Local groups are working to implement actions urgently needed to address the importation of nonnative, invasive species. Migratory Bird Treaty Act (MBTA). Fuel and oil spills are the most important contaminant threat to Hawaiian waterbirds. Any injury or mortality of nene associated with the actions excepted under paragraphs (d)(3)(iii)(A) through (C) of this section must be reported to the Service and authorized State wildlife officials within 72 hours, and specimens may be disposed of only in accordance with directions from the Service. The frontal shield is usually white but can vary from bluish white to yellow to dark blood red. We received the 2017 statewide nene count of individuals from the Hawaii DLNR, which includes a statewide population of 3,252 individuals comprised of 1,104 individuals on Hawaii, 1,482 individuals on Kauai, 627 individuals on Maui, 37 individuals on Molokai, and 2 individuals on Oahu. The reclassification of a listed species can only be completed by issuing a rule. Once the material is wrapped around their legs, nene have an increased risk of becoming entangled with other objects, experiencing skin lacerations, and having the circulation cut from their legs leading to infection and the death of the limb (Kauai DOFAW 2015, in litt.). %PDF-1.4 %���� 1999, p. 24). 7-10). and services, go to 0000003801 00000 n Our Response: We agree that taro farms on Kauai support large numbers of nene and that taro farms are important, although not ideal, habitat. We received a response from one peer reviewer. Harassment of nene in the course of surveys that benefit and further the recovery of nene is also considered to be within the scope of this 4(d) rule. Shooting nene is prohibited under Federal and State law, and subject to both civil and criminal penalties. Additionally, any form of hazing is still prohibited under State law, and any proposed action that may affect nene requires consultation with the State. 12/18/2019 at 8:45 am. Overuse for commercial, recreational, scientific, or educational purposes is not a threat to the nene. Continued monitoring of the occurrence of disease in nene populations, as well as early detection of avian botulism outbreaks or cases of avian influenza or WNV, should minimize the impacts of these threats. This bill is a significant step toward optimizing biosecurity capacity in the State, but its effectiveness into the future will be dependent on adequate funding. Such harassment techniques must avoid causing direct injury or mortality to nene. The Public Inspection page Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Nene have been very successful in these areas, indicating their adaptability to a variety of habitats. On the island of Hawaii, the current population estimate is 1,091, which includes 598 birds relocated from Kauai (NRAG 2017; DLNR 2018, in litt.). Predation is an ongoing threat that we expect will continue indefinitely into the future and require continued management, as the main Hawaiian islands are too large for complete eradication of nonnative predators to be feasible. Areas of nene habitat known to be affected include nesting, roosting, and molting sites; however, the extent of affected habitat and the actual impacts to that habitat as a result of the collapses and the ash are not known at this time (Misajon 2018, in litt.). See State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. Aug. 24, 2018), did not address this issue, and our conclusion is therefore consistent with the opinion in that case. Self-sustaining was defined as maintaining (or increasing) established population levels without additional releases of captive-bred nene, although we recognized that continued management, such as predator control or pasture management (e.g., mowing or grazing regime), may need to be continued. Effects of nonnative ungulates have been somewhat less severe above 6,562 ft (2,000 m) because nonnative weeds are less prevalent (Banko et al. 1999, pp. This movement pattern is believed to have occurred historically (Banko et al. We also concur that low genetic variation and inbreeding, although threats, are not the dominating factors limiting nene population numbers. 67-78). Please also see our response to related comment (22). West Nile Virus has not yet reached the Hawaiian Islands, but there are serious concerns that it will as it makes it’s way across the contiguous 48 states. 2004, p. 496; Teifke et al. provide legal notice to the public or judicial notice to the courts. A Rule by the Fish and Wildlife Service on 12/19/2019. In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. The HDLNR noted that their 2017 count includes the most recent translocation efforts. The ‘alae ke‘oke‘o is dark slate gray with a white bill and a large frontal shield (patch on top of head). (2) Comment: Downlisting the nene, which is a uniquely adapted Hawaiian goose (and the only remnant species of a small Branta radiation in the islands), would reduce their standing for conservation mitigation and increase the likelihood of take. comm.). 3-4; Hawaii Civil Defense 2011, ch. 2005, pp. Avian botulism is a paralytic disease caused by the ingestion of a natural toxin produced by the bacteria Clostridium botulinum. Between 2011 and 2016, 646 nene were translocated from Kauai to Hawaii (598 birds) and Maui (48 birds) to reduce aviation safety concerns at Lihue airport on Kauai. Hazing of nene is considered intentional harassment, which creates the likelihood of injury and has been prohibited take. 1-12), with the most severe events often associated with the El Niño phenomenon (Hawaii Civil Defense 2011, p. 14-3). In the past, a number of mortalities caused by vehicle collisions were reported in Hawaii Volcanoes (41) and Haleakala (14) National Parks (USFWS 2004, pp. The HDOA assumes the 2017 count did not include the 640 nene that were relocated from Kauai to Maui and Hawaii from 2011 to 2016 (83 FR 13935; April 2, 2018). Hazing and other persistent deterrence actions are management strategies that may be used to address wildlife conflict issues. Predation is expected to continue indefinitely as a threat to nene, as the main Hawaiian islands are too large for complete eradication of predators to be feasible with current technology. Nonnative ungulates and plants are ongoing threats that we expect will continue indefinitely into the future and require continued management, as the Start Printed Page 69926main Hawaiian islands are too large for complete eradication to be feasible. On Kauai, flooding has decreased nest success for Start Printed Page 69925the past 2 years (Webber et al. 1167-1168, 1171, 1173). 2011, p.5; Intergovernmental Panel on Climate Change 2014, p. 8). THREATS: Similar to the rest of Hawaiian native waterbirds, ‘alae ke‘oke‘o are threatened by: Habitat loss. The black rat is distributed widely throughout the main Hawaiian islands and can be found in a range of ecosystems and as high as 9,000 ft (2,700 m), but it is most common at low- to mid-elevations (Tomich 1986, pp. From 2006 to 2016, a total of 26 nene fatalities and an adjusted take of 50 nene have been reported at the three Maui wind energy facilities (DOFAW 2016, in litt.). Our Response: We have added unintentional take, specifically harassment, resulting from survey work that benefits and furthers the recovery of nene to the excepted forms of take under Intentional Harassment Not Start Printed Page 69936Likely to Cause Mortality or Direct Injury, below. We are aware that data indicate an increase in frequency and intensity of both drought and hurricanes, and indicate species range shifts due to a warming ambient global temperature, and we will work with partners to do our best to minimize such impacts to nene and nene habitat. This final rule incorporates the following substantive changes to our proposed rule, based on the comments we received: (1) During the comment period, we received new information regarding the recent volcanic activity on the island of Hawaii. 0000004257 00000 n We have added an analysis of the effects of volcanic activity to the nene under Factor A. Please see 4(d) Rule, below, and Summary of Changes from Proposed Rule, above. Although we have added volcanic activity as a threat under Factor A in this rule, we do not identify volcanic activity as a dominant factor that threatens the survival of the species as there are additional self-sustaining nene populations on the islands of Kauai and Maui. Here, we provide only new information we received since the publication of the April 2, 2018, proposed rule. Some subpopulations may potentially be affected in the future by habitat changes resulting from the effects of climate change such as increases in drought, hurricanes, or sea-level rise (Factor A) and nene may potentially be affected in the future by introduction of diseases such as West Nile virus (Factor C). Long periods of decline in annual precipitation result in a reduction of moisture availability; an increase in drought frequency and intensity; and a self-perpetuating cycle of nonnative plant invasion, fire, and erosion (US-GCRP 2009, pp. ; 2015, in litt.) Regarding the “New City” plans on Kauai, this proposed development occurs in an area on Kauai that is currently at least partially developed, and nene are not known to occupy the project area nor adjacent areas. To allow this would impermissibly disrupt nene populations in an area where they are highly concentrated. 1997, pp. However, since 2009, decreases in contributed funding have limited the positive contributions of these groups to implementing the laws and rules that can protect and control threats to nene. On Hawaii Island, three facilities with a total of 35 WTGs are in operation at Hawi (16 WTGs), South Point (14 WTGs), and Lalamilo Wind Farm (5 WTGs); however, there are no reports of nene being killed at these facilities (Sether 2019, pers. The presence of pigs can also attract feral dogs that may then prey upon nene (NPS 2016, p. 2). We also agree that wind turbines have the potential to harm nene. (4) Possession and other acts with unlawfully taken specimens as provided in § 17.21(d)(2) through (4)). Feral ungulates and invasive plant species led to further degradation of nene habitat by negatively impacting forage quality, shelter, and potential nest sites. 1999, p. 11; Franklin 2016, pers. comm.). We also contacted appropriate Federal and State agencies, scientific experts, Native Hawaiian organizations, and other interested parties and invited them to comment on the proposal. Feral ungulates and nonnative plants led to degradation of nene habitat by negatively impacting forage quality, shelter, and potential nest sites. However, if they occur in combination with other factors, the cumulative impacts constitute an ongoing threat. Regulating these activities will help preserve the species' remaining populations. Although classified as threatened upon the effective date of this final rule (see DATES, above), nene are still protected under both the Act and Hawaii Endangered Species Law. 703-712, 50 CFR 10.13), a domestic law that implements the U.S. commitment to four international conventions (with Canada, Japan, Mexico, and Russia) for the protection of shared migratory bird resources. While vehicle collisions could potentially impact certain populations, they do not constitute a threat to the entire species now, and we do not expect them to be a threat in the foreseeable future. Global Change Research Program (US-GCRP) 2009, pp. Start Printed Page 69943These prohibitions will result in regulating a range of human activities that have the potential to affect nene, including agricultural or urban development; energy development; recreational and commercial activities; introduction of predators; and direct capture, injury, or killing of nene. comm.). Although we do not have specific data to support this hypothesis, we find it a reasonable assumption based on recent population genetics research. The rise in sea level projected by climate change models (Spada et al. The use of certain fencing and erosion control materials has resulted in entanglement of nene with the potential to cause impaired movement, injury, and in some cases mortality. 0000000896 00000 n 18-21). 1986, p. 363). 0000001182 00000 n Nene have evolved alongside volcanic activity on the island of Hawaii for centuries, and despite past and present activity, volcanic activity has not been identified as a dominant factor that threatens the survival of the species. Nene are often seen foraging along the edges of highways and ditches as a result of regular mowing and runoff from the pavement creating especially desirable grass in these areas. ), commercial chemical bird repellents, ultrasonic repellers, audio deterrents (noisemakers, pyrotechnics, etc. The spread of avian influenza and WNV in North America has serious implications if either arrives in Hawaii. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Funding for the partnerships is provided through a variety of State and Federal sources, public and private grants, and in-kind services provided by the partners and volunteers. Our Response: All listing decisions made under the Federal Endangered Species Act are based on a biological analysis of whether a species is an endangered species or a threatened species because of any of the five factors specified under section 4 of the Act. 3-4). Impacts associated with climate change may become a threat in the future. However, under 50 CFR 402.14, the Federal agency will still need to consult with the Service if the proposed action may affect nene, unless the agency determines with written concurrence from the Service that the proposed action is not likely to adversely affect the nene. Kauai Department of Fish and Wildlife (DOFAW) also has predator control programs and may provide supplemental feed during drought years. The publication of the proposed downlisting with a 4(d) rule opened a 60-day comment period, ending on June 1, 2018. Under this 4(d) rule, take will generally continue to be prohibited, but the following specific take will be excepted under the Act, provided the additional measures described in the rule are adhered to: The increased interaction of nene with the human environment increases the potential for nene to cause conflicts for business, agricultural, residential, and recreational activities, as well as the potential for nene to become habituated to hazardous areas (e.g., golf courses, roadways, parks, and farms). One commented that nene are recognized as the most genetically bottlenecked listed species given their Start Printed Page 69938near extinction in the 1940s, and that genetic fecundity of nene is unknown and needs to be adequately assessed and demonstrated as independently viable on all islands on which it occurs before downlisting is biologically supportable. 1999). 4802-4803; Diaz et al. Nene habitat that occurs on NWRs is protected under the National Wildlife Refuge System Improvement Act of 1997 and section 7 of the Endangered Species Act. 1997, pp. 1,165-1,169). 84-85). We anticipate impacts from human activities to continue into the foreseeable future. (iii) Take incidental to an otherwise lawful activity caused by: (A) Intentional harassment of nene that is not likely to cause direct injury or mortality. Thus, low genetic variation may not be a factor limiting reproductive success of the nene on Kauai (Rave 1995, p. 88).Start Printed Page 69932. headings within the legal text of Federal Register documents. 10, 12, 17-18, 32-33; Giambelluca 2013, p. 6). Pigs may roam over nearly the entire extent of the range of nene. 2017, pp. At the time the draft revised recovery plan was written, the statewide population was estimated at approximately 1,300 nene with populations on Hawaii (350), Maui (250), Kauai (620), and Molokai (55). However, under 50 CFR 402.14, a Federal agency would still need to consult with the Service if the proposed action may affect nene, unless the agency determines with written concurrence from the Service that the proposed action is not likely to Start Printed Page 69941adversely affect the nene. Introduced European pigs hybridized with smaller, domesticated Polynesian pigs; became feral; and invaded forested areas, especially mesic and wet forests, from low to high elevations, and are present on all the main Hawaiian islands except Lanai and Kahoolawe, where they have been eradicated (Tomich 1986, pp. In 2012 and 2016, a total of three mongooses were captured in Lihue, Kauai, at air cargo and harbor facilities, as well as a resort adjacent to airport property (KISC 2016b, in litt.). Survival data from 1960 through 1990 for released nene on the island of Hawaii showed that the highest mortality rate was found among newly released goslings during drought years. We have included the prohibition of import, export, interstate and foreign commerce, and sale or offering for sale in such commerce due in part to the increased risk of exposing nene to diseases such as West Nile virus. Comprehensive control of an array of nonnative species and management to reduce disturbance regimes that favor them remain limited in scope. Widespread exposure to T. gondii was detected in wild birds from Kauai, Maui, and Molokai (21 to 48 percent of birds examined) (Work et al. Our Response: We agree that continued conservation actions are essential to the full recovery of nene. Our Response: Leases and special permits associated with the Hanalei NWR may be able to be revised to accommodate the Federal exceptions outlined in this final 4(d) rule. Avian pox is caused by a virus that causes inflammation of the skin, and in severe cases may result in large scabs that block circulation and lead to the loss of digits or entire limbs or lead to blindness, the inability to eat, or death (USGS-NWHC 2017a, in litt.). 0000047653 00000 n Some habitats are expected to be affected by habitat changes resulting from the effects of climate change (Factor A). 0000001698 00000 n Avian influenza and West Nile virus (WNV), if established, also have the potential to affect the nene population. This 4(d) rule will provide for the conservation of the nene by specifically prohibiting the following actions that can affect nene, except as otherwise authorized or permitted: Import or export; take; possess and other acts with unlawfully taken specimens; deliver, receive, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce. The large flowers, which are pollinated by forest birds, open white, turning a conspicuous pink and rose color, then pale purple with age. The Hawaii Division of Forestry and Wildlife also provides supplemental food for nene populations on Hawaii Island. During the recent Nene Relocation Project, birds from Kauai in which Plasmodium was detected were kept on Kauai and not translocated to Maui or Hawaii Island (Kauai Lagoons 2015, in litt.). The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range, Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes, Factor D. The Inadequacy of Existing Regulatory Mechanisms, Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence, Overall Summary of Factors Affecting Nene, Status Throughout a Significant Portion of Its Range, Prohibition of Import, Export, and Interstate and Foreign Commerce, Prohibition of Possession and Other Acts With Unlawfully Taken Specimens, Intentional Harassment Not Likely To Cause Mortality or Direct Injury, Additional Authorizations for Law Enforcement Officers, PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS, https://www.federalregister.gov/d/2019-26548, MODS: Government Publishing Office metadata, *         *         *         *         *         *         *. 2015, p. 693). The U.S. Supreme Court has noted that very similar statutory language demonstrates a large degree of deference to the agency. This suggests that although exposure to T. gondii is widespread and ongoing, the threat of disease caused by T. gondii is expected to be low in magnitude and is thus not likely to have population-level impacts on nene into the foreseeable future. that agencies use to create their documents. Register, and does not replace the official print version or the official Permanent “Nene Crossing” signs alert drivers to the potential for birds in the primary area(s) of concern, and temporary crossing signs are deployed when birds are observed frequenting specific road side sites. We also appreciate the information on nene translocation efforts between 2011 and 2016. ; Uyehara 2018, in litt.). Nothing in this 4(d) rule will change in any way the recovery planning provisions of section 4(f) of the Act, the ability of the Service to enter into partnerships for the management and protection of the nene, or the consultation requirements under section 7 of the Act. Goslings occasionally drown in stock ponds, water troughs, and other water sources where exit to land is difficult (Banko et al. To minimize the effects of drought on the food availability and adequate nutrition, habitat enhancement activities to provide foraging opportunities, especially during the breeding season, will need to be maintained. If, during the breeding season, a landowner desires to conduct an action that would intentionally harass nene to address nene loafing or foraging in a given area, a qualified biologist familiar with the nesting behavior of nene must survey in and around the area to determine whether a nest or goslings are present. 1999, pp. Section 4 of the Act (16 U.S.C. Federal Register issue. 30-31; Work et al. Despite low genetic diversity and high levels of inbreeding, nene numbers have increased dramatically on Kauai. 2005, p. 12). The MBTA regulates most aspects of take, possession, transport, Start Printed Page 69930sale, purchase, barter, export, and import of migratory birds and prohibits the killing, capturing, and collecting of individuals, eggs, and nests, unless such action is authorized by permit. This plan outlines the myriad biosecurity threats (e.g., mongoose and other harmful nonnative animals, diseases, and nonnative plants) in Hawaii and provides broad-scale solutions, including inspections at all air and sea ports to prevent inter-island, interstate, and international spread of invasive species. 692-693). The capacity of State and Federal agencies and their nongovernmental partners in Hawaii to provide sufficient inspection services, enforce regulations, and mitigate or monitor the effects of nonnative species is limited due to the large number of taxa currently causing damage (CGAPS 2009). Recovery efforts initially focused on the establishment of populations, with the majority of releases of captive-bred nene at high-elevation sanctuaries (above 5,000 ft (1,524 m)) on the islands of Maui and Hawaii. Populations on Kauai, Maui, and Hawaii are exhibiting a stable or increasing trend, while the nene population on Molokai is experiencing a fluctuation in population numbers. 2008, pp. Under section 7 of the Act, Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of nene; this 4(d) rule does not alter the section 7 requirements, and Federal actions covered by this rule are still subject to those requirements. The effect of this final rule is the exception of certain specific actions from the Act's section 9 prohibitions on take. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In other words, the mitigation actions must produce nene that, but for the mitigation, would not have been produced. Predator control may occur year-round or during prescribed periods. Nene are particularly vulnerable to dogs because they have little instinctive fear of them. In 2016, the Service released the Kauai Mongoose Standard Operating Procedures to Conduct an Island-wide Status Assessment and Early Detection Rapid Response (Phillips and Lucey 2016, pp. Both black and Pacific rats have been found up to 7,000 ft (2,000 m) on Maui, but the Norway rat has been found only at lower elevations (Sugihara 1997, p. 194). Installation biologists routinely conduct surveys to collect data on nene on installation property and in particular surveys for nests during the breeding season. This State law also recognizes as endangered or threatened those species determined to be endangered or threatened pursuant to the Federal Endangered Species Act. Principal Deputy Director, U.S. Since then, ongoing predator trapping focused in the primary breeding and brooding areas at Hawaii Volcanoes National Park during the breeding season has likely contributed to the overall increase in nene observed. legal research should verify their results against an official edition of Human-wildlife conflict still exists. Use the PDF linked in the document sidebar for the official electronic format. ; Phillips and Lucey 2016). Thus, the possession, sale, delivery, carrying, transporting, or shipping of illegally taken nene should continue to be prohibited in order to maintain the viability of the nene population. Nene are occasionally observed at Kealia Pond NWR (USFWS 2011b, p. 4:14). (4) Reporting and disposal requirements. Some subpopulations may potentially be affected in the future by habitat changes resulting from the effects of climate change such as increases in drought, hurricanes, or sea-level rise (Factor A), and nene may potentially be affected in the future by introduction of diseases such as West Nile virus (Factor C). (18) Comment: Three commenters expressed that inbreeding is a concern, especially on islands other than Kauai. Monitoring of released birds showed high mortality and low nesting success, indicating that food availability and predators had a significant impact on wild populations (Banko 1992, pp. Learn more here. We are also adopting a rule under the authority of section 4(d) of the Act (a “4(d) rule”) to enhance conservation of the species through range expansion and management flexibility. We note that the court in Desert Survivors v. Department of the Interior, No. Once a staple of Hawaiian agriculture, wet taro fields have nearly all been replaced by dry sugarcane fields. 692-693). 29-30). Hawaii adopted this blubbery buddy as its state mammal. or 9(a)(2).” Thus, regulations promulgated under section 4(d) of the Act provide the Secretary with wide latitude of discretion to select appropriate provisions tailored to the specific conservation needs of the threatened species. 0000000016 00000 n 1991, pp. While nene on Molokai have bred successfully, periodically low fledging success has been reported due to the high mortality of nestlings, possibly due to overcrowding at the release site. Until the ACFR grants it official status, the XML 2016, p. 256). 0000002459 00000 n Three species of introduced rats occur in the Hawaiian Islands. 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Threatened Destruction, Modification, or upon request from the effects of this paragraph ( d ) rule favor remain!