improving ecosystem resilience to drying climate conditions, and controlling nonnative plants to improve recruitment of native trees. Based on Parker Ranch’s management under Parker Ranch’s sustainable koa forestry initiative and participation in the Mauna Kea Watershed Alliance, we are considering excluding this area from the final critical habitat designation for the ‘i‘iwi. Ka‘u¯ Unit—The Nature Conservancy Ka‘u¯ Preserve—The Nature Conservancy owns two parcels (274 ac (111 ha) and 125 ac (51 ha)) of land included in the proposed designation for ‘i‘iwi within the Ka‘u¯ Unit. Conservation management activities on these lands include those associated with the Ka‘u¯ Preserve Hawai‘i Island, Long-Range Management Plan, Fiscal Years 2013– 2018; and the Three Mountain Alliance Watershed Management Plan, December 31, 2007. Conservation actions being conducted in the Ka‘u¯ Preserve include preventing degradation of native forest by reducing feral ungulate damage, improving or maintaining the integrity of native ecosystems by reducing the effects of nonnative plants, conducting small mammal (including rodent) control and reducing the negative impacts of small mammals where possible, monitoring and tracking the biological and physical resources in the preserve and evaluating changes in these resources over time, encouraging biological and environmental research, preventing extinction of rare species in the preserve, building public understanding and support for the preservation of natural areas, and enlisting volunteer assistance for preserve management. The Nature Conservancy is also a member of the Three Mountain Alliance, whose conservation actions include conserving unique endemic plants and animals; conducting watershed resource monitoring; controlling feral ungulates and invasive, nonnative plants; reestablishing native plant species; and conducting activities to reduce the threat of wildfire. Since its founding, The Nature Conservancy Ka‘u¯ Preserve has built ungulate fencing around the Kaiholena Unit, which reduced the number of pigs to zero in that unit, and is conducting nonnative plant control. The conservation actions of The Nature Conservancy Ka‘u¯ Preserve provide benefits to habitat ‘i‘iwi use for nesting and foraging by improving forest regeneration and reducing breeding sites of introduced E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 79964 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules southern house mosquitoes that carry avian malaria, controlling feral ungulates, conducting nonnative plant control to improve recruitment of native trees, and controlling small mammals to reduce predation on nesting ‘i‘iwi. Wildfire management and response activities minimize damage to forest and shrubland habitats ‘i‘iwi use for nesting and foraging. Based on The Nature Conservancy’s management of Ka‘u¯ Preserve under the Ka‘u¯ Preserve Hawai‘i Island, LongRange Management Plan, Fiscal Years 2013–2018, and participation in the Three Mountain Alliance Management Plan, December 31, 2007, we are considering excluding The Nature Conservancy’s Ka‘u¯ Preserve lands from the final critical habitat designation for the ‘i‘iwi. South Kona Unit—Kealakekua Mountain Reserve, LLC—The Kealakekua Mountain Reserve, LLC, manages two parcels (94 ac (38 ha) and 5,707 ac (2,310 ha)) of land included in the proposed designation for ‘i‘iwi within the South Kona Unit. Conservation management activities on these lands include those associated with the Kealakekua Mountain Reserve Forest Legacy Program conservation easement with the State of Hawaii’s Department of Land and Natural Resources (Kealakekua Mountain Reserve Forest Legacy Program conservation easement). Once a former ranch, Kealakekua Mountain Reserve completed the Kealakekua Mountain Reserve Forest Legacy Program conservation easement with the State of Hawaii in 2011, to protect mesic and dryland native forest on Kealakekua Mountain Reserve lands. The Kealakekua Mountain Reserve management plan under the conservation easement outlines harvesting limitations that must be followed to insure regeneration of mesic and dryland native forest (do¯Terra 2018, entire). In order to protect the immediate growth and regeneration of ‘iliahi or sandalwood trees, the management plan specifies only dead or severely damaged trees will be collected and that no living sandalwood trees should be harvested, which will allow existing healthy trees to grow to full maturity before they are harvested under sustainable tree management practices. The Kealakekua Mountain Reserve operates a large nursery, and various native Hawaiian trees and shrub species from the nursery are being outplanted at the Kealakekua Mountain Reserve. In addition, Kealakekua Mountain Reserve has availed itself of funding and technical assistance from the NRCS for projects on Kealakekua VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 Mountain Reserve lands to conserve ground and surface water, increase soil health, and reduce soil erosion and sedimentation. The conservation actions of Kealakekua Mountain Reserve benefit habitat ‘i‘iwi use for nesting and foraging by improved forest regeneration, water and soil conservation, increased soil-water retention capacity, and improved ecosystem resilience to drying climate conditions. Based on Kealakekua Mountain Reserve’s management of its lands under the Kealakekua Mountain Reserve Forest Legacy Program conservation easement and NRCS projects, we are considering excluding Kealakekua Mountain Reserve from the final critical habitat designation for the ‘i‘iwi. South Kona Unit—Kamehameha Schools—The Kamehameha Schools owns three parcels (2,744 ac (1,111 ha); 11,080 ac (4,484 ha); and 2,385 ac (965 ha)) of land included in the proposed designation for ‘i‘iwi within the South Kona Unit. Conservation management activities on these lands include those associated with the Kamehameha ¯ ina Pauahi Natural Resources Schools ‘A ¯ ina Management Program, Ha¯loa ‘A Forest Restoration Agreement, and the Three Mountain Alliance Watershed Management Plan, December 31, 2007. Between 2000 and 2015, Kamehameha Schools increased its active stewardship of native ecosystems ¯ ina Pauahi Natural under its ‘A Resources Management Program from 3,000 ac (1,124 ha) to 136,000 ac (55,037 ha), 35 times the number of acres under Kamehameha Schools’ care in 2000, including lands within the South Kona Unit in this proposed critical habitat designation. In 2019, Kamehameha Schools entered into an agreement with ¯ ina, a Native Hawaiian familyHa¯loa ‘A owned business dedicated to restoring native mesic and dryland forest (Big Island Video News 2019, entire). Under a 5-year license, the project will improve the native ecosystems consisting of remnant ‘iliahi and ma¯mane forest on formerly degraded Kamehameha Schools agricultural lands in South Kona. Revenues generated from the harvest of dead and senescent sandalwood trees are directly reinvested in the subject property with the focus of ¯ ina conservation management. Ha¯loa ‘A is actively propagating ‘iliahi, ma¯mane, and koa trees in its greenhouses for planting on Kamehameha Schools lands. Kamehameha Schools is also a member of the Three Mountain Alliance, whose conservation actions include conserving unique endemic plants and animals; conducting watershed resource monitoring; PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 controlling feral ungulates and invasive, nonnative plants; reestablishing native plant species; and conducting activities to reduce the threat of wildfire. The conservation actions of Kamehameha Schools benefit habitat ‘i‘iwi use for nesting and foraging by promoting forest regeneration and reduction of breeding sites for introduced southern house mosquitoes that carry avian malaria through control of feral ungulates; nonnative plant control that improves recruitment of native trees; fire suppression that benefits forest and shrubland ‘i‘iwi use for nesting and foraging by minimizing damage to these habitats by wildfire; and ‘iliahi and ma¯mane forest restoration that conserves and enhances forest and shrubland habitat ‘i‘iwi use for nesting and foraging, increases soil-water retention capacity, and improves ecosystem resilience to drying climate conditions. Based on Kamehameha Schools’ management of its lands under ¯ ina Pauahi Kamehameha Schools’ ‘A Natural Resources Management ¯ ina Forest Restoration Program, Ha¯loa ‘A Agreement, and the Three Mountain Alliance Management Plan, we are considering excluding Kamehameha Schools lands from the final critical habitat designation for the ‘i‘iwi. South Kona Unit—Kealia Ranch—The Kealia Ranch manages 1,758 ac (712 ha) of land included in the proposed designation for ‘i‘iwi within the South Kona Unit. Conservation management activities on Kealia Ranch lands include those associated with NRCS’ Environmental Quality Incentive Program land stewardship projects, as well as cooperation with government partners for wildlife conservation on Kealia Ranch and adjacent lands. Kealia Ranch is a 12,000-ac (4,856-ha) working cattle ranch founded in 1915, located in the South Kona District on leeward Mauna Loa Volcano on the island of Hawai‘i. Kealia Ranch has availed itself of funding and technical assistance from the NRCS for projects on Kealia Ranch to conserve ground and surface water, increase soil health, and reduce soil erosion and sedimentation (Natural Resources Conservation Service 2022, entire). The Kealia Ranch is an immediate neighbor to the Hakalau National Wildlife Refuge, Kona Forest Unit, and cooperates with the refuge in areas such as weed control, wildfire suppression, emergency situations, and security (Kealia Ranch 2022, entire). From 1993–1998, Kealia Ranch participated in conservation efforts with the Service to save from extinction the last remaining population of ‘alala¯ or Hawaiian crow (Corvus hawaiiensis) in E:\FR\FM\28DEP2.SGM 28DEP2 ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules the wild. Kealia Ranch has worked with the University of Hawai‘i College of Tropical Agriculture and Human Resources on research projects and trials on Kealia Ranch lands and cooperates annually with the U.S. Geological Survey (USGS) on research for volcanic activity and ground swell of Mauna Loa (Kealia Ranch 2022, entire). The conservation actions of Kealia Ranch benefit forest and shrubland habitat ‘i‘iwi use for nesting and foraging by promoting soil and water conservation, weed control, and wildfire suppression. Based on Kealia Ranch’s implementation of water and soil conservation projects through NRCS’ Environmental Quality Incentives Program and cooperation with neighbors in areas including nonnative plant control and wildfire suppression, we are considering excluding Kealia Ranch lands from the final critical habitat designation for the ‘i‘iwi. South Kona Unit—The Nature Conservancy, Kona Hema Preserve— The Nature Conservancy owns 5,700 ac (2,307 ha) of land included in the proposed designation for ‘i‘iwi within the South Kona Unit. Conservation management activities on these lands include those associated with the Forest Stewardship Management Plan for The Kona Hema Preserve and the Three Mountain Alliance Management Plan, December 31, 2007. The Kona Hema Preserve is comprised of 8,076 ac (3,268 ha) in four management units. Management activities on the Kona Hema Preserve are to prevent degradation of native forest and shrubland by reducing feral ungulate damage; to improve or maintain the integrity of native ecosystems in selected areas of the preserve by reducing the effects of nonnative plants; to conduct small mammal control and reduce the negative impacts of small mammals where possible; to monitor and track the biological and physical resources in the preserve and evaluate changes in these resources over time, and encourage biological and environmental research; to prevent extinction of rare species in the preserve; to build public understanding and support for the preservation of natural areas; and to enlist volunteer assistance for preserve management and the protection of the resources from fires in and around the preserve. The Nature Conservancy is VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 also a member of the Three Mountain Alliance, whose conservation actions include conserving unique endemic plants and animals; conducting watershed resource monitoring; controlling feral ungulates and invasive, nonnative plants; reestablishing native plant species; and conducting activities to reduce the threat of wildfire. The conservation actions of The Nature Conservancy Kona Hema Preserve benefit habitat ‘i‘iwi use for nesting and foraging by improved forest regeneration and reduction of breeding sites for introduced southern house mosquitoes that carry avian malaria, by control of feral ungulates, by nonnative plant control that improves recruitment of native trees, and by small mammal control to reduce predation on nesting ‘i‘iwi. Wildfire management and response benefit forest and shrubland habitat ‘i‘iwi use for nesting and foraging by minimizing damage to these habitats by wildfire. Based on The Nature Conservancy’s management of the Kona Hema Preserve under the Forest Stewardship Management Plan for The Kona Hema Preserve and the Three Mountain Alliance Management Plan, December 31, 2007, we are considering excluding The Nature Conservancy’s Kona Hema Preserve lands from the final critical habitat designation for the ‘i‘iwi. North Kona Unit—Kamehameha Schools—The Kamehameha Schools owns two parcels (2,585 (1,046 ha) and 1,557 (630 ha)) of land included in the proposed designation for ‘i‘iwi within the North Kona Unit. Conservation management activities on these lands include those associated with the ¯ ina Pauahi Kamehameha Schools’ ‘A Natural Resources Management Program; the Paniolo Tonewoods, LLC, Forest Restoration Agreement with Kamehameha Schools; and the Three Mountain Alliance Management Plan, December 31, 2007. ¯ ina Pauahi Kamehameha Schools’ ‘A Natural Resources Management Program implements Kamehameha Schools’ conservation land stewardship policy through the protection and conservation of natural resources, water resources, and ancestral places (Kamehameha Schools 2022, entire). Between 2000 and 2015, Kamehameha Schools increased its active stewardship of native ecosystems under the program from 3,000 ac (1,124 ha) to 136,000 ac (55,037 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 79965 ha), which is 45 times the number of acres under Kamehameha Schools’ care in 2000, and includes lands within the North Kona Unit in this proposed critical habitat designation. Kamehameha Schools entered into an agreement in 2019, with Paniolo Tonewoods, LLC, to manage 1,300 ac (526 ha) of Kamehameha Schools lands upslope of Ho¯naunau Forest Reserve that are mixed ‘o¯hi‘a/koa forest (Big Island Video News 2019, entire). Kamehameha Schools is also a member of the Three Mountain Alliance, whose conservation actions include conserving unique endemic plants and animals; conducting watershed resource monitoring; controlling feral ungulates and invasive, nonnative plants; reestablishing native plant species; and conducting activities to reduce the threat of wildfire. The conservation actions of Kamehameha Schools benefit habitat ‘i‘iwi use for nesting and foraging by promoting forest regeneration and reduction of mosquito breeding sites; weed control that improves recruitment of native trees; fire suppression that benefits forest and shrubland habitats by minimizing damage to these habitats by wildfire; and koa silviculture that conserves and enhances forest and shrubland habitat ‘i‘iwi use for nesting and foraging, increases soil-water retention capacity, and improves ecosystem resilience to drying climate conditions. Based on Kamehameha Schools’ management of its lands under ¯ ina Pauahi Kamehameha Schools’ ‘A Natural Resources Management Program; Paniolo Tonewoods, LLC, Forest Restoration Agreement with Kamehameha Schools; and the Three Mountain Alliance Management Plan, December 31, 2007, we are considering excluding Kamehameha Schools lands from the final critical habitat designation for the ‘i‘iwi. Summary of Exclusions Considered Under 4(b)(2) of the Act We have reason to consider excluding the following areas under section 4(b)(2) of the Act from the final critical habitat designation for the ‘i‘iwi. Table 2 below provides approximate areas (ac, ha) of lands that meet the definition of critical habitat but for which we are considering possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule. E:\FR\FM\28DEP2.SGM 28DEP2 79966 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules TABLE 2—AREAS CONSIDERED FOR EXCLUSION BY CRITICAL HABITAT UNIT Unit Owner Alaka‘i Plateau ......................... Alexander & Baldwin, Inc ....... 203 (82) Kula ......................................... Ka‘ono‘ulu Ranch .................... 830 (336) East Haleakala¯ ........................ Haleakala¯ Ranch .................... 1,113 (451) East Haleakala¯ ........................ East Maui Irrigation, Inc .......... 2,327 (942) Windward Hawai‘i .................... Kamehameha Schools ............ 13,308 (5,386) Windward Hawai‘i .................... Department of Hawaiian Homelands. Ku¯ka‘iau Ranch ....................... 4,035 (1,633) Parker Ranch Waipunalei, LLC. The Nature Conservancy ........ 1,449 (586) Windward Hawai‘i .................... Windward Hawai‘i .................... Ka‘u¯ ......................................... 87 (35) 399 (162) South Kona .............................. Kealakekua Mountain Reserve, LLC. South Kona .............................. Kamehameha Schools ............ 16,209 (6,560) South Kona .............................. South Kona .............................. Kealia Ranch .......................... The Nature Conservancy ........ 1,758 (712) 5,700 (2,307) North Kona Unit ....................... Kamehameha Schools ............ 4,142 (1,676) ................................................. 57,361 (22,316) Total Area Considered for Exclusion. ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Areas considered for exclusion, in acres (Hectares) In conclusion, for this proposed designation, we have reason to consider excluding the areas identified above based on other relevant impacts. We specifically solicit comments on the inclusion or exclusion of such areas. However, if through the public comment period we receive information that we determine indicates that there are potential economic, national security, or other relevant impacts from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will evaluate that information and may conduct a discretionary exclusion analysis to determine whether to VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 5,801 (2,348) Associated plans and agreements Kaua‘i Watershed Alliance Management Plan Update, Overall Management Strategy; Kaua‘i Forest Bird Recovery Project. Kula Forest Reserve and the Papa‘anui Tract of Kahikinui Forest Reserve Management Plan; Leeward Haleakala¯ Watershed Restoration Partnership. The Nature Conservancy’s Waikamoi Preserve, Long-Range Management Plan, Fiscal Years 2019–2024; Leeward Haleakala¯ Watershed Restoration Partnership; Maui Forest Bird Recovery Project. The Nature Conservancy’s Waikamoi Preserve, Long-Range Management Plan, Fiscal Years 2019–2024; East Maui Watershed Partnership; Maui Forest Bird Recovery Project. ¯ ina Pauahi Natural Resources ManKamehameha Schools ‘A agement Program; Three Mountain Alliance Management Plan, December 31, 2007; Kamehameha Schools Keauhou and Kı¯lauea Forest Lands Safe Harbor Agreement. ¯ ina Mauna Legacy Department of Hawaiian Homelands’ ‘A Program; Mauna Kea Watershed Alliance. Ku¯ka‘iau Ranch Conservation Easement with The Nature Conservancy and Hawaiian Island Land Trust; Mauna Kea Watershed Alliance. Parker Ranch Sustainable Forestry Initiative; Mauna Kea Watershed Alliance. Ka‘u¯ Preserve Hawai‘i Island, Long-Range Management Plan, Fiscal Years 2013–2018; Three Mountain Alliance Management Plan, December 31, 2007. Kealakekua Mountain Reserve Forest Legacy Program Conservation Easement with the Hawaii’s Department of Land and Natural Resources. ¯ ina Pauahi Natural Resources ManKamehameha Schools ‘A agement Program; Kamehameha Schools Ha¯loa ‘A¯ina Forest Restoration Agreement; Three Mountain Alliance Management Plan, December 31, 2007. NRCS Environmental Quality Incentive Program Projects. Forest Stewardship Management Plan for The Kona Hema Preserve; Three Mountain Alliance Management Plan, December 31, 2007. ¯ ina Pauahi Natural Resources ManKamehameha Schools ‘A agement Program; Paniolo Tonewoods, LLC, Forest Restoration Agreement with Kamehameha Schools; Three Mountain Alliance Management Plan, December 31, 2007. exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. If we receive a request for exclusion of a particular area and after evaluation of supporting information we do not exclude, we will fully describe our decision in the final rule for this action. Required Determinations Clarity of the Rule We are required by Executive Orders (E.O.s) 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too E:\FR\FM\28DEP2.SGM 28DEP2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules long, the sections where you feel lists or tables would be useful, etc. ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities. In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 79967 designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our draft economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use. The proposed critical habitat units are in remote wilderness areas that are not used for energy generation. 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 et seq.), we make the following finding: (1) This proposed rule would 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, local, or 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, 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, local, or Tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare E:\FR\FM\28DEP2.SGM 28DEP2 79968 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules ddrumheller on DSK6VXHR33PROD with PROPOSALS2 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 are not likely to destroy or adversely modify critical habitat under section 7. While non-Federal entities that 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 onto State governments. (2) We do not believe that this proposed rule would significantly or uniquely affect small governments. Small governments would be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. Therefore, a Small Government Agency Plan is not required. Takings—Executive Order 12630 In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for ‘i‘iwi in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for ‘i‘iwi, and it concludes that, if adopted as proposed, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the Federal Government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur. Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that 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 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that this proposed rule would not unduly burden the judicial system and that it 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 Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) Regulations adopted pursuant to section 4(a) of the Act are exempt from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and do not require an environmental analysis under NEPA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This includes listing, delisting, and reclassification rules, as well as critical habitat designations. In a line of cases starting with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this position. 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), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate E:\FR\FM\28DEP2.SGM 28DEP2 79969 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribal lands fall within the boundaries of the proposed critical habitat designation for the ‘i‘iwi, so no Tribal lands would be affected by the proposed designation. References Cited A complete list of references cited in this proposed rule is available on the Common name * * Iiwi (honeycreeper) .......... * * * * * * Iiwi (honeycreeper) (Drepanis coccinea) ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Endangered and threatened species, Exports, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife. (1) Critical habitat units are depicted for Kauai, Maui, and Hawaii Counties, Hawaii, on the maps in this entry. (2) Within these areas, the physical or biological features essential to the conservation of iiwi consist of the following components: (i) Multiple patches of seasonally flowering trees, including ohia (Metrosideros polymorpha) and mamane (Sophora chrysophylla), and/or shrubs that collectively provide the iiwi a yearround nectar source. The number of patches of flowering trees and shrubs needed may be few if patch size is large. 20:01 Dec 27, 2022 Jkt 259001 Status * * Fmt 4701 2. In § 17.11, in paragraph (h), amend the table ‘‘List of Endangered and Threatened Wildlife’’ by revising the entry for ‘‘Iiwi (honeycreeper)’’ under Birds to read as follows: ■ * * (h) * * * * * Wherever found .............. Frm 00029 Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. * T * * 82 FR 43873, 9/20/2017; 50 CFR 17.95(b).CH * Sfmt 4702 * * Listing citations and applicable rules For example, a few large contiguous areas of forest containing seasonally asynchronously flowering trees and shrubs that are several square miles (several kilometers) in size, or many small patches with concentrated, seasonally asynchronously flowering trees and shrubs would meet the iiwi’s year-round nectar source needs. Patches can be close together, such as individual flowering trees a few hundred feet (hundred meters) apart in an open landscape, or far apart, such as large forest patches of seasonally asynchronous flowering trees or shrubs as much as several miles (several kilometers) apart. (ii) Tall stature trees (height taller than 26 feet (8 meters)) characteristic of a mesic and wet forest ecosystem, including ohia and koa (Acacia koa) trees for nesting. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal PO 00000 1. The authority citation for part 17 continues to read as follows: ■ * Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: Where listed PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS § 17.11 Endangered and threatened wildlife. Proposed Regulation Promulgation * Critical habitat—fish and wildlife. VerDate Sep<11>2014 List of Subjects in 50 CFR Part 17 * * Drepanis coccinea .......... 3. In § 17.95, amend paragraph (b) by adding an entry for ‘‘Iiwi (honeycreeper) (Drepanis coccinea)’’ following the entry for ‘‘Crested Honeycreeper (Akohekohe) (Palmeria dolei)’’ to read as follows: * * (b) Birds. * * * The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service’s Species Assessment Team and the Pacific Islands Fish and Wildlife Office. * ■ * Authors Scientific name * BIRDS § 17.95 internet at https://www.regulations.gov and upon request from the Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). * * * * boundaries on the effective date of the final rule. (4) Data layers defining map units were created using summaries of abundance, distribution, and trends compiled by the U.S. Geological Survey. Where this summary was incomplete, specifically within the Kula region of Maui, we used information provided by the National Park Service and the Maui Forest Bird Recovery Project. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at https://www.regulations.gov at Docket No. FWS–R1–ES–2022–0144, and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Index map follows: E:\FR\FM\28DEP2.SGM 28DEP2 79970 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules Figure 1 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (5) VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 occupied habitat in Kauai County. This unit consists of State and privately owned lands. PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 (ii) Map of Alakai Plateau Unit follows: E:\FR\FM\28DEP2.SGM 28DEP2 EP28DE22.000</GPH> ddrumheller on DSK6VXHR33PROD with PROPOSALS2 (6) Alakai Plateau Unit: Kauai County, Hawaii. (i) The Alakai Plateau Unit comprises 12,510 acres (ac) (5,063 hectares (ha)) of Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules 79971 (7) Kula Unit: Maui County, Hawaii. (i) The Kula Unit comprises 5,226 ac (2,115 ha) of occupied habitat in Maui VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 County on the west slope of Haleakala Volcano. This unit consists of State and privately owned lands. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 (ii) Map of Kula and East Haleakala Units follows: E:\FR\FM\28DEP2.SGM 28DEP2 EP28DE22.001</GPH> ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Figure 2 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (6)(ii) 79972 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules (8) East Haleakala Unit: Maui County, Hawaii. (i) The East Haleakala Unit comprises 19,393 ac (7,848 ha) of occupied habitat in Maui County on the northeast slope of Haleakala Volcano. This unit consists VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 of lands owned by the National Park Service, the State of Hawaii, and private landowners. (ii) Map of East Haleakala Unit is provided at paragraph (7)(ii) of this entry. PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 (9) Windward Hawaii: Hawaii County, Hawaii. (i) The Windward Hawaii Unit comprises 141,085 ac (57,095 ha) of occupied habitat in Hawaii County on the east slopes of Mauna Kea and E:\FR\FM\28DEP2.SGM 28DEP2 EP28DE22.002</GPH> ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Figure 3 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (7)(ii) 79973 Mauna Loa Volcanoes. The unit is comprised of one large area and three small disjunct areas that are near the northwest and south end of the larger area. This unit consists of lands owned by the National Park Service, the U.S. Fish and Wildlife Service, the State of Hawaii, and private landowners. (ii) Map of Windward Hawaii Unit follows: Figure 4 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (9)(ii) (10) Kau Unit: Hawaii County, Hawaii. (i) The Kau Unit comprises 32,458 ac (13,136 ha) of occupied habitat in Hawaii County on the southeast slope of Mauna Loa Volcano. The unit consists of State and privately owned lands. (ii) Map of Kau and South Kona Units follows: VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\28DEP2.SGM 28DEP2 EP28DE22.003</GPH> ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules 79974 Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules (11) South Kona Unit: Hawaii County, Hawaii. (i) The South Kona Unit comprises 51,376 ac (20,791 ha) of occupied habitat in Hawaii County on the west slope of Mauna Loa Volcano. The unit VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 is comprised of four roughly similar sized areas separated from each by distances of less than 1 mi (1.6 km). This unit consists of lands owned by the U.S. Fish and Wildlife Service, the State of Hawaii, and private landowners. PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 (ii) Map of South Kona Unit is provided at paragraph (10)(ii) of this entry. (12) North Kona Unit: Hawaii County, Hawaii. E:\FR\FM\28DEP2.SGM 28DEP2 EP28DE22.004</GPH> ddrumheller on DSK6VXHR33PROD with PROPOSALS2 Figure 5 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (10)(ii) Federal Register / Vol. 87, No. 248 / Wednesday, December 28, 2022 / Proposed Rules This unit is comprised of one large area to the north and one smaller disjunct area to the south. This unit consists of State and privately owned lands. (ii) Map of North Kona Unit follows: Figure 6 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (12)(ii) Martha Williams, Director, U.S. Fish and Wildlife Service. [FR Doc. 2022–27544 Filed 12–27–22; 8:45 am] BILLING CODE 4333–15–P VerDate Sep<11>2014 20:01 Dec 27, 2022 Jkt 259001 PO 00000 Frm 00035 Fmt 4701 Sfmt 9990 E:\FR\FM\28DEP2.SGM 28DEP2 EP28DE22.005</GPH> ddrumheller on DSK6VXHR33PROD with PROPOSALS2 (i) The North Kona Unit comprises 13,599 ac (5,503 ha) of occupied habitat in Hawaii County on the north, west, and south slopes of Hualalai Volcano. 79975

Agencies

[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Proposed Rules]
[Pages 79942-79975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27544]

[[Page 79941]]

Vol. 87

Wednesday,

No. 248

December 28, 2022

Part II

Department of the Interior

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Fish and Wildlife Service

50 CFR Part 17

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Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for `I`iwi; Proposed Rule

Federal Register / Vol. 87 , No. 248 / Wednesday, December 28, 2022 /
Proposed Rules

[[Page 79942]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2022-0144; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG61

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for `I`iwi

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the federally threatened `i`iwi
(Drepanis coccinea) under the Endangered Species Act of 1973, as
amended (Act). In total, approximately 275,647 acres (111,554 hectares)
on the islands of Kaua`i, Maui, and Hawai`i, in the State of Hawaii,
fall within the boundaries of the proposed critical habitat
designation. We also announce a public informational meeting and public
hearing and the availability of a draft economic analysis of the
proposed critical habitat designation.

DATES: Comment submission: We will accept comments received or
postmarked on or before February 27, 2023. Comments submitted
electronically using the Federal eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m. eastern time on the closing date.
Public informational meeting and public hearing: On February 10,
2023, we will hold a public informational meeting from 6 to 6:45 p.m.,
Hawaii Time, followed by a public hearing from 6:45 to 8 p.m., Hawaii
Time. See Public Hearing, in SUPPLEMENTARY INFORMATION, for more
information.

ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R1-ES-2022-0144,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, check the Proposed
Rule box to locate this document. You may submit a comment by clicking
on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R1-ES-2022-0144, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: The species status report and
other materials relating to this critical habitat designation,
including coordinates or plot points or both from which the maps are
generated, are included in the decision file and are available at
https://www.regulations.gov under Docket No. FWS-R1-ES-2022-0144.
Public informational meeting and public hearing: We are holding the
public informational meeting and public hearing via the Zoom online
video platform and via teleconference. See Public Hearing and
Reasonable Accommodation, below, for more information.

FOR FURTHER INFORMATION CONTACT: Earl Campbell, Project Leader, U.S.
Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office,
300 Ala Moana Boulevard Room 3-122, Honolulu, HI 96850; telephone 808-
792-9400. Individuals in the United States who are deaf, deafblind,
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, to the maximum extent
prudent and determinable, we must designate critical habitat for any
species that we determine to be an endangered or threatened species.
Designations of critical habitat can be completed only by issuing a
rule through the Administrative Procedure Act rulemaking process (5
U.S.C. 551 et seq.).
What this document does. This rule proposes to designate
approximately 275,647 acres (111,554 hectares) as critical habitat for
the federally threatened `i`iwi on three islands (Kaua`i, Maui,
Hawai`i) in the State of Hawaii.
The basis for our action. Under section 4(a)(3) of the Act, if we
determine that a species is an endangered or threatened species we
must, to the maximum extent prudent and determinable, designate
critical habitat. Section 3(5)(A) of the Act defines critical habitat
as (i) the specific areas within the geographical area occupied by the
species, at the time it is listed, on which are found those physical or
biological features essential to the conservation of the species and
which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination by the Secretary
that such areas are essential for the conservation of the species.
Section 4(b)(2) of the Act states that the Secretary must make the
designation on the basis of the best scientific data available and
after taking into consideration the economic impact, the impact on
national security, and any other relevant impacts of specifying any
particular area as critical habitat.

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other governmental agencies, Native Hawaiian
organizations, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments for the islands of Kaua`i, Maui, and
Hawai`i, in the State of Hawaii concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information regarding the following factors that the
current regulations identify as reasons why designation of critical
habitat may be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;

[[Page 79943]]

(d) No areas meet the definition of critical habitat; or
(e) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
In addition, we seek comment regarding whether and how this
information would differ under the factors that the pre-2019
regulations identify as reasons why designation of critical habitat may
be not prudent.
(2) Specific information on:
(a) The amount and distribution of `i`iwi habitat;
(b) Any additional areas occurring within the range of the species
in the State of Hawaii, including on the islands of Moloka`i and O`ahu,
that should be included in the designation because they (i) are
occupied at the time of listing and contain the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection, or (ii)
are unoccupied at the time of listing and are essential for the
conservation of the species; and
(c) Special management considerations or protection that may be
needed in the critical habitat areas we are proposing, including
managing for the potential effects of climate change; and
(d) To evaluate the potential to include areas not occupied at the
time of listing, we particularly seek comments regarding whether
occupied areas are adequate for the conservation of the species.
Additionally, please provide specific information regarding whether or
not unoccupied areas would, with reasonable certainty, contribute to
the conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species. We
also seek comments or information regarding whether areas not occupied
at the time of listing qualify as habitat for the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(5) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular for those based on a
conservation program or plan. These may include Federal, Tribal, State,
county, local, or private lands with permitted conservation plans
covering the species in the area such as habitat conservation plans,
safe harbor agreements, or conservation easements, or non-permitted
conservation agreements and partnerships that would be encouraged by
designation of, or exclusion from, critical habitat. Detailed
information regarding these plans, agreements, easements, and
partnerships is also requested, including:
(a) The location and size of lands covered by the plan, agreement,
easement, or partnership;
(b) The duration of the plan, agreement, easement, or partnership;
(c) Who holds or manages the land;
(d) What management activities are conducted;
(e) What land uses are allowable; and
(f) If management activities are beneficial to the 'i'iwi and its
habitat.
If you think we should exclude any additional areas, please provide
information supporting a benefit of exclusion.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(2) of
the Act directs that the Secretary shall designate critical habitat on
the basis of the best scientific information available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determination may differ from this
proposal. Based on the new information we receive (and any comments on
that new information), our final critical habitat designation may not
include all areas proposed, may include some additional areas that meet
the definition of critical habitat, or may exclude some areas if we
find the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species.

Public Hearing

We will hold a public informational meeting and public hearing on
the date and at the times listed in DATES. We are holding the public
informational meeting and public hearing via the Zoom online video
platform and via teleconference so that participants can attend
remotely. To listen and view the meeting and hearing via Zoom, listen
to the meeting and hearing by telephone, or provide oral public
comments at the public hearing via Zoom or by telephone, you must
register. For information on how to register, or if you encounter
problems joining Zoom the day of the meeting, visit https://empsi.zoom.us/webinar/register/WN_kg1fCOfUTxOXaznf1ezIig. Registrants
will receive the Zoom link and the telephone number for the public
informational meeting and public hearing. If applicable, interested
members of the public not familiar with the Zoom platform should view
the Zoom video tutorials (https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials) prior to the public informational
meeting and public hearing.
The public hearing will provide interested parties an opportunity
to present verbal testimony (formal, oral

[[Page 79944]]

comments) on this proposed rule. While the public informational meeting
will be an opportunity for dialogue with the Service, no such
opportunity will be available at the public hearing. The purpose of the
public hearing is to provide a forum for accepting formal verbal
testimony, which will then become part of the record for the proposed
rule. In the event there is a large attendance, the time allotted for
verbal testimony may be limited. Therefore, anyone wishing to provide
verbal testimony at the public hearing is encouraged to provide a
prepared written copy of their statement to us through the Federal
eRulemaking Portal or by U.S. mail (see ADDRESSES, above). There are no
limits on the length of written comments submitted to us. Again, anyone
wishing to provide verbal testimony at the public hearing must register
before the hearing (https://empsi.zoom.us/webinar/register/WN_kg1fCOfUTxOXaznf1ezIig). The use of a virtual public hearing is
consistent with our regulations at 50 CFR 424.16(c)(3).

Reasonable Accommodation

The Service is committed to providing access to the public
informational meeting and public hearing for all participants. Closed
captioning will be available during the public informational meeting
and public hearing. Further, a full audio and video recording and
transcript of the public hearing will be posted online at https://www.fws.gov/pacificislands after the hearing. Participants will also
have access to live audio during the public informational meeting and
public hearing via their telephone or computer speakers. Persons with
disabilities requiring reasonable accommodations to participate in the
meeting and/or hearing should contact the person listed under FOR
FURTHER INFORMATION CONTACT at least 5 business days prior to the date
of the meeting and hearing to help ensure availability. An accessible
version of the Service's public informational meeting presentation will
also be posted online at https://www.fws.gov/pacificislands prior to
the meeting and hearing (see DATES, above). See https://www.fws.gov/pacificislands for more information about reasonable accommodation.

Previous Federal Actions

Please refer to the final listing rule for the i'iiwi, which
published in the Federal Register on September 20, 2017 (82 FR 43873),
for a detailed description of previous Federal actions concerning this
species.

Peer Review

In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, 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
proposed critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will invite these peer reviewers to
comment, during the public comment period, on the specific assumptions
and conclusions regarding the proposed designation of critical habitat.
We will consider all comments and information we receive during the
comment period on this proposed rule during our preparation of a final
determination. Accordingly, our final decision may differ from this
proposal.

Background

The 'i'iwi is a bird endemic to the Hawaiian Islands whose name is
often anglicized to ``iiwi.'' We prefer to, and will, include Hawaiian
language spellings, including diacritical marks, to the degree possible
and appropriate in the preambles of our Federal Register documents. For
the text to be codified in the Code of Federal Regulations (CFR),
however, we will omit diacritical marks to ensure that no errors are
inadvertently incorporated during the codification process.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not 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 also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the

[[Page 79945]]

extent known using the best scientific and commercial data available,
those physical or biological features that are essential to the
conservation of the species (such as space, food, cover, and protected
habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the species status report and information developed
during the listing process for the species. Additional information
sources may include any generalized conservation strategy, criteria, or
outline that may have been developed for the species; the recovery plan
for the species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; and (2)
regulatory protections afforded by the requirement in section 7(a)(2)
of the Act for Federal agencies to ensure their actions are not likely
to jeopardize the continued existence of any endangered or threatened
species. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of the
species. 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 (HCPs), or other species conservation planning
efforts if new information available at the time of those planning
efforts calls for a different outcome.

Prudency Determination

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, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed in the final listing rule (82 FR 43873; September 20,
2017), there is currently no imminent threat of collection or vandalism
identified under Factor B for this species, and identification and
mapping of critical habitat is not expected to initiate any such
threat. In our species status report and final listing determination
for the `i`iwi, we determined that the present or threatened
destruction, modification, or curtailment of habitat or range is a
threat to `i`iwi and that those threats in some way can be addressed by
the Act's section 7(a)(2) consultation measures. The species occurs
wholly in the jurisdiction of the United States, and we are able to
identify areas that meet the definition of critical habitat. Therefore,
because none of the circumstances enumerated in our regulations at 50
CFR 424.12(a)(1) have been met and because the Secretary has not
identified other circumstances for which this designation of critical
habitat would be not prudent, we have determined that the designation
of critical habitat is prudent for the `i`iwi.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the `i`iwi
is determinable. Our regulations at 50 CFR 424.12(a)(2) state that
critical habitat is not determinable when one or both of the following
situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the `i`iwi.

Physical or Biological Features Essential to the Conservation of the
Species

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which

[[Page 79946]]

may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics 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, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.

Habitats Representative of the Historical, Geographical, and Ecological
Distributions of the Species

The `i`iwi is an endemic Hawaiian forest bird belonging to the
honeycreeper subfamily, Drepanidinae, of the Fringillidae (finch
family). Historical abundance estimates are not available, but the
`i`iwi was considered one of the most common of the native forest birds
in Hawaii by early naturalists and was found from sea level to the tree
line across all the major islands (Banko 1981, pp. 1-2). In the late
1800s, `i`iwi began to disappear from low-elevation forests due to
habitat loss and avian diseases (Banko 1981, pp. 2-3), and by the mid-
1900s, the species was largely absent from sea level to mid-elevation
forests (Munro 1944, p. 94). Today `i`iwi are no longer found on Lanai
and only a few individuals may be found on O'ahu, Moloka'i, and west
Maui. Remaining populations of `i`iwi are restricted to high-elevation
forests above 3,937 feet (ft) (1,200 meters (m)) on Hawai`i Island,
east Maui, and Kaua`i because these areas contain temperatures low
enough to reduce or inhibit the spread of avian malaria and avian pox,
carried by Culex mosquitoes. At the time of listing, the rangewide
population estimate was approximately 600,000 individuals. An estimated
90 percent of `i`iwi occur on Hawai`i Island, with the remainder
distributed on east Maui (about 10 percent), and Kaua`i (less than 1
percent).

Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements

`I`iwi are found primarily in closed canopy, montane wet or mesic
forests of tall stature, dominated by native `[omacr]hi`a (Metrosideros
polymorpha) or `[omacr]hi`a and koa (Acacia koa) trees. `I`iwi are
nectarivorous; their diet consists predominantly of nectar from the
flowers of `[omacr]hi`a, but they may also feed on m[amacr]mane
(Sophora chrysophylla), and plants in the lobelia family
(Campanulaceae) (Fancy and Ralph 1998, p. 4). They also feed
opportunistically upon insects and spiders (Fancy and Ralph 1998, pp.
4-5). The `i`iwi's long, curved bill is a result of coevolution with
native Hawaiian plants in the lobelia family, which have long, curved
corollas (groups of petals that encircle the reproductive structures of
a flower) (Fancy and Ralph 1998, p. 4, and references therein).
Hawaiian lobelioids in the subfamily Lobelioideae, provide an important
food source for `i`iwi and represent the largest plant radiation on any
island archipelago with 126 species in six genera (Givnish et al. 2008,
p. 410). However, many of Hawai`i's lobelioids are impacted by feral
ungulates and contain few defenses against herbivory. `I`iwi now feed
primarily on `[omacr]hi`a flowers, which have stamens that extend 1-3
cm (0.4-1.2 in) out from the flower and give the blossoms a pompom,
brush, or hairlike appearance (Fancy and Ralph 1998, p. 4). `I`iwi are
strong fliers that move long distances to locate nectar sources, and
are well known for their seasonal movements in response to the
availability of flowering `[omacr]hi`a (Fancy and Ralph 1998, p. 3.)
The `i`iwi's seasonal movement to lower elevation areas in search of
nectar sources is an important factor in the exposure of the species to
avian diseases, particularly malaria.

Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring

On the islands of Hawai`i, Kaua`i, and Maui, the three islands that
currently support populations of `i`iwi, the species breeds and winters
in mesic and wet forests that are dominated by `[omacr]hi`a and koa
trees (Fancy and Ralph 1998, p. 3). `I`iwi do not demonstrate high
fidelity to a local breeding area (Fancy and Ralph 1998, p. 9); rather,
individual birds switch breeding sites from year to year to take
advantage of localized nectar availability (Fancy and Ralph 1998, p.
9). `I`iwi pairs remain together during the breeding season and defend
a small area around their nest, but disperse after breeding and raising
young (Fancy and Ralph 1998, p. 2). The `i`iwi breeding season starts
as early as October and continues through to the following August
(Fancy and Ralph 1998, p. 7). However, the majority of breeding occurs
from February through June, coinciding with peak flowering of
`[omacr]hi`a (Fancy and Ralph 1998, p. 2). `I`iwi construct cup-shaped
nests comprised of twigs and lined with lichens and moss in the upper
canopy of `[omacr]hi`a trees at an average nest height of 23.6 ft (7.2
m) (Fancy and Ralph 1998, p. 8).

Space for Individual and Population Growth and for Normal Behavior

`[Omacr]hi`a and other flowering trees and shrubs are distributed
across the landscape and flower asynchronously (Ralph and Fancy 1995,
pp. 735-741). `I`iwi require large areas of suitable habitat for
foraging. They are strong fliers that move long distances to locate
nectar sources (Fancy and Ralph 1998, p. 3;). `I`iwi move several miles
(several kilometers) in search of large forest patches of seasonally
asynchronous flowering trees or shrubs (Guillaumet et al. 2017, p. 1).
`I`iwi forage in flocks of two to nine `i`iwi and with other Hawaiian
honeycreeper species such as `Apapane (Himatione sanguinea),
particularly after the breeding season (Fancy and Ralph 1998, p. 7).
`I`iwi move according to available nector sources, and other than
defending a small area around their nest when

[[Page 79947]]

breeding, `I`iwi are not territorial, nor do they have a defined home
range.

Summary of Essential Physical or Biological Features

We derive the specific physical or biological features essential to
the conservation of `i`iwi from studies of the species' habitat,
ecology, and life history as described below. Additional information
can be found in the species status report (Service 2016, entire;
available on https://www.regulations.gov at Docket No. FWS-R1-ES-2022-
0144). We have determined that the following physical or biological
features are essential to the conservation of `i`iwi:
(1) Multiple patches of seasonally flowering trees including
`[omacr]hi`a and m[amacr]mane and/or shrubs that collectively provide a
year-round nectar source. The number of patches of flowering trees and
shrubs needed may be few if patch size is large. For example, a few
large contiguous areas of forest containing seasonally asynchronously
flowering trees and shrubs that are several square miles (several
kilometers) in size, or many small patches with concentrated,
seasonally asynchronously flowering trees and shrubs would meet the
`i`iwi's year-round nectar source needs. Patches can be close together,
such as individual flowering trees a few hundred feet (hundred meters)
apart in an open landscape, or far apart, such as large forest patches
of seasonally asynchronous flowering trees or shrubs as much as several
miles (several kilometers) apart.
(2) Tall stature trees (height taller than 26 ft (8 m))
characteristic of a mesic and wet forest ecosystem, including
`[omacr]hi`a and koa for nesting. We define tall stature forest as
forest with a minimum canopy height of 26 ft (8 m) based on mean nest
height for `i`iwi of 24 feet.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. As discused above, `i`iwi habitat is characterized by mesic
and wet forests that are dominated by `[omacr]hi`a and koa trees. This
ecosystem is a multi-layered structure of tall canopy trees, secondary
shrubs (e.g., Lobelioids) and fern layers, and ground-hugging mosses
and lichens. The functionality of this system is dependent on native
plant regeneration, pollination, and seed dispersal. A keystone species
in this system is the `[omacr]hi`a tree. `[Omacr]hi`a are specificially
adapted for bird pollination because they produce copius nectar; newly
secreted nectar has low sugar concentration, and flowers are
predominantly red in color (Carpenter 1976, p. 1139.) Red flowers, the
most common type of `[omacr]hi`a blossoms are partially self-
incompatible and require an animal pollinator for high-levels of fruit
set and good seed set (Carpenter 1976, p. 1134.) The Hawaiian
honeycreepers, including `i`iwi, serve an important role as pollinators
in Hawai`i's mesic and wet forest ecosystem and are necessary to ensure
the health of this ecosystem. Unfortunately, Hawaiian honeycreepers,
especially `i`iwi, are highly susceptible to avian disease. For
example, a single bite from the southern house mosquito (Culex
quinquefasciatus) carrying avian malaria can be fatal to individuals of
the Hawaiian honeycreeper genera (Atkinson et al. 1995, p. S65;
Atkinson et al. 2000, p. 199). Climate change exacerbates the threat of
mosquito-borne avian disease by increasing forest temperatures allowing
cold-intolerant mosquitos to climb higher in elevation, constricting
the range of Hawaiian honeycreepers. Degradation and fragmentation of
forests caused by nonnative plants, ungulates, fire, and plant
pathogens are also threats to `i`iwi habitat. For a detailed discussion
of threats to `i`iwi and its habitat, see the final listing rule
published in the Federal Register on September 20, 2017 (82 FR 43873).
Any stressors that result in further degradation or fragmentation
of the forests on which the `i`iwi relies for foraging and nesting are
likely to exacerbate the impacts of avian disease on the species and
directly affect habitat features which `i`iwi rely on for their life
history processes. These stressors include invasive plants, which
outcompete and displace native `[omacr]hi`a. Several species of
nonnative grasses are widely documented to fuel a grass/fire cycle of
intrusion into Hawai`i's native `[omacr]hi`a forests, further degrading
biodiversity. In addition, feral ungulates including pigs (Sus scrofa),
cattle (Bos taurus), sheep (Ovis aries), and axis deer (Axis axis)
degrade `[omacr]hi`a forest habitat by spreading nonnative plant seeds,
grazing and trampling native vegetation, contributing to erosion, and
creating mosquito breeding habitat (Mountainspring 1986, p. 95; Camp et
al. 2010, p. 198). In addition to the effects of nonnative plants and
animals on `[omacr]hi`a and its habitat, `[omacr]hi`a forest is
impacted by several diseases and natural processes including
`[omacr]hi`a dieback, `[omacr]hi`a rust, and rapid `[omacr]hi`a death
caused by the Ceratocystis fungus.
Features essential to the conservation of `i`iwi may require
special management considerations to reduce the following threats: (1)
extirpation of native avian pollinators by mosquito-borne diseases
which negatively impact mesic and wet forest health and persistence;
(2) degradation of forest habitat by nonnative ungulates; (3)
establishment and spread of habitat-altering nonnative plants; and (4)
spread of nonnative pathogens including those that cause rapid
`[omacr]hi`a death, a fungal wilt disease.
Management actions that could minimize or ameliorate these threats
include, but are not limited to, removal of mosquito breeding sources
(such as application of larvicides to standing water), control or
eradication of significant habitat-modifying invasive plants, ungulate
removal and exclusion fencing, reduction of the spread of rapid
`[omacr]hi`a death and other plant pathogens, and habitat restoration
to encourage multiple types of native flowering plants at higher
elevations. These management actions would result in the enhancement of
`i`iwi breeding and foraging areas. In addition, the incompatible
insect technique may be used in some areas to limit southern house
mosquito populations. This technique involves the release of male
southern house mosquitoes infected with Wolbachia bacteria, which
renders them incapable of producing viable offspring when they mate
with wild-type females, thereby reducing mosquito populations that
carry avian diseases (Pagendam et al. 2020, entire).

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat. The area of occupied `i`iwi habitat
fulfills the species' recovery criteria for size and distribution of
forest and shrubland

[[Page 79948]]

habitat needed for recovery (Service 2021, pp. 110-112). Therefore, the
areas occupied by the `i`iwi are adequate to ensure the conservation of
the species. For areas within the geographic area occupied by the
species at the time of listing, we used the methodology described below
to delineate critical habitat unit boundaries.
To determine the area occupied at the time of listing, we relied
primarily on a summary of abundance, distribution, and trends compiled
by the U.S. Geological Survey (Paxton et al. 2013, entire). This
dataset represents the most recent and best available dataset for
`i`iwi populations. Where this summary was incomplete, specifically
within the Kula region of Maui, we used information provided by the
National Park Service and the Maui Forest Bird Recovery Project (Judge
et al. 2019, p. 34). Rangewide, `i`iwi are constrained to a narrow band
of montane forest at an elevation of 4,265-6,233 ft (1,300-1,900 m).
Most `i`iwi are found on the island of Hawai`i (90 percent), followed
by east Maui (about 10 percent), and Kaua`i (less than 1 percent).
Relict populations may exist on O`ahu, west Maui, and Moloka`i (Paxton
et al. 2013, p. 10).
Within occupied areas, we identified the areas that support the
highest densities of `i`iwi. Areas of `i`iwi abundance are proxies for
patches of flowering `[omacr]hi`a and other nectar sources within mesic
and wet forest ecosystems. `I`iwi are known to undertake seasonal
movements that mirror `[omacr]hi`a flowering periods. Due to the
variability of mesic and wet forest ecosystems and the limitations of
satellite imagery to distinguish physical and biological features,
`i`iwi abundance was used as a proxy for seasonal flowering
`[omacr]hi`a and other nectar sources. Therefore, forest bird surveys
conducted during the late 1970s and early 1980s (Scott et al. 1986,
entire) were our primary source of information for delineating high-
density areas. More recent surveys (Paxton et al. 2013, entire) show
some contraction of the species' range, particularly at lower
elevations. However, the high-density bands described in Paxton et al.
2013 correspond closely with 1970s-80s density maps. Because of this
close correspondence and because the older mapped densities provide
more detailed information for locations of high-density populations,
both across and along the elevation contour, we relied primarily on the
older dataset to delineate the highest density areas. We also
considered the most recent surveys for the Kula region on Maui
conducted by the National Park Service and Maui Forest Bird Recovery
Project (Judge et al. 2019, p. 34).
`I`iwi foraging behavior required that we delineate critical
habitat areas that are large enough to ensure regionally resilient
populations. To ensure redundancy and representation of the species at
a rangewide scale, we determined that the islands of Kaua`i, Maui, and
Hawai`i should be included in the critical habitat designation. These
three islands represent the functional distribution of the species and
are separated by enough distance that if one island suffered a
catastrophic population decline due to a hurricane or other
environmental catastrophe, populations on other islands would likely be
spared. Populations across this distribution also represent the
genetic, ecological, and behavioral diversity of the species. For Maui
and Hawai`i, the two islands that support multiple populations, we also
considered redundancy and representation at an island scale.
Maintaining habitat to support multiple regional populations on each
island safeguards against the effects of smaller-scale catastrophic
events and ensures inclusion of diverse habitats that represent the
behavioral and ecological diversity of the species. Based on the Scott
et al. (1986) dataset, we included all areas with a maximum mapped
density of 100 birds per square kilometer (birds/km\2\), a density that
maximized connectivity between the highest density population centers
within a region, therefore promoting resiliency. This resulted in
delineation of areas within seven geographical regions, i.e., critical
habitat units distributed across the islands of Kaua`i, Maui, and
Hawai`i. In addition, we delineated areas within the Kula Unit on east
Maui based on the National Park Service and Maui Forest Bird Recovery
Project dataset (Judge et al. 2019, p. 34), as this area was not well
surveyed until recently and, therefore, was not included in the Scott
et al. 1986 dataset. Next, within each of the units, we determined
whether the area delineated was large enough to support a highly
resilient population of `i`iwi. Although the viable population size of
`i`iwi is unknown, a population of 5,000 is a generalized estimate of
population size required for long-term viability for a range of
vertebrate species (Traill et al. 2010, p. 31). We used this estimate
to ensure that, within each unit, the designation included sufficient
habitat to support highly resilient populations.
We calculated the area required to support a highly resilient
population by multiplying regionally specific population densities by
5,000. For all units except the Alaka`i Plateau Unit on Kaua`i, we used
the current highest density estimate for that respective unit. In the
Alaka`i region,`i`iwi range contraction and population decline has been
precipitous over the last 20 years due to avian disease; however,
abundant habitat still exists and carrying capacity is high, therefore
we used historical densities to maintain this critical habitat area for
`i`iwi. Specifically, we used the average of the interior and exterior
survey densities for the Alaka`i Plateau survey area from the year 2000
as the most representative of `i`iwi density and habitat carrying
capacity (Paxton et al. 2013, p. 57). Year 2000 survey data were used
for the Alaka`i Plateau area because this survey data point represents
the most recent survey data prior to the rapid population decline of
`i`iwi beginning around year 2000, due primarily to avian disease.
Through further analysis, including a review of satellite imagery
and the area required to support long-term viability for a range of
vertebrate species (Traill et al. 2010, p. 31), we determined that two
geographical regions, the West Maui region and the Kohala region on
Hawai`i Island, were not large enough to support a population of 5,000
birds. Therefore, we did not delineate critical habitat within these
two regions.
Because our critical habitat areas concentrate on areas of high
`i`iwi density as surveyed in the 1970s and 80s, we used satellite
imagery and land management information to refine the larger contiguous
areas containing high `i`iwi densities. Specifically, we removed all
parcels that were smaller than 1,235 acres (ac) (500 hectares (ha)),
unless they were owned by a State or Federal agency, or already managed
for conservation. Small private parcels were found to have negligible
identified physical or biological features essential for `i`iwi
conservation and represented a small proportion of the area that
otherwise meets our criteria for critical habitat designation. In order
to provide for adequate `i`iwi foraging areas encompassing one or more
physical and biological features and prevent an artificial range
constriction of high densities of `i`iwi, the delineated critical
habitat area in every region is greater than the habitat area needed to
support the conservation of the species. In summary, for areas within
the geographic area occupied by the species at the time of listing, we
delineated critical habitat unit boundaries using the following
criteria:
1. Habitat contains primarily mesic and wet forest ecosystem
dominated by `[omacr]hi`a and koa;
2. Area has high population density of `i`iwi, defined as more than
100 birds/

[[Page 79949]]

km\2\, which is a proxy for multiple patches of seasonally flowering
trees including `[omacr]hi`a and m[amacr]mane and/or shrubs that
collectively provide a year-round nectar source; and
3. Each regional area meeting criteria 1 and 2 above is able to
support at least 5,000 birds.
We then removed the smallest parcels (less than 1,235 ac (500 ha))
in private ownership within larger contiguous areas and all areas that
were smaller than 62 ac (25 ha) and discontinuous from larger habitat
units.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for `i`iwi. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this proposed rule have been excluded
by text in the proposed rule and are not proposed for designation as
critical habitat. Therefore, if the critical habitat is finalized as
proposed, a Federal action involving these lands would not trigger
section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat. We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species.
Seven units are proposed for designation based on one or more of
the physical or biological features being present to support `i`iwi.
Some units contain only some of the physical or biological features
necessary to support the `i`iwi's use of that habitat. All units
contain at least one of the identified physical or biological features
and support multiple life-history processes for `i`iwi.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R1-ES-
2022-0144.

Proposed Critical Habitat Designation

We are proposing seven units as critical habitat for the `i`iwi.
The critical habitat areas we describe below constitute our current
best assessment of areas that meet the definition of critical habitat
for the `i`iwi. The seven units we propose as critical habitat are: (1)
Alaka`i Plateau; (2) Kula; (3) East Haleakal[amacr]; (4) Windward
Hawai`i; (5) Ka`[umacr]; (6) South Kona; and (7) North Kona. All units
were occupied at the time of listing and are currently occupied. Table
1 shows the proposed critical habitat units, their ownership, and the
approximate area of each unit.

Table 1--Proposed Critical Habitat Units for `i`iwi
[Area estimates reflect all land within critical habitat units]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Area of overlap with
Unit Occupied Landowner Total area (ac (ha)) existing critical
habitat (ac (ha))
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alaka`i Plateau (Kaua`i Island)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alaka`i Plateau.......................... Yes.......................... State....................... 10,359 (4,192) 9,262 (3,748)
Alaka`i Plateau.......................... Yes.......................... Private..................... 2,150 (870) 131 (53)
-------------------------------------------------
Total................................ ............................. ............................ 12,510 (5,063) 9,393 (3,801)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kula (Maui Island)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kula..................................... Yes.......................... State....................... 4,396 (1,779) 4,346 (1,759)
Kula..................................... Yes.......................... Private..................... 830 (336) 825 (334)
-------------------------------------------------
Total................................ ............................. ............................ 5,226 (2,115) 5,171 (2,093)
--------------------------------------------------------------------------------------------------------------------------------------------------------
East Haleakal[amacr] (Maui Island)
--------------------------------------------------------------------------------------------------------------------------------------------------------
East Haleakal[amacr]..................... Yes.......................... Federal..................... 5,670 (2,294) 5,666 (2,293)
East Haleakal[amacr]..................... Yes.......................... State....................... 10,283 (4,162) 10,265 (4,154)
East Haleakal[amacr]..................... Yes.......................... Private..................... 3,440 (1,392) 20 (8)
-------------------------------------------------
Total................................ ............................. ............................ 19,393 (7,848) 15,951 (6,455)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Windward Hawai`i (Hawai`i Island)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Windward................................. Yes.......................... Federal..................... 34,694 (14,040) 24,061 (9,737)
Windward................................. Yes.......................... State....................... 91,547 (37,048) 36,202 (14,650)
Windward................................. Yes.......................... Private..................... 14,844 (6,007) 514 (208)
-------------------------------------------------
Total................................ ............................. ............................ 141,085 (57,095) 60,777 (24,595)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ka`[umacr] (Hawai`i Island)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ka`[umacr]............................... Yes.......................... State....................... 32,059 (12,974) 5,498 (2,225)
Ka`[umacr]............................... Yes.......................... Private..................... 399 (162) 0 (0)
-------------------------------------------------

[[Page 79950]]

Total................................ ............................. ............................ 32,458 (13,136) 5,498 (2,225)
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Kona (Hawai`i Island)
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Kona............................... Yes.......................... Federal..................... 8,234 (3,332) 3,447 (1,395)
South Kona............................... Yes.......................... State....................... 8,357 (3,382) 2,861 (1,158)
South Kona............................... Yes.......................... Private..................... 34,785 (14,077) 148 (60)
-------------------------------------------------
Total................................ ............................. ............................ 51,376 (20,791) 6,456 (2,613)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Kona (Hawai`i Island)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Kona............................... Yes.......................... State....................... 9,457 (3,827) 2,982 (1,207)
North Kona............................... Yes.......................... Private..................... 4,142 (1,676) 47 (19)
-------------------------------------------------
Total................................ ............................. ............................ 13,599 (5,503) 3,029 (1,226)
--------------------------------------------------------------------------------------------------------------------------------------------------------

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the `i`iwi, below.

Alaka`i Plateau Unit

The Alaka`i Plateau Unit consists of 12,510 ac (5,063 ha) of
montane wet forest ecosystem from Koke`e State Park to the summit of
Mount Wai`ale`ale, in Kaua`i County. The unit consists of State lands
within Alaka`i Wilderness Preserve, N[amacr] Pali-Kona Forest Reserve,
and Hono O N[amacr] Pali Natural Area Reserve, and some private land.
State lands comprise approximately 83 percent and private land
approximately 17 percent of the Alaka`i Plateau Unit. Approximately
75.1 percent, or 9,393 ac (3,801 ha) of the Alaka`i Plateau Unit is
within already designated critical habitat for species other than the
`i`iwi. This unit is essential for maintaining the geographical range
of the `i`iwi and, therefore, contributing to the redundancy and
representation necessary for species' recovery. In particular, the
Kaua`i `i`iwi population is important for maintaining the species'
genetic diversity, as it is likely there is little or no genetic
exchange between `i`iwi on Kaua`i Island and Maui Island, the nearest
island to Kaua`i with a substantial `i`iwi population. `I`iwi is not
known to fly long distances over open water and the two islands are
separated by over 200 miles (mi) (322 kilometers (km)) of open ocean.
Threats identified within Alaka`i Plateau Unit include avian disease,
habitat degradation due to rooting by feral ungulates; intrusion of
ecosystem-altering invasive plants; and the rapid `[omacr]hi`a death
fungal disease. Special management considerations or protection
measures to reduce or alleviate threats may include mosquito control,
feral ungulate control, invasive plant control, and measures to reduce
the spread of rapid `[omacr]hi`a death (see Special Management
Considerations or Protection, above). There are five land parcels
defined by landownership within Alaka'i Plateau Unit: State of Hawaii
Department of Land and Natural Resources (DLNR), Alaka`i Wilderness
Preserve and N[amacr] Pali-Kona Forest Reserve and Hono O N[amacr] Pali
Natural Area Reserve total 10,359 ac (4,192 ha); Alexander & Baldwin,
Inc. total 203 ac (82 ha); and Robinson Family Partners total 1,948 ac
(788 ha).

Kula Unit

The Kula Unit consists of 5,226 ac (2,115 ha) on the west slope of
Haleakal[amacr] Volcano, in Maui County. This unit consists of State
lands within Kula Forest Reserve and the Papa`anui Tract of Kahikinui
Forest Reserve, and some private land. State lands comprise
approximately 84 percent, and private land approximately 16 percent, of
the Kula Unit. Approximately 99 percent, or 5,171 ac (2,093 ha), of the
Kula Unit is within already designated critical habitat for species
other than the `i`iwi. The Kula Unit is comprised of mixed introduced/
native mesic montane forest with sub-alpine shrubland (Judge et al.
2019, p. 7), representing different habitat types than other units,
which are predominantly native wet montane forest. This unit is
essential for maintaining the geographical range, as well as the
ecological and behavioral diversity, of the species, therefore
contributing to the redundancy and representation necessary for
species' recovery. Threats identified within Kula Unit include avian
disease, habitat degradation due to rooting by feral ungulates;
intrusion of ecosystem-altering, invasive plants; and fire. Special
management considerations or protection measures to reduce or alleviate
threats may include mosquito control, ungulate control, invasive plant
control, and fire management planning and wildfire response (see
Special Management Considerations or Protection, above). There are
three land parcels defined by landownership within Kula Unit: DLNR,
Kula Forest Reserve and Papa`anui Tract of Kahikinui Forest Reserve
total 3,518 ac (1,424 ha); DLNR, Kula Forest Reserve is 878 ac (355
ha); and Ka`ono`ulu Ranch is 830 ac (336 ha).

East Haleakal[amacr] Unit

The East Haleakal[amacr] Unit consists of 19,393 ac (7,848 ha) on
the north and east slopes of Haleakal[amacr] Volcano, Maui County. This
unit consists of Federal lands within Haleakal[amacr] National Park;
State lands within Ko`olau Forest Reserve, H[amacr]na Forest Reserve,
K[imacr]pahulu Forest Reserve, and Hanaw[imacr] Natural Area Reserve;
and some private lands. Federal lands comprise approximately 29
percent, State lands approximately 53 percent, and private land
approximately 18 percent of the East Haleakal[amacr] Unit.
Approximately 82 percent, or 15,951 ac (6,455 ha), of the
Haleakal[amacr] Unit is within already designated critical habitat for
species other than the `i`iwi. The Haleakal[amacr] Unit is comprised
predominantly of native wet montane forest and some native sub-alpine
shrubland. This unit is essential for maintaining the geographical
range, as well as the ecological and behavioral diversity of

[[Page 79951]]

the species, therefore contributing to the redundancy and
representation necessary for species' recovery. Threats identified
within East Haleakal[amacr] Unit include avian disease, habitat
degradation due to rooting by feral ungulates; intrusion of ecosystem-
altering, invasive plants; and fire. Special management considerations
or protection measures to reduce or alleviate threats may include
mosquito control, ungulate control, invasive plant control, and fire
management planning and wildfire response (see Special Management
Considerations or Protection, above). There are seven land parcels
defined by landownership within East Haleakal[amacr] Unit:
Haleakal[amacr] Ranch Company is 1,113 ac (451 ha); East Maui
Irrigation, Inc. is 2,327 ac (942 ha); DLNR, Ko`olau Forest Reserve is
4,780 ac (1,934 ha); DLNR, Hanaw[imacr] Natural Area Reserve is 3,145
ac (1,273 ha); DLNR, H[amacr]na Forest Reserve is 2,006 ac (812 ha);
DLNR, K[imacr]pahulu Forest Reserve is 352 ac (142 ha); and
Haleakal[amacr] National Park is 5,670 ac (2,294 ha).

Windward Hawai`i Unit

The Windward Hawai`i Unit consists of 141,085 ac (57,095 ha) on the
east slopes of Mauna Kea and Mauna Loa Volcanos, Hawai`i County. This
unit consists of Federal lands within Hawai`i Volcanoes National Park
and Hakalau Forest National Wildlife Refuge, Hakalau Forest Unit; State
lands within Kap[amacr]pala Forest Reserve, Upper Wai[amacr]kea Forest
Reserve, Hilo Forest Reserve, Manowaiale`e Forest Reserve, Mauna Kea
Forest Reserve, Pu`u Maka`ala Natural Area Reserve, and
Laup[amacr]hoehoe Natural Area Reserve; and lands administered by the
Department of Hawaiian Homelands (DHHL); and some private lands.
Federal lands comprise approximately 25 percent, State lands
approximately 67 percent, and private land approximately 8 percent of
the Windward Hawai`i Unit. Approximately 43 percent, or 60,777 ac
(24,595 ha) of the Windward Hawai`i Unit is within already designated
critical habitat for species other than the `i`iwi. The Windward
Hawai`i Unit is comprised predominantly of native wet montane forest
and some higher elevations native mesic montane forest. The Windward
Hawai`i Unit contains more than half of the `i`iwi population Statewide
and has the highest `i`iwi densities within the State (Scott et al.
1986, p. 160). Approximately 348,579 `i`iwi, or 57.8 percent of the
entire Statewide `i`iwi population occupy the Windward Hawai`i Unit
(Paxton et al. 2013, p. 10). This unit is essential for maintaining the
species' geographical range, contributing to the redundancy and
representation necessary for its recovery. Threats identified within
Windward Hawai`i Unit include avian disease, habitat degradation due to
rooting by feral ungulates; intrusion of ecosystem-altering, invasive
plants; fire; and rapid `[omacr]hi`a death. Special management
considerations or protection measures to reduce or alleviate threats
may include mosquito control, ungulate control, invasive plant control,
fire management planning and wildfire response; and measures to reduce
the spread of rapid `[omacr]hi`a death (see Special Management
Considerations or Protection, above). There are eighteen land parcels
defined by landownership within Windward Hawai'i Unit: Hawai`i
Volcanoes National Park total 9,463 ac (3,830 ha) over two parcels;
Kamehameha Schools total 13,308 ac (5,386 ha) over two parcels; DLNR,
Kap[amacr]pala Forest Reserve is 588 ac (238 ha); DLNR, Upper
Wai[amacr]kea Forest Reserve and Pu`u Maka`ala Natural Area Reserve is
71,836 ac (29,071 ha); Hakalau Forest National Wildlife Refuge, Hakalau
Forest Unit is 25,231 ac (10,211 ha) over two parcels; DLNR, Hilo
Forest Reserve, Kaiwiki Section is 71 ac (29 ha); DLNR, Hilo Forest
Reserve, Piha Section is 2,420 ac (979 ha); DLNR, Hilo Forest Reserve,
Laup[amacr]hoehoe Section and Laup[amacr]hoehoe Natural Area Reserve is
7,680 ac (3,108 ha); Department of Hawaiian Homelands is 4,035 ac
(1,633 ha) over two parcels; DLNR, Hilo Forest Reserve, Humu`ula
Section is 2,768 ac (1,120 ha); DLNR, Manowaiale`e Forest Reserve is
672 ac (272 ha); DLNR, Mauna Kea Forest Reserve is 1,477 ac (598 ha);
K[umacr]ka`iau Ranch is 87 ac (35 ha); and Parker Ranch is 1,449 ac
(586 ha).

Ka`[umacr] Unit

The Ka`[umacr] Unit consists of 32,458 ac (13,136 ha) on the
southeast slope of Mauna Loa Volcano, Hawai`i County. This unit
consists of State lands within Ka`[umacr] Forest Reserve and
Kap[amacr]pala Forest Reserve, and some private lands. State lands
comprise approximately 99 percent, and private land approximately 1
percent of the Ka`[umacr] Unit. Approximately 17 percent, or 5,498 ac
(2,225 ha), of the Ka`u Unit is within already designated critical
habitat for species other than the `i`iwi. The Ka`[umacr] Unit is
comprised of native wet montane forest in the southern portion,
transitioning to native mesic montane forest in the northern portion of
the unit. Native forest in the Ka`[umacr] Unit provides habitat
connectivity between `i`iwi that inhabit the Windward Hawai`i Unit and
`i`iwi that inhabit the South Kona Unit. The Ka`[umacr] Unit is
essential for maintaining the geographical range of the species and
redundancy and representation necessary for species' recovery. Threats
identified within Ka`[umacr] Unit include avian disease, habitat
degradation due to rooting by feral ungulates; intrusion of ecosystem-
altering, invasive plants; fire; and rapid `[omacr]hi`a death. Special
management considerations or protection measures to reduce or alleviate
threats may include mosquito control, ungulate control, invasive plant
control, fire management planning and wildfire response; and measures
to reduce the spread of rapid `[omacr]hi`a death (see Special
Management Considerations or Protection, above). There are five land
parcels defined by landownership within Ka`[umacr] Unit: DLNR,
Ka`[umacr] Forest Reserve is 31,414 ac (12,713 ha); DLNR,
Kap[amacr]pala Forest Reserve is 546 ac (221 ha); DLNR, Ka`[umacr]
Forest Reserve is 99 ac (40 ha); and The Nature Conservancy total 399
ac (162 ha) over two parcels.

South Kona Unit

The South Kona Unit consists of 51,376 ac (20,791 ha) on the west
slope of Mauna Loa Volcano, Hawaii County. This unit consists of
Federal lands within Hakalau Forest National Wildlife Refuge, Kona
Forest Unit; State lands within South Kona Forest Reserve, Waiea
Natural Area Reserve, and Kip[amacr]hoehoe Natural Area Reserve; and
private lands. Federal lands comprise approximately 16 percent, State
lands comprise approximately 16 percent, and private land approximately
68 percent of the South Kona Unit. Approximately 13 percent, or 6,456
ac (2,613 ha), of the South Kona Unit is within already designated
critical habitat for species other than the `i`iwi. The South Kona Unit
is comprised of native wet lowland forest at lower elevations and
native wet and mesic montane forest at middle and upper elevations.
Unlike other units, the South Kona Unit contains large areas of native
wet lowland forest at elevations as low as 2,500 ft (762 m),
representing the species' behavioral and ecological diversity. This
unit is essential for maintaining the geographical range, as well as
the diversity, of the species, therefore contributing to the redundancy
and representation necessary for species' recovery. Threats identified
within South Kona Unit include avian disease, habitat degradation due
to rooting by feral ungulates; intrusion of ecosystem-altering,
invasive plants; fire; and rapid `[omacr]hi`a death. Special management
considerations or protection measures to reduce or alleviate threats
may include mosquito control, ungulate control,

[[Page 79952]]

invasive plant control, fire management planning and wildfire response;
and measures to reduce the spread of rapid `[omacr]hi`a death (see
Special Management Considerations or Protection, above). There are
eighteen land parcels defined by landownership within South Kona Unit:
Kealakekua Mountain Reserve LLC total 5,801 ac (2,348 ha) over two
parcels; Kamehameha Schools total 16,209 ac (6,560 ha) over three
parcels; Kealia Ranch is 1,758 ac (712 ha); Hakalau Forest National
Wildlife Refuge, Kona Forest Unit is 8,234 ac (3,332 ha) over two
parcels; DLNR, Waiea Natural Area Reserve is 939 ac (380 ha); DLNR,
South Kona Forest Reserve, Ka`ohe Section is 1,052 ac (426 ha); DLNR,
South Kona Forest Reserve, Kukuiopa`e Section is 2,416 ac (978 ha);
DLNR, South Kona Forest Reserve, `Olelomoana Ophihihali Section is
1,392 ac (563 ha); Yee Hop Ltd., Yee Hop Ranch is 5,317 ac (2,152 ha)
over two parcels; DLNR, Kip[amacr]hoehoe Natural Area Reserve is 225 ac
(91 ha); The Nature Conservancy is 5,700 ac (2,307 ha); DLNR, South
Kona Forest Reserve, Kapua-Manuk[amacr] Section is 1,010 ac (409 ha);
and DLNR, Manuk[amacr] Natural Area Reserve is 1,323 ac (535 ha).

North Kona Unit

The North Kona Unit consists of 13,599 ac (5,503 ha) on the north,
west, and south slopes of Hual[amacr]lai Volcano, Hawaii County. This
unit consists of State lands within the Pu`u Wa`awa`a Forest Bird
Sanctuary, Pu`u Wa`awa`a Forest Reserve, and Honua`ula Forest Reserve,
and some private lands. State lands comprise approximately 70 percent,
and private land approximately 30 percent of the North Kona Unit.
Approximately 22 percent, or 3,029 ac (1,226 ha), of the North Kona
Unit is within already designated critical habitat for species other
than the `i`iwi. The North Kona Unit is comprised of mesic montane
forest on the north slope and native wet and mesic montane forest on
the west and south slopes of Hual[amacr]lai Volcano. Collectively, the
North Kona Unit is essential for maintaining the geographical range, as
well as the ecological and behavioral diversity, of the species,
therefore contributing to the redundancy and representation necessary
for species' recovery. Threats identified within North Kona Unit
include habitat degradation due to rooting by feral ungulates;
intrusion of ecosystem-altering, invasive plants; fire; and rapid
`[omacr]hi`a death. Special management considerations or protection
measures to reduce or alleviate threats may include ungulate control,
invasive plant control, fire management planning and wildfire response;
and measures to reduce the spread of rapid `[omacr]hi`a death (see
Special Management Considerations or Protection, above). There are four
land parcels defined by landownership within North Kona Unit: DLNR,
Pu`u Wa`awa`a Forest Bird Sanctuary and Pu`u Wa`awa`a Forest Reserve
total 4,214 ac (1,705 ha); DLNR, Honua`ula Forest Reserve is 5,243 ac
(2,122 ha); and Kamehameha Schools total 4,142 ac (1,676 ha) over two
parcels.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying 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 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) if the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.

[[Page 79953]]

In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but Congress also enacted some
exceptions in 2018 to the requirement to reinitiate consultation on
certain land management plans on the basis of a new species listing or
new designation of critical habitat that may be affected by the subject
federal action. See 2018 Consolidated Appropriations Act, Public Law
115-141, Div, O, 132 Stat. 1059 (2018).

Application of the ``Destruction or Adverse Modification'' Standard

The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to, actions that would
significantly diminish foraging and nesting opportunities for the
`i`iwi. While we are currently unaware of any planned activities
involving Federal actions that are of sufficient magnitude to impact
the essential physical or biological features, known activities that
have the potential to impact components of these features include, but
are not limited to, road construction, development, crop production,
cattle grazing, and forest extraction. In addition to the direct
effects of tree removal on `i`iwi habitat, these activities also
contribute to habitat degradation through the introduction and spread
of nonnative species and compounding factors including diseases.
Invasive plants outcompete and displace native `[omacr]hi`a and koa
trees used by native forest birds for foraging and nesting. Feral
ungulates degrade native forest by spreading nonnative plant seeds and
grazing on and trampling native vegetation, contributing to soil
erosion (Mountainspring 1986, p. 95; Camp et al. 2010, p. 198). In
addition, `[omacr]hi`a trees are impacted by several diseases and
natural processes, including `[omacr]hi`a dieback, `[omacr]hi`a rust,
and rapid `[omacr]hi`a death (ROD), the effects of which are likely
compounded by each other and with nonnative species and climate change
(Mueller-Dombois 1986, pp. 238-239; Anderson 2012, pp. 1-2; Friday et
al. 2015, pp. 1-3; Keith et al. 2015, p. 1).

Exemptions

Application of Section 4(a)(3) of the Act

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service. We also refer to a 2008 Department
of the Interior Solicitor's opinion entitled, ``The Secretary's
Authority to Exclude Areas from a Critical Habitat Designation under
Section 4(b)(2) of the Endangered Species Act'' (M-37016). We explain
each decision to potentially exclude these areas, as well as decisions
not to potentially exclude, to demonstrate that the decision is
reasonable. We will make a final determination in the final rule on
whether or not we will exclude these areas.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. We describe below the process that we undertook for
taking into consideration each category of impacts and our analyses of
the relevant impacts.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental

[[Page 79954]]

impacts associated specifically with the designation of critical
habitat for the species. The incremental conservation efforts and
associated impacts would not be expected without the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat,
above and beyond the baseline costs. These are the costs we use when
evaluating the benefits of inclusion and exclusion of particular areas
from the final designation of critical habitat should we choose to
conduct a discretionary 4(b)(2) exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities.
Section 3(f) of E.O. 12866 identifies four criteria when a regulation
is considered a ``significant'' rulemaking, and requires additional
analysis, review, and approval if met. The criterion relevant here is
whether the designation of critical habitat may have an economic effect
of greater than $100 million in any given year (section 3(f)(1)).
Therefore, our consideration of economic impacts uses a screening
analysis to assess whether a designation of critical habitat for the
`i`iwi is likely to exceed the economically significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the `i`iwi (Industrial Economics, Incorporated
2021). We began by conducting a screening analysis of the proposed
designation of critical habitat in order to focus our analysis on the
key factors that are likely to result in incremental economic impacts.
The purpose of the screening analysis is to filter out particular
geographic areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. The presence of the listed species in
occupied areas of critical habitat means that any destruction or
adverse modification of those areas is also likely to jeopardize the
continued existence of the species. Therefore, designating occupied
areas as critical habitat typically causes little if any incremental
economic impact above and beyond the impacts of listing the species.
Therefore, the screening analysis focuses on areas of unoccupied
critical habitat. If there are any unoccupied units in the proposed
critical habitat designation, the screening analysis assesses whether
any additional management or conservation efforts may incur incremental
economic impacts. This screening analysis combined with the information
contained in our IEM constitute what we consider to be our draft
economic analysis (DEA) of the proposed critical habitat designation
for the `i`iwi; our DEA is summarized in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the `i`iwi, first we identified, in
the IEM dated July 29, 2022, probable incremental economic impacts
associated with the following categories of activities: (1) landscape-
level avian malaria control; (2) emergency response during volcanic
activity; and (3) activities on forest reserve lands, including
vegetation management along roadways, water lines, and utility lines;
tree removal for building maintenance and removal of hazard trees;
harvest of forest products; operation of recreational vehicles; and
native plant collection for cultural purposes.
We considered each industry or category individually. Additionally,
we considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. In areas where the `i`iwi is
present, Federal agencies would be required to consult with the Service
under section 7 of the Act on activities they fund, permit, or
implement that may affect the species. If we finalize this proposed
critical habitat designation, our consultations would include an
evaluation of measures to avoid the destruction or adverse modification
of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
`i`iwi's critical habitat. The following specific circumstances help to
inform our evaluation: (1) The essential physical or biological
features identified for critical habitat are the same features
essential for the life requisites of the species, and (2) any actions
that would likely adversely affect the essential physical or biological
features of occupied critical habitat are also likely to adversely
affect the species itself. The IEM outlines our rationale concerning
this limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the `i`iwi includes 7
units, subdivided into 60 subunits, totaling approximately 275,647 ac
(111,554 ha). Lands within the designation are under Federal (18
percent), State (60 percent), and private (22 percent) ownership. All
units and subunits were occupied at the time of listing and are
currently occupied. The incremental costs of designating critical
habitat for the `i`iwi are likely to include additional administrative
effort associated with section 7 consultations, as well as project
modifications. There may also be incremental costs outside of the
section 7 consultation process.
The additional administrative effort associated with considering
adverse modification during the section 7 consultation process was
estimated using historical consultation data. We estimate up to 11
technical assistances, 5 informal consultations, and 3 formal annually
over the next 10 years. The maximum annual cost associated with these
consultations is estimated not to

[[Page 79955]]

exceed $34,000 annually (2022 dollars). Therefore, the annual
administrative burden is very unlikely to exceed $100 million or be
considered economically significant.
In many instances, critical habitat designation is not likely to
change our recommendation for project modification during future
consultations. However, in some instances, we may recommend
modifications associated specifically with avoiding adverse
modification to critical habitat.
For activities with a Federal nexus that would involve
entry into critical habitat susceptible to rapid `[omacr]hi`a death, we
anticipate recommending disinfecting gear to limit the transmission of
fungal pathogens associated with rapid `[omacr]hi`a death and limiting
access into pristine areas. While we would not make these
recommendations during a consultation that only considered jeopardy,
they are part of best practices promoted by the Service and widely
adopted by other agencies and conservation organizations. Therefore,
the recommendations are unlikely to result in incremental costs because
they are likely already part of standard protocols absent critical
habitat.
For activities with a Federal nexus involving koa thinning
and `[omacr]hi`a harvest, we may recommend limiting forest extraction
year-round to avoid adverse modification. Absent critical habitat, we
would likely only recommend limiting forest extraction during the
`i`iwi breeding season. Data are not available to develop a potential
range of costs per year associated with this limitation. However, given
that the Statewide value of forest extraction is estimated to be only
$47.6 million (2022 dollars), and that baseline forest extraction in
proposed critical habitat is likely to constitute a small fraction of
the total forest extraction across the State, it is very unlikely that
the costs attributable to critical habitat for the `i`iwi will exceed
$100 million annually.
In unpredictable cases, a Federal agency may need to act
in response to volcanic activity to save human lives and would
subsequently consult with the Service under emergency consultation
provisions. Data are not available to forecast costs associated with
modifications to or restoration activities following emergency response
efforts during volcanic activity. Even if historical costs were
available, the incremental costs associated with any given emergency
response activity are likely to be highly context-specific.
Incremental costs may occur outside of the section 7 consultation
process if the designation of critical habitat triggers additional
requirements or project modifications under State or local laws,
regulations, or management strategies. These types of costs typically
occur if the designation increases awareness of the presence of the
species or the need for protection of its habitat. Designation of
critical habitat for the `i`iwi has the potential to result in (1) a
decrease in recreational access allowed in State-managed forest
reserves, and (2) an increase in permitting requirements for
development in proposed critical habitat. Although we acknowledge the
potential for these types of costs, the likelihood of these potential
future effects is uncertain, and data with which to estimate
incremental costs is unavailable. Similarly, there may be economic
impacts associated with the perceived effects of critical habitat on
land values. However, the likelihood and magnitude of such effects for
this purpose are uncertain.
In summary, while the specific costs of critical habitat
designation for the `i`iwi are subject to uncertainty, it is unlikely
that, if adopted as proposed, the rulemaking would generate costs
exceeding $100 million in a single year. Therefore, this proposed rule
is unlikely to meet the threshold for an economically significant rule,
with regard to costs, under E.O. 12866.
We are soliciting data and comments from the public on the DEA
discussed above, as well as on all aspects of this proposed rule and
our required determinations. During the development of a final
designation, we will consider the information presented in the DEA and
any additional information on economic impacts we receive during the
public comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 424.19. We
may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species.

Consideration of National Security Impacts

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security

[[Page 79956]]

concerns in analyzing the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for `i`iwi are not
owned or managed by the DoD or DHS, and, therefore, we anticipate no
impact on national security or homeland security.

Consideration of Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation agreements and partnerships that
may be impaired by designation of, or exclusion from, critical habitat.
In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat. In the case of `i`iwi, the benefits of critical
habitat include public awareness of the presence of `i`iwi and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for `i`iwi due to protection from
destruction or adverse modification of critical habitat. Continued
implementation of an ongoing management plan, which provides
conservation equal to or more than the protections that result from a
critical habitat designation, would reduce those benefits of including
that specific area in the critical habitat designation.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Watershed Partnerships--An important factor for our decision to
consider an area for proposed exclusion is whether the landowner
participates in a watershed partnership. In 2003, the State of Hawaii
formally established the Hawai`i Association of Watershed Partnerships
consisting of over 60 public and private landowners throughout the
State, committed to long-term protection and conservation of watershed
areas. These watershed partnerships each have a conservation management
plan, which is updated every several years to include measurable
objectives and a budget. Financial support for the watershed
partnerships include various long-term State funds, and other Federal
and private sources. Of the 10 watershed partnerships in operation, 3
have lands within the proposed critical habitat designation: Kaua`i
Watershed Alliance, Mauna Kea Watershed Alliance, and Three Mountain
Alliance. These watershed partnerships fund and conduct conservation
efforts that support the `i`iwi, including ungulate control and
removal, and invasive weed management.
Private or Other Non-Federal Conservation Plans Related to Permits
Under Section 10 of the Act
HCPs for incidental take permits under section 10(a)(1)(B) of the
Act provide for partnerships with non-Federal entities to minimize and
mitigate impacts to listed species and their habitats. In some cases,
HCP permittees agree to do more for the conservation of the species and
their habitats on private lands than designation of critical habitat
would provide alone. We place great value on the partnerships that are
developed during the preparation and implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
``enhancement of survival'' permit under section 10(a)(1)(A) of the
Act, which authorizes incidental take of the covered species that may
result from implementation of conservation actions, specific land uses,
and, in the case of SHAs, the option to return to a baseline condition
under the agreements. We also provide enrollees assurances that we will
not impose further land--, water--, or resource-use restrictions, or
require additional commitments of land, water, or finances, beyond
those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion
analysis based on permitted conservation plans (such as HCPs, SHAs, and
CCAAs), we anticipate consistently excluding such areas if incidental
take caused by the activities in those areas is covered by the permit
under section 10 of the Act and the HCP/SHA/CCAA meets all of the
following three factors (see the 2016 Policy for additional details):
a. The permittee is properly implementing the HCP/SHA/CCAA and is
expected to continue to do so for the term of the agreement. An HCP/
SHA/CCAA is properly implemented if the permittee is and has been fully
implementing the commitments and provisions in the HCP/SHA/CCAA,
implementing agreement, and permit.
b. The species for which critical habitat is being designated is a
covered species in the HCP/SHA/CCAA, or is very similar in its habitat
requirements to a covered species. The recognition that the Services
extend to such an agreement depends on the degree to which the
conservation measures undertaken in the HCP/SHA/CCAA would also protect
the habitat features of the similar species.
c. The HCP/SHA/CCAA specifically addresses that species' habitat
and meets the conservation needs of the species in the planning area.
This proposed critical habitat designation includes areas that are
covered by the following permitted plan providing for the conservation
of `i`iwi:
Safe Harbor Agreement Trustees of the Estate of Bernice P. Bishop,
DBA Kamehameha Schools Keauhou and K[imacr]lauea Forest Lands Hawai`i
Island, Hawaii (Kamehameha Schools Keauhou and K[imacr]lauea Forest
Lands Safe Harbor Agreement)--The permit holder for this SHA is
Kamehameha Schools. Kamehameha Schools was established in 1887, through
the will of Princess Bernice Pauahi Paki Bishop. Kamehameha Schools
owns over

[[Page 79957]]

362,000 ac (146,496 ha) of land throughout Hawaii and part of
Kamehameha Schools' mission is to protect Hawaii's environment through
recognition of the significant cultural value of this land and its
unique flora and fauna. In 2017, the SHA was approved by the Service
and Hawai`i Department of Land and Natural Resources for the Kamehameha
School's Keauhou and K[imacr]lauea Forest lands, which comprise 32,280
ac (13,063 ha) on the east slope of Mauna Loa Volcano, on the island of
Hawai`i. Under the SHA, koa (Acacia koa) tree silviculture will be
conducted, including stand improvement through selective harvest and
establishment of new or improvement of existing forest in formerly
logged areas and degraded pasture lands. Koa forestry, as described in
the SHA, increases soil-water retention capacity and provides nesting
and foraging habitat for Hawaiian forest birds, including the `i`iwi
(Kamehameha Schools 2017, pp. 22-23). Kamehameha Schools has agreed to
conduct silviculture practices in a way to ensure minimal impact to
covered forest birds (`i`iwi, akiap[omacr]l[amacr]`[amacr]u
(Hemignathus wilsoni), Hawaii creeper (Loxops mana), Hawaii
`[amacr]kepa (Loxops coccineus), and Hawaiian hawk or `io (Buteo
solitarius)) if those species become established in koa stands, through
avoidance of harvest when birds are nesting.
We have identified the following areas that we have reason to
consider excluding because of the SHA:
Windward Hawai`i Unit--(Kamehameha Schools)--The Kamehameha Schools
are responsible for 13,308 ac (5,386 ha) of land included in the
proposed designation for `i`iwi within the Windward Hawai`i Unit.
Conservation management actions on these lands occur under the
Kamehameha Schools Keauhou and K[imacr]lauea Forest Lands SHA. This SHA
is implemented effectively and specifically addresses `i`iwi habitat
and meets the conservation needs of `i`iwi in the planning area. In
addition to this SHA, these lands in the Windward Hawai`i Unit are also
covered under two non-permitted conservation plans, the Kamehameha
Schools `[Amacr]ina Pauahi Natural Resources Management Program and the
Three Mountain Alliance Management Plan. Both of these non-permitted
conservation plans are summarized below in Non-Permitted Conservation
Plans, Agreements, or Partnerships. We are considering 13,308 ac (5,386
ha) in the Windward Hawai`i Unit for exclusion from the final critical
habitat designation for the `i`iwi because conservation actions
occurring on the ground, including forest restoration, invasive
predator control, ungulate fence installation and maintenance, and
control of invasive introduced plants, are providing a conservation
benefit to `i`iwi.
We will work with Kamehameha Schools and the Three Mountain
Alliance Watershed Partnership throughout the public comment period and
during development of the final designation of critical habitat for
`i`iwi. We seek comments on whether the existing management and
conservation efforts of Kamehameha Schools and the Three Mountain
Alliance partners meet our criteria for exclusion from the final
designation under section 4(b)(2) of the Act.
Non-Permitted Conservation Plans, Agreements, or Partnerships
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service.
Shown below is a non-exhaustive list of factors that we consider in
evaluating how non-permitted plans or agreements affect the benefits of
inclusion or exclusion. These are not required elements of plans or
agreements. Rather, they are some of the factors we may consider, and
not all of these factors apply to every plan or agreement.
(i) The degree to which the record of the plan, or information
provided by proponents of an exclusion, supports a conclusion that a
critical habitat designation would impair the realization of the
benefits expected from the plan, agreement, or partnership.
(ii) The extent of public participation in the development of the
conservation plan.
(iii) The degree to which agency review and required determinations
(e.g., State regulatory requirements) have been completed, as necessary
and appropriate.
(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) compliance was required.
(v) The demonstrated implementation and success of the chosen
mechanism.
(vi) The degree to which the plan or agreement provides for the
conservation of the essential physical or biological features for the
species.
(vii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented.
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
The proposed critical habitat designation includes areas that are
covered by the following non-permitted management plans providing for
the conservation of `i`iwi:
Kaua`i Watershed Alliance Management Plan, Overall Management
Strategy (2012)--The Kaua`i Watershed Alliance was formed in 2003,
including major landowners within the conservation district boundary on
Kaua`i and encompassing most land with native forest on the island of
Kaua`i (Kaua`i Watershed Alliance 2012, entire). The Kaua`i Watershed
Alliance Management Plan is designed to protect over 25,000 ac (10,117
ha) of forest land through construction of ungulate fences; ungulate
removal; fence line surveys; and control of invasive, introduced plants
(Kaua`i Watershed Alliance 2012, entire). These conservation actions
are beneficial in conserving native and introduced forests used for
nesting and foraging by `i`iwi.
Kaua`i Forest Bird Recovery Project--The Kaua`i Forest Bird
Recovery Project is a joint collaborative program between the State of
Hawaii's Division of Forestry and Wildlife and the Pacific Studies
Cooperative Unit of the University of Hawai`i. It is funded and
supported by numerous partners including the Service, Division of
Forestry and Wildlife, and several other organizations and individuals
(Kaua`i Forest Bird Recovery Project 2022, entire). The Kaua`i Forest
Bird Recovery Project is committed to monitoring Kaua`i forest bird
reproductive success, conducting invasive predator control, and
promoting knowledge, appreciation, and conservation of Kaua`i's native
forest birds and the potential of different management strategies for
recovering their populations. These conservation actions are beneficial
in educating the public and conserving native forest that is used for
nesting and foraging by `i`iwi.
Kula Forest Reserve and the Papa`anui Tract of Kahikinui Forest
Reserve Management Plan--The State of Hawaii's Division of Forestry and
Wildlife manages the Kula Conservation Game Management Area on the
south

[[Page 79958]]

slope of Haleakal[amacr] Volcano, east Maui, under the Kula Forest
Reserve and the Papa`anui Tract of Kahikinui Forest Reserve Management
Plan (DOFAW 2017, entire). Management of feral ungulates by public
hunting on the conservation game management area benefits mixed
introduced and native forest and native shrublands by reducing ungulate
grazing and rooting and trampling of trees, shrubs, and other
vegetation. Ungulate control within the conservation game management
area benefits habitat `i`iwi use for nesting and foraging by improving
forest regeneration and reducing breeding sites for introduced southern
house mosquitoes that carry avian malaria.
Leeward Haleakal[amacr] Watershed Restoration Partnership--Formed
in 2003, the Leeward Haleakala Watershed Restoration Partnership is a
coalition of 11 private and public landowners and supporting agencies
that are working to protect and restore watershed areas on leeward
Haleakal[amacr] Volcano, east Maui (Leeward Haleakal[amacr] Watershed
Restoration Partnership 2022, entire). The partnership's land
management goals for the leeward Haleakal[amacr] watershed include: (1)
restore native koa forests to provide increased water quantity and
quality, (2) conserve unique endemic plants and animals, (3) protect
important Hawaiian cultural resources, and (4) allow diversification of
Maui's rural economy. Large areas of mesic koa forest and mixed koa/
`ohi`i a forest of leeward east Maui was degraded by cattle grazing
over the last century, reducing the amount of available habitat for
`i`iwi. The Leeward Haleakal[amacr] Watershed Restoration Partnership's
efforts to restore koa forests and conserve endemic plants and animals
that comprise native ecosystems benefit `i`iwi by improving
regeneration of forest and shrubland habitats used by the species for
nesting and foraging.
The Nature Conservancy Waikamoi Preserve, Long-Range Management
Plan, Fiscal Years 2019-2024--The Nature Conservancy Waikamoi Preserve
was established on east Maui in 1983 when Haleakal[amacr] Ranch granted
a perpetual conservation easement on 5,140 ac (2,080 ha) of ranch lands
to The Nature Conservancy, and the preserve was expanded in 2013, when
The Nature Conservancy obtained a conservation easement on 3,721 ac
(1,506 ha) of East Maui Irrigation Co. Ltd. (EMI) lands adjacent to the
existing preserve. The management program for the Waikamoi Preserve is
documented in The Nature Conservancy Waikamoi Preserve, Long-Range
Management Plan, Fiscal Years 2019-2024 (The Nature Conservancy 2018,
entire). This plan details management measures that protect, restore,
and enhance rare plants and animals and their habitats within the
Waikamoi Preserve and in adjacent areas. Primary management goals for
the Waikamoi Preserve are to: (1) Prevent degradation of native forest
and shrubland by reducing feral ungulate damage; (2) improve or
maintain the integrity of native ecosystems in selected areas of the
preserve by reducing the effects of nonnative plants; (3) conduct small
mammal control and reduce the negative impacts of small mammals where
possible; (4) monitor and track the biological and physical resources
in the preserve, evaluate changes in these resources over time, and
encourage biological and environmental research; (5) prevent extinction
of rare species in the preserve; (6) build public understanding and
support for the preservation of natural areas and enlist volunteer
assistance for preserve management; and (7) protect the resources from
fires in and around the preserve. Ungulate control benefits habitat
`i`iwi use for nesting and foraging by improving forest regeneration
and reducing breeding sites for introduced southern house mosquitoes
that carry avian malaria. Fire suppression benefits forest and
shrubland habitats `i`iwi use by minimizing damage to these habitats by
fire. Nonnative plant control improves recruitment of native trees, and
control of small mammals, particularly rats (Rattus spp.), reduces
potential for predation of nesting `i`iwi. Collectively, these actions
are effective in conserving native forest and shrubland `i`iwi use for
nesting and foraging.
East Maui Watershed Partnership--The East Maui Watershed
Partnership, formed in 1991, is a coalition of private and public
landowners and supporting agencies that are working to protect and
restore watershed areas on windward Haleakal[amacr] Volcano, east Maui
(East Maui Watershed Partnership 2022, entire). The partnership's
management goals for the East Maui Watershed Partnership include: (1)
watershed resource monitoring; (2) feral animal control; (3) control of
invasive, introduced plants; (4) development and maintenance of
management infrastructure; and (5) development and implementation of
public education and awareness programs. Since 1991, the East Maui
Watershed Partnership has constructed over 7 mi (11 km) of ungulate
fences protecting remote watershed areas and has removed feral
ungulates from fenced areas. Ungulate control benefits habitat `i`iwi
use for nesting and foraging by improving forest regeneration and
reducing mosquito breeding sites. Nonnative plant control improves
recruitment of native trees.
Maui Forest Bird Recovery Project--The Maui Forest Bird Recovery
Project (MFBRP) is a joint collaborative program between the State of
Hawaii's Division of Forestry and Wildlife and the Pacific Studies
Cooperative Unit of the University of Hawai`i. MFBRP is funded and
supported by numerous partners including the Service, Division of
Forestry and Wildlife, and several other organizations and individuals
(Maui Forest Bird Recovery Project 2022, entire). The mission of the
Maui Forest Bird Recovery Project is to develop and implement
techniques that recover Maui's endangered forest birds and to restore
their habitats through research, development, and application of
conservation techniques. These conservation actions are beneficial in
conserving native forest that is used for nesting and foraging by
`i`iwi.
Kamehameha Schools `[Amacr]ina Pauahi Natural Resources Management
Program--Kamehameha Schools owns over 362,000 ac (146,496 ha) of land
throughout Hawaii. Part of Kamehameha Schools' mission is to protect
Hawaii's environment through recognition of the significant cultural
value of this land and its unique flora and fauna. Accordingly,
Kamehameha Schools established a sustainable stewardship policy to
guide the use of its lands through their `[Amacr]ina Pauahi Natural
Resources Management Program that includes the protection and
conservation of natural resources, water resources, and ancestral
places (Kamehameha Schools 2022, entire). Between 2000 and 2015,
Kamehameha Schools increased active stewardship of native ecosystems by
over 35-fold, from 3,000 ac (1,124 ha) to 136,000 ac (55,037 ha),
engaged in community collaborations to leverage external resources in
support of culturally appropriate land stewardship, and developed and
implemented its 2012 natural resource and cultural resource management
plans representing Kamehameha Schools' responsibility to conduct
prudent stewardship of the `[amacr]ina (land). Kamehameha Schools
manages some of its forested lands for income generation through
sustainable koa and `iliahi or sandalwood (Santalum album) forestry and
collaborates with county and other landowners in fire response planning
to protect natural resources from fires. These actions promote
regeneration of native forests `i`iwi use for nesting and foraging and
improve soil-water retention capacity and ecosystem

[[Page 79959]]

resilience to drying climate conditions. Fire suppression benefits
forest and shrubland habitats `i`iwi use for nesting and foraging by
minimizing damage to these habitats by wildfire.
Three Mountain Alliance Management Plan, December 31, 2007--The
Three Mountain Alliance Watershed Partnership is a coalition of private
and public landowners and supporting agencies that are working to
protect and restore watershed areas on Hawai`i Island (Three Mountain
Alliance 2007, entire). Lands that are managed by the Three Mountain
Alliance are 1,116,300 ac (451,751 ha) on Mauna Loa, K[imacr]lauea, and
Hual[amacr]lai Volcanoes or roughly 45 percent of the island of
Hawai`i. Project funding for the Three Mountain Alliance currently
comes from Three Mountain Alliance members (primarily the Service,
Hawaii's Division of Forestry and Wildlife, and Kamehameha Schools) and
outside grants. Other Three Mountain Alliance members provide in-kind
services to accomplish priority projects (e.g., inmate labor, sharing
personnel and equipment) (Three Mountain Alliance Management Plan,
December 31, 2007, p. 56). Management under the Three Mountain Alliance
Management Plan includes the following conservation actions: (1)
strategic fencing and removal of ungulates; (2) regular monitoring for
ungulates after fencing; (3) monitoring of habitat recovery; (4)
surveys for rare taxa prior to new fence installations; (5) invasive,
nonnative plant control; (6) reestablishment of native plant species;
and (7) activities to reduce the threat of wildfire. Ungulate control
reduces damage to [omacr]hi`a forests, maintains the health of tall
stature trees used for `i`iwi nesting, and prevents ungulates from
creating breeding sites for introduced southern house mosquitoes that
carry avian malaria. Control of nonnative, invasive plants and out-
planting of native plants improves recruitment of native trees. Fire
suppression activities reduce the damage from wildfires and protect
forest and shrubland habitat `i`iwi use for nesting and foraging.
Department of Hawaiian Homelands `Aina Mauna Legacy Program--The
Department of Hawaiian Homelands is governed by the Hawaiian Homes
Commission Act of 1920, enacted by the U.S. Congress to protect and
improve the lives of native Hawaiians. The act created an Hawaiian
Homes Commission to administer certain public lands, called Hawaiian
homelands, for homesteads. The primary responsibilities of Department
of Hawaiian Homelands are to serve its beneficiaries and to manage its
extensive land trust, which consists of over 200,000 ac (80,937 ha) on
the islands of Hawai`i, Maui, Moloka`i, L[amacr]na`i, O`ahu, and
Kaua`i. The goal of the Department of Hawaiian Homelands' `Aina Mauna
Legacy Program is to restore and protect approximately 56,000 ac
(22,662 ha) of native Hawaiian forest on Mauna Kea Volcano on the
island of Hawai`i that is ecologically, culturally, and economically
self[hyphen]sustaining for the Hawaiian Homelands Trust, its
beneficiaries, and the community (Department of Hawaiian Homelands
2022, pp. 1-2). The Department of Hawaiian Homelands `Aina Mauna Legacy
Program describes activities to be conducted on Department of Hawaiian
Homelands lands over the next 100 years, including native forest
restoration and sustainable koa forestry; invasive plant control and
remnant invasive species eradication; nonnative wildlife control and
management (i.e., feral ungulate control); road system, fencing, and
water systems infrastructure development and maintenance; and research
and community outreach. Some forest areas in lands managed under the
`Aina Mauna Legacy Program are degraded by history of cattle grazing.
Koa tree silviculture is in initial stages and will be conducted (at
least during the next 100 years) on lands under this management
designation, including stand improvement through selective harvest and
establishment of new or improved forest in formerly logged areas and
degraded pasture lands. Koa silviculture benefits habitat `i`iwi use
for nesting and foraging by establishing new or improved forest,
increasing soil-water retention capacity, and improving ecosystem
resilience to drying climate conditions. Ungulate control reduces
damage to `[omacr]hi` a forests, maintains the health of tall stature
trees used for `i`iwi nesting, and prevents ungulates from creating
breeding sites for introduced southern house mosquitoes that carry
avian malaria. Control of nonnative, invasive plants and out-planting
of native plants improves recruitment of native trees.
Mauna Kea Watershed Alliance--The Mauna Kea Watershed Alliance
Watershed Partnership is a coalition of private and public landowners
and supporting agencies working to protect and restore watershed areas
on Mauna Kea Volcano, Hawai`i (Mauna Kea Watershed Alliance 2022,
entire). Lands that are managed by the Mauna Kea Watershed Alliance
include over 500,000 ac (202,343 ha) on Mauna Kea Volcano on the island
of Hawai`i. The Mauna Kea Watershed Alliance shared vision is to
protect and enhance watershed ecosystems, biodiversity, and natural
resources through responsible management while promoting economic
sustainability and providing recreational, subsistence, educational,
and research opportunities. Staff of the Mauna Kea Watershed Alliance
work cooperatively with members of the alliance to achieve this shared
vision. Accordingly, fencing and ungulate control, control of
introduced plants that are invasive, and reforestation efforts are
conducted on lands within the Mauna Kea Watershed Alliance. Ungulate
control benefits habitat `i`iwi use for nesting and foraging by
improved forest regeneration and reduction of breeding sites for
introduced southern house mosquitoes that carry avian malaria.
Nonnative plant control improves recruitment of native trees, and
reforestation provides `i`iwi nesting and foraging habitat and
increases soil-water retention capacity improving ecosystem resilience
to drying climate conditions.
K[umacr]ka`iau Ranch Conservation Easement with The Nature
Conservancy and Hawai`i Island Land Trust--K[umacr]ka`iau Ranch is a
10,200-ac (4,128-ha) ranch on the east slope of Mauna Kea. In 2009,
ranch owners donated a conservation easement on 4,500 ac (1,821 ha) of
the ranch's property to The Nature Conservancy and Hawai`i Island Land
Trust (College of Tropical Agriculture and Human Resources 2009,
entire). The easement covers the highest elevation areas of the ranch
that comprise mostly intact native forest. The land under easement has
two dominant tree species, m[amacr]mane and koa. Since the conservation
easement was signed in 2009, K[umacr]ka`iau Ranch has worked with The
Nature Conservancy, Hawai`i Island Land Trust, and the U.S. Department
of Agriculture's Natural Resources Conservation Service (NRCS) to build
ungulate fencing, remove pigs and goats, and restore native plant
species. In addition, K[umacr]ka`iau Ranch collaborates with the county
and other landowners in fire response planning to protect its adjacent
landowners' natural resources from fires. Ungulate control benefits
habitat `i`iwi use for nesting and foraging by improved forest
regeneration and reduction of breeding sites for introduced southern
house mosquitoes that carry avian malaria. Control of invasive,
introduced plants improves recruitment of native trees. Fire
suppression benefits forest and shrubland habitats `i`iwi use for
nesting and foraging by minimizing damage to these habitats by
wildfire.

[[Page 79960]]

Parker Ranch Sustainable Forestry Initiative--Parker Ranch was
founded in 1847, and currently encompasses over 100,000 ac (40,469 ha)
of land in the Hamakua, North Kohala, and South Kohala Districts on
Mauna Kea and the Kohala Mountains on the island of Hawai`i. Parker
Ranch recognizes forest health as a key indicator of overall ecosystem
health and, as result, announced in 2021 that it is seeking to
collaborate with public and private partners to develop sustainable
forestry programs on its lands (Parker Ranch 2021, entire). For its
Waipunalei lands on the east slope of Mauna Kea, Parker Ranch is
developing a sustainable koa forestry program and is seeking to
rehabilitate forest areas damaged by history of cattle grazing (Parker
Ranch 2022, entire). Koa forestry benefits forest habitat `i`iwi use
for nesting and foraging by establishing new or improved forest in
formerly logged areas and degraded pasture lands, increasing soil-water
retention capacity, and improving ecosystem resilience to drying
climate conditions.
The Nature Conservancy Ka`[umacr] Preserve Hawai`i Island, Long-
Range Management Plan, Fiscal Years 2013-2018--The Nature Conservancy
Ka`[umacr] Preserve was established in 2002, in the Ka`[umacr] District
of the island of Hawai`i. Ka`[umacr] Preserve is comprised of 3,511 ac
(1,421 ha) in four management units within Ka`[umacr] Forest Preserve
on the southern slope of Mauna Loa Volcano. The management program for
Ka`[umacr] Preserve is documented in the The Nature Conservancy
Ka`[umacr] Preserve, Long-Range Management Plan, Fiscal Years 2013-2018
(The Nature Conservancy 2012, entire). Primary management goals for the
preserve are to: (1) prevent degradation of native forest by reducing
feral ungulate damage; (2) improve or maintain the integrity of native
ecosystems by reducing the effects of nonnative plants; (3) conduct
small mammal, including rodent, control and reduce the negative impacts
of small mammals; (4) monitor and track the biological and physical
resources in the preserve, evaluate changes in these resources over
time, and encourage biological and environmental research; (5) prevent
extinction of rare species in the preserve; and (6) build public
understanding and support for the preservation of natural areas, and
enlist volunteer assistance for preserve management. Ungulate control
reduces damage to `[omacr]hi`a forests, maintains the health of tall
stature trees used for `i'iwi nesting, and prevents ungulates from
creating breeding sites for introduced southern house mosquitoes that
carry avian malaria. Fire suppression reduces the damage from wildfires
and provides protection for forest and shrubland habitat that `i`iwi
use for nesting and foraging. Invasive plant control improves
recruitment of native trees, and small mammal control, particularly for
rats (Rattus spp.), reduces the potential for predation on nesting
`i`iwi.
Kealakekua Mountain Reserve Forest Legacy Program Conservation
Easement with the State of Hawaii's Department of Land and Natural
Resources--Once a former ranch, the Kealakekua Mountain Reserve, LLC,
established the Kealakekua Mountain Reserve Forest Legacy Program
Conservation Easement (conservation easement) with the State of
Hawaii's Department of Land and Natural Resources in 2011 (DLNR 2022,
p. 4). The conservation easement protects mesic and dryland native
forest and native species on Kealakekua Mountain Reserve lands on
leeward Mauna Loa Volcano on the island of Hawai`i and covers 9,000 ac
(3,642 ha) of Kealakekua Mountain Reserve lands under the State's
Forest Legacy Program, a Federal grant program that aids States in
identification and conservation of important private forest lands that
are threatened by development or fragmentation (DLNR 2022, entire). The
Kealakekua Mountain Reserve management plan under the conservation
easement requires harvesting limitations to ensure regeneration of
native forest on its properties (d[omacr]Terra 2018, entire). In order
to protect the growth and regeneration of `iliahi or sandalwood trees,
the management plan allows collection only of dead or severely damaged
trees; no living sandalwood trees will be harvested at this time, which
will allow existing healthy trees to grow to full maturity before they
are harvested under sustainable tree management practices. The
Kealakekua Mountain Reserve operates a large nursery, and various
native Hawaiian trees from the nursery, including `[omacr]hi`a, as well
as trees and shrubs that serve as hosts for sandalwood including koa,
a'ali'i (Dodonaea viscosa), and hoawa (Pittosporum spp.), are being
out-planted at the Kealakekua Mountain Reserve. These management
actions conserve and enhance forest habitat `i`iwi use for nesting and
foraging, increase soil-water retention capacity, and improve ecosystem
resilience to drying climate conditions.
H[amacr]loa `[Amacr]ina Forest Restoration Agreement--H[amacr]loa
`[Amacr]ina is a Native Hawaiian family-owned business dedicated to
restoring native dryland forest. In 2019, Kamehameha Schools entered
into an agreement with H[amacr]loa `[Amacr]ina aimed at developing a
financial and ecological model to restore remnant `iliahi or sandalwood
and m[amacr]mane (Sophora chrysophylla) forest on Kamehameha Schools
lands in South Kona on the leeward side of Mauna Loa on the island of
Hawai`i (Big Island Video News 2019, entire). Under a 5-year license,
the project will improve the native ecosystems consisting of `iliahi
and m[amacr]mane on formerly degraded agricultural lands. Revenues
generated from the harvest of dead and senescent sandalwood trees are
directly reinvested in the property with a focus on conservation
management. H[amacr]loa `[Amacr]ina markets products made from
sandalwood material (oil, dust, etc.) and allocate a percentage of
gross sales to Kamehameha Schools. H[amacr]loa `[Amacr]ina is actively
propagating `iliahi, m[amacr]mane, and koa trees in its greenhouses for
out-planting on Kamehameha Schools lands in South Kona. These
management actions conserve and enhance forest habitat `i`iwi use for
nesting and foraging, increase soil-water retention capacity, and
improve ecosystem resilience to drying climate conditions.
The Nature Conservancy Forest Stewardship Management Plan for the
Kona Hema Preserve--The Nature Conservancy Kona Hema Preserve was
established in 1999 in the South Kona District of the island of Hawai`i
and is comprised of 8,076 ac (3,268 ha) in four management units. The
management program for Kona Hema Preserve is documented in The Nature
Conservancy's Forest Stewardship Management Plan for the Kona Hema
Preserve, which details management measures to protect, restore, and
enhance rare plants and animals and their habitats within the preserve
and in adjacent areas (The Nature Conservancy 2017, entire). Primary
management goals for the Kona Hema Preserve are to: (1) prevent
degradation of native forest and shrubland by reducing feral ungulate
damage; (2) improve or maintain the integrity of native ecosystems in
selected areas of the preserve by reducing the effects of nonnative
plants; (3) conduct small mammal control and reduce the negative
impacts of small mammals where possible; (4) monitor and track the
biological and physical resources in the preserve, evaluate changes in
these resources over time, and encourage biological and environmental
research; (5) prevent extinction of rare species in the preserve; (6)
build public understanding and support for the preservation of natural
areas, and enlist volunteer assistance for preserve

[[Page 79961]]

management; and (7) protect the resources from fires in and around the
preserve. Ungulate control reduces damage to `[omacr]hi`a forests,
maintains the health of tall stature trees used for `i`iwi nesting, and
prevents ungulates from creating breeding sites for introduced southern
house mosquitoes that carry avian malaria. Fire suppression reduces the
damage from wildfires and provides protection for forest and shrubland
habitat that `i`iwi use for nesting and foraging. Invasive plant
control improves recruitment of native trees, and small mammal control,
particularly rat (Rattus spp.) control, reduces the potential for
predation on nesting `i`iwi.
Paniolo Tonewoods, LLC, Forest Restoration Agreement with
Kamehameha Schools--In 2019, Kamehameha Schools entered into an
agreement with Paniolo Tonewoods, LLC, to manage 1,300 ac (526 ha) of
Kamehameha Schools forest lands upslope of H[omacr]naunau Forest
Reserve on the leeward slopes of Hual[amacr]lai Volcano in North Kona
on the island of Hawai`i (Big Island Video News 2019, entire). The
pilot project, based on the exchange of goods for services known as
``stewardship contracting,'' is designed to demonstrate the concept of
conservation offsetting costs of stewardship. Under the license terms,
Paniolo Tonewoods' partner, Forest Solutions, Inc., is providing
restoration services including koa tree propagation and koa out-
planting in exchange for a fixed number of selected koa trees to be
harvested under Kamehameha Schools-determined standards. The value of
the harvested timber removed by Paniolo Tonewoods as part of the
restoration/stewardship project will offset the costs of the
conservation services and the final product of the processed koa wood
is high-quality guitars. These management actions conserve and enhance
forest and shrubland habitat `i`iwi use for nesting and foraging,
increase soil-water retention capacity, and improve ecosystem
resilience to drying climate conditions.
After considering the factors described above, we have identified
the following areas that we have reason to consider excluding because
of non-permitted plans, agreements, or partnerships. Our consideration
of an area for exclusion is based on all non-permitted plans,
agreements, and/or partnerships for the area and the overall benefit
these planning documents and associated conservation actions provide
for the protection, maintenance, enhancement, and/or restoration of
habitat `i`iwi use for nesting and foraging. In all cases, we are
considering excluding areas where private landowners are actively
participating in the restoration or management of habitats essential to
conservation of iiwi, allowing surveys or monitoring of iiwi and its
habitat, or taking steps to protect and increase numbers of iiwi that
occur on their properties.
Specific benefits of conservation management and rationale for
considering exclusion are described below. We welcome any information
regarding planning documents or other information we may have
overlooked pertaining to the areas we are considering for exclusion and
areas we are not considering for exclusion. We will work with
landowners throughout the public comment period and during development
of the final designation of critical habitat for `i`iwi and seek
comments on whether the existing management and conservation efforts of
landowners meet our criteria for exclusion from the final designation
under section 4(b)(2) of the Act.
Alaka`i Plateau Unit--Alexander & Baldwin, Inc.--The Nature
Conservancy manages two parcels of land (142 ac (58 ha) and 61 ac (25
ha)) owned by Alexander & Baldwin, Inc., included in the proposed
critical habitat designation for `i`iwi, Alaka`i Plateau Unit.
Conservation management activities on these lands include those
associated with the Kaua`i Watershed Alliance Management Plan Update,
Overall Management Strategy (2012) and Kaua`i Forest Bird Recovery
Project.
The Nature Conservancy Wainiha Preserve was established by a
conservation easement with Alexander & Baldwin, Inc., and is comprised
of 7,050 ac (2,853 ha) in Wainiha Valley and is part of the Alaka`i
Plateau. The management program of the Wainiha Preserve under the above
described management plans includes preventing degradation of watershed
and forest ecosystems by reducing feral ungulate damage, controlling
invasive plants, monitoring and tracking the biological and physical
resources in the preserve, preventing extinction of rare species in the
preserve, and building public understanding and support for the
preservation of natural areas. In addition, The Nature Conservancy is a
member of the Kaua`i Watershed Alliance, whose goals include to
conserve forest watershed and unique endemic plants and animals by
construction of ungulate fences, ungulate removal, fence line surveys,
and weed control. The Nature Conservancy also collaborates with the
Kaua`i Forest Bird Recovery Project, which conducts research to
understand the ecology of native forest birds, the threats they face,
and the application of management strategies for recovering their
populations. The conservation actions occurring within Alaka`i Plateau
Unit under management by The Nature Conservancy, including Wainiha
Preserve, the Kaua`i Watershed Alliance, and the Kaua`i Forest Bird
Recovery Project, conserve and protect habitat important for `i`iwi
nesting and foraging. These conservation actions reduce breeding sites
of introduced southern house mosquitoes that carry avian malaria,
encourage native forest regeneration, and reduce small mammal predator
populations through control activities. Based on The Nature
Conservancy's management under the Kaua`i Watershed Alliance Management
Plan Update, Overall Management Strategy (2012), and collaboration with
Kaua`i Watershed Alliance and the Kaua`i Forest Bird Recovery Project,
we are considering excluding Alexander & Baldwin, Inc., lands from the
final critical habitat designation for the `i`iwi because forest
habitat used by `i`iwi within lands owned by Alexander & Baldwin, Inc.
is protected from degradation by ungulate fencing and ungulate removal,
and control of nonnative plants.
Kula Unit--Ka`ono`ulu Ranch--The Ka`ono`ulu Ranch manages 830 ac
(336 ha) of land included in the proposed critical habitat designation
for the `i`iwi within the Kula Unit. Conservation management activities
on these lands include those associated with the Kula Forest Reserve
and the Papa`anui Tract of Kahikinui Forest Reserve Management Plan and
Leeward Haleakal[amacr] Watershed Restoration Partnership.
Ka`ono`ulu Ranch is a member of the Leeward Haleakal[amacr]
Watershed Restoration Partnership, a watershed partnership that manages
lands on leeward east Maui to conserve endemic plants and animals and
conducts watershed protection (including native forest reforestation
and wildfire response planning and fire suppression) to improve forest
and shrubland habitats that `i`iwi use for nesting and foraging.
Ka`ono`ulu Ranch has been and continues to be an active partner with
the State of Hawaii's Department of Land and Natural Resources to
reduce the numbers of feral ungulates and promote native plant
regeneration across Leeward Haleakal[amacr]. The conservation actions
of Ka`ono`ulu Ranch benefit habitat `i`iwi use for nesting and foraging
by promoting forest regeneration and reducing breeding sites for
introduced southern house mosquitoes that carry avian malaria.
Based on Ka`ono`ulu Ranch's management under the Kula Forest

[[Page 79962]]

Reserve and the Papa`anui Tract of Kahikinui Forest Reserve Management
Plan and participation in the Leeward Haleakal[amacr] Watershed
Restoration Partnership, we are considering excluding Ka`ono`ulu Ranch
lands from the final critical habitat designation for the `i`iwi.
East Haleakal[amacr] Unit--Haleakal[amacr] Ranch--The Nature
Conservancy manages 1,113 ac (451 ha) of land owned by Haleakal[amacr]
Ranch included in the proposed critical habitat designation for `i`iwi
within the East Haleakal[amacr] Unit. Conservation management
activities on these lands include those associated with: The Nature
Conservancy's Waikamoi Preserve Long-Range Management Plan, Fiscal
Years 2019-2024; the Leeward Haleakal[amacr] Watershed Restoration
Partnership; and Maui Forest Bird Recovery Project.
Conservation actions being conducted in Waikamoi Preserve include
control of feral ungulate populations; control of nonnative mammals,
including rats (Rattus spp.), cats (Felis catus), mongoose (Herpestes
auropunctatus), and dogs (Canis familiaris), that have been known to
prey on `i`iwi; control of habitat-modifying, nonnative plants in
intact native communities and prevention of the introduction of
additional nonnative plants; and natural resource monitoring and
research to address the need to track the biological and physical
resources of the preserve and evaluate changes in these resources to
guide management programs. In addition, as fire is a threat in
shrubland areas, management includes wildfire preparedness, including
annually updating wildfire management plans and ensuring that staff is
provided with fire suppression training, roads are maintained for fire
break access, and equipment is supplied as needed to allow immediate
response to fire threats. In addition, Haleakal[amacr] Ranch and The
Nature Conservancy Waikamoi Preserve are members of the Leeward
Haleakal[amacr] Watershed Restoration Partnership that conducts
conservation management to conserve unique endemic plants and animals,
monitor watershed resources, and control feral animals and invasive
plants. The Nature Conservancy also collaborates with the Maui Forest
Bird Recovery Project that conducts research to understand the ecology
of native forest birds, the threats they face, and the application of
management strategies for recovering their populations. The
conservation actions of The Nature Conservancy Waikamoi Preserve
benefit habitat `i`iwi use for nesting and foraging by improving forest
regeneration, reducing breeding sites of introduced southern house
mosquitoes that carry avian malaria, controlling feral ungulates,
conducting fire suppression activities that benefit forest and
shrubland `i`iwi habitat, controlling nonnative plants to improve
recruitment of native trees, controlling small mammals to reduce
predation on nesting `i`iwi, and conducting research to understand
threats to native forest birds and ways to address those threats.
Based on The Nature Conservancy's management of the Waikamoi
Preserve under the Waikamoi Preserve Long-Range Management Plan, Fiscal
Years 2019-2024; collaboration with the Maui Forest Bird Recovery
Project and Haleakal[amacr] Ranch; and The Nature Conservancy's
participation in the Leeward Haleakal[amacr] Watershed Restoration
Partnership, we are considering excluding lands owed by Haleakal[amacr]
Ranch from the final critical habitat designation for the `i`iwi.
East Haleakal[amacr] Unit--East Maui Irrigation, Inc.--The Nature
Conservancy manages 2,327 ac (942 ha) of land owned by East Maui
Irrigation, Inc., in the proposed critical habitat designation for
`i`iwi within the East Haleakal[amacr] Unit. Conservation management
activities on these lands include those associated with The Nature
Conservancy's Waikamoi Preserve Long-Range Management Plan, Fiscal
Years 2019-2024; the East Maui Watershed Partnership; and Maui Forest
Bird Recovery Project.
Conservation actions being conducted in Waikamoi Preserve include
bringing feral ungulate populations to zero within the preserve as
rapidly as possible and preventing domestic livestock from entering the
preserve; controlling or preventing entry of nonnative mammals, such as
rats (Rattus spp.), cats (Felis catus), mongoose (Herpestes
auropunctatus), and dogs (Canis familiaris), on the preserve as these
mammals have negative impacts on reproduction and persistence of native
plants and animals; controlling habitat-modifying, nonnative plants in
intact native communities and preventing the introduction of additional
nonnative plants; and conducting natural resource monitoring and
research to address the need to track the biological and physical
resources of the preserve and evaluate changes in these resources to
guide management programs. In addition, as fire is a threat in
shrubland areas, management includes wildfire preparedness, including
annually updating wildfire management plans and ensuring that staff is
provided with fire suppression training, roads are maintained for fire
break access, and equipment is supplied as needed to allow immediate
response to fire threats. In addition, Haleakal[amacr] Ranch and The
Nature Conservancy Waikamoi Preserve are members of the Leeward
Haleakal[amacr] Watershed Restoration Partnership that conducts
conservation management to conserve unique endemic plants and animals,
watershed resource monitoring, and feral animal and invasive plant
control. The Nature Conservancy also collaborates with the Maui Forest
Bird Recovery Project that conducts research to understand the ecology
of native forest birds, the threats they face, and the application of
management strategies for recovering their populations. The
conservation actions of The Nature Conservancy Waikamoi Preserve
benefit habitat `i`iwi use for nesting and foraging by improving forest
regeneration, reducing breeding sites of introduced southern house
mosquitoes that carry avian malaria, controlling feral ungulates,
conducting fire suppression activities to benefit forest and shrubland
`i`iwi habitat, conducting weed control to improve recruitment of
native trees, conducting small mammal control to reduce predation on
nesting `i`iwi, and conducting research to understand threats to native
forest birds and ways to address those threats.
Based on The Nature Conservancy's management of the Waikamoi
Preserve under the Waikamoi Preserve, Long-Range Management Plan,
Fiscal Years 2019-2024; collaboration with the Maui Forest Bird
Recovery Project; and participation with East Maui Irrigation, Inc., in
the East Maui Watershed Partnership, we are considering excluding lands
owned by East Maui Irrigation, Inc. from the final critical habitat
designation for the `i`iwi.
Windward Hawai`i Unit--Department of Hawaiian Homelands--The
Department of Hawaiian Homeland manages two parcels (1,631 ac (660 ha)
and 2,404 ac (973 ha)) of land included in the proposed designation for
`i`iwi the Windward Hawai`i Unit. Conservation management activities on
these lands include those under Department of Hawaiian Homelands'
`[Amacr]ina Mauna Legacy Program, and Mauna Kea Watershed Alliance.
The Department of Hawaiian Homelands' `[Amacr]ina Mauna Legacy
Program is a conservation initiative to restore and protect
approximately 56,000 ac (22,662 ha) of native forest on Mauna Kea that
is ecologically, culturally, and economically self[hyphen]sustaining
for the Hawaiian Homelands Trust, its beneficiaries, and the community
(Department of Hawaiian Homelands 2022, pp. 1-2).

[[Page 79963]]

Program actions and planning include native forest restoration and
sustainable koa forestry, invasive plant control, and feral ungulate
control. Department of Hawaiian Homelands is also a member of the Mauna
Kea Watershed Alliance, which conducts conservation actions to protect
and enhance watershed ecosystems, including fencing and ungulate
removal; nonnative, invasive plants control; and native forest
restoration. In addition, the Mauna Kea Watershed Alliance is
partnering with the NRCS on forest recovery and abatement of threats to
native forest (Natural Resources Conservation Service 2022, entire).
The conservation actions of Department of Hawaiian Homelands provide
benefits to habitat `i`iwi use for nesting and foraging by promoting
forest regeneration and reducing breeding sites of introduced southern
house mosquitoes that carry avian malaria, controlling feral ungulates,
conducting weed control to improve recruitment of native trees, and
establishing new or improving existing koa forests that provide habitat
for `i`iwi nesting and foraging.
Based on Department of Hawaiian Homelands's management under
Department of Hawaiian Homelands' `[Amacr]ina Mauna Legacy Program, and
participation in the Mauna Kea Watershed Alliance, we are considering
excluding these areas from the final critical habitat designation for
the `i`iwi. These areas are held in trust for Hawaiian beneficiaries
for the protection of native forest surrounding Mauna Kea.
Windward Hawai`i Unit--K[umacr]ka`iau Ranch--The K[umacr]ka`iau
Ranch manages 87 ac (35 ha) of land included in the proposed
designation for `i`iwi within the Windward Hawai`i Unit. Conservation
management activities on these lands include those associated with the
K[umacr]ka`iau Ranch conservation easement with The Nature Conservancy
and Hawai`i Island Land Trust, and the Mauna Kea Watershed Alliance.
The K[umacr]ka`iau Ranch conservation easement with The Nature
Conservancy and Hawai`i Island Land Trust provides for conservation
work including fencing, removal of pigs and goats, and restoration of
native plant species. In addition, K[umacr]ka`iau Ranch is a member of
the Mauna Kea Watershed Alliance, which conducts conservation
activities to protect and enhance watershed ecosystems, including
fencing and ungulate removal, nonnative plant control, and native
forest restoration. In addition, K[umacr]ka`iau Ranch collaborates with
county and other landowners in fire response planning to protect its
and adjacent landowners' natural resources from fires. Since 2009, when
the conservation easement with The Nature Conservancy and Hawai`i
Island Land Trust was signed (College of Tropical Agriculture and Human
Resources 2009, entire), K[umacr]ka`iau Ranch has built ungulate
fencing, removed pigs and goats, and restored native plant species on
its conservation lands. The conservation actions of K[umacr]ka`iau
Ranch benefit habitat `i`iwi use for nesting and foraging by promoting
forest regeneration and reduction of breeding sites for introduced
southern house mosquitoes that carry avian malaria, nonnative plant
control that improves recruitment of native trees, and fire suppression
that benefits forest and shrubland habitat `i`iwi use for nesting and
foraging by minimizing damage to these habitats from wildfire.
Based on K[umacr]ka`iau Ranch's management under the K[umacr]ka`iau
Ranch conservation easement with The Nature Conservancy and Hawai`i
Island Land Trust, participation in the Mauna Kea Watershed Alliance,
and collaboration with the State of Hawaii's Department of Forestry and
Wildlife and adjacent landowners in wildfire response, we are
considering excluding this area from the final critical habitat
designation for the `i`iwi.
Windward Hawai`i Unit--Parker Ranch Waipunalei, LLC--Parker Ranch
manages 1,449 ac (586 ha) of land included in the proposed designation
for `i`iwi within the Windward Hawai`i Unit. Conservation management
activities on these lands include those associated with Parker Ranch's
sustainable koa forestry initiative and the Mauna Kea Watershed
Alliance.
Parker Ranch manages over 100,000 ac (40,469 ha) of land in the
H[amacr]m[amacr]kua, North Kohala, and South Kohala Districts on Mauna
Kea and the Kohala Mountains on the island of Hawai`i, and in 2021, the
ranch announced it is seeking to collaborate with public and private
partners to develop sustainable forestry programs on some of these
lands (Parker Ranch 2021, entire). For its Waipunalei lands, Parker
Ranch is developing a sustainable koa forestry program to rehabilitate
forest areas damaged by cattle grazing (Parker Ranch 2022, entire).
Parker Ranch is a member of the Mauna Kea Watershed Alliance, whose
shared vision is to protect and enhance watershed ecosystems,
biodiversity, and natural resources through responsible management
while promoting economic sustainability and providing recreational,
subsistence, educational, and research opportunities. The conservation
measures of Parker Ranch through its sustainable koa forestry
initiative provide benefits to habitat `i`iwi use for nesting and
foraging by promoting koa forest regeneration, increasing soil-water
retention capacity and improving ecosystem resilience to drying climate
conditions, and controlling nonnative plants to improve recruitment of
native trees.
Based on Parker Ranch's management under Parker Ranch's sustainable
koa forestry initiative and participation in the Mauna Kea Watershed
Alliance, we are considering excluding this area from the final
critical habitat designation for the `i`iwi.
Ka`[umacr] Unit--The Nature Conservancy Ka`[umacr] Preserve--The
Nature Conservancy owns two parcels (274 ac (111 ha) and 125 ac (51
ha)) of land included in the proposed designation for `i`iwi within the
Ka`[umacr] Unit. Conservation management activities on these lands
include those associated with the Ka`[umacr] Preserve Hawai`i Island,
Long-Range Management Plan, Fiscal Years 2013-2018; and the Three
Mountain Alliance Watershed Management Plan, December 31, 2007.
Conservation actions being conducted in the Ka`[umacr] Preserve
include preventing degradation of native forest by reducing feral
ungulate damage, improving or maintaining the integrity of native
ecosystems by reducing the effects of nonnative plants, conducting
small mammal (including rodent) control and reducing the negative
impacts of small mammals where possible, monitoring and tracking the
biological and physical resources in the preserve and evaluating
changes in these resources over time, encouraging biological and
environmental research, preventing extinction of rare species in the
preserve, building public understanding and support for the
preservation of natural areas, and enlisting volunteer assistance for
preserve management. The Nature Conservancy is also a member of the
Three Mountain Alliance, whose conservation actions include conserving
unique endemic plants and animals; conducting watershed resource
monitoring; controlling feral ungulates and invasive, nonnative plants;
reestablishing native plant species; and conducting activities to
reduce the threat of wildfire. Since its founding, The Nature
Conservancy Ka`[umacr] Preserve has built ungulate fencing around the
Kaiholena Unit, which reduced the number of pigs to zero in that unit,
and is conducting nonnative plant control. The conservation actions of
The Nature Conservancy Ka`[umacr] Preserve provide benefits to habitat
`i`iwi use for nesting and foraging by improving forest regeneration
and reducing breeding sites of introduced

[[Page 79964]]

southern house mosquitoes that carry avian malaria, controlling feral
ungulates, conducting nonnative plant control to improve recruitment of
native trees, and controlling small mammals to reduce predation on
nesting `i`iwi. Wildfire management and response activities minimize
damage to forest and shrubland habitats `i`iwi use for nesting and
foraging.
Based on The Nature Conservancy's management of Ka`[umacr] Preserve
under the Ka`[umacr] Preserve Hawai`i Island, Long-Range Management
Plan, Fiscal Years 2013-2018, and participation in the Three Mountain
Alliance Management Plan, December 31, 2007, we are considering
excluding The Nature Conservancy's Ka`[umacr] Preserve lands from the
final critical habitat designation for the `i`iwi.
South Kona Unit--Kealakekua Mountain Reserve, LLC--The Kealakekua
Mountain Reserve, LLC, manages two parcels (94 ac (38 ha) and 5,707 ac
(2,310 ha)) of land included in the proposed designation for `i`iwi
within the South Kona Unit. Conservation management activities on these
lands include those associated with the Kealakekua Mountain Reserve
Forest Legacy Program conservation easement with the State of Hawaii's
Department of Land and Natural Resources (Kealakekua Mountain Reserve
Forest Legacy Program conservation easement).
Once a former ranch, Kealakekua Mountain Reserve completed the
Kealakekua Mountain Reserve Forest Legacy Program conservation easement
with the State of Hawaii in 2011, to protect mesic and dryland native
forest on Kealakekua Mountain Reserve lands. The Kealakekua Mountain
Reserve management plan under the conservation easement outlines
harvesting limitations that must be followed to insure regeneration of
mesic and dryland native forest (d[omacr]Terra 2018, entire). In order
to protect the immediate growth and regeneration of `iliahi or
sandalwood trees, the management plan specifies only dead or severely
damaged trees will be collected and that no living sandalwood trees
should be harvested, which will allow existing healthy trees to grow to
full maturity before they are harvested under sustainable tree
management practices. The Kealakekua Mountain Reserve operates a large
nursery, and various native Hawaiian trees and shrub species from the
nursery are being out-planted at the Kealakekua Mountain Reserve. In
addition, Kealakekua Mountain Reserve has availed itself of funding and
technical assistance from the NRCS for projects on Kealakekua Mountain
Reserve lands to conserve ground and surface water, increase soil
health, and reduce soil erosion and sedimentation. The conservation
actions of Kealakekua Mountain Reserve benefit habitat `i`iwi use for
nesting and foraging by improved forest regeneration, water and soil
conservation, increased soil-water retention capacity, and improved
ecosystem resilience to drying climate conditions.
Based on Kealakekua Mountain Reserve's management of its lands
under the Kealakekua Mountain Reserve Forest Legacy Program
conservation easement and NRCS projects, we are considering excluding
Kealakekua Mountain Reserve from the final critical habitat designation
for the `i`iwi.
South Kona Unit--Kamehameha Schools--The Kamehameha Schools owns
three parcels (2,744 ac (1,111 ha); 11,080 ac (4,484 ha); and 2,385 ac
(965 ha)) of land included in the proposed designation for `i`iwi
within the South Kona Unit. Conservation management activities on these
lands include those associated with the Kamehameha Schools `[Amacr]ina
Pauahi Natural Resources Management Program, H[amacr]loa `[Amacr]ina
Forest Restoration Agreement, and the Three Mountain Alliance Watershed
Management Plan, December 31, 2007.
Between 2000 and 2015, Kamehameha Schools increased its active
stewardship of native ecosystems under its `[Amacr]ina Pauahi Natural
Resources Management Program from 3,000 ac (1,124 ha) to 136,000 ac
(55,037 ha), 35 times the number of acres under Kamehameha Schools'
care in 2000, including lands within the South Kona Unit in this
proposed critical habitat designation. In 2019, Kamehameha Schools
entered into an agreement with H[amacr]loa `[Amacr]ina, a Native
Hawaiian family-owned business dedicated to restoring native mesic and
dryland forest (Big Island Video News 2019, entire). Under a 5-year
license, the project will improve the native ecosystems consisting of
remnant `iliahi and m[amacr]mane forest on formerly degraded Kamehameha
Schools agricultural lands in South Kona. Revenues generated from the
harvest of dead and senescent sandalwood trees are directly reinvested
in the subject property with the focus of conservation management.
H[amacr]loa `[Amacr]ina is actively propagating `iliahi, m[amacr]mane,
and koa trees in its greenhouses for planting on Kamehameha Schools
lands. Kamehameha Schools is also a member of the Three Mountain
Alliance, whose conservation actions include conserving unique endemic
plants and animals; conducting watershed resource monitoring;
controlling feral ungulates and invasive, nonnative plants;
reestablishing native plant species; and conducting activities to
reduce the threat of wildfire. The conservation actions of Kamehameha
Schools benefit habitat `i`iwi use for nesting and foraging by
promoting forest regeneration and reduction of breeding sites for
introduced southern house mosquitoes that carry avian malaria through
control of feral ungulates; nonnative plant control that improves
recruitment of native trees; fire suppression that benefits forest and
shrubland `i`iwi use for nesting and foraging by minimizing damage to
these habitats by wildfire; and `iliahi and m[amacr]mane forest
restoration that conserves and enhances forest and shrubland habitat
`i`iwi use for nesting and foraging, increases soil-water retention
capacity, and improves ecosystem resilience to drying climate
conditions.
Based on Kamehameha Schools' management of its lands under
Kamehameha Schools' `[Amacr]ina Pauahi Natural Resources Management
Program, H[amacr]loa `[Amacr]ina Forest Restoration Agreement, and the
Three Mountain Alliance Management Plan, we are considering excluding
Kamehameha Schools lands from the final critical habitat designation
for the `i`iwi.
South Kona Unit--Kealia Ranch--The Kealia Ranch manages 1,758 ac
(712 ha) of land included in the proposed designation for `i`iwi within
the South Kona Unit. Conservation management activities on Kealia Ranch
lands include those associated with NRCS' Environmental Quality
Incentive Program land stewardship projects, as well as cooperation
with government partners for wildlife conservation on Kealia Ranch and
adjacent lands.
Kealia Ranch is a 12,000-ac (4,856-ha) working cattle ranch founded
in 1915, located in the South Kona District on leeward Mauna Loa
Volcano on the island of Hawai`i. Kealia Ranch has availed itself of
funding and technical assistance from the NRCS for projects on Kealia
Ranch to conserve ground and surface water, increase soil health, and
reduce soil erosion and sedimentation (Natural Resources Conservation
Service 2022, entire). The Kealia Ranch is an immediate neighbor to the
Hakalau National Wildlife Refuge, Kona Forest Unit, and cooperates with
the refuge in areas such as weed control, wildfire suppression,
emergency situations, and security (Kealia Ranch 2022, entire). From
1993-1998, Kealia Ranch participated in conservation efforts with the
Service to save from extinction the last remaining population of
`alal[amacr] or Hawaiian crow (Corvus hawaiiensis) in

[[Page 79965]]

the wild. Kealia Ranch has worked with the University of Hawai`i
College of Tropical Agriculture and Human Resources on research
projects and trials on Kealia Ranch lands and cooperates annually with
the U.S. Geological Survey (USGS) on research for volcanic activity and
ground swell of Mauna Loa (Kealia Ranch 2022, entire). The conservation
actions of Kealia Ranch benefit forest and shrubland habitat `i`iwi use
for nesting and foraging by promoting soil and water conservation, weed
control, and wildfire suppression.
Based on Kealia Ranch's implementation of water and soil
conservation projects through NRCS' Environmental Quality Incentives
Program and cooperation with neighbors in areas including nonnative
plant control and wildfire suppression, we are considering excluding
Kealia Ranch lands from the final critical habitat designation for the
`i`iwi.
South Kona Unit--The Nature Conservancy, Kona Hema Preserve--The
Nature Conservancy owns 5,700 ac (2,307 ha) of land included in the
proposed designation for `i`iwi within the South Kona Unit.
Conservation management activities on these lands include those
associated with the Forest Stewardship Management Plan for The Kona
Hema Preserve and the Three Mountain Alliance Management Plan, December
31, 2007.
The Kona Hema Preserve is comprised of 8,076 ac (3,268 ha) in four
management units. Management activities on the Kona Hema Preserve are
to prevent degradation of native forest and shrubland by reducing feral
ungulate damage; to improve or maintain the integrity of native
ecosystems in selected areas of the preserve by reducing the effects of
nonnative plants; to conduct small mammal control and reduce the
negative impacts of small mammals where possible; to monitor and track
the biological and physical resources in the preserve and evaluate
changes in these resources over time, and encourage biological and
environmental research; to prevent extinction of rare species in the
preserve; to build public understanding and support for the
preservation of natural areas; and to enlist volunteer assistance for
preserve management and the protection of the resources from fires in
and around the preserve. The Nature Conservancy is also a member of the
Three Mountain Alliance, whose conservation actions include conserving
unique endemic plants and animals; conducting watershed resource
monitoring; controlling feral ungulates and invasive, nonnative plants;
reestablishing native plant species; and conducting activities to
reduce the threat of wildfire. The conservation actions of The Nature
Conservancy Kona Hema Preserve benefit habitat `i`iwi use for nesting
and foraging by improved forest regeneration and reduction of breeding
sites for introduced southern house mosquitoes that carry avian
malaria, by control of feral ungulates, by nonnative plant control that
improves recruitment of native trees, and by small mammal control to
reduce predation on nesting `i`iwi. Wildfire management and response
benefit forest and shrubland habitat `i`iwi use for nesting and
foraging by minimizing damage to these habitats by wildfire.
Based on The Nature Conservancy's management of the Kona Hema
Preserve under the Forest Stewardship Management Plan for The Kona Hema
Preserve and the Three Mountain Alliance Management Plan, December 31,
2007, we are considering excluding The Nature Conservancy's Kona Hema
Preserve lands from the final critical habitat designation for the
`i`iwi.
North Kona Unit--Kamehameha Schools--The Kamehameha Schools owns
two parcels (2,585 (1,046 ha) and 1,557 (630 ha)) of land included in
the proposed designation for `i`iwi within the North Kona Unit.
Conservation management activities on these lands include those
associated with the Kamehameha Schools' `[Amacr]ina Pauahi Natural
Resources Management Program; the Paniolo Tonewoods, LLC, Forest
Restoration Agreement with Kamehameha Schools; and the Three Mountain
Alliance Management Plan, December 31, 2007.
Kamehameha Schools' `[Amacr]ina Pauahi Natural Resources Management
Program implements Kamehameha Schools' conservation land stewardship
policy through the protection and conservation of natural resources,
water resources, and ancestral places (Kamehameha Schools 2022,
entire). Between 2000 and 2015, Kamehameha Schools increased its active
stewardship of native ecosystems under the program from 3,000 ac (1,124
ha) to 136,000 ac (55,037 ha), which is 45 times the number of acres
under Kamehameha Schools' care in 2000, and includes lands within the
North Kona Unit in this proposed critical habitat designation.
Kamehameha Schools entered into an agreement in 2019, with Paniolo
Tonewoods, LLC, to manage 1,300 ac (526 ha) of Kamehameha Schools lands
upslope of H[omacr]naunau Forest Reserve that are mixed `[omacr]hi`a/
koa forest (Big Island Video News 2019, entire). Kamehameha Schools is
also a member of the Three Mountain Alliance, whose conservation
actions include conserving unique endemic plants and animals;
conducting watershed resource monitoring; controlling feral ungulates
and invasive, nonnative plants; reestablishing native plant species;
and conducting activities to reduce the threat of wildfire. The
conservation actions of Kamehameha Schools benefit habitat `i`iwi use
for nesting and foraging by promoting forest regeneration and reduction
of mosquito breeding sites; weed control that improves recruitment of
native trees; fire suppression that benefits forest and shrubland
habitats by minimizing damage to these habitats by wildfire; and koa
silviculture that conserves and enhances forest and shrubland habitat
`i`iwi use for nesting and foraging, increases soil-water retention
capacity, and improves ecosystem resilience to drying climate
conditions.
Based on Kamehameha Schools' management of its lands under
Kamehameha Schools' `[Amacr]ina Pauahi Natural Resources Management
Program; Paniolo Tonewoods, LLC, Forest Restoration Agreement with
Kamehameha Schools; and the Three Mountain Alliance Management Plan,
December 31, 2007, we are considering excluding Kamehameha Schools
lands from the final critical habitat designation for the `i`iwi.

Summary of Exclusions Considered Under 4(b)(2) of the Act

We have reason to consider excluding the following areas under
section 4(b)(2) of the Act from the final critical habitat designation
for the `i`iwi. Table 2 below provides approximate areas (ac, ha) of
lands that meet the definition of critical habitat but for which we are
considering possible exclusion under section 4(b)(2) of the Act from
the final critical habitat rule.

[[Page 79966]]

Table 2--Areas Considered for Exclusion by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas
considered
Unit Owner for exclusion, Associated plans and
in acres agreements
(Hectares)
----------------------------------------------------------------------------------------------------------------
Alaka`i Plateau....................... Alexander & Baldwin, Inc. 203 (82) Kaua`i Watershed Alliance
Management Plan Update,
Overall Management Strategy;
Kaua`i Forest Bird Recovery
Project.
Kula.................................. Ka`ono`ulu Ranch......... 830 (336) Kula Forest Reserve and the
Papa`anui Tract of Kahikinui
Forest Reserve Management
Plan; Leeward
Haleakal[amacr] Watershed
Restoration Partnership.
East Haleakal[amacr].................. Haleakal[amacr] Ranch.... 1,113 (451) The Nature Conservancy's
Waikamoi Preserve, Long-
Range Management Plan,
Fiscal Years 2019-2024;
Leeward Haleakal[amacr]
Watershed Restoration
Partnership; Maui Forest
Bird Recovery Project.
East Haleakal[amacr].................. East Maui Irrigation, Inc 2,327 (942) The Nature Conservancy's
Waikamoi Preserve, Long-
Range Management Plan,
Fiscal Years 2019-2024; East
Maui Watershed Partnership;
Maui Forest Bird Recovery
Project.
Windward Hawai`i...................... Kamehameha Schools....... 13,308 (5,386) Kamehameha Schools
`[Amacr]ina Pauahi Natural
Resources Management
Program; Three Mountain
Alliance Management Plan,
December 31, 2007;
Kamehameha Schools Keauhou
and K[imacr]lauea Forest
Lands Safe Harbor Agreement.
Windward Hawai`i...................... Department of Hawaiian 4,035 (1,633) Department of Hawaiian
Homelands. Homelands' `[Amacr]ina Mauna
Legacy Program; Mauna Kea
Watershed Alliance.
Windward Hawai`i...................... K[umacr]ka`iau Ranch..... 87 (35) K[umacr]ka`iau Ranch
Conservation Easement with
The Nature Conservancy and
Hawaiian Island Land Trust;
Mauna Kea Watershed
Alliance.
Windward Hawai`i...................... Parker Ranch Waipunalei, 1,449 (586) Parker Ranch Sustainable
LLC. Forestry Initiative; Mauna
Kea Watershed Alliance.
Ka`[umacr]............................ The Nature Conservancy... 399 (162) Ka`[umacr] Preserve Hawai`i
Island, Long-Range
Management Plan, Fiscal
Years 2013-2018; Three
Mountain Alliance Management
Plan, December 31, 2007.
South Kona............................ Kealakekua Mountain 5,801 (2,348) Kealakekua Mountain Reserve
Reserve, LLC. Forest Legacy Program
Conservation Easement with
the Hawaii's Department of
Land and Natural Resources.
South Kona............................ Kamehameha Schools....... 16,209 (6,560) Kamehameha Schools
`[Amacr]ina Pauahi Natural
Resources Management
Program; Kamehameha Schools
H[amacr]loa `[Amacr]ina
Forest Restoration
Agreement; Three Mountain
Alliance Management Plan,
December 31, 2007.
South Kona............................ Kealia Ranch............. 1,758 (712) NRCS Environmental Quality
Incentive Program Projects.
South Kona............................ The Nature Conservancy... 5,700 (2,307) Forest Stewardship Management
Plan for The Kona Hema
Preserve; Three Mountain
Alliance Management Plan,
December 31, 2007.
North Kona Unit....................... Kamehameha Schools....... 4,142 (1,676) Kamehameha Schools
`[Amacr]ina Pauahi Natural
Resources Management
Program; Paniolo Tonewoods,
LLC, Forest Restoration
Agreement with Kamehameha
Schools; Three Mountain
Alliance Management Plan,
December 31, 2007.
----------------
Total Area Considered for ......................... 57,361
Exclusion. (22,316)
----------------------------------------------------------------------------------------------------------------

In conclusion, for this proposed designation, we have reason to
consider excluding the areas identified above based on other relevant
impacts. We specifically solicit comments on the inclusion or exclusion
of such areas. However, if through the public comment period we receive
information that we determine indicates that there are potential
economic, national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19. If we
receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action.

Required Determinations

Clarity of the Rule

We are required by Executive Orders (E.O.s) 12866 and 12988 and by
the Presidential Memorandum of June 1, 1998, to write all rules in
plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too

[[Page 79967]]

long, the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our draft economic analysis, we did not find that
this proposed critical habitat designation would significantly affect
energy supplies, distribution, or use. The proposed critical habitat
units are in remote wilderness areas that are not used for energy
generation. 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
et seq.), we make the following finding:
(1) This proposed rule would 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, local, or
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,
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, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare

[[Page 79968]]

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 are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
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 onto State governments.
(2) We do not believe that this proposed rule would significantly
or uniquely affect small governments. Small governments would be
affected only to the extent that any programs having Federal funds,
permits, or other authorized activities must ensure that their actions
will not adversely affect the critical habitat. Therefore, a Small
Government Agency Plan is not required.

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for `i`iwi in a takings implications assessment. The Act does
not authorize the Service to regulate private actions on private lands
or confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for `i`iwi, and it concludes
that, if adopted as proposed, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal Government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that 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.

Civil Justice Reform--Executive Order 12988

In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that this proposed rule would not unduly
burden the judicial system and that it 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 Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the physical or biological features
essential to the conservation of the species. The proposed areas of
critical habitat are presented on maps, and the proposed rule provides
several options for the interested public to obtain more detailed
location information, if desired.

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

This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.

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), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate

[[Page 79969]]

meaningfully with recognized Federal Tribes on a government-to-
government basis. In accordance with Secretarial Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We have determined that no Tribal lands fall within the
boundaries of the proposed critical habitat designation for the `i`iwi,
so no Tribal lands would be affected by the proposed designation.

References Cited

A complete list of references cited in this proposed rule is
available on the internet at https://www.regulations.gov and upon
request from the Pacific Islands Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Pacific
Islands Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec. 17.11, in paragraph (h), amend the table ``List of
Endangered and Threatened Wildlife'' by revising the entry for ``Iiwi
(honeycreeper)'' under Birds to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Birds

* * * * * * *
Iiwi (honeycreeper)............. Drepanis coccinea. Wherever found.... T 82 FR 43873, 9/20/2017;
50 CFR 17.95(b).\CH\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95, amend paragraph (b) by adding an entry for ``Iiwi
(honeycreeper) (Drepanis coccinea)'' following the entry for ``Crested
Honeycreeper (Akohekohe) (Palmeria dolei)'' to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(b) Birds.
* * * * *
Iiwi (honeycreeper) (Drepanis coccinea)
(1) Critical habitat units are depicted for Kauai, Maui, and Hawaii
Counties, Hawaii, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of iiwi consist of the following
components:
(i) Multiple patches of seasonally flowering trees, including ohia
(Metrosideros polymorpha) and mamane (Sophora chrysophylla), and/or
shrubs that collectively provide the iiwi a year-round nectar source.
The number of patches of flowering trees and shrubs needed may be few
if patch size is large. For example, a few large contiguous areas of
forest containing seasonally asynchronously flowering trees and shrubs
that are several square miles (several kilometers) in size, or many
small patches with concentrated, seasonally asynchronously flowering
trees and shrubs would meet the iiwi's year-round nectar source needs.
Patches can be close together, such as individual flowering trees a few
hundred feet (hundred meters) apart in an open landscape, or far apart,
such as large forest patches of seasonally asynchronous flowering trees
or shrubs as much as several miles (several kilometers) apart.
(ii) Tall stature trees (height taller than 26 feet (8 meters))
characteristic of a mesic and wet forest ecosystem, including ohia and
koa (Acacia koa) trees for nesting.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Data layers defining map units were created using summaries of
abundance, distribution, and trends compiled by the U.S. Geological
Survey. Where this summary was incomplete, specifically within the Kula
region of Maui, we used information provided by the National Park
Service and the Maui Forest Bird Recovery Project. The maps in this
entry, as modified by any accompanying regulatory text, establish the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which each map is based are available to the public
at https://www.regulations.gov at Docket No. FWS-R1-ES-2022-0144, and
at the field office responsible for this designation. You may obtain
field office location information by contacting one of the Service
regional offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:

[[Page 79970]]

Figure 1 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP28DE22.000

(6) Alakai Plateau Unit: Kauai County, Hawaii.
(i) The Alakai Plateau Unit comprises 12,510 acres (ac) (5,063
hectares (ha)) of occupied habitat in Kauai County. This unit consists
of State and privately owned lands.
(ii) Map of Alakai Plateau Unit follows:

[[Page 79971]]

Figure 2 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP28DE22.001

(7) Kula Unit: Maui County, Hawaii.
(i) The Kula Unit comprises 5,226 ac (2,115 ha) of occupied habitat
in Maui County on the west slope of Haleakala Volcano. This unit
consists of State and privately owned lands.
(ii) Map of Kula and East Haleakala Units follows:

[[Page 79972]]

Figure 3 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP28DE22.002

(8) East Haleakala Unit: Maui County, Hawaii.
(i) The East Haleakala Unit comprises 19,393 ac (7,848 ha) of
occupied habitat in Maui County on the northeast slope of Haleakala
Volcano. This unit consists of lands owned by the National Park
Service, the State of Hawaii, and private landowners.
(ii) Map of East Haleakala Unit is provided at paragraph (7)(ii) of
this entry.
(9) Windward Hawaii: Hawaii County, Hawaii.
(i) The Windward Hawaii Unit comprises 141,085 ac (57,095 ha) of
occupied habitat in Hawaii County on the east slopes of Mauna Kea and

[[Page 79973]]

Mauna Loa Volcanoes. The unit is comprised of one large area and three
small disjunct areas that are near the northwest and south end of the
larger area. This unit consists of lands owned by the National Park
Service, the U.S. Fish and Wildlife Service, the State of Hawaii, and
private landowners.
(ii) Map of Windward Hawaii Unit follows:

Figure 4 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP28DE22.003

(10) Kau Unit: Hawaii County, Hawaii.
(i) The Kau Unit comprises 32,458 ac (13,136 ha) of occupied
habitat in Hawaii County on the southeast slope of Mauna Loa Volcano.
The unit consists of State and privately owned lands.
(ii) Map of Kau and South Kona Units follows:

[[Page 79974]]

Figure 5 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (10)(ii)
[GRAPHIC] [TIFF OMITTED] TP28DE22.004

(11) South Kona Unit: Hawaii County, Hawaii.
(i) The South Kona Unit comprises 51,376 ac (20,791 ha) of occupied
habitat in Hawaii County on the west slope of Mauna Loa Volcano. The
unit is comprised of four roughly similar sized areas separated from
each by distances of less than 1 mi (1.6 km). This unit consists of
lands owned by the U.S. Fish and Wildlife Service, the State of Hawaii,
and private landowners.
(ii) Map of South Kona Unit is provided at paragraph (10)(ii) of
this entry.
(12) North Kona Unit: Hawaii County, Hawaii.

[[Page 79975]]

(i) The North Kona Unit comprises 13,599 ac (5,503 ha) of occupied
habitat in Hawaii County on the north, west, and south slopes of
Hualalai Volcano. This unit is comprised of one large area to the north
and one smaller disjunct area to the south. This unit consists of State
and privately owned lands.
(ii) Map of North Kona Unit follows:

Figure 6 to Iiwi (honeycreeper) (Drepanis coccinea) paragraph (12)(ii)
[GRAPHIC] [TIFF OMITTED] TP28DE22.005

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-27544 Filed 12-27-22; 8:45 am]
BILLING CODE 4333-15-P

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