62944 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1019–AI25 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Mariana Fruit Bat and 

Guam Micronesian Kingfisher on 

Guam and the Mariana Crow on Guam 

and in the Commonwealth of the 

Northern Mariana Islands 

AGENCY: Fish and Wildlife Service, 

Interior 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating critical habitat for the 

Mariana fruit bat (Pteropus mariannus 

mariannus), Guam Micronesian 

kingfisher (Halcyon cinnamomina 

cinnamomina), and Mariana crow 

(Corvus kubaryi) pursuant to the 

Endangered Species Act, as amended 

(Act or ESA). We are designating 

approximately 376 acres (ac) (152 

hectares (ha)) on the island of Guam for 

the Mariana fruit bat and the Guam 

Micronesian kingfisher. For the Mariana 

crow, we are designating approximately 

376 ac (152 ha) on the island of Guam 

and approximately 6,033 ac (2,442 ha) 

on the island of Rota in the 

Commonwealth of the Northern Mariana 

Islands (CNMI). On Guam, the Mariana 

fruit bat, Mariana crow, and Guam 

Micronesian kingfisher critical habitat 

unit boundaries are identical. On Rota, 

critical habitat is designated only for the 

Mariana crow. Counting identical or 

overlapping units only once for all three 

species, we are designating 

approximately 6,409 ac (2,594 ha) on 

Guam and Rota. 

DATES: This rule becomes effective 

November 29, 2004. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, will be available for 

inspection, by appointment, during 

normal business hours at the Pacific 

Islands Fish and Wildlife Office, U.S. 

Fish and Wildlife Service, 300 Ala 

Moana Boulevard, Room 3–122, Box 

50088, Honolulu, HI 96850. Copies of 

the final rule, addendum to the 

economic analysis, and draft economic 

analysis are available by writing to the 

above address or by connecting to the 

Service Internet Web site at http:// 

pacificislands.fws.gov. 

FOR FURTHER INFORMATION CONTACT: Gina 

Shultz, Assistant Field Supervisor, 

Pacific Islands Fish and Wildlife Office, 

U.S. Fish and Wildlife Service, 300 Ala 

Moana Boulevard, Room 3–122, Box 

50088, Honolulu, HI 96850 (telephone: 

808/792–9400; facsimile: 808/792– 

9581). 

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, 

consumes enormous agency resources, 

and imposes huge social and economic 

costs. The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the ESA can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 445 species (36 percent) of the 

1,244 listed species in the U.S. under 

the jurisdiction of the Service have 

designated critical habitat. We address 

the habitat needs of all 1,244 listed 

species through conservation 

mechanisms such as listing, section 7 

consultations, the section 4 recovery 

planning process, the section 9 

protective prohibitions of unauthorized 

take, section 6 funding to the States, and 

the section 10 incidental take permit 

process. The Service believes that it is 

these measures that may make the 

difference between extinction and 

survival for many species. 

We note, however, that a recent 9th 

Circuit judicial opinion, Gifford Pinchot 

Task Force v. United States Fish and 

Wildlife Service, has invalidated the 

Service’s regulation defining destruction 

or adverse modification of critical 

habitat. We are currently reviewing the 

decision to determine what effect it may 

have on the outcome of consultations 

pursuant to Section 7 of the Act. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

to sue relative to critical habitat, and to 

comply with the growing number of 

adverse court orders. As a result, listing 

petition responses, the Service’s own 

proposals to list critically imperiled 

species, and final listing determinations 

on existing proposals are all 

significantly delayed. Litigation over 

critical habitat issues for species already 

listed and receiving the Act’s full 

protection has precluded or delayed 

many listing actions nationwide. 

The accelerated schedules of courtordered designations have left the 

Service with almost no ability to 

provide for adequate public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

proposals due to the risks associated 

with noncompliance with judiciallyimposed deadlines. This in turn fosters 

a second round of litigation in which 

those who fear adverse impacts from 

critical habitat designations challenge 

those designations. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides relatively little additional 

protection to listed species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62945

Environmental Policy Act, are all part of 

the cost of critical habitat designation. 

None of these costs result in any benefit 

to the species that is not already 

afforded by the protections of the Act 

enumerated earlier, and they directly 

reduce the funds available for direct and 

tangible conservation actions. 

Background 

The Territory of Guam (Guam) is the 

largest and southernmost of the 16 

islands in the Mariana archipelago. 

Guam is located at 13°30′ N and 145° E 

and is approximately 30 miles (mi) (49 

kilometers (km)) long and 4 to 9 mi (7 

to 15 km) wide. Rota is the fourth largest 

island in the Mariana archipelago and is 

located 30 mi (49 km) north of Guam at 

14°10′ N and 145° E. The island is 

approximately 11 mi (18 km) long and 

2.5 to 4 mi (4 to 7 km) wide. We 

provided a detailed physical description 

for the islands of Guam and Rota in the 

proposed critical habitat designation (67 

FR 63738). 

Taxonomy, Life History, Distribution, 

Habitat, and Threats 

Mariana Fruit Bat (or Fanihi) 

This species is a medium-sized fruit 

bat that historically inhabited all of the 

major islands in the Mariana 

archipelago. At present, only the Guam 

population of Mariana fruit bat is listed 

as endangered. A proposed rule to 

reclassify the Guam population of the 

species as threatened and also list the 

population in the CNMI as threatened 

was published on March 26, 1998 (63 

FR 14641). The Mariana fruit bat 

typically roosts in colonies in native 

forest during the day and forages widely 

at night on nectar, fruit, and leaves 

(Wiles 1983). On Guam, the Mariana 

fruit bat was historically found 

throughout native forests. However, by 

1995, the island population had been 

reduced to between 300 and 500 and 

was restricted primarily to forest on the 

northern tip of the island (Wiles et al.

1995), although there are occasional 

reports of bats from southern Guam 

around Fena Reservoir (Morton and 

Wiles 2002). Illegal hunting is believed 

to be one of the major causes of decline 

in this species, but predation by the 

brown treesnake (Boiga irregularis) also 

may be an important limiting factor 

(Wiles 1987). For additional information 

on the Mariana fruit bat and threats to 

the species, the reader is referred to the 

critical habitat proposed rule (67 FR 

63738, October 15, 2002). 

Mariana Crow (or Aga)

The Mariana crow is a small, black 

crow endemic to the islands of Guam 

and Rota. The Mariana crow is 

omnivorous and typically nests in 

native forest (USFWS in prep.). On 

Guam, the crow historically was widely 

distributed in forest habitats, but 

densities were highest in limestone 

forests and lowest in grasslands and 

areas with human settlement (Jenkins 

1983; Michael 1987). Similar to other 

Guam forest birds, the crow disappeared 

from most of the island with the spread 

of the brown treesnake and was 

restricted to the northern cliff forests by 

the mid 1970s. The population on Guam 

now numbers 12 birds, 10 of which 

were translocated from Rota or 

mainland zoos (Aguon 2002). On Rota, 

Mariana crows were considered 

relatively common and widely 

distributed in 1976 (Pratt et al. 1979). 

The first island-wide survey of crows on 

Rota in 1982 estimated a population of 

1,318 individuals (Engbring et al. 1986). 

Crows still are distributed widely on 

Rota (Morton et al. 1999), but results of 

several surveys indicate that the crow 

population has declined since the early 

1980s. The primary factors in the 

decline of crows on Rota are uncertain; 

however, habitat loss and degradation, 

human persecution, and predation by 

introduced rats may be factors (USFWS 

in prep.). For additional information on 

the Mariana crow and threats to the 

species the reader is referred to the 

critical habitat proposed rule (67 FR 

63738, October 15, 2002). 

Guam Micronesian Kingfisher (or Sihek) 

The Guam Micronesian kingfisher is a 

forest-dwelling kingfisher endemic to 

Guam. The Guam Micronesian 

kingfisher preys on insects and small 

vertebrates and nests in cavities 

excavated in soft, rotten wood (Jenkins 

1983; Marshall 1989). The Guam 

subspecies was common throughout 

Guam as recently as 1945 (Marshall 

1949), and was found throughout most 

forest types (Jenkins 1983). Up to 3,000 

birds were recorded in 1981 (Engbring 

and Ramsey 1984), but the kingfisher 

declined rapidly and now is extinct in 

the wild. However, a captive population 

of 63 birds has been established and is 

maintained at 11 zoos in the mainland 

United States and by the Guam Division 

of Aquatic and Wildlife Resources (B. 

Bahner, National Zoological 

Association, in litt. 2003). The primary 

factor in the decline of the Guam 

Micronesian kingfisher was predation 

by the introduced brown treesnake 

(Savidge 1986, 1987). For additional 

information on the Guam Micronesian 

kingfisher and threats to the species the 

reader is referred to the critical habitat 

proposed rule (67 FR 63738, October 15, 

2002). 

Previous Federal Action 

On October 15, 2002, we published a 

proposed rule to designate critical 

habitat for the Mariana fruit bat, 

Mariana crow, and Guam Micronesian 

kingfisher (67 FR 63738). In that 

proposed rule, we included a detailed 

summary of the previous Federal 

actions completed prior to the 

publication of the proposal. The 

proposed critical habitat consisted of 

approximately 24,803 ac (10,037 ha) in 

two units on the island of Guam for the 

Mariana fruit bat and Guam 

Micronesian kingfisher. For the Mariana 

crow, we proposed designating 

approximately 23,004 ac (9,309 ha) in 

two units on the island of Guam and 

approximately 6,084 ac (2,462 ha) in 

one unit on the island of Rota in the 

CNMI. We determined that designation 

of critical habitat would not be prudent 

for the little Mariana fruit bat (Pteropus 

tokudae), Guam broadbill (Myiagra 

freycineti), and Guam bridled white-eye 

(Zosterops conspicillatus conspicillatus) 

because all three species likely are 

extinct. Also, on February 23, 2004, we 

published a final rule delisting the 

Guam broadbill due to extinction (69 FR 

8116). In the proposed rule, we 

included a detailed summary of the 

previous Federal actions completed 

prior to publication of the proposal. We 

now provide updated information on 

the actions we completed since the 

proposed critical habitat designation. 

On October 18, 2002, we mailed the 

proposed rule and a fact sheet to all 

interested parties. The public comment 

period was open for 60 days until 

December 15, 2002. On October 23, 

2002, we held a public meeting on 

Guam at the Tamuning Community 

Center to provide information and 

promote discussion about critical 

habitat designation. The meeting was 

attended by 53 people, not including 

Service staff. On October 24, 2002, we 

also held a public meeting on Rota at 

the Rota Resort and Country Club. The 

meeting was attended by 6 people, not 

including Service staff. On November 6, 

2002, we held a public hearing on Rota 

at the Rota Resort and Country Club. 

The hearing was attended by 12 people, 

and 8 people gave oral testimony. On 

November 7, 2002, we held a public 

hearing on Guam in Tumon at the 

Outrigger Guam Resort. This hearing 

was attended by 50 people, and 20 

people presented oral testimony. On 

December 5, 2002, we published a 

notice in the Federal Register and 

issued a press release announcing 

extension of the public comment period 

and availability of the draft economic 

analysis for the proposed designation of 

62946 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

critical habitat for the Mariana fruit bat, 

Mariana crow, and Guam Micronesian 

kingfisher (67 FR 72407). The Federal 

Register notice was mailed to interested 

parties on December 6, 2002. The 

comment period was open for an 

additional 30 days until January 6, 2003. 

On January 14, 2003, the Service met 

with a delegation from the Mariana 

Public Lands Authority (CNMI) to 

discuss concerns about critical habitat. 

On January 28, 2003, we published a 

notice to reopen the comment period 

until February 18, 2003, due to 

hardships caused by Supertyphoon 

Pongsona on Guam and Rota (68 FR 

4159). The Federal Register notice was 

mailed to all interested parties on the 

day of publication.

On May 30, 2003, the Government of 

Guam filed a motion to extend the 

deadline for publication of the final rule 

to allow time to develop an alternative 

to critical habitat designation on Guam. 

The Government of Guam stated that 

they did not have adequate time to 

develop these alternatives due to a 

recent change in administration and 

hardships encountered as a result of 

Typhoon Chataan and Supertyphoon 

Pongsona. On June 13, 2003, the Guam 

District Court extended the deadline for 

publication ‘‘indefinitely’’ and set a 

status conference for October 7, 2003. 

On June 23, 2003, the Plaintiffs 

appealed the district court’s June 13, 

2003, order to the 9th Circuit. On 

October 7, 2003, the Guam District 

Court held a status conference in which 

the Government of Guam requested a 

continuance of one month. On October 

16, 2003, the Guam District Court 

denied the request for further 

continuance and ruled that it would 

take no further action while the case 

was on appeal. The Plaintiffs withdrew 

their appeal, and on January 7, 2004, the 

U.S. Court of Appeals for the Ninth 

Circuit dismissed the appeal and 

returned the case to the Guam District 

Court. 

In March and April 2004, a joint 

stipulation and order to finalize the 

critical habitat for the Mariana fruit bat, 

Mariana crow, and Guam Micronesian 

kingfisher were agreed to and approved 

by the Guam District Court. The 

Government of Guam submitted their 

proposed alternative to critical habitat 

to the Service on April 5, 2004. On June 

2, 2004, we published a notice in the 

Federal Register reopening the 

comment period on the proposed rule 

until July 19, 2004, to allow interested 

parties additional time to consider and 

comment on the Government of Guam’s 

proposal (69 FR 31073). 

Critical Habitat 

Critical habitat is defined in section 

3(5)(A) of the Act as—(i) the specific 

areas within the geographic area 

occupied by a species, at the time it is 

listed in accordance with the Act, on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) that 

may require special management 

considerations or protection; and, (ii) 

specific areas outside the geographic 

area occupied by a species at the time 

it is listed, upon a determination that 

such areas are essential for the 

conservation of the species (16 U.S.C. 

1532(5)(A)). ‘‘Conservation,’’ as defined 

by the Act, means the use of all methods 

and procedures that are necessary to 

bring an endangered or a threatened 

species to the point at which listing 

under the Act is no longer necessary (16 

U.S.C. 1532 (3)). 

Critical habitat receives protection 

under section 7 of the Act which 

requires Federal agencies, including the 

Service, to ensure that actions they 

fund, authorize, or carry out are not 

likely to destroy or adversely modify 

critical habitat. In our regulations at 50 

CFR 402.2, we define destruction or 

adverse modification as ‘‘a direct or 

indirect alteration that appreciably 

diminishes the value of critical habitat 

for both the survival and recovery of a 

listed species. Such alterations include, 

but are not limited to: Alterations 

adversely modifying any of those 

physical or biological features that were 

the basis for determining the habitat to 

be critical.’’ As a result of Federal 

appeals court decisions ruling this 

regulation invalid, we are currently 

reviewing the regulatory definition of 

adverse modification in relation to the 

conservation of the species. 

Section 7 also requires conferences on 

Federal actions that are likely to result 

in the destruction or adverse 

modification of proposed critical 

habitat. Aside from the added protection 

that may be provided under section 7, 

the Act does not provide other forms of 

regulatory protection to lands 

designated as critical habitat.

In order to qualify for a critical habitat 

designation, the area must be ‘‘essential 

to the conservation of the species.’’

Critical habitat designations identify, to 

the extent known using the best 

scientific and commercial data 

available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). Section 

3(5)(C) of the Act states that not all areas 

that can be occupied by a species 

should be designated as critical habitat 

unless the Secretary determines that all 

such areas are essential to the 

conservation of the species. Our 

regulations (50 CFR 424.12(e)) also state 

that, ‘‘[t]he Secretary shall designate as 

critical habitat areas outside the 

geographical area presently occupied by 

a species only when a designation 

limited to its present range would be 

inadequate to ensure the conservation of 

the species.’’

Section 4(b)(2) of the Act, as amended 

under the National Defense 

Authorization Act (Public Law No: 108–

136), requires that we take into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat. We 

may exclude areas from critical habitat 

designation when the benefits of 

exclusion outweigh the benefits of 

including the areas within critical 

habitat, provided the exclusion will not 

result in extinction of the species. 

Our Policy on Information Standards 

Under the Endangered Species Act, 

published on July 1, 1994 (59 FR 

34271), provides criteria, establishes 

procedures, and provides guidance to 

ensure that decisions made by the 

Service represent the best scientific and 

commercial data available. It requires 

that our biologists, to the extent 

consistent with the Act and with the use 

of the best scientific and commercial 

data available, use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information could be the listing package 

for the species. Additional information 

may be obtained from a recovery plan, 

articles in peer-reviewed journals, 

conservation plans developed by States 

and counties, scientific status surveys 

and studies, and biological assessments 

or other unpublished materials. 

Critical habitat designations do not 

signal that habitat outside the 

designation is unimportant to the 

Mariana fruit bat, Guam Micronesian 

kingfisher, and Mariana crow. Areas 

outside the critical habitat designation 

will continue to be subject to 

conservation actions that may be 

implemented under section 7(a)(1), and 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard 

and the section 9 take prohibition, as 

determined on the basis of the best 

available information at the time of the 

action. We specifically anticipate that 

federally funded or assisted projects 

affecting listed species outside their 

designated critical habitat areas may 

still result in jeopardy findings in some 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62947

cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by the Act and 

regulations (section 4(b)(2) and 50 CFR 

424.12), we used the best scientific 

information available to identify areas 

that contain the physical and biological 

features that are essential for the 

conservation of the Mariana fruit bat, 

Guam Micronesian kingfisher, and 

Mariana crow. This information 

included: Peer-reviewed scientific 

publications (e.g. Baker 1951; Jenkins 

1983; Wiles et al. 1995; National 

Research Council (NRC) 1997); 

published and draft revised recovery 

plans (USFWS 1990a, 1990b, 2004a, in 

prep); the final listing rule (49 FR 

33881); unpublished reports by the 

Guam Division of Aquatic and Wildlife 

Resources (GDAWR), CNMI Division of 

Fish and Wildlife (DFW), and the 

Service (e.g., Wiles 1982a; Engbring and 

Ramsey 1984; Morton 1996; Morton et 

al. 1999); aerial photographs and 

satellite imagery of Guam and Rota; 

personal communications with 

scientists and land managers familiar 

with the species and habitats; and 

comments received during public 

comment periods and in response to 

critical habitat outreach packages. 

Specific information we used from these 

sources includes estimates of historic 

and current distribution, abundance, 

and territory sizes for the three species, 

as well as data on resource and habitat 

requirements. From recovery plans, we 

considered the recovery objectives and 

the assessments of the habitat necessary 

to meet these objectives, as well as life 

history information.

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we are 

required to consider those physical and 

biological features that are essential to 

the conservation of the species and that 

may require special management 

considerations or protection. Such 

features are termed ‘‘primary 

constituent elements’’ and include, but 

are not limited to: Space for individual 

and population growth and for normal 

behavior; food, water, air, light, 

minerals and other nutritional or 

physiological requirements; cover or 

shelter; sites for nesting and rearing of 

offspring; and habitats that are protected 

from disturbance and are representative 

of the historical, geographical and 

ecological distributions of the species. 

The primary constituent elements for 

the bat and both of the birds can be 

found in limestone, secondary, ravine, 

swamp, agricultural, and coastal forests 

on Guam and Rota that exhibit the biotic 

and structural characteristics necessary 

for foraging, sheltering, roosting, 

nesting, and rearing of young of the 

Mariana fruit bat, Guam Micronesian 

kingfisher, and Mariana crow on Guam, 

and for these same life functions of the 

crow on Rota. Guam and Rota 

experience a high frequency of severe 

storms, and these regularly and 

significantly alter forest structure (NRC 

1997). Therefore, sufficient habitat area 

is necessary to absorb the variable 

impacts of these natural disturbances 

and still maintain the integrity of the 

primary constituent elements to support 

fruit bat, kingfisher, and crow 

populations. Specific details of primary 

constituent elements for each species 

are described below. 

Mariana fruit bat: This species feeds 

on a variety of plant material but is 

primarily frugivorous (Wiles and Fujita 

1992). Specifically, Mariana fruit bats 

forage on the fruit of at least 28 plant 

species, the flowers of 15 species, and 

the leaves of 2 plant species (Wiles and 

Fujita 1992). Some of the plants used for 

foraging include Artocarpus spp. 

(breadfruit), Carica papaya (papaya), 

Cycas circinalis (fadang), Ficus spp. 

(figs), Pandanus tectorius (kafu), Cocos 

nucifera (coconut), and Terminalia 

catappa (talisai). Many of these plant 

species are found in a variety of forested 

habitats on Guam including limestone, 

ravine, coastal, and secondary forests 

(Stone 1970; Raulerson and Rhinehart 

1991). 

During the day, Mariana fruit bats 

roost in groups or colonies and 

occasionally alone (Wiles 1987; Pierson 

and Rainey 1992). These roost sites are 

an important aspect of their biology 

because they are used for sleeping, 

grooming, breeding, and intra-specific 

interactions (USFWS 1990a). Published 

reports of roost sites on Guam indicate 

these sites occur in mature limestone 

forest and are found within 328 ft (100 

m) of clifflines that are 260 to 590 ft (80 

to 180 m) tall (USFWS 1990a). On 

Guam, Mariana fruit bats prefer to roost 

in mature fig and Mammea odorata

(chopak) trees but will also roost in 

other tree species such as Casuarina 

equisetifolia (gago), Macaranga 

thompsonii (pengua), Guettarda 

speciosa (panao), and Neisosperma 

oppositifolia (fagot) (Wheeler and 

Aguon 1978; Wiles 1981, 1982b). On 

other islands in the Mariana 

archipelago, Mariana fruit bats have 

been observed in secondary forest and 

gago groves (Glass and Taisacan 1988; 

Worthington and Taisacan 1996; 

Worthington et al. 2001). Factors 

involved in roost site selection are not 

clear, but data from Guam indicate that 

some sites may be selected for their 

inaccessibility by humans and thus 

limited human disturbance. Fruit bats 

will abandon roost sites if disturbed and 

have been reported to move to new 

locations up to 6 mi (10 km) away 

(USFWS 1990a). 

In summary, the primary constituent 

elements required by the Mariana fruit 

bat for the biological needs of foraging, 

sheltering, roosting, and rearing of 

young are found in areas supporting 

limestone, secondary, ravine, swamp, 

agricultural, and coastal forests 

composed of native and introduced 

plant species. These forest types provide 

the primary constituent elements of: 

(1) Plant species used for foraging, 

such as breadfruit, papaya, fadang, fig, 

kafu, coconut palm, and talisai; and

(2) Remote locations, often within 328 

ft (100 m) of clifflines that are 260 to 

590 ft (80 to 180 m) tall, with limited 

exposure to human disturbance and that 

contain mature fig, chopak, gago, 

pengua, panao, fagot, and other tree 

species that are used for roosting and 

reproductive activity. 

Mariana crow: Historically, the 

distribution of Mariana crows among 

habitats was similar on Guam and Rota. 

Crows were known to use secondary, 

coastal, ravine, and agricultural forests, 

including coconut plantations (Seale 

1901; Stophlet 1946; Marshall 1949; 

Baker 1951; Jenkins 1983), but all 

evidence indicates they were most 

abundant in native limestone forests 

(Michael 1987; Morton et al. 1999). 

Mariana crow nests on Guam have been 

found in 11 tree genera, all but one of 

which are native, but most nests are 

located high in emergent fig or 

Elaeocarpus joga (yoga) trees (Morton 

1996; C. Aguon, GDAWR, unpubl. data). 

On Rota, crows use both mature and 

secondary limestone forests (Morton et 

al. 1999), but not exclusively (M. Lusk 

and E. Taisacan unpubl. data). Of 156 

nest sites on Rota, 39 percent and 42 

percent were in mature and secondary 

limestone forest, respectively (Morton et 

al. 1999). Between 1992 and 1994, 90 

percent (n = 115) of observations of 

perching crows on Rota were in native 

trees, primarily in middle to low heights 

of the canopy (M. Lusk and E. Taisacan 

unpubl. data). Mariana crows nested in 

20 tree genera on Rota (Morton et al.

62948 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

1999). Of 161 nest trees found during 

1996–99, 63 percent were of four 

species: fagot, Eugenia reinwardtiana (a 

abang), Intsia bijuga (ifit), and Premna 

obtusifolia (ahgao) (Morton et al. 1999). 

Individual nest trees averaged 

approximately 7 in (16.9 cm) diameter 

at breast height and 28.5 ft (8.7 m) high. 

Canopy cover over nest sites averaged 

93 percent and was never less than 79 

percent. Although 18 percent of the 

forested area of Rota is tangantangan or 

some other species of introduced tree 

(Falanruw et al. 1989), no crow nests 

have been found in any nonnative tree 

species. Nests were located at least 950 

ft (290 m) from the nearest road and 203 

ft (62 m) from the nearest forest edge. 

The distances from edges strongly 

suggest that nesting crows are sensitive 

to disturbance by humans (Morton et al.

1999). No detailed information is 

available on historical nest site selection 

by crows on Guam, but the remaining 

crows on Guam nest and forage only in 

primary or mature limestone forest. 

On Rota, Morton et al. (1999) found 

that breeding crows in six study areas 

averaged one pair per 50 ac (22 ha) of 

forested habitat, and each territory was 

dominated by native forest. Pair 

densities ranged from one per 91 ac (37 

ha) in relatively fragmented forest, to as 

high as one pair per 30 ac (12 ha) in 

mostly intact limestone forest along a 

coastal terrace. Established pairs occupy 

territories throughout the year but only 

aggressively defend them from July 

through January. 

In addition to habitat for breeding 

territories, Mariana crows also require 

habitat for juvenile dispersal. When 

juvenile Mariana crows leave the nest, 

they are typically tended by their 

parents until the following breeding 

season, a period that ranges from 3 to 18 

months (Morton et al. 1999). After this 

parental attendance period, these 

juveniles enter the non-breeding 

population of Mariana crows until they 

are recruited into the adult population 

at approximately three years of age 

(Morton et al. 1999). Little research has 

been done on the non-breeding 

population of crows and their habitat 

needs, but the territoriality of breeding 

adults and the time required before 

juveniles enter the breeding population 

indicate that foraging habitat outside 

established territories is needed to 

maintain juvenile Mariana crows. 

Mariana crows may forage at any 

height in the forest or on the ground 

(Jenkins 1983; Tomback 1986). These 

crows forage in at least 18 tree genera, 

most of which are native (Jenkins 1983; 

Tomback 1986; C. Aguon unpubl. data). 

Mariana crows are omnivorous and have 

been observed feeding on a variety of 

native and nonnative invertebrates, 

reptiles, young rats, and birds’ eggs, as 

well as on the foliage, buds, fruits, and 

seeds of at least 26 plant species 

(Jenkins 1983; Tomback 1986; Michael 

1987; C. Aguon unpubl. data). 

In summary, the primary constituent 

elements required by the Mariana crow 

for the biological needs of foraging, 

sheltering, roosting, nesting, and rearing 

of young are found in areas that support 

limestone, secondary, ravine, swamp, 

agricultural, and coastal forests 

composed of native and introduced 

plant species. These forest types provide 

the primary constituent elements of:

(1) Emergent and subcanopy trees 

with dense cover for breeding such as 

fagot, pengua, ifit, ahgao, aabang, fig, 

yoga, and Tristiropsis obtusangula

(faniok); 

(2) Sufficient area of predominantly 

native limestone forest to allow nesting 

at least 950 ft (290 m) from the nearest 

road and 203 ft (62 m) from the nearest 

forest edge and to support Mariana crow 

breeding territories (approximately 30 to 

91 ac (12 to 37 ha)) and foraging areas 

for nonbreeding juvenile crows; and 

(3) Standing dead trees and plant 

species for foraging, such as Aglaia 

mariannensis (maypunayo), breadfruit, 

coconut palm, fagot, Hibiscus tiliaceus

(pago), ifit, tangantangan, Ochrosia 

mariannensis (langiti), kafu, ahgao, fig, 

and yoga. 

Guam Micronesian kingfisher: Jenkins 

(1983) recorded the Guam Micronesian 

kingfisher nesting and foraging in 

northern Guam in mature limestone 

forest, secondary forests, and coastal 

forests dominated by coconut trees. 

Kingfishers also were found historically 

in southern Guam in ravine and coastal 

forests (Jenkins 1983). Few data exist 

about specific kingfisher nest sites on 

Guam, but in one study, nest sites in 

northern Guam were found in native 

limestone forest, and the location of 

these sites within the forest was 

correlated with closed canopy cover and 

dense understory vegetation (Marshall 

1989). Recent studies of the Pohnpei 

Micronesian kingfisher (Halcyon 

cinnamomina reichenbachii) have 

documented that this subspecies also 

occurs in a wide range of forest types; 

however, territories of all 14 breeding 

pairs studied on Pohnpei included at 

least several hectares of mature native 

rainforest (D. Kesler, pers. comm., 

2002). 

Micronesian kingfishers are obligate 

cavity nesters and require specific 

substrates for excavating nest cavities. 

On Guam, Marshall (1989) found that 

kingfishers excavated nest cavities in 

relatively soft, decaying wood in 

standing dead trees, including faniok, 

Pisonia grandis (umumu), breadfruit, 

fig, and coconut palm, and in the mud 

nests of Nasutitermes spp. termites and 

the root masses of epiphytic ferns. All 

nest cavities found in trees were in 

large-diameter trees (average diameter at 

breast height (dbh) 16.8 ± 5.0 in (42.7 ±

12.7 cm)), and these trees contained an 

average of 19 excavations, most of 

which were incomplete (Marshall 1989). 

Multiple excavations in suitable nest 

trees suggest both the importance of 

these trees as nest sites and the 

importance of excavation in the 

kingfishers’ courtship and nesting 

behavior (Jenkins 1983). The links 

between courtship behavior, excavation 

activity, and nest substrate requirements 

have been well documented in the 

captive population of this species as 

well (Bahner et al. 1998; S. Derrickson, 

Conservation Research Center, in litt.

2002). Marshall (1989) concluded that 

the population density of kingfishers on 

Guam may be limited by the availability 

of nest sites. 

Guam Micronesian kingfishers 

maintain year-round territories, which 

they aggressively defend (Jenkins 1983). 

Nothing is known about the territory 

size requirements of Micronesian 

kingfishers on Guam, but research on 

the Pohnpei subspecies indicates that 

territory sizes in upland forest are 

approximately 25 ac (10 ha) (D. Kesler, 

pers. comm., 2001). 

Guam Micronesian kingfishers feed 

both on invertebrates and small 

vertebrates, including insects, 

segmented worms, hermit crabs, skinks, 

geckos, and possibly other small 

vertebrates (Marshall 1949; Baker 1951; 

Jenkins 1983). This species typically 

forages by perching motionless on 

exposed perches and swooping down to 

capture prey on the ground (Jenkins 

1983). Guam kingfishers also will 

capture prey from foliage and have been 

observed gleaning insects from tree bark 

(Maben 1982). Marshall (1989) observed 

no kingfishers foraging in dead trees. 

In summary, the primary constituent 

elements required for the Guam 

Micronesian kingfisher for the biological 

needs of foraging, sheltering, roosting, 

nesting, and rearing of young are found 

in areas that support limestone, 

secondary, ravine, swamp, agricultural, 

and coastal forests containing native 

and introduced plant species. These 

forest types include the primary 

constituent elements of: 

(1) Closed canopy and well-developed 

understory vegetation; large (minimum 

of approximately 17 in (43 cm) dbh), 

standing dead trees (especially faniok, 

umumu, breadfruit, fig, and coconut 

palm); mud nests of Nasutitermes spp. 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62949

termites; and root masses of epiphytic 

ferns for breeding;

(2) Sufficiently diverse structure to 

provide exposed perches and ground 

surfaces, leaf litter, and other substrates 

that support a wide range of vertebrate 

and invertebrate prey species for 

foraging kingfishers; and 

(3) Sufficient overall breeding and 

foraging area to support kingfisher 

territories of approximately 25 ac (10 

ha) each. 

Criteria Used To Identify Critical 

Habitat 

We used several criteria to identify 

and select lands for designation as 

critical habitat. For the Mariana fruit bat 

(Guam only) and Mariana crow, we 

began with all areas that are currently 

occupied. The Guam subspecies of 

Micronesian kingfisher is currently 

extirpated in the wild, so no habitat 

currently is occupied. We then 

examined unoccupied forested lands on 

Guam containing the primary 

constituent elements that are needed for 

the conservation of each species (see 

explanation below). We identified 

which unoccupied areas on Guam were 

needed for the conservation of each 

species using recovery habitat identified 

in recovery plans and information on 

the historical distribution of each 

species. Within the area of historical 

distribution, we gave preference to 

lands that provide the largest tracts of 

native forest and were more recently 

occupied by each species. We 

determined the boundaries of critical 

habitat units by the extent of suitable 

forest containing the primary 

constituent elements. The location of 

these suitable forests in many areas 

coincided with the boundaries of 

military reservations, National Wildlife 

Refuges, and conservation areas on 

Guam. We also included some small 

non-forested areas interspersed with 

forested areas because of their potential 

for reforestation. We did not include 

urban lands and agricultural fields 

because they generally do not contain 

the primary constituent elements and 

restoration to native forest is extremely 

unlikely. 

On Guam, we identified two units for 

each species using the guidelines 

provided by the Mariana fruit bat 

recovery plan (1990a), Guam forest bird 

recovery plan (1990b), and 

recommendations by our Mariana crow 

recovery team for the draft revised 

recovery plan (USFWS in prep). We also 

used the recommendation of the 

recovery team to identify one unit for 

the Mariana crow on Rota (USFWS in 

prep). For the conservation of the 

Mariana crow, current recovery 

recommendations and the draft revised 

recovery plan (USFWS in prep) call for 

established populations in northern 

Guam, in southern Guam, and on Rota. 

Establishing two geographically 

separated populations on Guam is 

important to decrease the risk of 

extirpation of the species as a result of 

localized, stochastic events, such as 

typhoons and disease outbreaks (Dobson 

and May 1986; NRC 1997). A longaccepted view developed from 

ecological research is that the existence 

of more than one population increases 

the long-term likelihood of species’

persistence (Raup 1991; Meffe and 

Carroll 1997). 

Within the designated critical habitat 

unit boundaries, only lands containing 

one or more of the primary constituent 

elements are designated as critical 

habitat. Existing features and structures 

within the boundaries of the mapped 

units, such as buildings, roads, 

aqueducts, antennas, water tanks, 

agricultural fields, paved areas, lawns, 

and other urban landscaped areas do not 

contain the primary constituent 

elements and therefore are not 

designated as critical habitat. 

Section 3(5)(A)(ii) of the Act provides 

that areas outside the geographical area 

currently occupied by the species may 

meet the definition of critical habitat 

upon determination that they are 

essential for conservation of the species. 

We included unoccupied habitat in the 

designated critical habitat for the Guam 

Micronesian kingfisher and Mariana 

crow on Guam because, as explained 

below, the currently occupied habitat 

alone is not sufficient to provide for the 

conservation of the species. 

Mariana fruit bat: Although the 

current population of Mariana fruit bats 

on Guam is small and most bats roost in 

a limited area, the foraging behavior and 

diverse diet of the fruit bats cause them 

to use most of the island for foraging, as 

documented by Wiles et al. (1995). 

Thus, all of the designated critical 

habitat for this species is used for 

foraging and/or roosting and is 

considered occupied.

Mariana crow: The critical habitat 

unit for the Mariana crow on Rota 

reflects the goal of establishing and 

maintaining a population of at least 75 

territorial breeding pairs on Rota and 

our recovery team’s estimation of areas 

necessary to meet this goal (USFWS in 

prep). The lands designated as critical 

habitat for the Mariana crow on Rota 

support at least 63 known breeding 

pairs and includes areas that are 

believed to support an additional 25 

pairs (Morton et al. 1999). We included 

all areas identified by our recovery team 

as high priority, and incorporated lower 

priority areas known or believed to 

harbor crows to provide additional 

habitat to support the non-breeding 

crow population and create greater 

connectivity between high-priority 

areas. 

On Guam, the distribution and 

abundance of Mariana crows have 

declined precipitously over the last 

three decades (USFWS in prep.). 

Currently, the population consists of 10 

birds occupying approximately 1,920 ac 

(777 ha) located in the munitions 

storage area of Andersen Air Force Base 

in northern Guam. This current 

distribution represents an 85 percent 

reduction in range from the estimated 

distribution in 1994 (12,633 ac; 5,112 

ha) reported by Wiles et al. (1995). 

Mariana crows are territorial; each 

pair defends an area of a size 

determined by forest type and structure 

(Morton et al. 1999). The maximum 

density or carrying capacity of crow 

pairs in a particular area depends on 

both habitat quality (for foraging and 

breeding) and the spatial arrangement of 

territories. On Rota, Mariana crow 

territories ranged from 30 to 91 ac (12 

to 37 ha) in size with an average of one 

pair per 54 ac (22 ha) (Morton et al.

1999). The area currently occupied on 

Guam (1,920 ac; 777 ha) can support 

only about 35 pairs, which is fewer than 

the 75 pairs recommended by our 

recovery team and therefore is too small 

to support a Mariana crow population 

large enough to be considered safe from 

extinction. 

Because of the territorial nature of the 

Mariana crow, its small total population 

size, limited range, vulnerability to 

environmental threats, and recovery 

goals drafted for the species, inclusion 

of certain currently unoccupied areas on 

Guam that contain the primary 

constituent elements is essential to the 

conservation of the species. Recovery to 

the point where listing is no longer 

necessary will require restoration of 

Mariana crows on Guam through natural 

dispersal, translocation, and/or release 

of captive birds in areas that were 

formerly inhabited but that are not 

currently occupied. Unoccupied areas 

adjacent to currently occupied areas are 

needed to allow expansion of the 

existing population and help alleviate 

threats associated with small population 

size. Specifically, the 10 crows currently 

found on Andersen Air Force Base in 

northern Guam do not constitute a 

viable population of this species. These 

animals are unlikely to increase their 

numbers to a self-sustaining level in the 

area they presently occupy, even with 

human intervention. For this population 

to persist over the long term, it must 

62950 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

expand onto adjacent lands that now are 

unoccupied. 

Guam Micronesian kingfisher: The 

last wild kingfisher on Guam was seen 

in 1988, and this subspecies is believed 

extirpated from the wild (Wiles et al.

2003). The total population now 

consists of 63 birds in 11 captive 

breeding institutions in the mainland 

United States and by the Guam Division 

of Aquatic and Wildlife Resources 

(Bahner, in litt. 2003). Because the 

Guam Micronesian kingfisher does not 

exist in the wild and all suitable habitat 

presently is unoccupied, inclusion of 

unoccupied areas containing the 

primary constituent elements is 

essential to the conservation of this 

species. Recovery to the point where the 

protection afforded by listing is no 

longer necessary will require restoration 

of the Guam Micronesian kingfisher 

through release of captive birds and 

subsequent natural dispersal into areas 

of Guam that formerly were inhabited. 

Critical Habitat Designation 

Lands designated as critical habitat 

for the Mariana fruit bat, Mariana crow, 

and Guam Micronesian kingfisher all 

occur in one unit on Guam. Lands 

designated as critical habitat for the 

Mariana crow occur in one unit on Rota. 

The critical habitat units (and military, 

Government of Guam, and private lands 

on Guam excluded under sections 

4(a)(3), and 4(b)(2) of the ESA, as 

amended by Section 318 of the fiscal 

year 2004 National Defense 

Authorization Act) provide the full 

range of primary constituent elements 

needed by these three species, including 

a variety of undeveloped, forested areas 

that are used for foraging, roosting, 

shelter, nesting, and raising offspring. 

Designated critical habitat includes land 

under Federal, Commonwealth, and 

private ownership, with Federal lands 

being managed by the Department of the 

Interior. The approximate area and land 

ownership within each unit are shown 

in Table 1. Table 2 provides a summary 

of the total area identified as essential 

to the long-term conservation of the 

three species, the total area excluded 

from critical habitat designation, and 

the designated critical habitat on Guam 

and Rota.

TABLE 1.—APPROXIMATE AREA (ACRES, HECTARES) OF DESIGNATED CRITICAL HABITAT AREAS BY LAND OWNERSHIP

Species Unit Federal gov’t. a Local gov’t. b Private Total 

Mariana Fruit Bat ........... Mariana Fruit Bat Unit: Guam ............................. 376 ac 

(152 ha) 

0 ac 

(0 ha) 

0 ac 

(0 ha) 

376 ac 

(152 ha) 

Total (Mariana fruit Bat) ...................................... 376 ac 

(152 ha) 

0 ac 

(0 ha) 

0 ac 

(0 ha) 

376 ac 

(152 ha) 

Mariana Crow ................ Unit A: Guam ....................................................... 376 ac 

(152 ha) 

0 ac 

(0 ha) 

0 ac 

(0 ha) 

376 ac 

(152 ha) 

Unit B: Rota—Subunit 1 ...................................... 0 ac 

(0 ha) 

5,221 ac 

(2,113 ha) 

447 ac 

(181 ha) 

5,668 ac 

(2,294 ha) 

Unit B: Rota—Subunit 2 ...................................... 0 ac 

(0 ha) 

349 ac 

(141 ha) 

16 ac 

(7 ha) 

365 ac 

(148 ha) 

Total (Mariana Crow) ........................................... 376 ac 

(152 ha) 

5,570 ac 

(2,254 ha) 

463 ac 

(188 ha) 

6,409 ac 

(2,594 ha) 

Guam Micronesian Kingfisher.Guam Micronesian Kingfisher Unit: Guam .......... 376 ac 

(152 ha) 

0 ac 

(0 ha) 

0 ac 

(0 ha) 

376 ac 

(152 ha) 

Total (Guam Micronesian Kingfisher) .................. 376 ac 

(152 ha) 

0 ac 

(0 ha) 

0 ac 

(0 ha) 

376 ac 

(152 ha) 

Total for all species (counting identical or overlapping units only once) 376 ac 

(152 ha) 

5,570 ac 

(2,254 ha) 

463 ac 

(188 ha) 

6,409 ac 

(2,594 ha) 

aFederal lands are under the ownership or jurisdiction of the U.S. Fish and Wildlife Service. 

b Local lands are owned by and managed for the people of the Territory of Guam and the Commonwealth of the Northern Mariana Islands by 

the Chamorro Land Trust Commission and Marianas Public Land Authority, respectively. 

TABLE 2.—APPROXIMATE AREAS IN ACRES (AC) AND HECTARES (HA) OF ESSENTIAL HABITAT, EXCLUDED AREAS, AND

DESIGNATED CRITICAL HABITAT

Guam Rota 

Area considered essential .................................. 24,121 ac (9,761 ha) ....................................... 6,033 ac (2,442 ha). 

Area excluded under sections 4(a)(3) and/or 

4(b)(2) of the ESA, as amended by Section 

318 of the fiscal year 2004 National Defense 

Authorization Act (Andersen Air Force Base; 

COMNAVMARIANAS Ordnance Annex and 

Communications Annex; Government of 

Guam lands; and private lands on Guam).

23,745 ac (9,609 ha) ....................................... 0 ac (0 ha). 

Final critical habitat ............................................ 376 ac (152 ha) ............................................... 6,033 ac (2,442 ha). 

All of the designated critical habitat 

on Guam currently is occupied by the 

Mariana fruit bat. None of the critical 

habitat on Guam is currently occupied 

by the Mariana crow or Guam 

Micronesian kingfisher, but it was 

occupied historically. On Rota, the 

designated critical habitat is occupied 

by the Mariana crow. 

Mariana Fruit Bat 

This unit consists of approximately 

376 ac (152 ha) of land in the fee simple 

portion of the Guam National Wildlife 

Refuge. The vegetation in this unit 

consists of coastal, limestone, and 

secondary forests composed of native 

and introduced plant species and 

contains the full range of primary 

constituent elements needed for the 

conservation of the Mariana fruit bat. 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62951

This area is important because it 

contains areas used for foraging by the 

only known Mariana fruit bat colony on 

Guam. This area also contains roosting 

and foraging sites used by bats since 

1981 (see Wiles et al. 1995 for details). 

This unit also encompasses essential 

conservation areas identified in the 

Mariana fruit bat recovery plan (USFWS 

1990a). 

Excluded from designation (see 

‘‘Exclusions from Critical Habitat’’) are 

10,838 ac (4,386 ha) of Air Force lands, 

7,977 ac (3,228 ha) of Navy lands, 2,989 

ac (1,210 ha) of Government of Guam 

lands, and 1,941 ac (785 ha) of private 

lands in northern and southern Guam 

that were proposed as critical habitat in 

the October 15, 2002, proposed rule (67 

FR 63738), leaving a final designation of 

376 ac (816 ha). Although Air Force, 

Navy, Government of Guam, and private 

lands are excluded from final critical 

habitat designation, they still contribute 

to the conservation of the Mariana fruit 

bat.

Mariana Crow 

Unit A: Guam 

Unit A consists of approximately 376 

ac (152 ha) of land in the fee simple 

portion of the Guam National Wildlife 

Refuge. Unit A includes limestone, 

secondary, and coastal forests composed 

of native and nonnative plants and 

contains the full range of primary 

constituent elements needed for longterm conservation of the Mariana crow 

on Guam. This area includes lands in 

the 1994 historical distribution of 

Mariana crows in northern Guam (Wiles 

et al. 1995) and areas that contained 

crows in northern Guam in 1981 

(Engbring and Ramsey 1984). Unit A 

was also identified by our Mariana crow 

recovery team as important recovery 

habitat in the draft revised Mariana 

crow recovery plan (USFWS in prep.). 

Excluded from designation (see

‘‘Exclusions from Critical Habitat’’) are 

10,838 ac (4,386 ha) of Air Force lands, 

7,977 ac (3,228 ha) of Navy lands, 2,768 

ac (1,121 ha) of Government of Guam 

lands, and 1,941 ac (785 ha) of private 

lands in northern and southern Guam 

that were proposed as critical habitat in 

the October 15, 2002, proposed rule (67 

FR 63738), leaving a final designation of 

376 ac (152 ha). Although Air Force, 

Navy, Government of Guam, and private 

lands are excluded from final critical 

habitat designation, they still contribute 

to the conservation of the Mariana crow. 

Unit B: Rota 

Unit B consists of approximately 

6,033 ac (2,442 ha) of forested land 

encompassing much of the undeveloped 

areas on Rota. This area contains the 

Afatung Wildlife Management Area, I 

Chenchon Bird Sanctuary, and forested 

areas on public and private lands 

around the Sabana and Sinapalu 

plateaus. Unit B is composed of 

limestone, secondary, agricultural, 

coastal, and ravine forests consisting of 

native and nonnative plants and 

contains the full range of primary 

constituent elements needed for longterm conservation of the Mariana crow 

on Rota. This area includes the known 

breeding territories of at least 63 

Mariana crow pairs and possibly those 

of an additional 25 pairs (Morton et al.

1999). This area also includes the areas 

on Rota identified by our Mariana crow 

recovery team as important conservation 

areas in the draft revised Mariana crow 

recovery plan (USFWS in prep.). 

The critical habitat designated in Unit 

B consists of five sections. The first 

section includes the Afatung Wildlife 

Management Area in the Palii region 

and the forested areas in the Finata, 

Alaguan, and I Koridot regions. The 

second section includes the I Chenchon 

Bird Sanctuary and the forested areas in 

the I Chiugai and As Dudo regions of 

eastern Rota. The third section consists 

of much of the forested areas in the As 

Matmos, Mochong, Lalayak, Pekngasu, 

and I Batko regions, as well as the 

forested areas adjacent to the Rota 

Resort. The fourth section includes 

much of the forested areas in the 

Mananana, Uyulan Hulo, Sailgai Hulo, 

Gayauga, Lempanai, and Lupok regions. 

The fifth section includes much of the 

forested areas, as well as some of the 

grassland areas, in the Talakhaya and 

Gaonan regions of southern Rota. None 

of Unit B was excluded. 

Guam Micronesian Kingfisher 

Designated critical habitat for the 

Guam Micronesian kingfisher consists 

of approximately 376 ac (152 ha) of land 

in the fee simple portion of the Guam 

National Wildlife Refuge. The 

vegetation in this designated unit 

consists of coastal, limestone, and 

secondary forests composed of native 

and introduced species that contain the 

full range of primary constituent 

elements required for the long-term 

conservation of the Guam Micronesian 

kingfisher in northern Guam. This unit 

includes forested areas along the 

northwestern coasts of the island that 

were occupied by Guam Micronesian 

kingfishers in the 1970s and early 1980s 

(Drahos 1977; Maben and Aguon 1980, 

1981; Engbring and Ramsey 1984). This 

unit also encompasses essential 

conservation areas identified in the 

forest bird recovery plan for northern 

Guam (USFWS 1990b). 

Excluded from designation (see

‘‘Exclusions from Critical Habitat’’) are 

10,838 ac (4,386 ha) of Air Force lands, 

7,977 ac (3,228 ha) of Navy lands, 2,989 

ac (1,210 ha) of Government of Guam 

lands, and 1,941 ac (785 ha) of private 

lands in northern and southern Guam 

that were proposed as critical habitat in 

the October 15, 2002, proposed rule (67 

FR 63738), leaving a final designation of 

376 ac (152 ha). Although Air Force, 

Navy, Government of Guam, and private 

lands are excluded from final critical 

habitat designation, they still contribute 

to the conservation of the Guam 

Micronesian kingfisher.

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.2, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to: Alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ We are currently 

reviewing the regulatory definition of 

adverse modification in relation to the 

conservation of the species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR Part 402. Section 

7(a)(4) of the Act requires Federal 

agencies to confer with us on any action 

that is likely to jeopardize the continued 

existence of a proposed species or result 

in destruction or adverse modification 

of proposed critical habitat. Conference 

reports provide conservation 

recommendations to assist the agency in 

eliminating conflicts that may be caused 

by the proposed action. The 

conservation recommendations in a 

conference report are advisory. If a 

species is listed or critical habitat is 

designated, section 7(a)(2) requires 

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of such a species or to destroy 

or adversely modify its critical habitat. 

If a Federal action may affect a listed 

62952 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Through this consultation, the 

action agency ensures that the permitted 

actions do not destroy or adversely 

modify critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in the destruction or adverse 

modification of critical habitat, we also 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable. ‘‘Reasonable and prudent 

alternatives’’ are defined at 50 CFR 

402.02 as alternative actions identified 

during consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that the 

Director believes would avoid 

destruction or adverse modification of 

critical habitat. Reasonable and prudent 

alternatives can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where critical 

habitat is subsequently designated and 

the Federal agency has retained 

discretionary involvement or control 

over the action or such discretionary 

involvement or control is authorized by 

law. Consequently, some Federal 

agencies may request reinitiation of 

consultation or conference with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

We may issue a formal conference 

report if requested by a Federal agency. 

Formal conference reports on proposed 

critical habitat contain an opinion that 

is prepared according to 50 CFR 402.14, 

as if critical habitat were designated. We 

may adopt the formal conference report 

as the biological opinion when the 

critical habitat is designated, if no 

substantial new information or changes 

in the action alter the content of the 

opinion (see 50 CFR 402.10(d)).

Activities on Federal lands that may 

affect these species or their critical 

habitat will require section 7 

consultation. Activities on private or 

State lands requiring a permit from a 

Federal agency, such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act, a 

section 10(a)(1)(B) permit from the 

Service, or some other Federal action, 

including funding (e.g., Federal 

Highway Administration or Federal 

Emergency Management Agency 

funding), will also continue to be 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat and 

actions on non-Federal and private 

lands that are not federally funded, 

authorized, or permitted do not require 

section 7 consultation. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat 

include those that appreciably reduce 

the value of critical habitat to the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher. We note 

that such activities may also jeopardize 

the continued existence of the species. 

To properly portray the effects of 

critical habitat designation, we must 

first compare the section 7 requirements 

for actions that may affect critical 

habitat with the requirements for 

actions that may affect a listed species. 

Section 7 prohibits actions funded, 

authorized, or carried out by Federal 

agencies from jeopardizing the 

continued existence of a listed species 

or destroying or adversely modifying the 

listed species’ critical habitat. Actions 

likely to ‘‘jeopardize the continued 

existence’’ of a species are those that 

would appreciably reduce the 

likelihood of the species’ survival and 

recovery. Actions likely to ‘‘destroy or 

adversely modify’’ critical habitat are 

those that would appreciably reduce the 

value of critical habitat to the listed 

species. 

Common to both definitions is an 

appreciable detrimental effect on both 

survival and recovery of a listed species. 

Given the similarity of these definitions, 

actions likely to destroy or adversely 

modify critical habitat would often 

result in jeopardy to the species 

concerned when the area of the 

proposed action is occupied by the 

species concerned. 

Federal agencies already consult with 

us on activities in areas currently 

occupied by the species to ensure that 

their actions do not jeopardize the 

continued existence of the species. 

These actions include, but are not 

limited to: 

(1) Actions that would result in 

removing, thinning, or destroying 

Mariana fruit bat, Guam Micronesian 

kingfisher, or Mariana crow forest 

habitat by burning, mechanical, 

chemical, or other means (e.g., 

woodcutting, grading, overgrazing, 

construction, road building, mining, 

herbicide application, etc.). These 

activities could eliminate habitat 

necessary for the growth and 

reproduction of these species. 

(2) Actions that would result in 

appreciably decreasing habitat value or 

quality through introduction or 

promotion of potential nest predators, 

disease or disease vectors, vertebrate or 

invertebrate food competitors, invasive 

plant species, forest fragmentation, 

overgrazing, augmentation of feral 

ungulate populations, water diversion 

or impoundment, groundwater pumping 

or other activities that alter water 

quality or quantity to an extent that 

affects vegetation structure, or activities 

that increase the risk of fire. These 

actions could eliminate or reduce the 

habitat necessary for the growth and 

reproduction of these species. 

We consider the Mariana fruit bat 

critical habitat unit to be occupied by 

the species because it is utilized by 

foraging and roosting Mariana fruit bats. 

We also consider the Mariana crow 

critical habitat Unit B on Rota to be 

occupied by the species because it is 

utilized by nesting and foraging Mariana 

crows. Federal agencies already consult 

with us on activities in areas currently 

occupied by the species or if the species 

may be affected by the action to ensure 

that their actions do not jeopardize the 

continued existence of the species. 

If you have questions regarding 

whether specific activities will likely 

constitute destruction or adverse 

modification of critical habitat, contact 

the Field Supervisor, Pacific Islands 

Fish and Wildlife Office (see ADDRESSES

section). Requests for copies of the 

regulations on listed plants and animals, 

and inquiries about prohibitions and 

permits, may be addressed to the U.S. 

Fish and Wildlife Service, Division of 

Endangered Species, 911 N.E. 11th Ave., 

Portland, OR 97232–4181 (telephone 

503/231–2063; facsimile 503/231–6243).

Exclusions From Critical Habitat 

Guam Lands Under U.S. Air Force 

Jurisdiction 

Section 4(a)(3) of the Act, as amended 

by Section 318 of the fiscal year 2004 

National Defense Authorization Act 

(Public Law No: 108–136), states that 

the Secretary of the Interior shall not 

designate critical habitat on Department 

of Defense lands that are subject to an 

INRMP prepared under section 101 of 

the Sikes Act (16 U.S.C. 670a), if the 

Secretary determines the plan provides 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62953

a benefit to the species. Department of 

Defense lands may be excluded from 

critical habitat under section 4(a)(3) if 

they are subject to an operative INRMP 

which provides a benefit by addressing 

the maintenance or improvement of 

primary constituent elements important 

to the Mariana fruit bat, Mariana crow, 

and Guam Micronesian kingfisher. 

As previously explained, the primary 

cause of the decline and disappearance 

of native bird and bat species on Guam 

has been predation by nonnative 

species, especially the brown treesnake 

(Savidge 1986, 1987; USFWS 1990a, 

1990b, 2004a, in prep; Wiles et al.

1995). Habitat loss and degradation by 

a combination of development and 

suppression of forest growth by 

introduced ungulates also have 

contributed to the decline of native 

species in the Mariana archipelago. In 

addition to these other threats, hunting 

has had a significant impact on the 

Mariana fruit bat. 

The management actions needed to 

address these threats and ensure the 

survival and long-term conservation of 

the Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher are 

described in the recovery plans for these 

three species and other documents 

(USFWS 1990a, 1990b, 2004a, in prep; 

Wiles et al. 1995; NRC 1997). Some of 

these management actions include: (1) 

Control brown treesnakes and other 

nonnative predators, and conduct 

research to develop methods for control 

over large areas and eradication; (2) 

conduct management activities, e.g., 

feral ungulate control and reforestation, 

which are necessary to protect and 

enhance existing essential habitat on 

Guam and Rota; (3) protect fruit bats 

from illegal hunting; and (4) reintroduce 

the Mariana crow and Guam 

Micronesian kingfisher to northern and 

southern Guam and establish selfsustaining populations. 

The Air Force completed a final 

INRMP for Andersen Air Force Base in 

February 2002 which was updated in 

December 2003 (Air Force 2003). This 

updated plan covers all Air Force lands 

included in Andersen Air Force Base in 

northern Guam. The long-term natural 

resource management goal of Andersen 

Air Force Base is to: ‘‘[m]anage, 

conserve, protect, and enhance 

Andersen Air Force Base’s natural and 

cultural resources and environmental 

quality in the best national interest, 

compatible with military operations and 

in accordance with the principles of 

multiple use and sustained yield (for 

harvestable resources). All natural 

resources management programs will be 

undertaken with a special emphasis on 

the protection and recovery of 

endangered and threatened species, and 

to perpetuate Guam’s native 

biodiversity.’’

To achieve this goal, the INRMP for 

Air Force lands includes several 

projects that will maintain or benefit the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher. These 

projects include: development and 

implementation of a Mariana fruit bat 

colony protection plan, area-wide 

brown treesnake trapping, construction 

of a cat barrier around Area 50, removal 

of feral ungulates from the Munitions 

Storage Area and Area 50, construction 

of ungulate exclosures in areas of high 

ecological value and removal of 

ungulates from these exclosures, 

monitoring of habitat regeneration in 

these exclosures, base-wide ‘‘habitat 

biodiversity monitoring,’’ and public 

education on conservation issues. All of 

these actions have been developed 

through coordination with the Service. 

In addition, the Air Force has 

authorized the Guam Division of 

Aquatic and Wildlife Resources to 

release and monitor captive-reared 

Guam rails (Gallirallus owstoni;

formerly extirpated) and translocate 

captive-reared Mariana crows on 

Andersen Air Force Base (Vice et al.

2001; Radway 2003; USFWS in prep). In 

the past four years, 17 Mariana crows 

and 62 Guam rails have been released 

on Guam, all on Air Force lands (D. 

Vice, pers. comm.; USFWS in prep). In 

their INRMP, the Air Force also affirms 

its support for the eventual release of 

captive-bred Guam Micronesian 

kingfishers on their lands (Air Force 

2003).

The activities described above result 

in the following benefits to the Mariana 

fruit bat, Mariana crow, and Guam 

Micronesian kingfisher: (1) Significant 

reduction of treesnakes in the area 

currently occupied by Mariana crows on 

Guam, (2) progress toward more 

efficient methods for controlling brown 

treesnakes, (3) habitat enhancement for 

all three species, (4) potential increase 

in nest success for Mariana crows, (5) 

augmentation of the crow population on 

Guam, (6) increased knowledge of the 

crow’s biology through monitoring, and 

(7) physical protection of the Mariana 

fruit bat colony on Andersen Air Force 

Base. The comprehensive list of ongoing 

and proposed management activities 

detailed in the INRMP (Air Force 2003) 

address management actions (predator 

control, protection and enhancement of 

essential habitat, protection of fruit bats 

from illegal hunting, and reintroduction 

and establishment of self-sustaining 

populations of these three species) that 

provide a significant conservation 

benefit to the species. Without these 

management actions on Andersen Air 

Force Base, the Mariana crow and 

Mariana fruit bat likely would be 

extirpated from Guam, and no suitable 

areas for reintroduction of the Guam 

Micronesian kingfisher would exist. 

In view of the benefit to the bat and 

birds of the foregoing management and 

stewardship actions detailed in the 

updated Andersen Air Force Base 

INRMP, the area is not included as 

critical habitat under Section 4(a)(3) of 

the Act, as amended by Section 318 of 

the fiscal year 2004 National Defense 

Authorization Act. Although these areas 

are not included from the final critical 

habitat designation, they remain 

essential for the conservation of the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher, and 

management for the conservation of 

these species on Andersen Air Force 

Base is necessary to meet the overall 

recovery goals for these species. 

Analysis of Impacts Under ESA Section 

4(b)(2) 

Section 4(b)(2) of the Act, as amended 

by subsection (b) of Section 318 of the 

fiscal year 2004 National Defense 

Authorization Act (Public Law No: 108–

136), requires us to designate critical 

habitat on the basis of the best scientific 

and commercial information available, 

and to consider the economic, national 

security, and other relevant impacts of 

designating a particular area as critical 

habitat. We may exclude areas from 

critical habitat upon a determination 

that the benefits of such exclusions 

outweigh the benefits of specifying such 

areas as critical habitat. We cannot 

exclude such areas from critical habitat 

when such exclusion will result in the 

extinction of the species concerned. 

Economic Impacts 

Following the publication of the 

proposed critical habitat designation on 

October 15, 2002, a draft economic 

analysis was prepared to evaluate the 

direct and indirect economic impact 

associated with the proposed 

designation, in accordance with recent 

court decisions, such as N.M. 

Cattlegrowers Ass’n v. U.S. Fish and 

Wildlife Serv., 248 F.3d 1277 (10th Cir. 

2001). The draft analysis was made 

available for review on December 5, 

2002 (67 FR 72407). We accepted 

comments on the draft analysis until the 

comment period closed on January 6, 

2003. We reopened the comment period 

on January 28, 2003, and accepted 

additional comments on the draft 

analysis until February 18, 2003 (68 FR 

4159). 

Our draft economic analysis evaluated 

the direct and indirect economic 

62954 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

impacts associated with our proposed 

critical habitat designation for the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher on the 

island of Guam and the Mariana crow 

on the island of Rota over the next ten 

years. Direct impacts are those related to 

consultations under section 7 of the Act. 

They include the cost of completing the 

section 7 consultation process and 

potential project modifications resulting 

from the consultation. Indirect impacts 

are secondary costs and benefits not 

directly related to compliance with the 

Act. Examples of indirect impacts 

include potential effects to property 

values and the cost of investigating the 

requirements resulting from a critical 

habitat designation. 

The categories of direct and indirect 

costs considered in the analysis 

included the costs associated with: (1) 

Conducting section 7 consultations; (2) 

modifications to projects, activities, or 

land uses resulting from section 7 

consultations; (3) uncertainty and 

public perceptions resulting from the 

designation of critical habitat, including 

potential effects on property values; and 

(4) the potential offsetting beneficial 

costs associated with critical habitat. 

The most likely economic effects of 

critical habitat designation are on 

activities funded, authorized, or carried 

out by a Federal agency (i.e., direct 

costs). 

Following the close of the comment 

period on the proposed rule and draft 

economic analysis, an addendum was 

completed that incorporated public 

comments on the draft analysis and 

made other changes as necessary. The 

draft economic analysis and addendum 

address the impact of the proposed and 

final critical habitat designation, 

respectively, that may be attributable 

coextensively to the listing of the 

species. Because of uncertainty about 

the benefits and economic costs 

resulting solely from critical habitat 

designations, it is reasonable to estimate 

the economic impacts of a designation 

utilizing this single baseline. 

Together, the draft economic analysis 

and the addendum constitute our final 

economic analysis. The final economic 

analysis estimates that, over the next 10 

years, the designation (coextensive with 

the listing) may result in direct 

economic impacts from implementation 

of section 7 of approximately $1.227 

million present value cost. This increase 

of approximately $173,630 from the 

draft economic analysis’ estimated 

potential direct economic effects from 

implementation of section 7 is due 

primarily to the evaluation of new 

projects identified during the public 

comment periods. This estimate also 

includes Air Force, Navy, Government 

of Guam, and private lands that were 

proposed as critical habitat but have 

been excluded from the final 

designation. Therefore, the direct cost of 

designating critical habitat for the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher is likely 

lower than this estimate. We have 

excluded much of these lands so the 

direct economic impacts of the final 

designation is likely to be substantially 

lower than this estimate. With 

approximately 90 percent reduction in 

acreage and only refuge and Rota lands 

remaining, the cost may be closer to 

$463,300.

While our final economic analysis 

includes an evaluation of potential 

indirect costs associated with the 

designation of critical habitat for 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher on Guam 

and the Mariana crow on Rota, there is 

considerable uncertainty whether any or 

all of these indirect impacts will occur, 

as they depend upon actions and 

decisions by entities other than the 

Service under circumstances for which 

there is limited or no history that can be 

used to determine the probability of 

different outcomes. The costs are of 

necessity speculative and may 

overestimate the impacts. However, 

without having more specific 

information, a conservative approach 

(maximum economic impact) was used. 

The final economic analysis discusses 

economic benefits in qualitative terms 

rather than providing dollar estimates 

because of the lack of information 

available to quantify the economic 

benefits of endangered species 

preservation and ecosystem 

improvements. The economic analysis 

identifies existence value, use value, 

recreational benefits, overall ecosystem 

health, and ecosystem preservation 

values as potential benefits of critical 

habitat designation. However, as stated 

above, economic benefits could not be 

estimated quantitatively due to a lack of 

information. 

A more detailed discussion of the 

economic impacts is contained in the 

draft economic analysis and the 

addendum. Both documents are 

available for inspection at the Pacific 

Islands Fish and Wildlife Office and are 

available by request (see ADDRESSES

section). 

No critical habitat units in the 

proposed rule were excluded or 

modified due to economic impacts 

because the expected cost of the 

designation is not expected to be 

significant. The likely direct cost of 

designating critical habitat on Guam for 

the Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher is 

estimated to be $162,582 per year over 

the next ten years. This estimate, 

however, includes areas that were 

proposed as critical habitat but have 

been excluded from the final 

designation on Guam. Therefore, the 

anticipated direct costs of designating 

critical habitat on Guam for these three 

species are likely lower. The likely 

direct cost of designating critical habitat 

on Rota for the Mariana crow is 

estimated to be $12,142 per year over 

the next ten years. 

National Security and Other Impacts 

The following analysis describes the 

likely positive and negative impacts of 

a critical habitat designation on Navy 

lands, Government of Guam lands, and 

private lands on Guam compared to the 

likely positive and negative impacts of 

a critical habitat exclusion on those 

lands. The Service focused on the 

following issues: to what extent a 

critical habitat designation would confer 

conservation, regulatory, and 

educational benefits, and to what extent 

an exclusion of critical habitat would 

reduce or eliminate negative impacts to 

the Navy’s military mission and 

stewardship program under their 

COMNAVMARIANAS INRMP and the 

Government of Guam’s stewardship 

program under their proposed 

alternative to critical habitat 

designation. 

Lands Under U.S. Navy Jurisdiction 

(1) Benefits of Designating Navy Lands 

as Critical Habitat 

Under section 7 of the Act, each 

Federal agency shall, in consultation 

with the Service, insure that any action 

authorized, funded, or carried out by the 

Federal agency is not likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat. 

In the consultation process, a 

determination is made as to whether the 

proposed action is likely to result in 

jeopardy to the species or destruction or 

adverse modification of critical habitat. 

If jeopardy and/or adverse modification 

are likely, then the Service is required 

to provide reasonable and prudent 

alternatives to the proposed action to 

avoid jeopardy to the species and/or 

adverse modification of critical habitat. 

In addition, under section 7 of the Act, 

if the proposed action is not likely to 

jeopardize any listed species, but is 

anticipated to result in incidental take 

of a listed species then reasonable and 

prudent measures are required to 

minimize such incidental take. The 

primary regulatory benefit of critical 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62955 

habitat designation on Navy lands 

would be to ensure that no actions 

authorized, funded, or carried out by the 

Navy would be likely to destroy or 

adversely modify critical habitat. 

Critical habitat was proposed on 8,285 

ac (3,353 ha) of Navy lands at the 

Communications Annex and the 

Ordnance Annex. These lands are 

considered occupied by foraging 

Mariana fruit bats, and unoccupied by 

the Mariana crow and Guam 

Micronesian kingfisher. In 1994 the 

Navy entered into a cooperative 

agreement with the Service to create the 

Guam National Wildlife Refuge Overlay 

on Navy lands in Guam (Navy and 

USFWS 1994). The primary goal of the 

overlay refuge is to address the 

conservation needs of listed species 

through ‘‘* * * a long-term, 

comprehensive program [that] * * * 

includes * * * brown treesnake control 

and eradication, * * * habitat and 

ecosystem protection, endangered and 

threatened species recovery and 

reintroduction.’’(Navy and USFWS 

1994). This agreement also provided 

that the Navy will coordinate with the 

Service for any Federal action which 

may affect Navy lands included within 

the Guam National Wildlife Refuge and 

identified in published recovery plans 

as providing essential habitat for these 

three species. Approximately 8,278 ac 

(3,350 ha) of proposed critical habitat 

were within the Guam NWR overlay 

lands on the two Navy facilities. 

Therefore, any Federal activities which 

may affect these areas, even if they are 

not currently occupied by the species, 

requires coordination between the 

Service and the Navy regarding impacts 

to this habitat. 

Currently, the Service believes that 

the proposed critical habitat for the 

Mariana crow and Guam Micronesian 

kingfisher on Navy lands is unoccupied 

by these species. The recovery goals for 

these species are discussed under 

‘‘Criteria Used to Designate Critical 

Habitat.’’ In order to reach the goals, 

unoccupied areas on Navy lands will 

need to be occupied by self-sustaining 

populations. Neither recovery of these 

species nor long-term conservation of 

the Mariana fruit bat are possible 

without active management of their 

habitat, including brown treesnake 

control, habitat restoration and 

enhancement, and control of poaching 

(USFWS 1990a). 

As noted above, a critical habitat 

designation in these unoccupied areas 

would ensure that the Navy would 

consult with the Service for any actions 

it proposes that may affect this 

unoccupied habitat, and would require 

the Navy to avoid actions that would 

destroy or adversely modify the habitat. 

However, avoiding habitat destruction 

or adverse modification may not result 

in a reintroduction of these species, nor 

other active conservation measures 

identified in the recovery plans and 

currently being undertaken by the Navy 

to increase the quality of this habitat for 

listed species (e.g. predator control, 

anti-poaching efforts, etc). 

Another potential value of a critical 

habitat designation on Navy lands is the 

education of Navy personnel and the 

general public concerning the 

conservation value of these lands. 

Proposed and final critical habitat rules 

may serve an educational function by 

communicating to the public and 

military personnel that specific land 

areas are essential to the long-term 

conservation of listed species. However, 

most of these benefits have been 

effectively communicated through our 

publication of the proposed critical 

habitat rule, the many public and 

interagency meetings held to discuss the 

proposal, and the discussion of the 

excluded areas in the notice for this 

final rule. The inclusion of much of this 

land within the Guam National Wildlife 

Refuge overlay and the identification of 

essential habitat in the published 

recovery plans for these species 

(USFWS 1990a; 1990b) also confer 

important educational benefits. 

(2) Benefits of Excluding Navy Lands 

From Critical Habitat Designation 

The Navy is engaged in, or had 

committed to engage in, a wide variety 

of proactive conservation activities on 

their lands in Guam. These activities 

include brown treesnake control 

measures, protection and enhancement 

of degraded habitat, and controlling the 

illegal hunting of Mariana fruit bat. 

The Navy has expressed concern that 

the overall economic burden of a critical 

habitat designation may reduce the 

funding available for these essential 

conservation activities. Given their 

strong statement of opposition, there is 

also concern a designation on Navy 

lands may reduce their incentive to 

maximize their conservation efforts on 

Guam (Moore, in litt., 2002). The 

Service does believe that a critical 

habitat designation may negatively 

affect the Navy’s continued commitment 

to large-scale conservation and 

management efforts on Guam, as it 

would result in potential delays in 

completing section 7 consultation 

requirements that would be triggered by 

critical habitat designations. 

While section 7(a)(1) of the Act 

requires Federal agencies to carry out 

programs for the conservation of listed 

species, it does not require any specific 

actions or expenditures in any specific 

locations. The conservation actions 

noted above remain voluntary on the 

part of the Navy. 

In addition, under the cooperative 

agreement which established the Guam 

National Wildlife Refuge, the Navy 

retains the right to withdraw its lands 

from the refuge if critical habitat is 

designated. While the Navy has not 

openly stated any intent to do so, this 

remains a possibility, and would be a 

considerable loss for the conservation of 

these species. 

The Service also finds that a final 

critical habitat designation would 

negatively impact the Navy’s military 

mission, and thus national security. 

Overall, the Service has been able to 

work closely and in a positive, 

collaborative fashion with the Navy to 

minimize potential negative impacts to 

the Navy’s training and operational 

activities as a consequence of the Act’s 

regulations. However, consultations 

cannot avoid taking time, and in many 

cases conservation measures may result 

from consultation. Delays and 

additional costs to accomplish training 

or operational needs may have 

significant adverse consequences on 

military readiness essential to national 

security. 

Navy lands on Guam are used for 

training by the Navy, Marines, Army, 

Air Force, National Guard and Reserves. 

Forces based in the continental United 

States, along with those that are 

forward-based and forward-deployed, 

train on these lands. The Ordnance 

Annex offers areas for company-level 

operations, helicopter landing zones, 

and combat swimmer training. The 

Communications Annex is suitable for 

ground maneuvers, patrols and raids, 

and has a small arms range. 

The Deputy Chief of Naval Operations has 

commented on this proposal that: 

‘‘We are extremely concerned that a critical 

habitat designation may curtail or prevent 

continued use of these areas for military 

purposes, void taxpayer investments in 

infrastructure to support military activities at 

these locations, and require costly 

investments elsewhere to accomplish 

training requirements.’’

Military experience in recent combat 

situations has demonstrated that about 

70 percent of combat casualties are due 

to lack of or insufficient training (Draft 

Economic Analysis, page 6–43). 

Modifications to training necessitated 

by a critical habitat designation could 

reasonably result in less realistic 

training methods. The Service is not in 

a position to determine how many such 

restrictions, perhaps individually not 

having a significant impact, may be 

incurred before training for Navy and 

62956 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

other military personnel would be 

degraded, whether the military might 

feel required to switch its training 

elsewhere, at considerable cost to 

taxpayers, or whether alternative areas 

are in fact available. 

In addition to possible restrictions on 

training and operations, the Navy has 

expressed concern over the delay 

inherent in having to undertake 

additional consultations. Critical habitat 

designations are likely to mean that 

certain Navy projects which currently 

receive categorical exclusions from 

National Environmental Policy Act 

(NEPA) requirements may be required to 

prepare NEPA documentation, in 

addition to the section 7 consultations. 

This can result in additional costs of 

between $20,000 to $100,000 and delays 

of six to nine months per project. If the 

project in question is military training, 

these delays could mean forces being 

deployed with inadequate training. 

(3) The Benefits of Excluding Navy 

Lands From Critical Habitat Outweigh 

the Benefits of Inclusion 

Based on the above considerations, 

we have determined that the benefits of 

excluding Navy lands on Guam from 

this critical habitat designation, 

including benefits to national security, 

outweigh the benefits of including them. 

Exclusion of Navy Lands Will Not Cause 

Extinction of the Species 

We conclude that the Navy’s 

management plans and conservation 

efforts will provide long-term 

conservation benefits greater than those 

which would be provided if these Navy 

lands were designated as critical habitat. 

The Refuge Overlay agreement and 

other conservation measures described 

above have provided, and will continue 

to provide, tangible, beneficial, 

proactive conservation measures that 

will reduce the likelihood of extinction 

of these three species and increase the 

likelihood of their long-term survival.

Private and Territorial Lands on Guam 

We have excluded the approximately 

4,930 acres (1,995 hectares) of private 

and territorial lands proposed by us as 

critical habitat on Guam under section 

4(b)(2) of the Act. This is a discretionary 

authority Congress has provided to the 

Secretary with respect to critical habitat. 

The analysis which led us to the 

conclusion that the benefits of 

excluding these areas exceed the 

benefits of designating them as critical 

habitat, and will not result in the 

extinction of the species, follows. 

In this section, we first discuss the 

background and history of critical 

habitat proposals on Guam, and 

summarize the Natural Resource 

Management Plan that was developed 

by the Government of Guam and issued 

for public comment by us on June 2, 

2004 (69 FR 31073). After this 

introduction, we analyze the benefits of 

including private and Government of 

Guam lands within the critical habitat 

designation and the benefits of 

excluding these areas. 

Background: In 1991, the Service first 

issued a proposal for critical habitat for 

the Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher (56 FR 

27485). Although initially requested by 

the Governor of Guam, once the 

proposal was issued, both the Governor 

and legislature strongly opposed it. In 

1993, the Guam National Wildlife 

Refuge was established by cooperative 

agreement with the Navy and Air Force. 

Based on establishment of this overlay 

refuge, the Service withdrew the critical 

habitat proposal in 1994. 59 FR 15696 

(1994). 

However, excess military land at 

Ritidian Point in Guam was then 

transferred to the Service under the 

Federal excess property regulations for 

inclusion in the refuge. Federal 

ownership and regulation of land on 

Guam has been a particularly sore point 

in the relationship between the Federal 

Government and the Government and 

people of Guam since extensive 

condemnations of land on Guam for 

military purposes occurred in the years 

following World War II. 

In this case, there was some level of 

expectation on Guam that the Ritidian 

Point lands would be made available to 

the Government of Guam, or returned to 

the prior owners, and their transfer to 

the Service provoked an extensive and 

long-lasting public outcry and created a 

barrier to constructive working relations 

between the Government of Guam and 

the Service. For many years there were 

regular demonstrations, at times 

approaching riots, against the Refuge, 

accompanied by threats against refuge 

staff to the point that law enforcement 

personnel had to be assigned for their 

protection, and destruction of refuge 

property. 

In addition, the Legislature of Guam 

enacted legislation in reaction to this 

transfer (21 GCA 68950), which 

provided in part that it was the policy 

of the Government of Guam to seek the 

termination of Federal ownership of the 

wildlife refuge, and transfer of the 

property to Guam; that Federal 

jurisdiction over ‘‘local fauna, flora and 

habitat’’ be opposed, that neither the 

Government of Guam or any of its 

agencies might express approval of the 

existence of the refuge or enter into any 

agreements which could be construed as 

providing support for the continuation 

of the refuge, and that ‘‘the government 

of Guam hereby disestablishes all 

Federal designations of critical habitat 

or wildlife refuge as an act of 

sovereignty.’’ Although the latter 

provision conflicts with Federal law and 

is therefore invalid, it is an express 

statement of local opinion regarding 

critical habitat designations on Guam. 

Natural Resource Management Plan 

for lands on Guam (Plan): The 

Government of Guam developed a 

natural resource management plan as an 

alternative to critical habitat and 

submitted it to the Service on April 1, 

2004. While Guam termed the plan an 

‘‘Integrated Natural Resource 

Management Plan,’’ we are labeling it a 

natural resource management plan, or 

Plan, here to avoid confusion with the 

Integrated Natural Resource 

Management Plans developed by the 

military pursuant to the Sikes Act, 

which have a variety of statutory 

requirements associated with them that 

are not applicable to Guam’s plan, and 

which are also discussed in this notice. 

We issued the Plan for public review 

and comment as noted above.

The Guam Plan proposes making 

available 4,548 acres of Government of 

Guam land to the recovery of the listed 

species, and a large number of general 

and specific actions related to 

increasing public awareness of the 

needs of the species, and habitat 

management and enhancement, 

monitoring and training to assist in the 

recovery of the listed species for which 

critical habitat is being considered. 

We agree with the Government of 

Guam that its implementation would be 

beneficial for the listed species. In 

general, recovery of these species will 

require active management that includes 

but is not limited to brown treesnake 

control, habitat protection and 

enhancement, and translocation or 

reintroduction of species to establish 

several self-sustaining populations. 

Failure to implement these management 

measures would preclude recovery of 

the Mariana crow and Guam 

Micronesian kingfisher and increase the 

risk of extinction for Mariana fruit bat. 

It is unlikely that these efforts can occur 

successfully without the support of the 

Government of Guam and without the 

use of Government of Guam and/or 

private lands. We must also note that 

the Plan is far less detailed and certain 

of implementation than the Integrated 

Natural Resource Management Plans 

(INRMPs) developed by the Navy and 

the Air Force for their lands on Guam, 

and if judged by the standards 

established for INRMPs, it would likely 

not be approved. However, we believe 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62957

that as a sign of the desire of the 

Government of Guam to increase 

cooperation with the Service on the 

conservation and recovery of these 

species, particularly when considered 

against past relations, it is a significant 

positive step. 

It is clear from the record that the 

designation of critical habitat could be 

expected to adversely impact our 

working relationship with the 

Government of Guam. The record 

indicates and we agree that Federal 

regulation through critical habitat 

designation would be viewed as an 

unwarranted and unwanted intrusion 

into Guam’s affairs, and likely be 

viewed by a sizeable segment of the 

population and of the legislature as 

‘‘another Federal land grab.’’

Our working relationship with the 

Government of Guam has been 

improving in recent years in relation to 

natural resource programs of mutual 

interest, following the disruptions and 

antagonisms that arose over the 

previous critical habitat proposal, as 

discussed above. This relationship 

provides a benefit to all parties involved 

in the conservation of the listed species. 

Those benefits include Guam applying 

for and receiving a Safe Harbor grant 

from the Service for the control of 

brown treesnakes and reintroduction of 

the Guam rail, a considerable lessening 

of the protests against the refuge, and 

Guam undertaking several recovery 

actions for these species on its own and 

in cooperation with the Service and 

with the military. 

Analysis: The Benefits of Exclusion 

Outweigh the Benefits of Inclusion 

(1) Benefits of Inclusion 

Few additional benefits would be 

derived from including the Guam lands 

in a critical habitat designation for the 

three species beyond what would be 

achieved through the implementation of 

Guam’s Plan and continuation of their 

existing conservation efforts. The 

principal benefit of any designated 

critical habitat is that activities in and 

affecting such habitat with a Federal 

nexus require consultation under 

section 7 of the Act and insure that 

Federal agency actions are not likely to 

destroy or adversely modify such 

habitat. Such consultation would ensure 

that adequate protection is provided to 

avoid destruction or adverse 

modification of critical habitat. 

However, we conclude that few 

regulatory benefits to the species would 

be gained from a designation of critical 

habitat on these lands. This is because 

as shown in the Economic Analysis, 

there are likely to be few, if any, 

development projects with the required 

Federal nexus which would impact the 

proposed critical habitat, and because 

the loss of essential habitat on Guam 

territorial and private lands is not the 

primary threat to these species. With 

respect to future conservation actions 

undertaken by the Government of Guam 

under its Plan, since the use of existing 

Federal funding is integrated into the 

projects proposed, the section 7 

consultation process will still be 

utilized to review these projects for their 

consistency with the Recovery Plan and 

avoidance of jeopardy to the species. 

The consultation process after a 

designation of the Guam territorial and 

private lands as critical habitat is 

unlikely to result in significant 

additional protections for the three 

species. 

Another possible benefit is that the 

designation of critical habitat can help 

to educate the public regarding potential 

conservation value of an area, and may 

focus efforts by clearly delineating areas 

of high conservation value for the three 

species. Any information about these 

species and their habitat that reaches a 

wide audience, including other parties 

engaged in conservation activities, 

would be considered valuable. The 

Government of Guam is currently 

working with the Service to address 

habitat and conservation needs for the 

species, and if nothing disrupts the 

relationship, we anticipate that they 

will greatly increase their efforts, as 

proposed in their Plan. The public 

educational benefits that might flow 

from the designation have almost 

certainly already been accomplished 

due to the intense controversy over the 

proposed designation. 

For these reasons, then, we believe 

that designation of the Guam territorial 

and private lands as critical habitat 

would have few additional benefits for 

the three species.

(2) Benefits of Exclusion 

The benefits of excluding the Guam 

lands from designated critical habitat 

are more significant. They include: (1) 

The maintenance of effective working 

relationships to promote the 

conservation of these species and their 

habitat; (2) the allowance for continued 

meaningful collaboration in projects 

contributing towards recovery of these 

species; and (3) the provision of 

conservation benefits to the Guam lands 

that might not otherwise occur. 

The designation of critical habitat 

would be expected to adversely impact 

our working relationship with the 

Government of Guam, as noted above. 

In testimony provided for a public 

hearing on the critical habitat proposal, 

former Governor Carl Gutierrez stated 

(with reference to the prospect of 

military lands being exempted from the 

designation and Guam land not being 

exempted): ‘‘Such unequal standards 

are likely to increase the levels of noncooperation between the Service and the 

Government of Guam.’’

In his official comment to the Service 

on the critical habitat proposal, 

Governor Felix Camacho stated ‘‘This 

action has the potential to unravel much 

of the recovery infrastructure we have 

built on Guam over the past twenty 

years including the GNWR [Guam 

National Wildlife Refuge].’’ This 

comment not only underscored the 

likely adverse impact that would arise 

from a designation, but raised for the 

first time the possibility of Guam 

accepting the existence of the refuge. 

Subsequently, the news media reports 

the Governor has publicly raised the 

issue of repealing the anti-refuge statute. 

Similarly, in his letter transmitting 

the Plan to the Service, Governor 

Camacho stated in part: ‘‘As you are 

aware, this [the proposed critical habitat 

designation] has been a very sensitive 

issue and has impacted our programs for 

many years. I sincerely hope that this 

effort is the beginning of healing those 

wounds and strengthening the 

partnerships between us. * * * I am 

looking forward to working through the 

necessary steps to make this plan come 

to fruition.’’

The Service’s then-Field Supervisor 

for the Pacific Islands Fish and Wildlife 

Office relayed similar concerns over 

likely adverse reactions to a critical 

habitat designation to the Washington 

office following the initial decision to 

exclude Navy and Air Force lands from 

the critical habitat proposal, as 

discussed above. ‘‘The final CH will 

consist primarily of GovGuam/CNMI 

and private lands, with a little bit of feesimple FWS refuge land. Many local 

Guamanians and Chamorro activists, 

who are very outspoken at our public 

meetings and who have rioted against 

the Federal government in the recent 

past, will likely use this issue to 

continue to agitate against the Federal 

government on Guam. They complain 

that they are treated differently than the 

Feds and the military, and they may use 

this decision to support and press their 

claim.’’ (P. Henson, USFWS, in litt.

2003). 

For these reasons, we believe that our 

working relationships with the people 

and Government of Guam could well be 

enhanced if the Guam lands are 

excluded from the designation of critical 

habitat for these species, and are likely 

to be effectively eliminated if they are 

included. 

62958 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

In addition, as noted above, recovery 

of these species will require active 

management that includes but is not 

limited to brown treesnake control, 

habitat protection and enhancement, 

and translocation or reintroduction of 

species to establish several selfsustaining populations. Not undertaking 

these measures would preclude 

recovery of the Mariana crow and Guam 

Micronesian kingfisher and increase the 

risk of extinction for Mariana fruit bat. 

It is unlikely that these efforts can be 

successfully accomplished without the 

support and cooperation of the 

Government and people of Guam, and 

the designation of critical habitat is, as 

shown above, likely to preclude that 

support and cooperation. Conversely, 

not designating it is likely to generate 

increased cooperation and support, as 

shown by the Government of Guam’s 

development and submission of its Plan, 

and the comments of the Governor 

accompanying its transmittal. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

In summary, the benefits of including 

the Guam territorial and private lands in 

the critical habitat designation are 

limited to a potential benefit gained 

through the requirements to consult and 

avoid adverse modification under ESA 

section 7 where a Federal nexus exists, 

and potential educational benefits. 

However, as discussed above, for the 

Guam lands these benefits would be 

minimal or have already occurred. The 

benefits of excluding these areas from 

being designated as critical habitat for 

these species are more significant, and 

include continued and improved 

cooperation between the Service and 

Guam towards the conservation and 

recovery of the species, without which 

recovery is unlikely to occur, and 

encouraging the continued development 

and implementation of the conservation 

measures outlined in their Plan as 

specific steps in that direction. 

They also include avoiding the likely 

termination of cooperation as a result of 

public and legislative hostility to a 

designation, avoiding a reinitiation of 

public hostility towards the refuge, the 

primary purpose of which is the 

conservation of the species for which 

the critical habitat was proposed, and 

avoiding the risk that this hostility 

towards the Service might spill over 

onto hostility towards the conservation 

and recovery of these species.

We view the preservation and 

enhancement of good working relations 

with Guam, and their continued and 

increased involvement in the recovery 

efforts for these species, as a substantial 

benefit to which we give considerable 

weight, and without which 

reintroduction and recovery of these 

species is unlikely to occur. We 

accordingly find that the benefits of 

excluding these areas from critical 

habitat designation outweigh the 

benefits of including these areas. 

(4) The Exclusions Will Not Result in 

Extinction of the Species 

As noted above, the Service may 

exclude areas from the critical habitat 

designation only if it is determined, 

‘‘based on the best scientific and 

commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species concerned.’’ Here, we have 

determined that exclusion of the Guam 

lands from the critical habitat 

designation will not result in the 

extinction of the three species. 

First, the primary threat to the species 

is predation by the non-native brown 

tree snake, not destruction of habitat 

(Savidge 1986, 1987; USFWS 1990a, 

1990b, 2004a, in prep; Wiles et al.

1995). Second, the Economic Analysis 

found few projects likely to adversely 

modify the species’ habitat and having 

the required federal nexus for 

consultation under section 7 of the Act 

were likely to occur, so that section 7 

benefits from a designation, and impacts 

to section 7 protections from a large 

exclusion, would be limited. 

Thirdly, the Government of Guam has 

proposed a natural resource 

management plan with valuable 

conservation objectives for these 

species, and further proposes entering 

into an agreement with the Service and 

other interested parties to carry out the 

Plan. Guam has offered to undertake far 

greater conservation measures on these 

areas than would be available through 

the designation of critical habitat. 

Lastly, in the event Guam does not 

follow through on its proposals, we 

retain the ability to designate critical 

habitat on Guam. 

Accordingly, we have determined that 

the Guam territorial and private lands 

should be excluded under subsection 

4(b)(2) of the Act because the benefits of 

excluding these lands from critical 

habitat for these species outweigh the 

benefits of their inclusion and the 

exclusion of these lands from the 

designation will not result in the 

extinction of the species. 

We recognize that between this 

exclusion and those provided to the 

military lands initially considered for 

inclusion, we have excluded most of the 

lands initially proposed for designation 

as critical habitat for these species. 

However, Congress expressly 

contemplated that exclusions of large 

portions of proposed critical habitat 

might occur when it enacted the 4(b)(2) 

exclusion authority. The accompanying 

Committee Report, House Report 95–

1625, stated on page 17: 

‘‘Economic and any other relevant 

impact shall be considered by the 

Secretary in setting the limits of critical 

habitat * * * The consideration and 

weight given to any particular impact is 

completely within the Secretary’s 

discretion. * * * The Committee 

expects that in some situations, the 

resultant critical habitat will be different 

from that which would have been 

established using solely biological 

criteria. In some situations, no critical 

habitat would be specified. * * *’’

We accordingly believe that these 

exclusions, and the basis upon which 

they are made, are fully within the 

parameters for the use of section 4(b)(2) 

set out by Congress. 

Summary of Comments and 

Recommendations 

In the proposed rule published on 

October 15, 2002 (67 FR 63738), we 

requested all interested parties submit 

comments on the proposal by December 

16, 2002. We also contacted all 

appropriate Territorial, Commonwealth, 

and Federal agencies; landowners; and 

other stakeholders and invited them to 

comment. In addition, we solicited 

comments from nine biologists, all with 

expertise in the fields of wildlife biology 

and conservation biology to provide 

peer review of the proposed critical 

habitat designation. On December 5, 

2002, we published a notice in the 

Federal Register extending the 

comment period to January 6, 2003 (67 

FR 72407). On January 28, 2003, we 

published a notice to reopen the public 

comment period to February 18, 2003, 

in recognition of the damage and 

hardship sustained by Guam and Rota 

from Supertyphoon Pongsona (68 FR 

4160). This period allowed more time 

for submission of comments on the 

proposed rule and draft economic 

analysis. In addition, on June 2, 2004, 

we published a notice to reopen the 

public comment period to July 19, 2004, 

to allow interested parties to consider 

and comment on the Government of 

Guam’s proposed alternative to critical 

habitat designation (69 FR 31073).

Seventy-two individuals, 

organizations, or government entities 

provided written and/or oral comments 

during the comment periods. Comments 

were received from 2 Federal agencies, 

9 Territory or commonwealth agencies 

or elected officials (including the 

current (Felix Camacho) and previous 

(Carl Gutierrez) Governors of Guam), 53 

private organizations or individuals, 

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and 8 peer reviewers. We received oral 

testimony from 20 individuals on Guam 

and 8 individuals on Rota during public 

hearings. Ten of the individuals 

providing oral testimony also provided 

written comments or a copy of their 

testimony. The remaining 33 

individuals or organizations provided 

only written comments. We reviewed all 

comments received for substantive, 

relevant issues and new data regarding 

critical habitat and the three species for 

which critical habitat was proposed. 

Peer reviewer comments are 

summarized separately in the next 

section. Public comments are grouped 

into four general issues relating to the 

proposed critical habitat determination 

and draft economic analysis and are 

addressed in the summary below. 

Peer Review 

We solicited independent opinions 

from a total of 33 knowledgeable 

individuals with expertise in one or 

several fields, including familiarity with 

the species, the geographic region, or 

the principles of conservation biology. 

During our development of the 

proposed rule, we sent draft maps of 

important habitat for the Mariana fruit 

bat, Mariana crow, and Guam 

Micronesian kingfisher to 29 of those 

reviewers and received responses from 

9. In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited peer review of the 

proposed rule from 10 individuals, 6 of 

whom had reviewed the habitat maps 

earlier. Of those 10, we received 

responses from 8. Peer reviewers 

included experts from the Air Force, 

Philadelphia Zoo, Guam Department of 

Agriculture, CNMI Division of Fish and 

Wildlife, Smithsonian National Zoo, 

BirdLife International—Fiji, U.S. 

Geological Survey (Forest and Range 

Ecosystem Science Center, Oregon; Fort 

Collins Science Center), Lincoln Park 

Zoo (Chicago, Illinois), Colorado State 

University, Virginia Polytechnic 

Institute and State University, and 

private biological consultants. 

All eight peer reviewers thought our 

methods for designating critical habitat 

were sound, the best available scientific 

information was used, and the relevant 

scientific literature, reports, and recent 

research were summarized adequately. 

All eight also felt that inclusion of 

currently unoccupied areas and of 

degraded areas with restoration 

potential was justified and well 

supported, and that the definition of 

primary constituent elements and the 

criteria used to identify the proposed 

critical habitat were comprehensive, 

valid, and justified. All eight reviewers 

generally supported the draft 

delineation of critical habitat for the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher on Guam 

and for the Mariana crow on Rota. 

Five peer reviewers stated that we had 

identified in the proposed rule an 

ecologically appropriate configuration 

of habitats and geographic areas. Five 

stated that this configuration includes 

sufficient area overall to support the 

long-term conservation of these three 

species, though several also noted it 

would be difficult to justify changing 

the boundaries significantly. Two said 

the amount of critical habitat proposed 

was the minimum necessary to support 

the long-term conservation of the 

species. Four reviewers stated that the 

inclusion of certain Government of 

Guam and private lands is justified by 

the quality of the habitat in those areas. 

Two reviewers stated that the 

designation of critical habitat is 

necessary for the recovery of these three 

species despite the management 

challenges presented by the brown 

treesnake, and one reviewer emphasized 

that, in addition, brown treesnakes on 

Guam and rats and feral cats on Rota 

must be effectively controlled as part of 

the long-term conservation of the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher. One 

reviewer observed that designation of 

critical habitat is especially important 

for the crow and kingfisher on Guam 

because, other than the very small crow 

population on Andersen Air Force Base, 

these species are not present. One 

reviewer particularly supported our 

recognition that the Guam Micronesian 

kingfisher will need to have two 

populations on Guam, and hence habitat 

in the south as well as in the north, for 

the species to withstand chance 

occurrences that could extirpate a single 

population. Two reviewers commended 

our reference to studies conducted on 

related taxa in other locations and, at 

the same time, our caution in applying 

the results of such studies to the 

Mariana Islands. Responses to peer 

reviewer comments are included below 

with our responses to public comments.

Issue 1: Biological Justification and 

Methodology 

(1) Comment: Three reviewers 

questioned whether we had identified 

sufficient critical habitat for the Mariana 

crow, given the large territory size of 

this species. These reviewers also stated 

their opinion that the population goals 

identified in the draft revised recovery 

plan for the crow seem to be too low. 

Our Response: The Service used 

published and unpublished information 

about the habitat requirements of the 

Mariana crow to define the primary 

constituent elements (PCEs) for this 

species, and we identified areas on 

Guam and Rota containing these habitat 

characteristics. We used recovery 

criteria drafted by our Mariana crow 

recovery team and information about 

territory size to calculate the amount of 

area needed to support viable 

populations to determine the 

boundaries of critical habitat for the 

Mariana crow on Guam and Rota. The 

recovery team drafted the population 

goals for recovery of the species based 

on population viability analyses that 

included the best data available on the 

demography and life history of the crow 

and on its habitat parameters. 

(2) Comment: Two commenters stated 

that the existing conservation areas on 

Rota provide sufficient habitat for the 

Mariana crow and that the crow 

population on the island doesn’t require 

more than 1,500 or 2,000 acres. 

Our Response: Our calculation of the 

amount of habitat required to support a 

viable population of Mariana crows on 

Rota, which exceeds the area 

encompassed by existing conservation 

areas on the island, was based on the 

best available data on the crow’s 

territory size and on the 

recommendations of our Mariana crow 

recovery team. Please see the section of 

this rule entitled ‘‘Criteria Used To 

Identify Critical Habitat’’ for more 

details. 

(3) Comment: One reviewer 

questioned whether we had identified 

sufficient critical habitat for the fruit 

bat, given the data we present on the 

wide-ranging foraging habits of this 

species. 

Our Response: Our delineation of 

critical habitat for the Mariana fruit bat 

was constrained by the extent of forest 

containing the primary constituent 

elements needed by bats, i.e., food 

plants and areas sufficiently remote to 

provide adequate roost sites. Although 

bats do range widely when they forage, 

the presence of the PCEs, and hence the 

quality of the foraging range, is variable. 

For example, the large areas dominated 

by tangantangan do not provide foraging 

habitat for fruit bats. These therefore 

were not included in critical habitat. 

(4) Comment: One peer reviewer and 

one commenter suggested that the 

Urunao and Jinapsan areas in northern 

Guam, and the cliff faces in these areas 

and at Ritidian Point, should be 

included in critical habitat because bats 

use these areas, they provide a buffer for 

the historical fruit bat colony sites along 

the north coast, and they contain the 

PCEs for the Mariana crow and Guam 

Micronesian kingfisher. A commenter 

asked why lands below the cliffline are 

62960 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

included in critical habitat in some 

areas and not in others. 

Our Response: We agree that some of 

the Jinapsan and Urunao private lands 

do contain the PCEs for the Mariana 

fruit bat, Mariana crow, and Guam 

Micronesian kingfisher, but some of 

these lands were not included in the 

proposed critical habitat because these 

lands were degraded, and we 

determined that they were not essential 

to the long-term conservation of these 

species. For this same reason, we 

included in the proposed critical habitat 

some areas below the cliffline and not 

others (i.e., not all lands below clifflines 

are essential to the long-term 

conservation of these species). We agree 

with the reviewer and commenter, and 

in this final rule, we have included all 

of the Guam National Wildlife Refuge 

lands at Ritidian Point in critical 

habitat, including the cliff faces. After 

reviewing those small areas at Urunao 

and Jinapsan that were included in the 

proposed critical habitat, in this final 

designation we have determined that 

those private lands also are not essential 

to the conservation of these species. 

Although they do contain the PCEs, 

these lands are not included in the 

critical habitat designation. 

(5) Comment: One reviewer stated 

that the quality of the remaining forest 

on Guam has declined since the 1990 

recovery plans (USFWS 1990a, 1990b) 

defined ‘‘essential habitat’’ for Guam’s 

endangered birds and bats. This decline 

has resulted from increased populations 

of feral pigs, deer, and carabao and 

encroachment by invasive alien plants, 

both of which exacerbate the natural 

disturbance caused by typhoons. The 

reviewer suggests that the critical 

habitat for the Mariana crow be 

extended along the northwest and 

northeast of Guam to include the same 

areas proposed for the kingfisher and 

fruit bat. 

Our Response: We acknowledge the 

likelihood that forest quality has 

declined on Guam since 1990, but 

without detailed documentation of this 

decline, we are unable to assess it in 

relation to the PCEs for the Mariana fruit 

bat, Mariana crow, or Guam 

Micronesian kingfisher. We thus cannot 

calculate how much this decline in 

habitat quality would, for example, 

influence territory size for the Mariana 

crow or Guam Micronesian kingfisher in 

order to justify a commensurate increase 

in the amount of habitat deemed 

essential for the long-term conservation 

of these species. However, if new 

information becomes available about the 

quality of this habitat and its adequacy 

for the conservation of these species, we 

will consider amending this final 

critical habitat rule.

(6) Comment: One reviewer observed 

that we did not adequately articulate the 

justification for including coconut 

plantations in critical habitat. 

Our Response: While a coconut 

plantation does not contain all of the 

primary constituent elements for all 

three species, coconut palms provide 

some resources for them, and we 

identified some unoccupied disturbed 

areas as essential to these species 

because they do contain some PCEs for 

the species, have high restoration 

potential, and/or provide connectivity 

between areas of high quality forest. 

Guam Micronesian kingfishers were 

documented to excavate nest cavities in 

coconut palms in coastal areas, and 

Mariana fruit bats and Mariana crows 

have been documented to forage in 

coconut-dominated forests. 

(7) Comment: One reviewer asked 

why the Sabana on Rota was not 

identified as critical habitat for the 

crow. 

Our Response: Surveys conducted on 

Rota in 1982, 1987, 1994, 1995, and 

1998 indicate that crows do not use the 

upper elevations of the Sabana 

(Engbring et al. 1986; Engbring 1987; 

USFWS unpubl. data). We conclude that 

this area does not contain the PCEs for 

the crow, and we therefore do not 

include it in critical habitat for the 

Mariana crow. We have, however, 

included areas along the slopes of the 

Sabana that do contain the PCEs and are 

considered essential to the long-term 

conservation of the Mariana crow. 

(8) Comment: Several commenters 

and one reviewer expressed concern 

that critical habitat designation could 

result in the deliberate harassment of 

the crow, which already is disliked 

locally and considered a pest. One 

reviewer stated that persecution of 

crows that may result from the 

designation of critical habitat for the 

Mariana crow on Rota is a serious 

concern because adult survivorship is 

the demographic variable with the 

greatest influence on the viability of the 

crow population. 

Our Response: When we reviewed 

information about persecution 

(intentional harm or harrassment) of 

crows on Rota for our prudency 

determination, we found we had 

insufficient evidence to determine that 

critical habitat for the crow on Rota was 

not prudent because of an increased risk 

of take. Because we do not have 

documentation of significant 

harassment of crows on Rota, we are 

again unable to use this concern as 

justification for excluding Rota from 

critical habitat. 

(9) Comment: Numerous commenters, 

including the previous Governor of 

Guam, stated their opposition to critical 

habitat on the grounds that it does not 

address control or eradication of the 

introduced brown treesnake on Guam. 

Predation by the brown treesnake is 

commonly accepted as the primary 

cause of decline in the Mariana crow 

and Guam Micronesian kingfisher on 

Guam and is believed to have 

contributed to the decline of the 

Mariana fruit bat on Guam, and these 

commenters questioned the value of 

designating critical habitat for these 

species before this major threat is 

removed. 

Our Response: The continued need to 

address threats to an endangered species 

does not obviate our statutory 

requirement to designate critical habitat. 

Controlling predators is a conservation 

issue separate from designating critical 

habitat on Guam. When a species is 

considered for listing under the Act, we 

assess the status of the species 

according to five factors specified in 

section 4(a)(1) of the Act. The three 

species for which we are designating 

critical habitat were listed as 

endangered in 1984, because of the 

effects of all five (49 FR 33881); 

therefore, all five must be addressed to 

recover these species. The loss of native 

habitat on Guam, predation by 

nonnative animals, and poaching (for 

the Mariana fruit bat) were particularly 

identified as the dominant factors 

leading to their decline. 

Addressing each of these threats to 

the Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher entails a 

variety of activities. While efforts to 

control the brown treesnake continue 

(including trapping, research on the 

treesnake’s physiology and ecology, and 

the development of new toxicants and 

methods of delivery), it is vital that 

habitat for Guam’s native wildlife be 

safeguarded for the future. Brown 

treesnakes may prey upon other 

animals, including native birds and 

bats, but they do not affect the structure 

of Guam’s native forests, which harbor 

the primary constituent elements for the 

three listed species regardless of the 

presence of snakes. 

(10) Comment: Two commenters 

observed that critical habitat will benefit 

brown treesnakes as well as the birds 

and fruit bat by protecting habitat.

Our Response: Efforts to control the 

brown treesnake on Guam will not be 

impeded by critical habitat designation. 

These efforts will take place within 

critical habitat when researchers and 

land managers determine control 

measures are appropriate, as they have 

taken place previously in areas that are 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62961

inhabited by listed species. Brown 

treesnake research or control 

experiments in critical habitat will 

include consultation with the Service 

when necessary under section 7 of the 

Act, as they do now when they are 

conducted in areas inhabited by the 

Mariana crow, Mariana fruit bat, or any 

other listed species. 

(11) Comment: Two commenters 

asked why the Service does not 

designate critical habitat for these 

species on unoccupied islands, for 

example, the northern islands in the 

CNMI, instead of on Guam and Rota. 

Our Response: This final rule 

implements the requirement of the Act 

to designate critical for these three listed 

species. Of these three species, the only 

one known to occur in the uninhabited 

northern islands in the Marianas is the 

Mariana fruit bat. Because the fruit bat 

currently is listed as endangered only 

on Guam and is not listed in the CNMI, 

we cannot designate critical habitat for 

the bat in the CNMI. To the best of our 

knowledge, Mariana crows and 

Micronesian kingfishers have never 

occurred on those islands, and we have 

no biological justification for identifying 

critical habitat for Mariana crows and 

Guam Micronesian kingfishers on those 

islands. 

(12) Comment: Two commenters 

suggested that widespread use of 

pesticides by the military following 

World War II may have been a leading 

cause of the decline and extinction of 

Guam’s birds, and the commenters 

asked whether this possibility has been 

studied. 

Our Response: The effect on Guam’s 

wildlife of widespread DDT use 

between the 1940s and 1960s has been 

investigated to some extent (Baker 1946; 

Drahos 2002), but the results have been 

equivocal (Diamond 1984; Grue 1985). 

Although predation and habitat loss are 

the accepted leading causes of the loss 

of Guam’s native species, it is possible 

that DDT contributed somewhat to the 

early declines, particularly of 

insectivorous species such as the 

endangered Mariana swiftlet 

(Aerodramus bartschi). It is important to 

note that DDT would have affected 

populations of introduced predators as 

well, either through toxicity or 

reduction of the prey base. Because 

these effects were not measured at the 

time, it is difficult to sort out the 

relative impacts of the pesticide on 

Guam’s native birds and on the 

nonnative mammals and reptiles that 

preyed upon them. 

(13) Comment: Two commenters, 

including the acting Commissioner of 

the Marianas Public Land Authority, 

stated that because one of our major 

sources of scientific information (the 

revised recovery plan for the Mariana 

crow) is in draft form, the Service has 

not used the best available scientific and 

commercial data, and furthermore the 

Service has used information that may 

be misleading or incorrect. 

Our Response: The draft revised 

recovery plan for the Mariana crow 

contains the best and most recent data 

on various aspects of the life history and 

habitat requirements of the Mariana 

crow. The draft revised recovery plan 

has not yet been through the Service’s 

peer review process or been approved 

by the Regional Director, but the 

information compiled in this document 

comes from a wide variety of published 

and unpublished sources that have been 

appraised by our Mariana crow recovery 

team. This team is comprised of 

independent, scientific experts who are 

well qualified to judge the value and 

accuracy of the data and other 

information in the draft revised recovery 

plan, including data generated by 

individual recovery team members. 

(14) Comment: Two commenters 

asked how we know that the three 

species will stay within designated 

critical habitat. 

Our Response: Critical habitat is not 

intended to create a preserve or 

protected area in which a particular 

listed species is somehow confined. 

Rather, the delineation of critical habitat 

is based fundamentally on our 

knowledge of which habitat components 

each species requires to carry out its life 

functions, and thus where the species 

have occurred naturally. Critical habitat, 

therefore, identifies those areas where 

the listed species are most likely to 

occur and to thrive, not to areas where 

they should be limited.

(15) Comment: Two commenters 

asked whether Service personnel had 

trespassed on private property in the 

process of determining map boundaries 

for critical habitat on Guam. 

Our Response: Service biologists did 

not trespass on private property at any 

time. The development of the proposed 

critical habitat boundaries was based 

primarily on analysis of maps and aerial 

photographs from the U.S. Geological 

Survey and IKONOS satellite imagery, 

review of scientific literature, our own 

knowledge of the area, and discussions 

with other scientists familiar with these 

three species and with Guam and/or 

Rota. In addition to previous fieldwork, 

we visited Guam just prior to beginning 

development of the proposed rule, met 

with representatives of government 

agencies, and toured military bases and 

other lands where we obtained 

authorized access. 

(16) Comment: There is no biological 

basis for designating critical habitat for 

the Mariana crow on Rota because the 

crow population on that island is not 

presently limited by the availability of 

habitat, and the size of the population 

currently exceeds the number of 

breeding pairs needed for recovery, as 

specified in the draft revised recovery 

plan. 

Our Response: The purpose of critical 

habitat designation is to identify areas 

containing the primary constituent 

elements necessary for a listed species 

to carry out its life functions and to 

identify the quantity of those areas that 

are ‘‘essential to the conservation of the 

species,’’ irrespective of whether those 

areas are occupied by the species or 

whether the species occupies a 

particular area at carrying capacity. 

(17) Comment: The Service has not 

addressed the adverse impacts of jet 

noise on fruit bats and birds. 

Our Response: The Service conducted 

a study in 1992–1995 to assess the effect 

of aircraft overflights on Mariana fruit 

bats and Mariana crows (Morton 1996). 

The results of this study did not 

indicate that aircraft overflights directly 

contributed to nest failure in Mariana 

crows, but the results did suggest that 

noise or visual disturbance in proximity 

to a crow nest or fruit bat colony may 

disturb the animals and cause them to 

leave nests or roost sites. Nevertheless, 

the presence of auditory or visual 

human disturbances does not affect the 

presence of the primary constituent 

elements used to define critical habitat. 

(18) Comment: The inclusion of forest 

at Jinapsan in critical habitat is not 

appropriate because this habitat is on 

the windward side of the island and 

prone to high damage from typhoons. 

Our Response: The forest at Jinapsan 

was excluded from final critical habitat 

designation. However, this forest is 

considered essential to the conservation 

of the Mariana fruit bat, Mariana crow, 

and Guam Micronesian kingfisher 

because it contains the primary 

constituent elements for these species. 

The forest ecosystems of the Mariana 

Islands have evolved with typhoons, a 

typical if irregular natural disturbance 

in the archipelago. A particular 

windward forest area may be affected 

more than other areas by typhoons, and 

this may reduce its value for human 

activities, but it does not remove the 

value of the area as habitat for native 

species. 

(19) Comment: Why did the Service 

include unoccupied habitat in the 

proposed critical habitat designation? 

Our Response: Section 3(5)(A)(ii) of 

the Act provides a definition for 

unoccupied critical habitat: ‘‘specific 

62962 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

areas outside the geographical area 

occupied by the species * * * upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species.’’ In many cases, the 

population of an endangered species is 

so small that the area currently 

occupied by the species is not enough 

to support a larger, self-sustaining 

population. On Guam, the small 

population of the Mariana crow and the 

absence of the Guam Micronesian 

kingfisher provide extreme examples of 

this situation. 

Our recovery plans for these species 

identify the need to expand existing 

populations and reestablish wild 

populations within their historical 

range. Because of the very limited 

current range of the Mariana crow on 

Guam and the extirpation of the Guam 

Micronesian kingfisher from the wild, 

identifying only occupied areas as 

essential clearly would not meet the 

conservation requirements of the 

species. For example, the recovery goals 

for the Mariana crow call for a selfsustaining population of at least 75 pairs 

in northern Guam. The area occupied by 

the current population of 10–12 Mariana 

crows would be too small to sustain a 

population of 75 pairs of crows.

When designating unoccupied habitat 

for these species, we first evaluated 

lands that are suitable for each species. 

Of this suitable habitat, we determined 

what areas are essential for the 

conservation of each species using the 

guidelines outlined in the recovery 

plans (i.e., areas that contain one or 

more of the primary constituent 

elements and that are either in good 

condition for conservation efforts or 

could be made good through 

appropriate management actions) and 

would provide space needed by the 

species to reach our recovery goals. 

These goals are as follows: At least two 

permanent, major colonies of Mariana 

fruit bats in northern Guam and one in 

southern Guam, each harboring at least 

400 bats, and a minimum total bat 

population of 2,500 on the island 

(USFWS 1990a); 75 pairs of Mariana 

crows each in northern Guam, southern 

Guam, and on Rota (USFWS in prep); 

and 1,000 Guam Micronesian 

kingfishers in northern and southern 

Guam (USFWS 2004a). 

Subsequent to the proposed rule, 

exclusions were made in northern and 

southern Guam (see ‘‘Exclusions from 

Critical Habitat’’ for details). The 

designated critical habitat on Guam is 

considered occupied by Mariana fruit 

bat and unoccupied by the Mariana 

crow and Guam Micronesian kingfisher. 

The designated critical habitat on Rota 

is considered occupied by the Mariana 

crow. 

(20) Comment: The Service should 

designate 6,000 acres of critical habitat 

for the Mariana crow on the mainland 

United States instead of on Rota. 

Our Response: The Mariana crow is 

only found, and to the best of our 

knowledge has only ever been found, on 

the islands of Guam and Rota in the 

Mariana Islands. Therefore, these 

islands are the only appropriate 

locations for designating critical habitat 

for these species. 

(21) Comment: What criteria were 

used to determine which lands would 

be included in critical habitat? 

Our Response: We refer the 

commenter to the ‘‘Critical Habitat 

Designation’’ section of the proposed 

rule and of this final rule. 

In summary, as required by the Act 

and regulations (section 4(b)(2) and 50 

CFR 424.12), we used the best scientific 

information available to identify areas 

that contain the physical and biological 

features that are essential for the 

conservation of the Mariana fruit bat, 

Guam Micronesian kingfisher, and 

Mariana crow. This information 

included: Peer-reviewed scientific 

publications (e.g., Baker 1951; Jenkins 

1983; Wiles et al. 1995; NRC 1997); 

published and draft revised recovery 

plans (USFWS 1990a, 1990b, 2004a, in 

prep); the final listing rule (49 FR 

33881); unpublished reports by the 

Guam Division of Aquatic and Wildlife 

Resources (GDAWR), CNMI Division of 

Fish and Wildlife (DFW), and the 

Service (e.g., Wiles 1982a; Engbring and 

Ramsey 1984; Morton 1996; Morton et 

al. 1999); aerial photographs and 

satellite imagery of Guam and Rota; 

personal communications with 

scientists familiar with the species and 

habitats; and comments received during 

public comment periods and in 

response to critical habitat outreach 

packages. Specific information we used 

from these sources includes estimates of 

historic and current distribution, 

abundance, and territory sizes for the 

three species, as well as data on 

resource and habitat requirements. From 

recovery plans, we considered the 

recovery objectives and the assessments 

of the habitat necessary to meet these 

objectives, as well as life history 

information. 

(22) Comment: Why was the cargo 

drop zone on Andersen Air Force Base 

not included in critical habitat? 

Our Response: Degraded habitats that 

have high restoration potential may be 

included in critical habitat designations. 

In this case, the area that has been 

completely cleared of vegetation for the 

Air Force’s cargo drop training is likely 

to remain cleared for this purpose and 

therefore has little potential for 

restoration of the primary constituent 

elements for the three species. 

(23) Comment: The previous Governor 

of Guam commented that the Service’s 

criteria for including private lands in 

critical habitat was not applied evenly 

because lands with high economic value 

were deliberately left out to avoid a high 

estimate of economic impact.

Our Response: The development 

potential or economic value of lands 

was not considered in determining the 

boundaries of proposed critical habitat. 

These boundaries were based on 

biological criteria. Potential economic 

impacts were estimated subsequent to 

the delineation of proposed critical 

habitat. 

(24) Comment: Why has the Service 

designated critical habitat for species 

that are extinct? 

Our Response: We have not. In the 

proposed rule, the Service determined 

that designating critical habitat for the 

little Mariana fruit bat, Guam broadbill, 

and Guam subspecies of bridled whiteeye is not prudent because these species 

likely are extinct. On February 23, 2004, 

the Service removed the Guam broadbill 

from Federal List of Threatened and 

Endangered Species due to extinction 

(69 FR 8116) and will consider delisting 

the remaining species in the future as 

staffing and funding resources allow. 

This final designation includes critical 

habitat for the Guam Micronesian 

kingfisher, a species that, while 

extirpated from the wild, is not extinct. 

Issue 2: Policy and Regulations 

(25) Comment: One peer reviewer 

stated that to designate critical habitat 

primarily on Federal lands is 

appropriate because consultation under 

section 7 of the Act applies to Federal 

agencies. Several commenters, 

including the acting Commissioner of 

the Marianas Public Lands Authority, 

asked that the Service exclude all 

private lands from the critical habitat 

designation. Two of these commenters 

asked why we include private lands if 

there is no Federal nexus to trigger 

section 7 consultation and if critical 

habitat does not provide substantial 

protection for these endangered species. 

Several commenters requested that we 

exclude private lands, access corridors 

to these private lands through Federal 

lands, Federal excess lands, and/or a 

range of specific properties on Guam 

and Rota from critical habitat. The 

commenters claim that such exclusions 

legally can be made because they will 

not result in the extinction of these 

species. 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62963

Our Response: It is true that 

consultation under section 7 takes place 

between Federal agencies, but this 

consultation is triggered by actions that 

are carried out, authorized, or funded by 

Federal agencies on state, Territorial, or 

private lands, as well as by actions on 

Federal lands. Therefore, the section 7 

consultation aspect of critical habitat is 

not solely relevant to Federal lands. 

Critical habitat designation is one of 

a number of conservation tools 

established in the Act that can play an 

important role in the long-term 

conservation of a species. Designation of 

critical habitat is a way to guide Federal 

agencies in evaluating their actions, in 

consultation with the Service, such that 

their actions do not hamper 

conservation of listed species. If 

activities on private lands designated as 

critical habitat do not involve any 

Federal funding or authorization, then 

the landowner should not be affected by 

the designation. There are, however, 

educational or informational benefits to 

the designation of critical habitat. 

Educational benefits include the 

notification of landowners, land 

managers, and the general public about 

the importance of protecting the habitat 

of these species and dissemination of 

information regarding their essential 

habitat requirements. 

We identify critical habitat based on 

biological and management criteria 

described in section 4(b)(2) of the Act, 

and we apply these criteria irrespective 

of land ownership and the potential for 

Federal involvement in development or 

other land use projects. We can also 

exclude lands from critical habitat 

under section 4(b)(2) of the Act. 

Although it is true that exclusions 

cannot be made if they will result in the 

extinction of the species, this is not the 

sole criterion that allows us to make an 

exclusion. We direct the commenters to 

the section of this rule entitled 

‘‘Exclusions from Critical Habitat’’ for 

information about areas excluded from 

the final critical habitat designation. 

(26) Comment: Several peer reviewers 

stated that future conservation projects 

may justify a reconsideration of the 

critical habitat boundaries, but existing 

conservation activities, including 

Integrated Natural Resource 

Management Plans (INRMPs) prepared 

by the U.S. Navy (Navy 2001) and U.S. 

Air Force (Air Force 2003), are 

insufficient to supplant the protections 

afforded by critical habitat designation. 

Furthermore, planned future 

conservation activities are either too far 

from implementation or do not address 

the recovery goals for these three 

species sufficiently to warrant 

exclusions from critical habitat of the 

lands involved in such current or 

planned projects.

Our Response: The Service fully 

complies with the Act in assessing 

potential exclusions from critical habitat 

designations. Please see the section of 

this rule entitled ‘‘Exclusions from 

Critical Habitat’’ for a description of the 

exclusions leading to this critical habitat 

designation. 

(27) Comment: The military lands on 

Guam have the conservation benefits of 

the overlay refuge and are physically 

protected by high security and restricted 

access. The designation of critical 

habitat thus will not be a significant 

imposition to further development. 

Our Response: We have excluded Air 

Force and Navy lands from this final 

designation. See the section of this rule 

entitled ‘‘Exclusions from Critical 

Habitat’’ for detailed discussion of why 

these areas have been excluded from the 

final designation. 

(28) Comment: Two reviewers and 

several commenters stated that a Habitat 

Conservation Plan (HCP) for the 

Mariana crow on Rota would be 

preferable to the designation of critical 

habitat because the HCP would be a 

multilateral effort and thus more 

acceptable to the local community and 

government than critical habitat, a 

regulatory action imposed unilaterally 

by the Service. Several commenters 

asked what the status would be of 

critical habitat on Rota if the HCP were 

completed, whether it will still be 

possible to complete the HCP once 

critical habitat is designated, and 

whether the designation of critical 

habitat is taking place because the HCP 

isn’t finished. 

Our Response: We agree that the 

protective measures and actions of an 

HCP can be very effective in conserving 

important habitat features (e.g., primary 

constituent elements). Completed HCPs 

have been excluded from critical habitat 

designations because of their 

management and protective measures or 

because there are greater conservation 

benefits in excluding HCPs from a 

designation. However, the lack of a 

completed HCP was not the reason for 

this critical habitat designation. The 

designation of critical habitat and the 

development of HCPs are independent 

regulatory processes that arise from 

different sets of circumstances and 

different sections of the Act. Under 

section 4(a)(3) of the Act, we are 

generally required to designate critical 

habitat for a species at the time it is 

federally listed as an endangered or 

threatened species, and in accordance 

with section 4(b)(2), on the basis of the 

best scientific data available and after 

taking into consideration the economic 

impact, and any other relevant impact, 

of specifying an area as critical habitat. 

Under section 10 of the Act, habitat 

conservation plans are developed to 

permit and provide mitigation for take 

of listed species associated with 

development and other projects on nonFederal lands. HCPs are undertaken at 

the discretion of non-Federal 

landowners, and the development of an 

HCP on Rota has been an ongoing 

process for nearly a decade. In 2002, the 

Service awarded $244,000 to the CNMI 

to support the completion of an HCP on 

Rota for the development of agricultural 

homesteads and the Mochong cultural 

center. In 2004, the Service awarded 

$339,522 to the CNMI to support the 

completion of an island-wide HCP for 

Rota. In the future, the completion of 

HCPs on Rota and the establishment of 

the associated mitigation areas may 

provide a basis for review and revision 

of the critical habitat boundaries on 

Rota. 

(29) Comment: Several commenters, 

including the previous Governor of 

Guam, felt that the Service did not 

adequately inform local governments 

and agencies and private landowners 

about the pending critical habitat 

proposal or involve them in the process. 

Several commenters expressed a desire 

for the Service to hold more public 

meetings and hearings and stated that 

the format for the hearings was 

inappropriate and questions raised 

should have been answered there. 

Our Response: We have made a 

significant effort to contact and inform 

local stakeholders on Guam and Rota 

and include them in the critical habitat 

process. We mailed information and 

other materials to private landowners 

using land ownership information and 

addresses obtained from the 

Government of Guam and the CNMI. We 

also attempted to meet and obtain input 

from many of the resource management 

agencies on Guam and in the CNMI that 

could be affected by a designation, 

including the Guam Division of Aquatic 

and Wildlife Resources and CNMI 

Department of Land and Natural 

Resources. We also attempted to contact 

representatives of the Chamorro Land 

Trust Commission (CLTC) and CNMI 

Board of Public Land regarding the 

pending critical habitat proposal.

The Service has done its best to solicit 

input from the local communities on 

Guam and Rota and provide 

opportunities for individuals to 

communicate their concerns and 

comments. Our court-ordered deadline 

for publishing a final decision on 

critical habitat did not leave time for 

additional meetings or hearings. We 

realize that the public hearing format is 

62964 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

frustrating because it is primarily a 

forum for individuals to submit their 

comments and have them entered into 

the record, not for discussion of 

concerns. Such discussion likely would 

prevent some comments from being 

recorded in the record due to time 

constraints. For this reason, the Service 

held public meetings the month prior to 

the hearings, so that individual 

questions could be answered. Please see 

the chronology of our outreach efforts in 

the ‘‘Previous Federal Actions’’ section, 

above. 

(30) Comment: Several commenters, 

including the current and previous 

Governors of Guam and the Governor of 

the CNMI, urged the Service to seek 

alternatives to critical habitat, and some 

requested that a group including 

representatives of all the landowners 

and other stakeholders in land use and 

conservation be convened to discuss 

such alternatives. 

Our Response: We have considered 

alternatives within the context of our 

determination that designating critical 

habitat is prudent for the Mariana fruit 

bat, Mariana crow, and Guam 

Micronesian kingfisher. On June 13, 

2003, the Guam District Court granted a 

deadline extension to allow the 

Government of Guam time to develop an 

alternative to critical habitat designation 

on Guam. On June 5, 2004, the 

Government of Guam provided the 

Service a proposed alternative to critical 

habitat designation. After reviewing the 

Government of Guam proposal, we 

determined that the benefits of 

designating Government of Guam lands 

and private lands on Guam as critical 

habitat did not outweigh the benefits of 

excluding them from designation. Please 

see the ‘‘Analysis of Impacts Under ESA 

4(b)(2)’’ section for details. 

After the extension was granted on 

June 13, 2003, we also notified the 

Mayor of Rota and Mariana Public Land 

Authority that there was additional time 

to discuss potential alternatives to 

designation of critical habitat on Rota. 

However, we received no response from 

the CNMI on developing alternatives. 

In addition to excluding Government 

of Guam lands and private lands on 

Guam, we excluded Air Force and Navy 

lands from critical habitat designation 

under sections 4(a)(3) and/or 4(b)(2) of 

the ESA, as amended by Section 318 of 

the fiscal year 2004 National Defense 

Authorization Act. Please see the 

‘‘Exclusions from Critical Habitat’’

section for details. 

(31) Comment: Conservation on the 

Mariana Islands would be better 

addressed through public-private 

partnership projects than through the 

designation of critical habitat. 

Our Response: We have a legal 

obligation to designate critical habitat 

for listed species to the extent prudent 

and determinable. Some areas may be 

excluded from critical habitat, for 

example, under section 4(b)(2) of the 

Act. As previously stated, however, we 

will continue to work with landowners, 

and the potential exists for reviewing 

and possibly revising critical habitat 

boundaries in the future. Partnerships 

among private landowners, the Service, 

and conservation organizations are a 

highly effective conservation tool, and 

we welcome initiatives from private 

landowners to explore the potential for 

partnerships on their land. We refer 

interested parties to the ADDRESSES

section of this rule and encourage them 

to contact the Pacific Islands Fish and 

Wildlife Office to inquire about the 

Conservation Partnerships program, 

which may have funding to support 

projects on private lands. Projects and 

management plans for private lands that 

include commitments to activities that 

will contribute to the long-term 

conservation of these three endangered 

species may warrant our future review 

of the critical habitat boundaries. 

(32) Comment: The current and 

previous Governors of Guam stated that 

the Guam Conservation Initiative 

proposed by the Government of Guam 

was a better approach to the 

conservation of these endangered 

species and their habitats than the 

designation of critical habitat. 

Our Response: To the best of our 

knowledge, the Guam Conservation 

Initiative is in draft or proposal form 

and is not a program that has been 

funded or instituted on Guam. We 

therefore had no basis for evaluating the 

potential for excluding Government of 

Guam lands based on the ‘‘Guam 

Conservation Initiative.’’ However, on 

June 5, 2004, the Service did receive a 

proposed alternative to critical habitat 

designation from the Government of 

Guam. We reviewed their proposal and 

excluded Government of Guam lands 

from critical habitat designation because 

the benefits of designation did not 

outweigh the benefits of exclusion. 

Please see the ‘‘Analysis of Impacts 

Under Section 4(b)(2)’’ section for a 

details. 

(33) Comment: Several commenters, 

including the current and previous 

Governors of Guam, stated their belief 

that the designation of critical habitat 

will be detrimental to existing 

conservation activities because it will 

result in the loss of the overlay refuge 

on military lands on Guam and the 

associated cooperative agreements with 

the Air Force and Navy. It was also 

contended that critical habitat would 

result in the loss of funds and other 

resources that presently are used for 

conservation projects on these lands 

because these resources will be needed 

to complete section 7 consultations 

triggered by proposed actions within 

critical habitat. 

Our Response: The Air Force and 

Navy lands were excluded from the 

critical habitat designation under 

sections 4(a)(3) and/or 4(b)(2) of the Act, 

as amended by Section 318 of the fiscal 

year 2004 National Defense 

Authorization Act. See ‘‘Exclusions 

from Critical Habitat’’ for a more 

detailed discussion of the exclusions.

(34) Comment: Numerous 

commenters, including the current and 

previous Governors of Guam and the 

CNMI Senate, expressed their concern 

that the designation of critical habitat 

will place a disproportionate regulatory 

burden on local governments and 

private landowners and that private 

landowners will be subject to stringent 

Federal regulations. These commenters 

also expressed concern that the 

designation of critical habitat will 

restrict owners’ activities on their 

private lands, will ‘‘lock up’’ or restrict 

access to those lands (e.g., the 

agricultural homestead lots on Rota), or 

result in the condemnation or 

confiscation of private lands and the 

transformation of public lands into 

nature preserves or zoos. 

Our Response: Critical habitat 

designation does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

special conservation area. It does not 

allow government or public access to 

private lands and will not result in 

closure of the area to all access or use. 

A critical habitat designation does not 

constitute a land management plan. 

Rather, it triggers the requirement that 

Federal agencies must consult with the 

Service on activities they authorize, 

fund, or carry out that may affect critical 

habitat. 

When local government or private 

landowners seek a Federal permit or 

Federal funding, the Federal permitting 

or funding agency must consult with the 

Service on actions that may affect listed 

species or designated critical habitat. 

The draft economic analysis and 

addendum identify the potential Federal 

actions that may result in consultations 

on the listed species and critical habitat 

on Guam and Rota over the next ten 

years. The regulatory burden of critical 

habitat designation, in the form of 

consultation under section 7(a)(2) of the 

Act, falls on Federal government 

agencies, not directly on local 

governments or private landowners. We 

anticipate that the majority of projects 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62965

on private or Commonwealth lands 

probably will go forward unimpeded 

because there will be no Federal nexus. 

In the rare case where a Federal project 

on private land is likely to result in 

destruction or adverse modification of 

critical habitat, the Service must 

provide, within a specified time period, 

reasonable and prudent alternatives that 

will allow the project to avoid adverse 

modification. Finally, we have never 

intervened in local land use proceedings 

in the CNMI and do not anticipate doing 

so in the future. 

(35) Comment: The current and 

previous Governors of Guam 

commented that the military’s INRMPs 

provide them with an alternative that 

can gain these agencies exclusion from 

critical habitat under the Act. Allegedly 

non-Federal landowners do not have 

that alternative. 

Our Response: Air Force lands were 

excluded under section 4(a)(3) of the 

ESA, as amended by subsection (a) 

Section 318 of the fiscal year 2004 

National Defense Authorization Act, 

because their INRMP provides a benefit 

to the Mariana fruit bat, Mariana crow, 

and Guam Micronesian kingfisher (see

‘‘Exclusions from Critical Habitat’’). 

This section of the Act only applies to 

military installations. However, any 

landowner can develop a management 

plan to conserve essential habitat that 

may provide a basis for excluding lands 

from a critical habitat designation under 

the Act. We refer interested parties to 

the ADDRESSES section of this rule and 

encourage them to contact our Pacific 

Islands Fish and Wildlife Office to 

obtain additional information about 

developing management plans for listed 

species. 

(36) Comment: The previous Governor 

of Guam stated that Executive Order 

13175 establishes conditions for 

designation of critical habitat on tribal 

lands in the United States that are 

different from conditions for 

designation of the lands in 

unincorporated territories. 

Our Response: We agree. Executive 

Order (E.O.) 13175, Consultation and 

Coordination with Indian Tribal 

Governments (65 FR 67249, November 

9, 2000), pertains only to Indian or 

Alaska Native tribes as defined in the 

Recognized Indian Tribe List Act of 

1994, 25 U.S.C. 479a, and this Act does 

not include the Chamorro people. E.O. 

13175 provides general guidelines for 

Federal interaction with these tribes and 

makes no mention of unincorporated 

Territories; therefore, E.O. 13175 has no 

relevance to this designation of critical 

habitat. 

(37) Comment: The previous Governor 

of Guam commented that the lands at 

Ritidian Point not included in the 

designation must have low habitat value 

in the Service’s view, and they therefore 

should be exchanged for lands at 

Falcona.

Our Response: Some of the Serviceowned lands within the Guam National 

Wildlife Refuge were not included in 

the proposed designation because of a 

mapping error. All of Service-owned 

lands at Ritidian Point that are part of 

Guam National Wildlife Refuge are 

considered essential to the conservation 

of these species and are now included 

in this critical habitat designation. 

(38) Comment: Two commenters 

stated that the amount of land 

designated on Guam as critical habitat 

for the Mariana crow amounts to as 

much as 100 times more land per crow 

than is currently used by each human 

resident of Guam. 

Our Response: Critical habitat is 

designated based on the conservation 

needs of the species. This includes 

adequate area for foraging and breeding. 

The size and foraging characteristics of 

the Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher 

necessitate sufficient area for adequate 

breeding sites and to obtain enough food 

to survive and reproduce. The 

designation of critical habitat does not 

preclude other uses of these lands. 

(39) Comment: Several commenters 

stated that the Service cannot designate 

critical habitat on islands in the same 

way we do on continents; we must take 

into consideration the limited land base 

on islands and the proportion of the 

entire land base being designated. 

Our Response: In accordance with 

section 3(5)(A)(i) of the Act and 

regulations at 50 CFR 424.12, in 

determining which areas to propose as 

critical habitat, we are required to base 

critical habitat determinations on the 

best scientific and commercial data 

available and to consider those physical 

and biological features (primary 

constituent elements) that are essential 

to the conservation of the species and 

that may require special management 

considerations or protection. These 

features 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 of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. Changing the 

size of a critical habitat designation to 

meet a specified percentage of a given 

larger land area elsewhere would result 

in a designation that may be 

scientifically invalid. 

(40) Comment: Andersen Air Force 

Base should be excluded from critical 

habitat because (a) the INRMP for the 

base provides substantial protections for 

the Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher and their 

habitat on Guam, (b) the Air Force has 

provided draft text to amend its INRMP 

to include more specific projects that 

will contribute to the long-term 

conservation of these species, and (c) 

the Air Force has agreed to conduct 

consultations under section 7 of the Act 

for the Mariana fruit bat, Mariana crow, 

and Guam Micronesian kingfisher and 

has agreed to maintain and improve the 

primary constituent elements for these 

species on its lands. Little additional 

benefit will accrue to these species with 

the designation of critical habitat other 

than the trigger for interagency 

consultation under section 7 of the Act. 

Furthermore, critical habitat designation 

may have a negative impact on the 

current conservation projects that 

benefit these species if resources are 

diverted to meet consultation 

requirements and/or if the Air Force 

removes its lands from the Guam 

National Wildlife Refuge. 

Our Response: We have excluded 

Andersen Air Force Base from the final 

critical habitat designation pursuant to 

the provisions of Section 318 of the 

fiscal year 2004 National Defense 

Authorization Act. 

(41) Comment: The INRMP for the 

Navy lands on Guam provides 

substantial protections for the Mariana 

fruit bat, Mariana crow, and Guam 

Micronesian kingfisher and their habitat 

on Guam, and these protections are 

superior to those that would be 

provided by critical habitat. This 

INRMP was prepared in cooperation 

with the Service, and the Service 

approved it. In the Cooperative 

Agreement establishing the Guam 

National Wildlife Refuge overlay on 

Navy lands, the Navy has agreed to 

conduct consultations under section 7 

of the Act for the Mariana fruit bat, 

Mariana crow, and Guam Micronesian 

kingfisher and has agreed to maintain 

and improve the primary constituent 

elements for these species on its lands. 

Little additional benefit will accrue to 

these species with the designation of 

critical habitat other than the trigger for 

interagency consultation under section 

7 of the Act. Furthermore, critical 

habitat designation may have a negative 

impact on the current conservation 

projects that benefit these species if 

resources are diverted to meet 

consultation requirements and/or if the 

62966 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

Navy removes its lands from the Guam 

National Wildlife Refuge. 

Our Response: We have excluded the 

Navy lands from the final critical habitat 

designation under section 4(b)(2) of the 

Act. See ‘‘Exclusions from Critical 

Habitat’’ for a more detailed discussion 

of the exclusions. 

(42) Comment: Two commenters, 

including the acting Commissioner of 

the Marianas Public Lands Authority, 

expressed a concern that the clearing of 

private land designated as critical 

habitat will constitute ‘‘take’’ and would 

therefore be a violation of section 9 of 

the Act. 

Our Response: Clearing (i.e., removal 

of vegetation) of any land designated as 

critical habitat does not automatically 

constitute violation of section 9 of the 

Act. Section 9 prohibits the taking of 

any wildlife species. The term ‘‘take’’

means to harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture, or 

collect, or to attempt to engage in any 

such conduct (16 U.S.C. 1532 (19). 

(43) Comment: Several commenters, 

including the acting Commissioner of 

the Marianas Public Lands Authority, 

requested more time to review the 

proposed rule and draft economic 

analysis after Supertyphoon Pongsona 

hit Guam and Rota on December 8, 

2002. One commenter asked that we 

extend the final deadline for the rule.

Our Response: We reopened the 

comment period from January 28 to 

February 18, 2003, to allow the 

residents of Guam and Rota more time 

to provide their comments once basic 

services and infrastructure had been 

restored. An extension on the deadline 

for this final rule could be obtained only 

through a request submitted to the U.S. 

District Court for Guam. On May 30, 

2003, the Government of Guam filed a 

motion to extend the deadline for 

publication of the final rule to allow 

time to develop an alternative to critical 

habitat designation on Guam. The 

deadline extension was granted by the 

Guam District Court on June 13, 2003. 

On April 5, 2004, the Government of 

Guam submitted their proposed 

alternative to critical habitat to the 

Service as ordered by the Guam District 

Court. The court ordered that this final 

rule be submitted for publication in the 

Federal Register no later than October 

18, 2004. 

(44) Comment: The Service should 

use the draft economic analysis in the 

determination of prudency for critical 

habitat. 

Our Response: The first step in the 

critical habitat process, the proposed 

determination of whether or not a 

designation for any species is prudent, 

is a decision based on biological and 

conservation considerations, not the 

potential economic impacts of the 

designation. Furthermore, the economic 

analysis cannot be made in a detailed, 

quantitative fashion until maps of the 

proposed critical habitat are completed. 

As defined by regulation, prudency 

examines whether critical habitat would 

harm or benefit the species (see 50 CFR 

424.12(a)(1)). If critical habitat is 

prudent, we look at all of the impacts of 

designating specific areas as critical 

habitat to see if the benefits of 

designation outweigh the benefits of 

excluding an area from critical habitat. 

Should we determine that critical 

habitat is not prudent because it will not 

provide additional conservation benefit 

to the species or will result in increased 

threat to the species, we would not 

conduct an economic analysis. When 

we do propose critical habitat, we then 

use the economic analysis to assess 

possible exclusions under section 

4(b)(2) of the Act. 

(45) Comment: Current enforcement 

of the Act on Rota is sufficient to protect 

the Mariana crow and its habitat. 

Our Response: The Service is required 

by law to designate as critical habitat 

those areas which are essential to the 

long-term conservation of listed species, 

unless the economic or other impacts of 

designation outweigh the conservation 

benefits. All critical habitat designated 

on Rota is currently occupied by crows. 

Activities that may result in the 

destruction or adverse modification of 

critical habitat include those that alter 

the primary constituent elements of the 

designated area to an extent that its 

value for both the survival and longterm conservation of the Mariana crow 

is appreciably diminished (see ‘‘Critical 

Habitat’’ section of the rule for further 

discussion). 

(46) Comment: Several commenters 

expressed their belief that designation of 

critical habitat for the Mariana crow on 

Rota will cause significant resentment 

in the local community and 

government, provide a disincentive for 

participation in voluntary conservation 

projects, and create obstacles to future 

crow conservation efforts on the island. 

Our Response: We acknowledge that, 

despite the Service’s outreach activities, 

considerable misapprehension remains 

about the impacts of critical habitat 

designation on land use on Rota. 

Nevertheless, absent documentation that 

the designation of critical habitat would 

increase the threat to the Mariana crow, 

or be offset by adverse economic or 

other impacts, we have no basis either 

for changing our prudency 

determination or for excluding lands on 

Rota from critical habitat. 

We also reiterate that a critical habitat 

designation does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

special conservation area. It does not 

allow government or public access to 

private lands and will not result in 

closure of the area to all access or use. 

A critical habitat designation does not 

constitute a land management plan. 

Rather, it triggers the requirement that 

Federal agencies must consult with the 

Service on activities they take or fund 

that might affect critical habitat, and on 

Rota this requirement is already 

triggered by the presence of Mariana 

crows throughout the area designated as 

critical habitat. 

We recognize that critical habitat is 

only one of several tools provided in the 

Act to accomplish long-term 

conservation of listed species and that 

this goal is best achieved through 

cooperation between the Service and the 

community. We hope that members of 

the Rota community interested in 

initiating conservation projects for the 

Mariana crow will be guided by this 

critical habitat designation to areas 

where their efforts will be of greatest 

benefit. We welcome ideas and 

proposals for conservation projects and 

will seek funding to support such 

projects. We continue to work closely 

with the people of Rota and the CNMI 

government to develop HCPs, and we 

have awarded the CNMI a total of 

$583,522 to facilitate this effort. We may 

reevaluate critical habitat boundaries 

after HCPs are completed. 

(47) Comment: The sole basis for the 

Service’s reversal of its 1991 

determination (that designating critical 

habitat for these species was not 

prudent) appears to be losses that the 

Service has experienced in other, 

significantly different litigation. 

Our Response: Our rationale for our 

determinations is presented in the 

proposed rule (67 FR 63738), under the 

section entitled ‘‘Prudency 

Determination.’’ With respect to Guam 

and Rota, the Service is obligated to 

comply with the decisions of the Ninth 

Circuit Federal Court of Appeals. 

(48) Comment: As long as the little 

Mariana fruit bat, Guam broadbill, and 

Guam bridled white-eye are listed, they 

are entitled to the full protection of the 

Act, and the Service should propose 

critical habitat for them. The 

determination that critical habitat is not 

prudent for these species is a ‘‘back door 

approach’’ to delisting them.

Our Response: The assumption that 

all species listed under the Act still 

survive confuses the likely reality of 

extinction with the regulatory process of 

delisting extinct species under the Act. 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62967

Our statements in the proposed rule that 

these three species likely are extinct are 

based on the well-documented last 

sightings, decades ago, and records of 

these species and repeated, thorough 

efforts by scientists to find them. The 

final rule delisting the Guam broadbill 

was published on February 23, 2004 (69 

FR 8116). The delisting of the other two 

is not currently scheduled. Given the 

Service’s large listing and critical 

habitat workload, we must make 

priority decisions that offer the greatest 

benefit to those species that survive. 

(49) Comment: If designating critical 

habitat is not shown to harm the (likely 

extinct) species, the Service is bound to 

designate their critical habitat. 

Our Response: There are two criteria 

for determining that a critical habitat 

designation is not prudent. One is that 

the designation would result in taking 

or vandalism of the species, and the 

other is that critical habitat is not 

beneficial to the species. Designation of 

critical habitat will not benefit likely 

extinct species. 

(50) Comment: The Service cannot 

exclude unoccupied areas from critical 

habitat based on ‘‘special management’’

under section 3(5)(A) of the Act because 

this criterion only applies to lands 

occupied by the species at the time of 

their listing and because this 

management cannot replace the benefits 

of section 7 consultation. 

Our Response: We have excluded the 

Navy lands from the final critical habitat 

designation under section 4(b)(2) of the 

Act. Please see the section of this rule 

entitled ‘‘Exclusions from Critical 

Habitat’’ for a more detailed discussion 

of the exclusions. 

(51) Comment: Several commenters 

asked if their comments mattered or if 

decisions about the critical habitat 

designation had already been made. 

Our Response: Public comments are 

an opportunity for the Service to obtain 

additional information about the species 

and areas involved in the critical habitat 

designation, as well as about the 

questions and concerns of landowners 

and other stakeholders. We do our best 

to incorporate all relevant information 

we receive and to address individual 

concerns and questions. The final 

designation of critical habitat reflects 

both the requirements of the law and the 

input from stakeholders insofar as it is 

possible to incorporate this input 

without compromising the biological 

basis for the designation. 

(52) Comment: The proposed rule in 

the Federal Register is too technical and 

difficult to understand and should be 

translated to the Chamorro language. 

Our Response: The Service strives to 

make its public documents as simple as 

possible without compromising their 

scientific integrity and legal sufficiency. 

In all of our documents, we strive to use 

plain language in government writing. 

Although we did not make the rule 

available in other languages, we did 

produce extensive outreach materials to 

facilitate the public’s understanding of 

the proposed designation. For example, 

we produced an illustrated fact sheet 

about the proposed rule entitled 

‘‘Critical Habitat for Six Species of 

Mariana Island Birds and Bats,’’ which 

was available at the public meetings and 

hearings and was mailed with the 

proposed rule to a total of 127 interested 

parties. Please refer to the ‘‘Previous 

Federal Action’’ section of this rule for 

a description of the Service other 

outreach efforts for this designation. We 

continue to work with the public to 

provide information and promote a 

better understanding about critical 

habitat. We will continue ongoing 

discussions to help the local 

communities better understand the 

critical habitat designations as well as to 

learn more about the Mariana Crow, 

Mariana fruit bat, and Guam 

Micronesian kingfisher. 

(53) Comment: How will critical 

habitat affect harvesting of plants for 

cultural uses? 

Our Response: Critical habitat will 

have no effect on such collecting if it 

takes place on non-Federal lands and 

involves no Federal money or 

authorization. 

(54) Comment: The ‘‘essential habitat’’

for the Mariana crow outlined on Rota 

in the draft revised recovery plan 

provides a good basis for collaboration 

with the Rota community to conserve 

this habitat and improve its quality for 

crows. Such a cooperative, voluntary 

approach is liable to meet with greater 

conservation success than the 

imposition of critical habitat.

Our Response: We hope that these 

conservation activities will take place 

regardless of this critical habitat, which 

is only one of many potential tools for 

addressing long-term conservation of 

the crow on Rota. The Service 

recognizes that to improve the current 

condition of Mariana crow on Rota, it is 

insufficient to simply regulate harmful 

activities. Rather, it is necessary to carry 

out active management measures to 

confer a benefit on the species of 

concern, such as habitat manipulation, 

exotic species control, or simply 

allowing access for the purposes of 

reintroduction (Bean 2002). 

(55) Comment: If military lands on 

Guam are excluded from critical habitat, 

the Government of Guam lands and 

private lands designated as critical 

habitat may become commensurately 

more important. 

Our Response: The Air Force and 

Navy lands identified as essential 

habitat but excluded under sections 

4(a)(3) and/or 4(b)(2) of the Act, while 

not designated critical habitat, would 

remain part of the total acreage of 

habitat essential to the conservation of 

these species on Guam. 

(56) Comment: Several commenters 

stated that the Government of Guam’s 

proposed alternative to critical habitat 

designation does not provide an 

adequate management plan for its 

conservation lands and is not an 

acceptable alternative to critical habitat 

designation on Government of Guam 

lands. 

Our Response: We agree that the 

Government of Guam’s proposed 

alternative to critical habitat designation 

is not comparable to an INRMP 

developed for military lands. However, 

we believe that as a sign of the desire 

of the Government of Guam to increase 

cooperation with the Service on the 

conservation and recovery of the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher, 

particularly when considered against 

past relations, it is a significant positive 

step. We also believe that 

implementation of this plan will benefit 

these species. Therefore, we have 

excluded Government of Guam lands 

from critical habitat designation. See

‘‘Analysis of Impacts Under Section 

4(b)(2)’’ for additional information. 

(57) Comment: Several commenters 

stated that very few of the projects in 

the Government of Guam’s proposed 

alternative to critical habitat designation 

are new. Therefore, this proposal offers 

little additional benefit to the species. In 

addition, these commenters also stated 

that there is no guarantee that the 

projects outlined in the proposal will be 

implemented because Guam lacks the 

funding and staff to implement many of 

the actions. 

Our Response: We agree that some of 

the projects outlined in the Government 

of Guam’s proposed alternative to 

critical habitat are ongoing projects. 

However, we disagree that the 

Government of Guam’s proposed 

alternative to critical habitat provides 

little additional benefit to the species. 

Therefore, we have excluded 

Government of Guam lands from critical 

habitat designation. See ‘‘Analysis of 

Impacts Under Section 4(b)(2)’’ for 

additional information. 

(58) Comment: Two commenters 

stated that ungulate eradication is a high 

priority for Guam’s conservation lands 

but is not addressed in their proposed 

62968 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

alternative to critical habitat 

designation. 

Our Response: We agree that ungulate 

eradication is not specifically addressed 

in the Government of Guam’s proposed 

alternative. However, their alternative 

does include ungulate control-related 

activities such as developing 

comprehensive management plans for 

Philippine sambar deer and feral pigs 

that could include eradication of 

ungulates on Government of Guam 

conservation lands. 

(59) Comment: One commenter stated 

that Guam’s proposal does not discuss 

how long Guam’s conservation lands 

will be protected and how Guam will 

prevent and prosecute illegal 

encroachment on their conservation 

lands. 

Our Response: We agree that the 

Government of Guam’s proposed 

alternative to critical habitat designation 

does not specifically address the 

duration in which their conservation 

lands will be protected for endangered 

species conservation or how protection 

will be enforced. However, we still 

believe that that the benefits of 

excluding Government of Guam lands 

from critical habitat designation 

outweigh the benefits of inclusion. 

Therefore, Government of Guam lands 

were excluded under section 4(b)(2) of 

the Act. See ‘‘Analysis of Impacts Under 

Section 4(b)(2)’’ for additional 

information. 

Issue 3: Other Relevant Issues 

(60) Comment: Two reviewers 

observed that although the rule 

published by the Service proposing 

critical habitat on Guam and Rota 

contained clear and meticulous 

explanations of what critical habitat is, 

how it works, and how little threat it 

poses to landowners, this rule 

nevertheless has resulted in 

misunderstandings and significant 

resentment and frustration in the local 

communities. These reviewers suggest 

that the Service should engage in more 

public outreach efforts and present 

additional and more summarized and 

simplified materials explaining the 

designation to gain the understanding 

and support of the local people on 

Guam and in the CNMI. 

Our Response: Significant outreach 

efforts were made regarding this critical 

habitat rule (see our response to 

Comment 33) in an effort to resolve 

misconceptions and allay public 

concerns. We produced an information 

sheet summarizing the proposed rule 

that was mailed to all interested parties 

and that was available at the public 

meetings and hearings. At public 

meetings, we were available to answer 

questions and engage in discussion that 

is prohibited at hearings.

(61) Comment: One reviewer stated 

that if the proposed critical habitat 

delineation already reflects concessions 

by the Service to political or 

socioeconomic considerations, this 

should have been clearly articulated in 

the proposed rule. 

Our Response: The proposed critical 

habitat was delineated based on 

biological and other conservationrelated criteria, without considering 

potential economic or political impacts 

of a critical habitat designation. As 

required by the Act, economic and other 

relevant impacts have been considered 

in this final designation. The ‘‘Critical 

Habitat Designations’’ section of this 

rule describes in detail how we defined 

the primary constituent elements for 

each of the three species, how we 

identified areas that are essential to the 

conservation of these species, and how 

we applied criteria used to exclude 

some of the proposed lands from the 

proposed critical habitat. 

(62) Comment: Several commenters, 

including the Governor of the CNMI, the 

Rota delegation to the CNMI Legislature, 

and the CNMI Senate, wrote that the 

CNMI government has policies and 

legislation in place that demonstrate a 

commitment to the conservation of 

Rota’s natural environment and render 

critical habitat unnecessary. 

Our Response: We lack substantial 

documentation of conservation 

activities or commitments to 

conservation activities on Rota that 

address the long-term conservation of 

the Mariana crow. 

(63) Comment: Two commenters, 

including the acting Commissioner of 

the Marianas Public Lands Authority, 

wrote that lands on Rota described as 

‘‘public’’ in the proposed rule actually 

belong collectively to people of Mariana 

descent and are managed for these 

people by the Mariana Public Lands 

Authority. 

Our Response: In a meeting with the 

Service in Honolulu on January 14, 

2003, representatives of the Mariana 

Public Lands Authority clarified the 

status of the lands they manage on 

behalf of the people of the Mariana 

Islands and discussed other concerns 

and questions they had about this 

critical habitat designation. 

The references to ‘‘public lands’’ in 

sections 1.2.6, 4.1.2.3, 6.2.2, 6.2.2.1, and 

6.3.2.3 and Figure 6–2 of the DEA are 

to those lands identified in Article XI, 

Section 1, of the Commonwealth 

Constitution as ‘‘public lands belonging 

collectively to the people of the 

Commonwealth who are of Northern 

Marianas descent.’’ When referring to 

Rota, the term ‘‘public lands’’ is 

intended to be used in the DEA as it is 

used in the Commonwealth 

Constitution. 

We acknowledge the slightly 

inaccurate description of the term in 

section 1.2.6 of the DEA, which refers to 

‘‘public lands owned by CNMI.’’ This 

phrase was intended to identify ‘‘public 

lands’’ as described in the paragraph 

above. The identification of the CNMI 

government as ‘‘owner’’ of public lands 

on Rota is intended to describe the role 

of the Marianas Public Lands Authority 

as a government entity representing the 

people of the Commonwealth who are of 

Northern Marianas descent. The 

clarification of the term ‘‘public lands’’

does not alter the conclusions on 

economic impact, as presented in 

sections 6.2.2 and 6.3.2 of the DEA. 

(64) Comment: Will critical habitat 

delay the airport expansion project on 

Rota? 

Our Response: No, a small area 

proposed as critical habitat that 

overlapped the action areas for the 

proposed airport expansion has not 

been included in this final designation 

because we have determined that it is 

not essential to the long-term 

conservation of the Mariana crow. At 

the time of this writing, the Service is 

involved in section 7 consultation with 

the Federal Aviation Administration on 

the airport expansion. Independent of 

critical habitat, both Federal agencies 

agreed that the project may affect the 

Mariana crow, and thus entered into 

consultation to ensure the airport 

expansion project is in compliance with 

the Act. 

Issue 4: Economic Issues 

(65) Comment: One reviewer stated 

that the DEA does not consider the full 

range of activities that could be affected 

by critical habitat. 

Our Response: A comprehensive and 

systematic approach was used to 

identify the activities likely to occur 

within the 10-year assessment period. 

Data collection methodology is 

presented in Chapter 5 of the DEA. For 

Guam, we identified potentially affected 

landowners and land managers with 

information from the Government of 

Guam’s Division of Land Management 

and Department of Revenue and 

Taxation; we notified these owners and 

managers, in writing, of the proposed 

critical habitat designations and our 

desire to meet with them to obtain 

information for use in the DEA; and we 

conducted either telephone interviews 

or in-person meetings with potentially 

affected landowners and managers to 

identify reasonably foreseeable activities 

within the 10-year assessment period. 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62969

For Rota, meetings were requested and 

conducted with representatives from 

CNMI and Rota government offices 

because most of the island of Rota is 

comprised of publicly owned lands. 

Additional activities on Guam and Rota 

were identified by reviewing the 

documents listed in the references in 

the DEA addendum, conducting 

additional inquiries with local and 

Federal government agencies, and 

reviewing information received during 

the public comment period. 

(66) Comment: One reviewer asked 

why the cost of section 7 is estimated to 

be so high for the Rota Airport extension 

when the proposed project area lies 

outside of the critical habitat boundary. 

Our Response: Section 6.2.2.1.1 of the 

DEA and section 3.3 of the DEA 

addendum describe costs associated 

with the proposed extension of the Rota 

Airport. The estimated costs in the DEA 

were based on government costs 

associated with conducting section 7 

consultations; a biological survey, 

presumed because of the belief that 

neighboring areas contained primary 

and secondary breeding habitats for the 

Mariana crow; and annual biological 

monitoring. These costs were estimated 

to total $111,650 over a 10-year period. 

Since the DEA was published, the 

Service was informed by the consultants 

preparing the National Environmental 

Policy Act (NEPA) environmental 

assessment (EA) that the western 

runway protection zones would indeed 

fall within proposed critical habitat and 

that the affected area (approximately 

300 by 500 ft (91 by 152 m)) may need 

to be cleared to extend the grassed and 

fenced airport area. A larger area 

extending further west may be modified 

in such a way that the height of the 

forest does not exceed the elevation of 

the runway (585 ft (178 m) above sea 

level). 

As described in section 3.3 of the DEA 

addendum, the consultants preparing 

the EA informed us that the document 

will provide more information for use in 

the section 7 consultation process. 

Without the benefit of details in an EA, 

the Service anticipates that a formal 

section 7 consultation with the Federal 

Aviation Administration may be 

necessary, suggesting section 7 costs in 

the medium range (from Table 6–1 in 

the DEA) with no annual biological 

monitoring. The cost of a biological 

survey considered in the DEA ($7,800) 

remains as a cost of the section 7 

consultation. The revised section 7 

consultation cost is $33,050 over a 10-

year period. This cost is $78,600 less 

than the $111,650 estimated in the DEA.

(67) Comment: One reviewer noted 

that small economic entities will be 

largely unaffected by critical habitat. 

Our Response: Based on the DEA and 

its addendum, a substantial number of 

small entities are not expected to be 

significantly impacted by the critical 

habitat designation. As indicated in 

section 6.4 of the DEA and section 5 of 

its addendum, entities affected by the 

intended designation are Urunao Resort 

Corporation (Guam), a Chamorro family 

(Guam), Marianas Agupa Inc. (Rota), 

and individual CNMI residents (Rota). 

Since the DEA was published, both the 

Municipality of Rota and Marianas ProPlan International were identified as 

small entities directly affected by 

critical habitat. These entities represent 

a very small fraction of the total number 

of the small entities on Guam and Rota, 

and they therefore are not considered a 

substantial number of small entities as 

suggested in the guidance on 

implementing the Regulatory Flexibility 

Act/Small Business Regulatory 

Enforcement Fairness Act guidance. 

(68) Comment: Several commenters 

stated their belief that critical habitat 

will have major impacts on private 

landowners, such as project redesign, 

acquisition of easements (and associated 

paperwork), property devaluation 

associated with critical habitat, and the 

need for a typical landowner to hire a 

consultant to ‘‘overcome the multitude 

of regulatory hurdles he will encounter’’

once critical habitat is designated. One 

commenter stated that these costs will 

amount to 10 to 100 times the estimated 

figure, and another stated that the 

estimate of $35,000 in the draft 

economic analysis for impacts of critical 

habitat to private landowners on Guam 

is a gross underestimate. Another 

commenter stated that the designation 

of critical habitat will prevent 

landowners from gaining $2 million 

worth of income annually due to a 

perception that critical habitat will lead 

to the condemnation of land. The 

commenters believe that the Service has 

not adequately identified or assessed 

these impacts. 

Our Response: As identified in 

section 6.1 of the DEA addendum, the 

Service comprehensively and 

systematically attempted to obtain input 

from potentially affected landowners 

and managers, including private 

landowners. Activities likely to occur 

within the 10-year assessment period 

were identified and incorporated in 

section 6.2.1.4 of the DEA. Sections 3 

and 4 of the DEA addendum provide 

further evaluation of potential impacts 

to private landowners based on 

information received during the DEA 

public comment period. These include 

impacts on Federal funding, loans, and 

insurance eligibility; impacts on 

property value; condemnation of land; 

and costs to investigate implications of 

critical habitat on private property. 

Potential section 7 consultation costs 

associated with Federal funding, loans, 

and insurance are evaluated in section 

3.1 of the DEA addendum. In general, 

Federal funding or loans for new 

construction require consultation, and 

because very few Federal mortgage 

insurances are provided for new 

construction, consultation is not likely 

for Federal mortgage insurance. 

Property value losses associated with 

critical habitat, discussed in section 4.2 

of the DEA addendum, may be based on 

facts and an accurate assessment of the 

implications of critical habitat or on 

perceptions that the designation will 

cause significant changes in market 

value and economic benefits. Based 

solely on direct compliance costs, a 

decrease in private property value due 

to critical habitat designation is 

expected to be small. The reason for this 

is that few projects and activities in 

these areas would be subject to 

consultations, and project modifications 

are not expected to be burdensome. 

Additional effects on property values 

(e.g., stigma effects) are described in 

Section 4.2.1 of the DEA addendum. 

Section 4.3 of the DEA addendum 

states that critical habitat designation 

does not result in the condemnation of 

land or any other form of land 

acquisition by the Service. On occasion, 

the Service does purchase land, e.g., for 

a wildlife refuge, but this would be a 

separate action from critical habitat 

designation. As such, any land purchase 

should be evaluated at the time it is 

proposed and should be based on what 

is actually proposed. When the Service 

does purchase private property, e.g., to 

establish a National Wildlife Refuge, the 

normal practice is to do so only when 

(1) the landowner is willing to sell the 

land, and (2) the price and other terms 

are acceptable to the landowner. 

Finally, the Service currently has no 

plan to purchase land on Guam. 

Regarding costs associated with 

investigating the implication of critical 

habitat on private property, landowners 

that can afford professional services 

may feel it necessary to retain counsel, 

land surveyors, biologists, and other 

experts to determine the implications of 

the designation on their property. Costs 

associated with these investigations are 

discussed in detail in section 4.4 of the 

DEA addendum. The total cost ranges 

from roughly $216,630 to $738,700 on 

Guam and $75,690 to $258,100 on Rota 

for all landowners whose property falls 

62970 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

within proposed critical habitat 

boundaries. 

(69) Comment: The previous Governor 

of Guam stated that the analysis of 

economic impacts to private landowners 

must be based not on current conditions 

(limited access) but on the assumption 

that the unfettered access ordered by the 

Federal court were actually granted, 

which would increase the value of the 

property. 

Our Response: Sections 6.2.1.4.1 and 

6.2.1.4.2 of the DEA provide more 

detailed descriptions of existing 

conditions. Access to Uranao and 

Jinapsan properties along the northern 

coastlines of Guam requires travel 

through Andersen Air Force Base. 

Current travel restrictions on the base 

are solely a function of national security 

concerns implemented by the base. For 

this reason, we believe it appropriate to 

assume that unfettered access represents 

the current or baseline condition. It is 

possible that different current or 

baseline conditions could change the 

potential economic impacts from this 

designation. However, we selected what 

we believe to be the most accurate 

description of baseline conditions.

(70) Comment: Several commenters, 

including the Governor of the CNMI, the 

CNMI Senate, the Rota Delegation to the 

CNMI Legislature, and the acting 

Commissioner of the Mariana Public 

Lands Authority, observed that the 

section 7 consultation burden generated 

by critical habitat will impede projects 

on private lands that involve Federal 

permits for infrastructure development, 

Federal Highway Administration funds 

for primary village roads, Department of 

Veterans Affairs (VA) mortgage loans, or 

Federal mortgage insurance. These 

agencies will not pay to send survey 

teams to the Mariana Islands to conduct 

the necessary studies (to formulate 

biological assessments, etc.). 

Our Response: Sections 6.2.1.4 and 

6.2.2.2 of the DEA describe projects on 

private lands on Guam and Rota for 

which the potential impacts of proposed 

critical habitat were originally 

evaluated. The impact of the potential 

section 7 nexus of Federal funding for 

private construction on lands proposed 

for designation has been evaluated with 

additional information in section 3 of 

the DEA addendum. Potential impacts 

vary between agencies and are 

discussed individually below. 

The Federal Highway Administration 

annually gives Guam $13 million and 

CNMI $3 million (of which 

approximately $400,000 is allocated to 

Rota). Designation of critical habitat 

would not impede the funding but may 

have an impact on which projects the 

local government chooses to fund. The 

costs of section 7 consultation and any 

other required environmental 

compliance would be withdrawn from 

the same grant. 

Economic impacts of critical habitat 

associated with Federal Highway 

Administration funding are unlikely to 

be significant on Guam. As discussed in 

section 3.1.1 of the DEA addendum and 

based on the Guam 2010 Highway 

Master Plan (Wilbur Smith Associates 

1992), new roadway projects and road 

improvements are more likely to be in 

demand in heavily traveled areas 

outside of proposed critical habitat. The 

cost of consultations estimated in 

section 3.1.1 of the DEA addendum 

would represent a relatively minor cost, 

approximately 0.1 percent, relative to 

the Federal Highway Administration 

$13 million grant provided to Guam. 

Based on interviews with Rota 

government representatives, projects 

planned for the next 10 years were 

identified, including one roadway 

project. Consultation costs associated 

with Federal Highway Administration 

funding on Rota, estimated in section 

6.2.2.1.2 of the DEA, represent two 

percent of the $400,000 grant allocated 

to Rota. 

The recent history of VA mortgage 

guarantees and home loans differs 

between Guam and Rota. On Guam, the 

VA provides mostly mortgage 

guarantees for existing structures, not 

new construction. For this reason, and 

because most lenders do not use the VA 

for new construction loans, VA 

mortgage guarantees on Guam are not 

likely to be affected by critical habitat as 

it was proposed. On Rota, home loans 

have been provided for new 

construction projects. Based on the VA 

home loans provided since 1994, it is 

reasonable to project that one to two VA 

home loans could occur in isolated 

areas in critical habitat in the next 10-

year period. Direct impacts and costs 

associated with section 7 consultations 

were estimated in section 3.1.2 of the 

DEA addendum. 

Section 3.1.3 of the DEA addendum 

addresses U.S. Department of Housing 

and Urban Development (HUD)/Federal 

Housing Administration programs that 

exist on Guam and Rota. These include 

HUD grants (Community Development 

Block Grants), HOME Investment 

Partnership Program, Emergency 

Shelter, and other competitive grants 

under Homeless Assistance) and Federal 

Housing Administration mortgage 

insurance. Based on the findings in 

section 3.1.3 of the DEA addendum, 

HUD grant projects are unlikely to occur 

in undeveloped areas that are likely to 

be subject to requirements associated 

with critical habitat. Another program 

under HUD, the Federal Housing 

Administration mortgage insurance 

program, assists individuals with 

obtaining a loan. It has been used about 

twice in 2002 on Guam, used very little 

in the last 10 years on Guam, and had 

not been used at all in the last 10 years 

on Rota. Because HUD-supported 

projects are unlikely to occur in 

undeveloped areas and are infrequently 

used, together with the fact that HUD 

endorsements for single-family home 

mortgage insurance are listed in their 

environmental procedures as categorical 

exclusions that are not subject to the 

related Federal environmental laws and 

authorities, it is unlikely that section 7 

consultation would occur. 

(71) Comment: One commenter stated 

that critical habitat designation will 

prevent the development of real estate 

on CLTC lands because lending 

institutions will not take risks on loans 

for development of lands encumbered 

by special environmental/conservation 

status. This status creates too much risk 

of lawsuits. This commenter stated that 

they would choose not to be involved in 

projects within designated critical 

habitat. 

Our Response: The economic costs 

associated with the loss of planned 

development on CLTC lands in critical 

habitat is addressed in section 4.1 of the 

DEA addendum. Primary lending 

institutions, including the HUD Direct 

Home Loan program, are likely to 

request that the prospective buyer 

consider other properties as it is in their 

interest, or it is their requirement (as in 

the case of HUD’s programs), to avoid 

properties with site encumbrances. 

Lenders will generally look to 

unencumbered property for 

development (Hirokoshi in litt. 2003). If 

there is no option, it is likely that 

additional requirements would be 

needed to mitigate the risks of project 

development (Kuiokoa, in litt. 2003). 

Depending upon the situation, lenders 

may loan less money for projects with 

environmental encumbrances than for 

those without such encumbrances 

(Hirokoshi, in litt. 2003). 

One lender indicated that the biggest 

concern for lenders is that critical 

habitat will decrease marketability and 

value of the property. In the absence of 

documented effect based on critical 

habitat, this concern is based on 

experience with properties associated 

with wetlands. Another concern 

identified was that environmental 

regulations may change due to evolving 

scientific information. Potential 

property value losses for land in critical 

habitat are discussed in section 4.2.2 of 

the DEA addendum.

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62971

While it is prudent for lenders to 

avoid risks on loans for development of 

lands encumbered by special 

environmental/conservation status, it is 

more likely that real estate development 

on CLTC lands will be impeded by 

CLTC lease requirements, which limit 

lessees to people of Chamorro descent. 

Because of this limitation, CLTC 

practices do not abide by the Fair 

Housing Law, which prohibits 

discrimination in housing because of 

race or color, national origin, religion, 

sex, familial status, or handicap. Lack of 

implementation of the Fair Housing Law 

prevents use of government-sponsored 

enterprises, such as the Government 

National Mortgage Association (Ginnie 

Mae) and the Federal Home Loan 

Mortgage Corporation (Freddie Mac). 

Federal Housing Administration 

mortgage insurance and VA loans are 

available only to lenders and borrowers 

whose projects abide by the Fair 

Housing Law, although attempts to 

obtain exceptions for native Chamorros 

may be underway. Such an exception 

could occur as exceptions have been 

made under the VA loan program for 

native Americans. 

If Chamorros were to be exempted 

from the requirements of the Fair 

Housing Law, designation of critical 

habitat would represent an additional 

encumbrance that will need to be 

evaluated by prospective lenders. 

Because many of the lenders would look 

to secondary mortgage markets, 

approximately half of which are 

government-sponsored enterprises, 

lenders are required to consider 

requirements of these governmentsponsored enterprises. However, as 

discussed in sections 3.2 and 4.1 of the 

DEA addendum, it is unlikely that 

critical habitat designation would result 

in additional costs or processing solely 

from attempts to obtain governmentsponsored enterprises mortgages, 

Federal Housing Administration 

mortgage insurance, or VA loans. 

(72) Comment: Several commenters 

stated their belief that the designation of 

critical habitat will severely impede 

economic development, improvement of 

basic infrastructure, and the provision 

of basic needs to the people of Guam 

and Rota. 

Our Response: As discussed in 

sections 3.1 and 6.6 of the DEA 

addendum, Federal agencies, such as 

Federal Highway Administration and 

HUD, were contacted to obtain 

information about their past practices 

and requirements with respect to 

environmental regulations. In general, 

the local agencies responsible for 

allocating Federal funds to local projects 

consider environmental issues prior to 

approving projects for funding. Most 

Federally funded projects have occurred 

in developed areas to meet community 

needs, as is the case with HUD 

Community Development Block Grants 

funds. Development projects occurring 

within the 10-year assessment period 

are described in Chapter 6 of the DEA 

and include: (1) Reuse of the former 

Federal Aviation Administration 

Housing parcel on Guam, (2) 

improvements at the Rota International 

Airport, (3) roadway improvements to 

Route 100 on Rota, (4) roadway 

improvements to Routes 5 and 12 on 

Guam, (5) development of the Marianas 

Agupa Golf Course, (6) development of 

a solid waste disposal landfill on Rota, 

and (7) implementation of the 

Homesteads program on Rota. Of the 

projects with a possible Federal nexus, 

all are expected to proceed even with 

critical habitat designation.

(73) Comment: Two commenters 

stated that the economic analysis makes 

an incorrect assumption that the CNMI 

government and/or the municipality of 

Rota are not ‘‘small entities.’’

Our Response: As discussed in 

section 5 of the DEA addendum, we 

have determined that the CNMI 

government is not a small entity under 

the Regulatory Flexibility Act (Title 5, 

U.S. Code sections 601–612), as 

amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, because it governs a population of 

greater than 50,000 people. The 

Regulatory Flexibility Act/Small 

Business Regulatory Enforcement 

Fairness Act defines ‘‘small government 

jurisdictions’’ as the government of a 

city, county, town, school district, or 

special district with a population less 

than 50,000. However, based on 

population, the Municipality of Rota 

can be considered a small entity. 

Using the U.S. Environmental 

Protection Agency guidance, ‘‘1999 

Revised Regulatory Flexibility Act/

Small Business Regulatory Enforcement 

Fairness Act Guidance for 

Environmental Protection Agency 

Rulewriters,’’ the recommended 

quantitative method for evaluating the 

economic impact of a rule on small 

government entities is to evaluate the 

annualized compliance costs as a 

percentage of annual government 

revenue. The estimated annual cost of 

proposed critical habitat designation to 

the Municipality of Rota, based on the 

10-year estimate of section 7 

consultation and project modification 

costs, is $13,860. The annual municipal 

operating budget for Rota is estimated at 

$13.5 million. Using the Environmental 

Protection Agency methodology 

described above, the costs associated 

with section 7 consultation and project 

modification would comprise 0.1 

percent of Rota’s annual municipal 

operating budget. A more detailed 

discussion of costs is provided in 

section 5 of the DEA addendum. 

(74) Comment: One commenter 

recommended the addition of a synopsis 

at the beginning of the economic 

analysis. 

Our Response: The commenter’s 

suggestion that the Executive Summary 

of the DEA should include a brief 

synopsis of the evaluation addressing 

the efficacy and cost/benefit ratio of the 

proposed designation is appropriate for 

improving the readability and ease of 

understanding of the DEA. However, 

presentation of an accurate cost/benefit 

ratio is not possible because some of the 

costs and many of the benefits are not 

quantified. This reflects the uncertainty 

about the outcome of the designation of 

critical habitat and the fact that many of 

the benefits of critical habitat are best 

expressed in biological terms, for which 

an economic value has not been 

determined. 

(75) Comment: One commenter 

observed that the economic analysis 

addresses only the impacts of section 7 

consultation, only weakly characterizes 

the economy of Rota, and fails to 

consider the ‘‘backlash effect’’ of critical 

habitat designation on Rota and other 

indirect effects. This commenter asked 

that the comment period be reopened 

subsequent to a revision of the 

economic analysis. 

Our Response: As stated in the 

Executive Summary, the DEA addresses 

only section 7-related economic impacts 

and that costs related to other sections 

of the Act are outside the scope of the 

analysis. Because the Act requires the 

Service to consider the ‘‘benefits of 

inclusion vs. the benefits of exclusion’’

of critical habitat within any particular 

parcel, it is appropriate to address 

section 7 impacts. Additional indirect 

impacts associated with the designation 

of critical habitat are addressed in 

section 6 of the DEA and in section 4 

of the DEA addendum. 

Information used to characterize the 

economy of Rota was obtained through 

a comprehensive literature search. 

Unfortunately, very little information 

specific to Rota was available. Since the 

publication of the DEA, additional 

information has been identified and 

incorporated into the sections of the 

DEA addendum relating to Rota. Such 

data include: the annual operating 

budget of Rota; visitor counts; numbers 

of families below the poverty level; and 

breakdown of personal income by age. 

Further consideration of this 

additional economic data does not 

62972 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

substantially alter the findings in the 

DEA. In the case of reevaluating the 

regulatory flexibility analysis, 

considering Rota as a small entity, the 

analysis demonstrated that the proposed 

designation of critical habitat will not 

have a significant economic impact on 

Rota. As described in section 5 of the 

DEA addendum, the potential costs 

associated with the designation of 

critical habitat are estimated to be only 

0.1 percent of Rota’s annual municipal 

operating budget.

Indirect cost impacts associated with 

a potential ‘‘backlash effect’’ of critical 

habitat designations on Guam and Rota 

are presented in Sections 6.3.1.4 and 

6.3.2.2 of the DEA. Section 6.3.1.4 

introduces the basis for the strong 

negative sentiments associated with 

Federal restrictions on land on Guam. 

Economic impacts associated with this 

‘‘backlash effect’’ may include those 

associated with drawn out negotiations 

and delays in Federal project schedules. 

As described in the DEA, the cost of 

negotiations and delays to the Federal 

government could be significant. The 

potential for residents of Rota to react 

negatively toward the Mariana crow is 

addressed in section 6.3.2.2 of the DEA. 

In the DEA, it is acknowledged that 

‘‘should the scenario of impacts on the 

Mariana crow due to critical habitat 

rule-making be realized, the effects and 

costs would be great, essentially causing 

the intentions of critical habitat to backfire.’’ Further discussion of ‘‘backlash’’

effects is constrained by the inability to 

anticipate or quantify what potential 

actions may occur. 

(76) Comment: One commenter 

suggested that the economic analysis 

discussion of Rota’s population should 

separate U.S. passport holders from 

alien guest workers. 

Our Response: Data from the 2000 

U.S. Census, a 1997 U.S. Department of 

Commerce Economic Census of 

Outlying Areas, and a 2001 Bank of 

Hawaii Commonwealth of the Northern 

Mariana Islands Economic Report were 

reviewed to determine the social and 

economic makeup of Rota. Although 

census data identified 1,017 non-citizen 

residents out of the population of 3,283 

people, the available data do not 

characterize the employed workforce of 

1,591 people by citizenship. 

(77) Comment: One commenter 

advised that the economic analysis 

should more clearly characterize the 

economy of Rota and carefully 

distinguish between statistics for Rota 

and statistics for the CNMI as a whole. 

Our Response: We agree that the 

economic character of Rota is different 

from that of CNMI as a whole and that 

the CNMI Gross Island Product is not a 

relevant figure to use in describing 

Rota’s economy. However, as the 

commenter acknowledged, tourist 

arrival and hotel occupancy data for 

Rota are limited. The accuracy of 

available tourism data is suspect based 

on the lack of distinction of airport 

arrivals between tourists and business 

travelers arriving at the airport and the 

non-participation of Rota’s hotels in 

Hotel Association of the Northern 

Mariana Islands, the organization which 

provided occupancy rates for CNMI 

hotels. Information from the 2000 CNMI 

Statistical Yearbook states that there 

were 9,826 visitors to Rota in 2000, 

down from 12,437 in 1999. The data in 

the economic analysis for government 

and private sector employment are from 

the 2000 U.S. Census. According to the 

census data, when employment by 

government is compared to employment 

in the private sector as a whole, there is 

greater private sector employment (62.9 

percent vs. 35.7 percent in government). 

However, when employment figures are 

evaluated by industry (e.g., public 

administration, manufacturing, 

construction, wholesale, retail, service, 

etc.), public administration is the 

leading industry. 

In addition to attempting to obtain 

information specific to Rota, the 

potential economic impact to small 

entities, including the Municipality of 

Rota, is reevaluated in section 5 of the 

DEA addendum. This analysis 

concluded that the economic impact of 

proposed critical habitat to Rota would 

be 0.1 percent of the annual municipal 

budget. 

(78) Comment: One commenter stated 

that text in the economic analysis 

regarding Coastal Resource Management 

Office requirements and the potential 

for this agency to change their 

regulations as a result of the critical 

habitat designation is not valid and 

should be deleted. 

Our Response: As discussed in 

section 4.5 of the DEA addendum, while 

the Coastal Resource Management 

Office did not provide specific 

comments on this DEA addendum, it is 

believed that the designation of critical 

habitat would not become an Area of 

Particular Concern, based on public 

comment and further review of the 

relevant regulation (Coastal Resource 

Management Regulations, as amended 

1990). For this reason, the designation 

of critical habitat would not increase the 

number of Minor Permit actions under 

the Coastal Resource Management 

Office’s jurisdiction. 

(79) Comment: One commenter stated 

that if the critical habitat designation 

forces the Air Force to relocate its 

mission, the impact to Guam’s economy 

would be huge.

Our Response: Estimated costs to 

relocate Air Force mission requirements 

were provided by the Air Force in a 

letter during the DEA public comment 

period (Defoliart, in litt., 2003). These 

costs are estimated to be $2.6 billion 

and exclude the additional costs for 

‘‘bedding down’’ new missions at the 

receiving installation. As demonstrated 

by the information provided by the 

commenter, relocation of mission 

requirements would be costly, would 

impact the mission of the Air Force and 

national security, and would impact 

Guam’s economy. However, based on 

the information received to date, there 

is no reason to believe that proposed 

critical habitat would cause the Air 

Force to relocate or cause its mission to 

be impeded. Section 6.3.1.3 of the DEA 

identifies potential impacts of critical 

habitat designation (as proposed) on Air 

Force activities, however, Air Force 

lands have been excluded from this 

final critical habitat designation (see

‘‘Analysis of Air Force Lands Under 

Section 4(a)(3)’’ for more details). 

(80) Comment: One commenter 

observed that the economic analysis 

does not consider or quantify the 

benefits of critical habitat and that the 

technology and expertise for quantifying 

these benefits and conducting this 

analysis exist. 

Our Response: As mentioned in 

section 6.5.2 of the DEA, the 

development of quantitative estimates 

associated with the benefits of critical 

habitat is impeded by the lack of 

available studies and information 

relating to the size and value of 

beneficial changes that are likely to 

occur as a result of listing a species or 

designating critical habitat. However, 

several categories of benefits were 

identified and discussed in the DEA, 

including use value, existence value, 

recreation benefits, overall ecosystem 

health, ecosystem preservation values, 

and other benefits. 

The commenter suggested that a 1999 

analysis by University of Hawaii 

economists on the total value of 

environmental service provided by 

Oahu’s Koolau Mountains be used as a 

model for estimating the value of the 

environmental benefits provided by 

critical habitat (Kaiser et al. 1999). This 

document was, in fact, used in the DEA 

as a resource for concepts and for 

identifying original research on certain 

subjects, but it has limited applicability 

for valuing the benefits of the critical 

habitat designation for several reasons. 

First, the University of Hawaii study 

had a different purpose, which was to 

estimate the total value of 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62973

environmental benefits provided by the 

entire Koolau Mountains on the island 

of Oahu. Many of the assumptions and 

much of the analysis in the University 

of Hawaii study are not transferable to 

the economic analysis for the critical 

habitat on Guam and Rota. For example, 

the Koolau Mountains were evaluated as 

a contiguous area, whereas the intended 

critical habitat designation is composed 

of several separate areas on two islands. 

The value of water recharge in the 

University of Hawaii study reflected 

projected water supply and demand 

conditions on Oahu, an island which is 

almost three times the size of Guam and 

18 times the size of Rota, with a 

population almost six times that of the 

Guam and 47 times that of Rota. Also, 

the University of Hawaii benefit 

analysis of reducing soil runoff is 

unique to three valleys that drain 

through partially channelized streams in 

urban areas into the man-made Ala Wai 

Canal. Because this canal was designed 

with inadequate flushing from stream or 

ocean currents, it functions as an 

unintended settling basin and must be 

dredged periodically. Similar conditions 

are not present on either Guam or Rota. 

(81) Comment: One commenter stated 

a belief that it is inappropriate to 

include existence and recreational 

values in the calculation of the 

economic impacts of the critical habitat 

designation on Rota because these 

values are imported from the U.S. 

mainland and have no relevance on 

Rota where the Mariana crow is 

considered to be a pest and has ‘‘no 

commercial or cultural significance.’’

Our Response: As stated in section 

6.5.2 of the DEA, existence values for 

endangered species are often calculated 

with willingness-to-pay studies. These 

studies estimate the public’s willingness 

to pay to preserve a species or enhance 

a species’ population above and beyond 

any expected direct use. As such, 

people who do not live on Guam or Rota 

and who have never seen the Mariana 

fruit bat, Guam Micronesian kingfisher, 

and Mariana crow may still value the 

existence of these species. The DEA 

identified several existing willingnessto-pay studies that are closely 

applicable to the values associated with 

protecting the Mariana fruit bat, Guam 

Micronesian kingfisher, and Mariana 

crow. However, these study cases are 

not sufficiently comparable to the policy 

cases to consider benefits transfer. 

Therefore, neither the DEA nor the DEA 

addendum provide quantitative 

estimates of the existence values of the 

species.

Recreation benefits are mentioned in 

the DEA because protecting critical 

habitat may result in preservation of 

habitat suitable for other recreational 

uses, such as hiking, camping, and birdwatching. Although some people may 

consider the Mariana crow to be a pest, 

there may be recreational benefits 

associated with the protection of the 

habitat for the Mariana crow. However, 

as stated in the DEA, because data on 

the resultant increase in number or 

quality of trips are unavailable, such 

estimated recreational benefits cannot 

be quantified. 

(82) Comment: One commenter stated 

that the cost analysis in the DEA of the 

designation on military lands is based 

on the assumption that if critical habitat 

is designated, the Department of 

Defense would pull out of the 

cooperative agreement that created the 

overlay National Wildlife Refuge and 

will cease to conduct conservation 

projects on their lands. 

Our Response: As provided by the 

terms of the Cooperative Agreement, the 

Navy and Air Force have retained the 

option of unilaterally withdrawing any 

or all of their lands from the Guam 

National Wildlife Refuge in the event 

that any of these lands on Guam are 

designated critical habitat. The 

possibility of the Navy pulling out of the 

cooperative agreement was presented 

under the indirect effects section of the 

DEA based on input we received from 

Navy representatives at that time. The 

Air Force did not identify any potential 

indirect costs that would result from 

critical habitat designation, or state any 

intention to withdraw from the overlay 

refuge if critical habitat were designated 

on their lands. The indirect effects of 

the Navy’s potential withdrawal from 

the refuge were discussed, but not 

quantified, as stated in section 6.3.1.1 of 

the report. Therefore, the cost analysis 

of designation on Navy and Air Force 

lands was based on quantifiable impacts 

on specific military activities, not, as the 

commenter suggests, on the broad 

assumption that the military would pull 

out of the refuge overlay agreement and 

cease to conduct conservation projects. 

Furthermore, it is not clear how or 

whether the potential withdrawal of the 

military from the overlay refuge would 

affect the economic impact of critical 

habitat designation. Finally, Air Force 

and Navy lands were excluded from 

critical habitat designation pursuant to 

sections 4(a)(3) and/or 4(b)(2) of the Act 

(see the ‘‘Exclusions from Critical 

Habitat’’ section). 

(83) Comment: One commenter stated 

that the cost analysis of the designation 

on military lands is based on 

unsubstantiated claims that critical 

habitat will impair military training and 

readiness. A recent General Accounting 

Office (GAO) report has found that this 

is not likely the case. 

Our Response: The referenced GAO 

report (GAO–02–614), which surveyed 

military bases within the continental 

United States, states that readiness data 

are insufficient to characterize the 

extent to which encroachment 

(including endangered species habitat 

on military installations) has affected 

training readiness. However, this report 

and an April 2002 GAO report, 

‘‘Military Training: Limitations Exist 

Overseas but Are Not Reflected in 

Readiness Reporting’’ (GAO–02–525), 

both acknowledge that although 

readiness data do not comprehensively 

document the extent of training range 

capabilities or costs associated with 

encroachment, military officials report 

that they have lost training range 

capabilities because of encroachment. 

As stated in GAO–02–525, ‘‘For the 

most part, military officials * * * and 

office of the secretary of defense 

officials told us that the unit readiness 

reporting is subjective and is not a 

vehicle to report training shortfalls and 

the associated limitations or 

restrictions.’’

In the absence of sufficient 

quantitative data to support or refute the 

military officials’ claims that critical 

habitat would impair training and 

readiness, the DEA relied upon military 

base representatives for input. During 

the public review period, additional 

military input supported the importance 

of the bases for national security and 

described the cost implications of 

forcing missions to relocate. The Air 

Force’s Headquarters, Pacific Air Force, 

provided specific examples of the 

strategic significance of Guam’s 

proximity to areas of potential conflict, 

e.g., dramatic decreases in time and 

distance required to fly to Seoul and 

Taiwan from Guam (compared to Minot 

Air Force Base in North Dakota), and 

concluded that Andersen Air Force Base 

is ‘‘crucial’’ to the Air Force’s 

implementation of the new defense 

strategy. The Navy’s Deputy Chief of 

Naval Operations (Fleet Readiness and 

Logistics) stated that the Navy is 

‘‘extremely concerned that a critical 

habitat designation may curtail or 

prevent continued use of those areas for 

military purposes, void taxpayer 

investments in infrastructure to support 

military activities at these locations, and 

require costly investment elsewhere to 

accomplish training requirements.’’

Based on a review of the GAO–02–614 

and information obtained from military 

representatives, the information 

regarding military training and 

readiness in the DEA remains 

appropriate.

62974 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

(84) Comment: One commenter 

claimed that the need for development 

of Rota’s infrastructure, and the 

potential for critical habitat to impede 

that development, has been overstated. 

The population of the island is small. 

Other than a golf course and retirement 

housing, little land is needed for 

infrastructure improvements. Because of 

the need for local permits and Federal 

permits, infrastructure development 

projects take time to implement, with or 

without a critical habitat designation. 

Furthermore, critical habitat is 

sufficiently flexible to allow 

development to take place. 

Our Response: A comprehensive and 

systematic approach was used to 

identify development activities likely to 

occur over the 10-year assessment 

period. The data collection methods are 

presented in Chapter 5 of the DEA. In 

addition, further analysis of potential 

private development activities within 

critical habitat was conducted to 

determine private land development 

activities that may have a Federal nexus 

because of a variety of Federal funding 

sources. The results of this analysis are 

provided in section 3 of the DEA 

addendum. Planned development 

projects that could be affected by 

proposed critical habitat on Rota within 

the 10-year assessment period, as 

identified in the DEA and DEA 

addendum, include: improvements at 

the Rota International Airport, roadway 

improvements to Route 100 on Rota, 

roadway improvements to Routes 5 and 

12 on Guam, development of the 

Marianas Agupa Golf Course, 

development of a solid waste disposal 

landfill, development of an affordable 

housing project on CLTC lands, two 

new construction projects using VA 

home loans, and two new construction 

projects using U.S. Department of 

Agriculture Rural Development loans. 

We agree that development may still 

take place on both public and private 

lands within critical habitat, with the 

potential associated section 7 costs 

identified in the DEA and DEA 

addendum. 

(85) Comment: One commenter stated 

that critical habitat will result in the 

loss of funds and other resources that 

presently are used for conservation 

because these resources will be needed 

to complete section 7 consultations 

triggered by actions proposed within 

critical habitat. 

Our Response: The cooperative 

agreements between the Service and the 

military require that the military 

conduct consultation under Section 7 of 

the Act in areas identified as essential 

to the Mariana fruit bat, Mariana crow, 

and Guam Micronesian kingfisher, even 

if these species are extirpated from the 

affected area (but are not extinct). 

Therefore, the costs associated with 

consultation on critical habitat would be 

difficult to separate from those already 

borne by the military pursuant to the 

terms of their cooperative agreement 

with the Service. 

Summary of Changes From the 

Proposed Rule 

Based partly on a review of public 

comments received on the proposed 

determinations of critical habitat and 

partly on additional biological 

examination of several areas, we have 

reevaluated our proposed designations. 

We made revisions to the unit 

boundaries based on information that 

indicated that the primary constituent 

elements were not present in certain 

portions of the proposed units, that 

certain changes in land use had 

occurred on lands within the proposed 

critical habitat that would preclude 

those areas from supporting the primary 

constituent elements, or that the areas 

were not essential to the conservation of 

the species in question. We also revised 

the unit boundaries based on mapping 

errors that were made in the proposed 

rule. In addition, Andersen Air Force 

Base lands were excluded under Section 

318 of the fiscal year 2004 National 

Defense Authorization Act. Navy lands, 

Government of Guam lands, and private 

lands on Guam were excluded under 

section 4(b)(2) of the Act, as amended 

by Section 318. 

A brief summary of the modifications 

made to each unit for each species is 

given below. 

Mariana Fruit Bat 

Unit A: Northern Guam 

A total of 14,041 ac (5,681 ha) was 

removed or excluded from critical 

habitat designation in this unit. On 

COMNAVMARIANAS Communications 

Annex, we removed 169 ac (68 ha) from 

along the boundary of this unit that are 

mowed areas and do not contain the 

primary constituent elements required 

by the Mariana fruit bat. We also 

removed 95 ac (38 ha) along the eastern 

coast of Guam because these areas were 

cleared for housing and do not contain 

the primary constituent elements 

required by the Mariana fruit bat. Along 

the northern coast, we removed 100 ac 

(40 ha) of beach belonging to Andersen 

Air Force Base, because this area does 

not contain the primary constituent 

elements required by the Mariana fruit 

bat. Along the northern and western 

boundary of the unit, we removed 237 

ac (96 ha) of private land that contain 

some or all of the primary constituent 

elements, but we believe these areas are 

not essential to the conservation of the 

Mariana fruit bat. We also modified the 

boundary around the Guam National 

Wildlife Refuge to include 83 ac (33 ha) 

of Service-owned land that had not been 

included in the proposed rule due to a 

mapping error. 

Finally, Air Force, Navy, and 

Government of Guam lands were 

excluded from critical habitat 

designation in this unit under sections 

4(a)(3) and/or 4(b)(2) of the Act, as 

amended, for the reasons described 

earlier in the sections entitled 

‘‘Exclusions from Critical Habitat.’’

Exclusion of Air Force lands resulted in 

the subtraction of 10,838 ac (4,386 ha) 

from designated critical habitat in 

northern Guam. Exclusion of Navy 

lands resulted in a subtraction of 962 ac 

(389 ha) from designated critical habitat 

in northern Guam. Exclusion of 

Government of Guam lands resulted in 

a subtraction of 1,640 ac (664 ha) from 

designated critical habitat in northern 

Guam.

These modifications resulted in the 

reduction of critical habitat in the unit 

from 14,338 ac (5,803 ha) to 

approximately 376 ac (152 ha). This unit 

is the only designated unit for the 

Mariana fruit bat on Guam and has been 

renamed the ‘‘Mariana Fruit Bat Unit’’

(see ‘‘Critical Habitat Designation’’ and 

‘‘Unit B: Southern Guam’’ below for 

additional information). 

Unit B: Southern Guam 

A total of 10,464 ac (4,234 ha) was 

removed or excluded from critical 

habitat designation in this unit. On 

COMNAVMARIANAS Ordnance 

Annex, we removed 139 ac (57 ha) along 

the northern boundary of the unit 

because it contains buildings and 

mowed areas and does not contain the 

primary constituent elements for the 

Mariana fruit bat. We also removed 18 

ac (7 ha) of private land from the eastern 

boundary of the unit that does contain 

the primary constituent elements but is 

not essential to the conservation of the 

Mariana fruit bat. 

In addition, all Navy, Government of 

Guam, and private lands were excluded 

from critical habitat designation for the 

reasons described earlier in the sections 

entitled ‘‘Exclusions from Critical 

Habitat.’’ Exclusion of Navy lands 

resulted in the subtraction of 7,015 ac 

(2,839 ha) from designated critical 

habitat in southern Guam. Exclusion of 

Government of Guam lands resulted in 

the subtraction of 1,349 ac (546 ha) from 

designated critical habitat in southern 

Guam. Exclusion of private lands 

resulted in the subtraction of 1,941 ac 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62975

(785 ha) from designated critical habitat 

in southern Guam. 

These modifications resulted in the 

removal of this unit from critical 

habitat. Critical habitat for the Mariana 

fruit bat on Guam is now in one unit in 

northern Guam called the ‘‘Mariana 

Fruit Bat Unit’’ (see ‘‘Critical Habitat 

Designation’’ for additional 

information). 

Mariana Crow 

Unit A: Northern Guam 

A total of 13,772 ac (5,587 ha) was 

removed or excluded from critical 

habitat designation in this unit. On 

COMNAVMARIANAS Communications 

Annex, we removed 169 ac (68 ha) from 

along the boundary of this unit that are 

mowed areas and do not contain the 

primary constituent elements required 

by the Mariana crow. On Andersen Air 

Force Base we removed 100 ac (40 ha) 

of beach along the northern coast 

because this area does not contain the 

primary constituent elements required 

by the Mariana crow. Along the western 

and northern boundaries of the unit, we 

removed 99 ac (40 ha) of private land 

that do contain some or all of the 

primary constituent elements, but are 

not essential to the conservation of the 

Mariana crow. We also modified the 

boundary around the Guam National 

Wildlife Refuge to include 53 ac (33 ha) 

that had not been included in the 

proposed rule due to a mapping error. 

Finally, Air Force, Navy, and 

Government of Guam lands were 

excluded from critical habitat 

designation in this unit under sections 

4(a)(3) and/or 4(b)(2) of the Act, as 

amended, for the reasons described 

earlier in the section entitled 

‘‘Exclusions from Critical Habitat.’’

Exclusion of Air Force lands resulted in 

the subtraction of 10,838 ac (4,386 ha) 

from designated critical habitat in 

northern Guam. Exclusion of Navy 

lands resulted in a subtraction of 926 ac 

(389 ha) from designated critical habitat 

in northern Guam. Exclusion of 

Government of Guam lands resulted in 

a subtraction of 1,419 ac (575 ha) from 

designated critical habitat in northern 

Guam. 

These modifications resulted in the 

reduction of critical habitat in the unit 

from 12,540 ac (5,075 ha) to 

approximately 376 ac (152 ha). This unit 

is now the only designated critical 

habitat for the Mariana crow on Guam 

(see ‘‘Critical Habitat Designation’’ and 

‘‘Unit B: Southern Guam’’ below for 

additional information). 

Unit B: Southern Guam 

A total of 10,464 ac (4,234 ha) was 

removed or excluded from critical 

habitat designation in this unit. On 

COMNAVMARIANAS Ordnance 

Annex, we removed 139 ac (57 ha) along 

the northern boundary of the unit 

because it contains buildings and 

mowed areas and does not contain the 

primary constituent elements for the 

Mariana crow. We also removed 18 ac 

(7 ha) of private land from the eastern 

boundary of the unit that does contain 

the primary constituent elements, but 

we believe this area is not essential to 

the conservation of the Mariana crow.

Finally, all Navy, Government of 

Guam, and private lands were excluded 

from critical habitat designation for the 

reasons described earlier in the sections 

entitled ‘‘Exclusions from Critical 

Habitat.’’ Exclusion of Navy lands 

resulted in the subtraction of 7,015 ac 

(2,839 ha) from designated critical 

habitat in southern Guam. Exclusion of 

Government of Guam lands resulted in 

the subtraction of 1,349 ac (546 ha) from 

designated critical habitat in southern 

Guam. Exclusion of private lands 

resulted in the subtraction of 1,941 ac 

(785 ha) from designated critical habitat 

in southern Guam. 

These modifications resulted in the 

removal of this unit from critical habitat 

designation. Critical habitat for the 

Mariana crow on Guam was only 

designated in northern Guam in Unit A 

(see ‘‘Critical Habitat Designation’’ for 

additional information). 

Unit C: Rota 

A total of 49 ac (20 ha) was removed 

for biological reasons from critical 

habitat designation in this unit. We 

removed 42 ac (17 ha) of private land 

from this unit because we found these 

areas are cleared and do not contain the 

primary constituent elements required 

by the Mariana crow. We also removed 

7 ac (3 ha) of private land from the 

boundary of the unit because this area 

is not essential to the conservation of 

the Mariana crow. These modifications 

resulted in the reduction of critical 

habitat in the unit from 6,084 ac (2,462 

ha) to 6,035 ac (2,442 ha). This unit is 

now divided into two separate subunits 

and has been renamed ‘‘Unit B’’ (see

‘‘Critical Habitat Designation’’ for 

additional information). 

Guam Micronesian Kingfisher 

Unit A: Northern Guam 

A total of 14,041 ac (5,681 ha) was 

removed or excluded from critical 

habitat designation in this unit. On 

COMNAVMARIANAS Communications 

Annex, we removed 169 ac (68 ha) from 

along the boundary of this unit that are 

mowed areas and do not contain the 

primary constituent elements required 

by the Guam Micronesian kingfisher. 

We also removed 95 ac (38 ha) of private 

land along the eastern coast of Guam 

because these are cleared for housing 

and do not contain the primary 

constituent elements required by the 

Guam Micronesian kingfisher. Along the 

northern coast, we removed 100 ac (40 

ha) of beach belonging to Andersen Air 

Force Base because this area does not 

contain the primary constituent 

elements required by the Guam 

Micronesian kingfisher. Along the 

northern and western boundary of the 

unit, we removed 237 ac (96 ha) of 

private land that do contain some or all 

of the primary constituent elements, but 

are not essential to the conservation of 

the Guam Micronesian kingfisher. We 

also modified the boundary around the 

Guam National Wildlife Refuge to 

include 83 ac (33 ha) of Service-owned 

lands that had not been included in the 

proposed rule due to a mapping error. 

Finally, all Air Force, Navy, and 

Government of Guam lands were 

excluded from critical habitat 

designation in this unit under sections 

4(a)(3) and/or 4(b)(2) of the Act, as 

amended, for the reasons described 

earlier in the sections entitled 

‘‘Exclusions from Critical Habitat.’’

Exclusion of Air Force lands resulted in 

the subtraction of 10,838 ac (4,386 ha) 

from designated critical habitat in 

northern Guam. Exclusion of Navy 

lands resulted in a subtraction of 962 ac 

(389 ha) from designated critical habitat 

in northern Guam. Exclusion of 

Government of Guam lands resulted in 

a subtraction of 1,640 ac (664 ha) from 

critical habitat in northern Guam. 

These modifications resulted in the 

reduction of critical habitat in the unit 

from 14,338 ac (5,803 ha) to 

approximately 376 ac (152 ha). This unit 

is now called the ‘‘Guam Micronesian 

Kingfisher Unit‘‘’’ and is the only 

designated critical habitat for the 

species on Guam (see ‘‘Critical Habitat 

Designation’’ and ‘‘Unit B: Southern 

Guam’’ below for additional 

information). 

Unit B: Southern Guam 

A total of 10,464 ac (4,234 ha) was 

removed or excluded from critical 

habitat designation in this unit. On 

COMNAVMARIANAS Ordnance Annex 

we removed 139 ac (57 ha) along the 

northern boundary of the unit because 

it contains buildings and mowed areas 

and does not contain the primary 

constituent elements, and is not 

essential to the conservation of the 

Guam Micronesian kingfisher. We also 

62976 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

removed 18 ac (7 ha) of private land 

from the eastern boundary of the unit 

that does contain the primary 

constituent elements, but is not 

essential to the conservation of the 

Guam Micronesian kingfisher. 

Finally, all Navy, Government of 

Guam, and private lands were excluded 

from critical habitat designation for the 

reasons described earlier in the sections 

entitled ‘‘Exclusions from Critical 

Habitat.’’ Exclusion of Navy lands 

resulted in the subtraction of 7,015 ac 

(2,839 ha) from designated critical 

habitat in southern Guam. Exclusion of 

Government of Guam lands resulted in 

the subtraction of 1,349 ac (546 ha) from 

designated critical habitat in southern 

Guam. Exclusion of private lands 

resulted in the subtraction of 1,941 ac 

(785 ha) from designated critical habitat 

in southern Guam. 

These modifications resulted in the 

removal of this unit from critical habitat 

designation. Designated critical habitat 

for the Guam Micronesian kingfisher is 

found in northern Guam in the ‘‘Guam 

Micronesian Kingfisher Unit’’ (see

‘‘Critical Habitat Designation’’ for 

additional information). 

Required Determinations

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is found to be a 

significant regulatory action. Because of 

the Court Ordered deadline, formal 

Office of Management and Budget 

(OMB) review was not undertaken. We 

prepared an economic analysis of this 

action. The draft economic analysis was 

made available for public comment and 

we considered those comments during 

the preparation of this rule. The 

economic analysis indicates that this 

rule will not have an annual economic 

effect of $100 million or more; based on 

our economic analysis, the annualized 

economic effects of this designation are 

estimated to be $174,624. We have 

excluded much of these lands analyzed 

in the draft economic analysis and 

addendum so the direct economic 

impacts of the final designation is likely 

to be substantially lower than this 

estimate. With approximately 90 

percent reduction in acreage and only 

refuge and Rota lands remaining, the 

cost may be closer to $463,300 based on 

10-year estimates. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

The following discussion of the 

potential economic impacts of this final 

rule reflects only the views of the 

Service. This discussion is based upon 

the information regarding potential 

economic impact that is available to the 

Service at this time. This analysis is for 

the purposes of compliance with the 

Regulatory Flexibility Act and does not 

reflect the position of the Service on the 

type of economic analysis required by 

the judicial decision in New Mexico 

Cattle Growers Assn. v. U.S. Fish and 

Wildlife Service, 248 F.3d 1277 (10th 

Cir. 2001). 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, whenever an 

agency is required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effects of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of the 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The Small Business Regulatory 

Enforcement Fairness Act amended the 

Regulatory Flexibility Act to require 

Federal agencies to provide a statement 

of the factual basis for certifying that the 

rule will not have a significant 

economic effect on a substantial number 

of small entities. The Small Business 

Regulatory Enforcement Fairness Act 

also amended the Regulatory Flexibility 

Act to require a certification statement. 

Based on current information, the 

Service certifies that this final rule will 

not have a significant effect on a 

substantial number of small entities. 

The Small Business Regulatory 

Enforcement Fairness Act does not 

explicitly define either ‘‘substantial 

number’’ or ‘‘significant economic 

impact.’’ Consequently, to assess 

whether a ‘‘substantial number’’ of 

small entities is affected by this 

designation, this analysis considers the 

relative number of small entities likely 

to sustain impacts in the area. Similarly, 

this analysis considers the relative cost 

of compliance on the revenues/profit 

margins of small entities in determining 

whether or not entities incur a 

‘‘significant economic impact.’’ Only 

small entities that are expected to be 

directly affected by the designation are 

considered in this portion of the 

analysis. This approach is consistent 

with several judicial opinions related to 

the scope of the Regulatory Flexibility 

Act (Mid-Tex Electric Co-Op, Inc. v. 

FERC and American Trucking 

Associations, Inc. v. EPA). 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as 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 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule as well as the 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. 

To determine if the rule would affect 

a substantial number of small entities, 

we consider the number of small 

entities affected within particular types 

of economic activities (e.g., housing 

development, grazing, oil and gas 

production, timber harvesting, etc.). In 

estimating the numbers of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement; some kinds of 

activities are unlikely to have any 

Federal involvement and so will not be 

affected by critical habitat designation. 

Designation of critical habitat only 

affects activities carried out, authorized, 

or funded by Federal agencies; nonFederal activities are not affected by the 

designation. In areas where the species 

are present, Federal agencies are already 

required to consult with us under 

section 7 of the Act on activities that 

they carry out, authorize, or fund that 

may affect Mariana fruit bats, Mariana 

crows, and/or Guam Micronesian 

kingfishers. When these critical habitat 

designations are finalized, Federal 

agencies must also consult with us if 

their activities may affect designated 

critical habitat. However, in areas where 

the species are present, we do not 

believe this will result in appreciable 

additional regulatory burdens on 

Federal agencies or their applicants 

because consultation would already be 

required because of the presence of the 

listed species.

Even if the duty to avoid adverse 

modification does not trigger additional 

regulatory impacts in areas where the 

species is present, designation of critical 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62977

habitat could result in an additional 

economic burden on small entities due 

to the requirement to reinitiate formal 

consultation for ongoing Federal 

activities. We have reviewed 209 

informal consultations and 37 formal 

consultations conducted on the Mariana 

fruit bat, Mariana crow, and Guam 

Micronesian kingfisher on Guam since 

these species were listed in 1984. In 

addition, we reviewed nine informal 

consultations conducted on the island 

of Rota, CNMI, since 1984. No formal 

consultations have been conducted on 

Rota since the Mariana crow was listed. 

Consultations on Federal grants to State 

wildlife programs, which do not affect 

small entities, were not reviewed for 

this final rule. Seventy-seven of the 209 

informal consultations on Guam and 3 

of the 5 informal consultations on Rota 

were conducted in response to requests 

for technical assistance or species lists 

for different locations on Guam and 

Rota. The majority of these requests 

were made by Federal agencies, some on 

their behalf by private consultants or 

contractors. Of the 246 total 

consultations on Guam, 57 informal and 

20 formal consultations involved at least 

one of the species involved in this final 

rule. Of the nine consultations on Rota, 

six involved the Mariana crow. 

Of the 20 formal consultations on 

Guam, two may have involved a small 

entity. Both of these concerned 

proposals by the Urunao Resort 

Corporation to have contractors conduct 

topographic survey work on private and 

Federal lands for a potential access road 

through Navy property to private lands. 

The Mariana fruit bat and Mariana crow 

were reported from the action areas. The 

biological opinions (Pacific Islands Fish 

and Wildlife Office log numbers 1–2–

90–F–027 and 1–2–91–F–008) 

concluded that the proposed action 

would not result in jeopardy to either 

species. The reasonable and prudent 

measures required in the biological 

opinions to avoid or minimize 

incidental take of these species did not 

include major modifications to the 

proposed action and therefore did not 

place a significant economic burden on 

Urunao Resort Corporation. We do not 

believe this constitutes a substantial 

number of small entities (see earlier 

discussion on substantial number). Of 

the remaining 18 formal consultations 

on Guam involving the Mariana fruit 

bat, Mariana crow, and/or Guam 

Micronesian kingfisher, 10 were 

conducted on behalf of the Air Force 

and 8 were conducted on behalf of the 

Navy. In all of these consultations, the 

Service concluded that the proposed 

actions would not result in jeopardy to 

these three listed species. 

Of the 57 informal consultations on 

Guam, one may have concerned a small 

entity (private individuals, consulting 

firms, or nonprofit organizations). The 

proposed action in this case, the 

gathering of a large Chamorro family on 

the Guam National Wildlife Refuge, was 

determined not likely to adversely affect 

listed species and was subject only to 

minor restrictions under a special use 

permit for the refuge. We do not believe 

this instance constitutes a substantial 

number of small entities (see earlier 

discussion on substantial number). Four 

informal consultations were conducted 

on behalf of Government of Guam 

agencies. One action was determined 

not likely to adversely affect listed 

species, and the other was determined 

to have no effect on listed species. A 

third was determined not likely to 

adversely modify the critical habitat 

proposed in 1991. The fourth 

consultation on behalf of the 

Government of Guam concerned 

technical assistance from the Service 

and resulted in no regulatory action by 

the Service or economic burden on the 

Government of Guam. We conclude, 

however, that the Government of Guam 

is not a small entity under the Small 

Business Regulatory Enforcement 

Fairness Act. 

Of the six informal consultations on 

Rota that concerned the Mariana crow, 

none concerned a small entity, and all 

consultations were conducted on behalf 

of the Government of the CNMI. Four of 

these consultations were requests for 

technical assistance or species lists and 

resulted in no regulatory action by the 

Service or economic burden on the 

Government of the CNMI. The 

remaining two actions were determined 

not likely to adversely affect the 

Mariana crow. We concluded, however, 

that the Government of the CNMI is not 

a small entity under the Small Business 

Regulatory Enforcement Fairness Act. 

The remaining 52 informal 

consultations on Guam exclusively 

involved the following Federal agencies: 

U.S. Air Force (27 consultations), U.S. 

Department of the Navy (14 

consultations), U.S. Department of 

Agriculture (4 consultations), U.S. Fish 

and Wildlife Service (3 consultations), 

U.S. Army Corps of Engineers (2 

consultations), U.S. Department of the 

Army (one consultation), and Natural 

Resources Conservation Service 

(formally the Soil Conservation Service) 

(one consultation). None of these 

agencies is a small entity under the 

Small Business Regulatory Enforcement 

Fairness Act. Of these consultations, 

seven included critical habitat proposed 

in 1991, and these proposed actions 

were determined not likely to adversely 

modify proposed critical habitat. Of the 

remaining 45 consultations, 38 

concluded with our concurrence that 

the proposed action either would have 

no effect on, or was not likely to 

adversely affect, listed species; five 

consultations were responses to requests 

for either species lists or technical 

assistance and did not conclude with a 

regulatory determination; one 

concluded with a request by the Service 

for more information; and one 

concluded with a determination that the 

proposed action, Navy training 

maneuvers, was likely to adversely 

affect the Mariana crow. 

In areas where the species clearly are 

not present, designation of critical 

habitat could trigger additional review 

of Federal activities under section 7 of 

the Act that otherwise would not be 

required. The majority of activities in 

the critical habitat areas for the Mariana 

fruit bat, Mariana crow, and Guam 

Micronesian kingfisher that have 

Federal involvement likely will concern 

the U.S. Navy or Air Force. As 

mentioned above, however, only 77 of 

246 informal consultations on Guam 

completed under section 7 of the Act 

involved any of the species for which 

critical habitat is being designated. As a 

result, we cannot easily identify future 

consultations that may result from the 

listed status of the species or the 

increment of additional consultations 

that may be required by this critical 

habitat designation. Furthermore, a large 

proportion of the critical habitat 

designation on Guam is currently 

unoccupied by these species. Therefore, 

for the purposes of this review and 

certification under the Regulatory 

Flexibility Act, we are making the 

conservative assumption that any future 

consultations in the area designated as 

critical habitat on Guam likely will 

result from the critical habitat 

designations.

Of the total land area designated as 

critical habitat on Guam for the Mariana 

fruit bat, Mariana crow, and Guam 

Micronesian kingfisher, approximately 

15 percent is private land, 21 percent is 

Government of Guam land, and 64 

percent is Federal land. Of the total land 

area designated as critical habitat for the 

Mariana crow on Rota, approximately 8 

percent is private land and 92 percent 

is CNMI Government land. Much of the 

land within the designated critical 

habitat units has limited potential for 

development because of the remote 

locations, lack of access, and rugged 

terrain of these lands. On non-Federal 

lands, activities that lack Federal 

involvement would not be affected by 

62978 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

the critical habitat designations. 

Activities of an economic nature that are 

likely to occur on non-Federal lands in 

the area encompassed by these 

designations consist of improvements to 

and construction of roads, 

communications and tracking facilities, 

and other infrastructure; residential and 

tourist-related development; ranching 

and farming; and recreational use, such 

as camping, picnicking, game hunting, 

and fishing. With the exception of 

communications and tracking facilities 

improvements by the Federal Aviation 

Administration or the Federal 

Communications Commission, road 

building or improvement by the Federal 

Highway Administration, and water or 

sewer system development by the Corps 

of Engineers these activities are unlikely 

to have Federal involvement. On lands 

that are or may be in agricultural 

production, the types of activities that 

might trigger a consultation include 

irrigation ditch system projects that may 

require section 404 authorizations from 

the Corps of Engineers, and watershed 

management and restoration projects 

sponsored by the Natural Resources 

Conservation Service. However, Natural 

Resources Conservation Service 

restoration projects typically are 

voluntary, and the irrigation ditch 

system projects within lands that are in 

agricultural production are rare and may 

affect only a small percentage of the 

small entities within these critical 

habitat designations. Therefore, analysis 

of currently available information 

indicates that the final rule would not 

affect a substantial number of small 

entities. We are not aware of any 

commercial activities on the Federal 

lands included in these critical habitat 

designations. 

In general, two different mechanisms 

in section 7 consultations could lead to 

additional regulatory requirements. 

First, if we conclude, in a biological 

opinion, that a proposed action is likely 

to jeopardize the continued existence of 

a species or adversely modify its critical 

habitat, we can offer ‘‘reasonable and 

prudent alternatives.’’ Reasonable and 

prudent alternatives are alternative 

actions that can be implemented in a 

manner consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid jeopardizing the continued 

existence of listed species or would 

result in adverse modification of critical 

habitat. A Federal agency and an 

applicant may elect to implement a 

reasonable and prudent alternative 

associated with a biological opinion that 

has found jeopardy or adverse 

modification of critical habitat. An 

agency or applicant could alternatively 

choose to seek an exemption from the 

requirements of the Act or proceed 

without implementing the reasonable 

and prudent alternative. However, 

unless an exemption were obtained, the 

Federal agency or applicant would be at 

risk of violating section 7(a)(2) of the 

Act if it chose to proceed without 

implementing the reasonable and 

prudent alternative(s). 

Secondly, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a listed animal 

species, we may identify reasonable and 

prudent measures designed to minimize 

the amount or extent of incidental take 

anticipated to result from the project 

and require the Federal agency or 

applicant to implement such measures 

through nondiscretionary terms and 

conditions. We may also identify 

discretionary conservation 

recommendations designed to minimize 

or avoid the adverse effects of a 

proposed action on listed species or 

critical habitat, help implement 

recovery plans, or gather information 

that could contribute to the long-term 

conservation of the species.

Based on our experience with section 

7 consultations for all listed species, 

virtually all projects—including those 

that, in their initial proposed form, 

would result in jeopardy or adverse 

modification determinations in section 

7 consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

Furthermore, these measures must be 

economically feasible, consistent with 

the intended purpose of the action, and 

within the scope of authority of the 

Federal agency involved in the 

consultation (see 50 CFR 404.2, 

definition of reasonable and prudent 

alternative). Based on our consultation 

history, we can describe the general 

kinds of actions that may be identified 

in future reasonable and prudent 

alternatives. These are based on our 

understanding of the needs of the 

species and the threats they face, 

especially as described in the final 

listing rule and in this critical habitat 

designation, as well as our experience 

with the listed species in Guam and 

Rota. The kinds of actions that may be 

included in future reasonable and 

prudent alternatives include, but are not 

limited to, management of competing 

nonnative species and predators, 

restoration of degraded habitat, 

construction of protective fencing, and 

regular monitoring. Therefore, such 

measures are not likely to result in a 

significant economic impact to a 

substantial number of small entities.

As required under section 4(b)(2) of 

the Act, we conducted an analysis of the 

potential economic and other impacts of 

this critical habitat designation, and we 

made this analysis available for public 

review and comment before finalizing 

these designations. 

In summary, we have considered 

whether this final rule would result in 

a significant economic effect on a 

substantial number of small entities. 

Currently available information 

indicates it would not affect a 

substantial number of small entities. 

None of the lands designated as critical 

habitat on Guam are on Government of 

Guam lands. In addition, approximately 

92 percent of the lands designated as 

critical habitat on Rota are on 

Government of the CNMI lands. The 

Territory of Guam and CNMI are not 

small entities under the Small Business 

Regulatory Enforcement Fairness Act. 

None of the lands designated as critical 

habitat on Guam and 8 percent of lands 

proposed as critical habitat on Rota are 

on private lands. As discussed earlier, 

many of the actions likely to occur on 

the private land parcels included in this 

proposal are not likely to require any 

Federal authorization. In the remaining 

areas, section 7 application, the only 

trigger for regulatory impact under this 

rule, largely would be limited to a 

subset of the area designated. The most 

likely future section 7 consultations 

resulting from this rule would be for 

informal consultations on actions 

proposed by the military, federally 

funded land and water conservation 

projects, species-specific surveys and 

research projects, and watershed 

management and restoration projects 

sponsored by the Natural Resources 

Conservation Service. These 

consultations likely would occur on 

only a subset of the total number of 

parcels and, therefore, are not likely to 

affect a substantial number of small 

entities. This rule would result in 

project modifications only when 

proposed Federal activities would 

destroy or adversely modify critical 

habitat. While this may occur, it is not 

expected frequently enough to affect a 

substantial number of small entities. 

Even if it did occur, we would not 

expect it to result in a significant 

economic impact, as the measures 

included in reasonable and prudent 

alternatives must be economically 

feasible and consistent with the 

proposed action. Thus, currently 

available information indicates that the 

designation of critical habitat for the 

Mariana fruit bat, Mariana crow, and 

Guam Micronesian kingfisher will not 

have a significant economic impact on 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62979

a substantial number of small entities, 

and an initial regulatory flexibility 

analysis is not required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 804(2)) 

Under the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 801 

et seq.), this rule is not a major rule. Our 

detailed assessment of the economic 

effects of this designation are described 

in the draft economic analysis and the 

final addendum to the economic 

analysis. Based on the effects identified 

in these documents, we believe that this 

rule will not have an effect on the 

economy of $100 million or more, will 

not cause a major increase in costs or 

prices for consumers, and will not have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Please 

refer to the final addendum to the 

economic analysis for a discussion of 

the effects of this determination. 

Executive Order 13211

On May 18, 2001, the President issued 

Executive Order 13211, on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. Though 

current information indicates this final 

rule would be a significant regulatory 

action under Executive Order 12866, it 

is not expected to significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 

August 25, 2000 et seq.): 

(a) This rule will not ‘‘significantly or 

uniquely’’ affect small governments. A 

Small Government Agency Plan does 

not appear to be required. Small 

governments would be affected only to 

the extent that any programs having 

Federal funds, permits, or other 

authorized activities would have to 

ensure that their actions will not 

adversely affect the critical habitat. 

However, as discussed above, these 

actions are currently subject to similar 

restrictions through the listing 

protections of the species, and further 

restrictions are not anticipated to result 

from critical habitat designation of 

occupied areas. In our economic 

analysis, we evaluated the impact of 

designating unoccupied areas where 

section 7 consultations would not have 

occurred but for the critical habitat 

designation.

(b) This rule will not produce on 

State, local, or Tribal governments or 

the private sector a Federal mandate of 

$100 million or greater in any year, so 

it does not meet the criteria for a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have preliminarily analyzed the 

potential takings implications of the 

designating critical habitat in a 

preliminary takings implication 

assessment, which indicates that this 

rule would not pose significant takings 

implications. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. As discussed 

above, the designation of critical habitat 

in areas currently occupied by the 

Mariana fruit bat and Mariana crow and 

in areas unoccupied by these species 

and the Guam Micronesian kingfisher 

would have little incremental impact on 

the Government of Guam or the CNMI 

and their activities. The designations 

may have some benefit to the 

Government of Guam and the CNMI in 

that the areas essential to the 

conservation of these species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the survival of these 

species are identified. While this 

definition and identification does not 

alter where and what Federally 

sponsored activities may occur, it may 

assist the Government of Guam and the 

CNMI in long-range planning rather 

than waiting for case-by-case section 7 

consultation to occur. 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Department of the Interior’s 

Office of the Solicitor has determined 

that this rule does not unduly burden 

the judicial system and does meet the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. The rule uses 

standard property descriptions and 

identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of the Mariana fruit bat, 

Guam Micronesian kingfisher, and 

Mariana crow. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any 

information collection requirements for 

which Office of Management and 

Budget approval under the Paperwork 

Reduction Act is required. An agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid Office of 

Management and Budget control 

number. 

National Environmental Policy Act 

We have determined that we do not 

have to prepare an Environmental 

Assessment and/or an Environmental 

Impact Statement as defined by the 

National Environmental Policy Act of 

1969 in connection with regulations 

adopted pursuant to section 4(a) of the 

Act, as amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register

on October 25, 1983 (48 FR 49244). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

With Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

federally recognized Tribes on a 

government-to-government basis. The 

designated critical habitat on Guam and 

Rota for the Mariana fruit bat, Guam 

Micronesian kingfisher, and Mariana 

crow does not contain any Tribal lands 

or lands that we have identified as 

impacting Tribal trust resources. 

References Cited

A complete list of all references cited 

in this final rule is available upon 

request from our Pacific Islands Fish 

and Wildlife Office (see ADDRESSES

section). 

Authors 

This document was drafted by the 

Pacific Islands Fish and Wildlife Office 

with assistance from the U.S. 

Department of the Interior (see 

ADDRESSES section).

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation.

62980 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

Regulation Promulgation 

■ Accordingly, part 17, subchapter B of 

chapter I, title 50 of the Code of Federal 

Regulations is amended as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.11(h), the entries for ‘‘Bat, 

Mariana fruit’’ under ‘‘MAMMALS,’’

‘‘Kingfisher, Guam Micronesian’’ under 

‘‘BIRDS,’’ and ‘‘Crow, Mariana’’ under 

‘‘BIRDS’’ are revised to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

MAMMALS

* * * * * * * 

Bat, Mariana fruit 

(=Mariana flying 

fox).

Pteropus mariannus 

mariannus.

Western Pacific 

Ocean USA 

(Guam, Commonwealth of the 

Northern Mariana 

Islands).

Guam ...................... E 156 17.95(a) NA 

* * * * * * * 

BIRDS

* * * * * * * 

Crow, Mariana .......... Corvus kubaryi ........ Western Pacific 

Ocean USA 

(Guam, Rota).

Entire ....................... E 156 17.95(b) NA 

* * * * * * * 

Kingfisher, Guam Micronesian.Halcyon 

cinnamomina 

cinnamomina.

Western Pacific 

Ocean USA 

(Guam).

Entire ....................... E 156 17.95(b) NA 

* * * * * * * 

■ 3. Amend § 17.95 by adding, in the 

same alphabetical order as these species 

occur in § 17.11(h): 

■ a. In paragraph (a), critical habitat for 

the Mariana fruit bat (Pteropus 

mariannus mariannus) as set forth 

below; and 

■ b. In paragraph (b), critical habitat for 

the Mariana crow (Corvus kubaryi) and 

Guam Micronesian kingfisher (Halcyon 

cinnamomina cinnamomina) as set 

forth below. 

§ 17.95 Critical habitat—fish and wildlife. 

(a) Mammals. 

* * * * * 

Mariana Fruit Bat (Pteropus mariannus 

mariannus) 

(1) The critical habitat unit for the 

Mariana fruit bat is depicted for the 

Territory of Guam on the maps below. 

(2) Within this area, the primary 

constituent elements required by the 

Mariana fruit bat for the biological 

needs of foraging, sheltering, roosting, 

and rearing of young are found in areas 

supporting limestone, secondary, 

ravine, swamp, agricultural, and coastal 

forests composed of native or 

introduced plant species. These forest 

types provide the primary constituent 

elements of: 

(i) Plant species used for foraging, 

such as Artocarpus sp. (breadfruit), 

Carica papaya (papaya), Cycas circinalis 

(fadang), Ficus spp. (fig), Pandanus 

tectorius (kafu), Cocos nucifera (coconut 

palm), and Terminalia catappa (talisai); 

and 

(ii) Remote locations, often within 328 

ft (100 m) of clifflines that are 260 to 

590 ft (80 to 100 m) tall, with limited 

exposure to human disturbance; land 

that contains mature fig, Mammea 

odorata (chopak), Casuarina 

equisetifolia (gago), Macaranga 

thompsonii (pengua), Guettarda 

speciosa (panao), Neisosperma 

oppositifolia (fagot), and other tree 

species that are used for roosting and 

breeding. 

(3) Critical habitat does not include 

existing features and structures within 

the boundaries of the mapped units, 

such as buildings, roads, aqueducts, 

antennas, water tanks, agricultural 

fields, paved areas, lawns, and other 

urban landscaped areas not containing 

one or more of the primary constituent 

elements. 

(4) The critical habitat unit is 

described below. Coordinates are in 

UTM Zone 55 with units in meters 

using North American Datum of 1983 

(NAD83)/World Geodetic System 1984 

(WGS 84). 

(i) Note: Map 1—General Location of the 

Mariana Fruit Bat Unit follows: 

BILLING CODE 4310–55–P 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62981

(ii) Guam, Mariana fruit bat (376 ac; 

152 ha). 

(A) Unit consists of the following nine 

boundary points: 267358, 1509113; 

267338, 1509107; 267277, 1509113; 

271077, 1508881; 271071, 1508878; 

270766, 1509058; 269030, 1510105; 

268659, 1510129; 267697, 1509376.

(B) Note: Map 2 showing Mariana Fruit Bat 

Unit follows:


ER28OC04.000</GPH>
62982 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

* * * * *

(b) Birds.

* * * * *

Mariana Crow (Corvus kubaryi)

(1) Critical habitat units for the 

Mariana crow are depicted for the 

Territory of Guam and the island of 

Rota, Commonwealth of the Northern 

Mariana Islands, on the maps below. 

(2) The primary constituent elements 

required by the Mariana crow for the 

biological needs of foraging, sheltering, 

roosting, nesting, and rearing of young 

are found in areas that support 

limestone, secondary, ravine, swamp, 

agricultural, and coastal forests 

composed of native and introduced 

plant species. These forest types provide 

the primary constituent elements of: 

(i) Emergent trees and subcanopy 

trees with dense cover for breeding, 

such as Neisosperma oppositifolia

(fagot), Macaranga thompsonii (pengua), 

Intsia bijuga (ifit), Premna obtusifolia

(ahgao), Eugenia reinwardtiana

(aabang), Ficus spp. (fig), Elaeocarpus 

joga (yoga), and Tristiropsis obtusangula

(faniok); 

(ii) Sufficient area of predominantly 

native forest to allow nesting at least 

950 ft (290 m) from the nearest road and 

203 ft (62 m) from the nearest forest 

edge and to support Mariana crow 

breeding territories (approximately 30 to 

91 ac (12 to 37 ha)) and foraging areas 

for nonbreeding juvenile crows; and 

(iii) Standing dead trees and plant 

species for foraging such as Aglaia 

mariannensis (maypunayo), Artocarpus

spp. (breadfruit), Cocos nucifera

(coconut palm), fagot, Hibiscus tiliaceus

(pago), ifit, Leucaena spp. 

(tangantangan), Ochrosia mariannensis

(langiti), Pandanus tectorius (kafu), 

ahgao, fig, and joga. 

(3) Critical habitat does not include 

existing features and structures within 

the boundaries of the mapped units, 

such as buildings, roads, aqueducts, 

antennas, water tanks, agricultural 

fields, paved areas, lawns, and other 

urban landscaped areas not containing 

one or more of the primary constituent 

elements. 

(4) Critical habitat units are described 

below. Coordinates are in UTM Zone 55 

with units in meters using North 

American Datum of 1983 (NAD83)/

World Geodetic System 1984 (WGS 84).

(i) Note: Map 1—General Locations of 

Units for the Mariana Crow follows:


ER28OC04.001</GPH>
Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62983

(ii) Guam, Mariana crow—Unit A (376 

ac; 152 ha): 

(A) Unit A consists of the following 

nine boundary points: 267358, 1509113; 

267338, 1509107; 267277, 1509113; 

271077, 1508881; 271071, 1508878; 

270766, 1509058; 269030, 1510105; 

268659, 1510129; 267697, 1509376.

(B) Note: Map 2 showing Unit A for 

Mariana crow follows:


ER28OC04.002</GPH>
62984 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

BILLING CODE 4310–55–C

(iii) Rota, Mariana crow—Unit B 

(6,033 ac; 2,442 ha): 

(A) Subunit B–1 (5,668 ac; 2,294 ha) 

consists of the following 659 boundary 

points: 309251, 1569048; 309301, 

1569048; 309410, 1569197; 309423, 

1569292; 309304, 1569302; 309319, 

1569585; 309357, 1569581; 309355, 

1569603; 309339, 1569952; 309301, 

1569932; 309216, 1570065; 309393, 

1570214; 309698, 1570373; 309955, 

1570475; 310209, 1570549; 310304, 

1570532; 310484, 1570542; 310684, 

1570556; 310823, 1570522; 310988, 

1570530; 311235, 1570509; 311484, 

1570490; 311620, 1570458; 311690, 

1570436; 311807, 1570430; 312089, 

1570412; 312189, 1570420; 312276, 

1570402; 312346, 1570422; 312447, 

1570412; 312539, 1570386; 312631, 

1570349; 312734, 1570290; 312853, 

1570230; 312913, 1570240; 313008, 

1570257; 313130, 1570243; 313360, 

1570238; 313441, 1570212; 313526, 

1570211; 313598, 1570186; 313620, 

1570151; 313479, 1570121; 313387, 

1570081; 313382, 1570051; 313488, 

1570070; 313550, 1570037; 313621, 

1570022; 313704, 1570035; 313805, 

1570011; 313843, 1569989; 313932, 

1569975; 313986, 1569956; 314024, 

1569934; 314116, 1569951; 314228, 

1569932; 314336, 1569901; 314417, 

1569879; 314482, 1569883; 314529, 

1569853; 314810, 1569769; 315250, 

1569625; 315296, 1569566; 315344, 

1569506; 315399, 1569417; 315448, 

1569341; 315469, 1569243; 315450, 

1569091; 315369, 1568959; 315274, 

1568839; 315222, 1568741; 315111, 

1568557; 314963, 1568264; 314881, 

1568159; 314832, 1568004; 314827, 

1567899; 314786, 1567817; 314751, 

1567701; 314753, 1567609; 314761, 

1567278; 314810, 1567191; 314816, 

1567112; 314767, 1567015; 314724, 

1566831; 314648, 1566774; 314637, 

1566722; 314642, 1566578; 314661, 

1566508; 314564, 1566294; 314407, 

1566085; 314241, 1565987; 314051, 

1565865; 313943, 1565830; 313816, 

1565771; 313656, 1565613; 313463, 

1565456; 313333, 1565386; 313214, 

1565304; 313076, 1565261; 312973, 

1565250; 312916, 1565275; 312799, 

1565334; 312734, 1565396; 312593, 

1565475; 312311, 1565540; 312184, 

1565554; 312037, 1565556; 311932, 

1565551; 311799, 1565524; 311560, 

1565537; 311433, 1565515; 311270, 

1565453; 311140, 1565372; 311018, 

1565334; 310901, 1565312; 310628, 

1565283; 310525, 1565285; 310408, 

1565293; 310272, 1565264; 310194, 

1565226; 310132, 1565158; 310058, 

1565104; 309912, 1564984; 309828, 

1564908; 309734, 1564821; 309609, 

1564707; 309492, 1564673; 309386, 

1564583; 309213, 1564399; 309101, 

1564206; 308944, 1564168; 308874, 

1564128; 308849, 1564068; 308855, 

1564017; 308852, 1563900; 308836, 

1563803; 308814, 1563662; 308779, 

1563537; 308779, 1563415; 308773, 

1563328; 308806, 1563285; 308809, 

1563212; 308863, 1563087; 308866, 

1563011; 308814, 1562959; 308776, 

1562905; 308741, 1562843; 308730, 

1562778; 308665, 1562734; 308583, 

1562702; 308535, 1562705; 308229, 

1562564; 308080, 1562485; 307987, 

1562390; 307929, 1562325; 307947, 

1562257; 307914, 1562238; 307898, 

1562192; 307833, 1562054; 307765, 

1561919; 307705, 1561910; 307672, 

1561903; 307667, 1561864; 307725, 

1561834; 307724, 1561797; 307673, 

1561715; 307535, 1561609; 307391, 

1561447; 307228, 1561325; 307158, 

1561333; 307012, 1561277; 306779, 


ER28OC04.003</GPH>
Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62985

1561394; 306697, 1561388; 306585, 

1561380; 306533, 1561376; 306416, 

1561344; 306336, 1561333; 306208, 

1561331; 306166, 1561355; 306071, 

1561420; 305925, 1561471; 305857, 

1561483; 305811, 1561478; 305774, 

1561437; 305748, 1561348; 305754, 

1561287; 305801, 1561286; 305891, 

1561175; 305848, 1561126; 305833, 

1561094; 305864, 1561050; 305810, 

1561036; 305734, 1561036; 305703, 

1561001; 305674, 1560993; 305643, 

1561014; 305580, 1560960; 305531, 

1560933; 305492, 1560945; 305476, 

1560972; 305452, 1560994; 305406, 

1560991; 305370, 1561022; 305325, 

1561047; 305327, 1561078; 305320, 

1561099; 305274, 1561148; 305244, 

1561170; 305238, 1561187; 305217, 

1561215; 305156, 1561235; 305084, 

1561233; 305054, 1561234; 305057, 

1561263; 305042, 1561436; 305031, 

1561528; 305041, 1561559; 305075, 

1561668; 305091, 1561734; 305109, 

1561806; 304845, 1561793; 304828, 

1561737; 304789, 1561680; 304730, 

1561636; 304682, 1561670; 304609, 

1561726; 304537, 1561729; 304543, 

1561756; 304426, 1561738; 304386, 

1561662; 304317, 1561706; 304215, 

1561666; 304099, 1561690; 304021, 

1561789; 304088, 1561845; 304062, 

1561922; 304177, 1561987; 304084, 

1562103; 303922, 1562290; 303891, 

1562318; 303867, 1562349; 303812, 

1562414; 303739, 1562556; 303701, 

1562508; 303676, 1562471; 303652, 

1562522; 303575, 1562516; 303540, 

1562487; 303542, 1562433; 303458, 

1562411; 303434, 1562393; 303422, 

1562453; 303317, 1562343; 303325, 

1562313; 303302, 1562284; 303276, 

1562282; 303240, 1562260; 303217, 

1562242; 303167, 1562149; 303138, 

1562129; 303111, 1562076; 303064, 

1562084; 303038, 1562069; 302998, 

1562079; 302959, 1562068; 302931, 

1562030; 302862, 1562031; 302847, 

1562023; 302823, 1562047; 302750, 

1561973; 302708, 1561934; 302622, 

1561980; 302539, 1561950; 302478, 

1561980; 302420, 1561942; 302396, 

1561965; 302352, 1562007; 302328, 

1562056; 302315, 1562081; 302288, 

1562112; 302262, 1562161; 302249, 

1562185; 302232, 1562243; 302240, 

1562278; 302258, 1562311; 302306, 

1562355; 302355, 1562379; 302388, 

1562398; 302411, 1562418; 302443, 

1562470; 302456, 1562496; 302448, 

1562537; 302402, 1562623; 302354, 

1562673; 302366, 1562698; 302357, 

1562716; 302346, 1562711; 302213, 

1562810; 302163, 1562866; 302066, 

1562946; 302056, 1562985; 302016, 

1562990; 301955, 1563034; 301936, 

1563076; 301882, 1563096; 301867, 

1563093; 301822, 1563158; 301764, 

1563244; 301677, 1563328; 301580, 

1563379; 301518, 1563346; 301482, 

1563379; 301494, 1563418; 301572, 

1563445; 301601, 1563552; 301514, 

1563608; 301374, 1563700; 301316, 

1563740; 301140, 1563860; 300871, 

1563988; 300689, 1564203; 300484, 

1564307; 300566, 1564450; 300389, 

1564638; 300472, 1564790; 300547, 

1564683; 300696, 1564797; 300709, 

1564865; 300724, 1564935; 300733, 

1564985; 300802, 1564997; 300809, 

1565065; 300824, 1565186; 300889, 

1565296; 300927, 1565332; 301139, 

1565378; 301166, 1565499; 301310, 

1565554; 301340, 1565496; 301493, 

1565470; 301602, 1565455; 301726, 

1565444; 301852, 1565428; 301951, 

1565444; 302023, 1565520; 302279, 

1565526; 302273, 1565424; 302522, 

1565388; 302630, 1565372; 302914, 

1565332; 303045, 1565414; 303213, 

1565437; 303283, 1565463; 303299, 

1565568; 303353, 1565617; 303429, 

1565705; 303551, 1565855; 303589, 

1565862; 303662, 1565909; 303709, 

1565943; 303699, 1565972; 303790, 

1566116; 303814, 1566104; 303914, 

1566165; 303961, 1566093; 304048, 

1566137; 304008, 1566221; 303912, 

1566211; 303876, 1566200; 303784, 

1566149; 303710, 1566324; 303725, 

1566359; 303889, 1566367; 303933, 

1566390; 303906, 1566437; 303985, 

1566502; 304046, 1566507; 304164, 

1566279; 304241, 1566149; 304173, 

1566049; 304116, 1566004; 304118, 

1565967; 304208, 1565992; 304274, 

1566044; 304578, 1566092; 304532, 

1566129; 304531, 1566215; 304506, 

1566303; 304729, 1566316; 304773, 

1566274; 304902, 1566268; 304962, 

1566265; 305087, 1566248; 305070, 

1566133; 305108, 1566102; 305082, 

1566065; 305145, 1565958; 305177, 

1565915; 305235, 1565955; 305421, 

1565782; 305452, 1565756; 305596, 

1565779; 305683, 1565792; 305791, 

1565838; 305893, 1565886; 306023, 

1565952; 306135, 1566064; 306203, 

1566119; 306251, 1566060; 306555, 

1566080; 306664, 1566164; 306780, 

1566264; 306834, 1566273; 307071, 

1566336; 307106, 1566329; 307223, 

1566324; 307307, 1566290; 307304, 

1566221; 307397, 1566214; 307647, 

1566199; 307865, 1566154; 307896, 

1566125; 307979, 1566062; 308031, 

1566047; 308267, 1565952; 308267, 

1565855; 308315, 1565841; 308359, 

1565901; 308432, 1565806; 308535, 

1565518; 308562, 1565402; 308545, 

1565397; 308590, 1565223; 308676, 

1565242; 308700, 1565190; 308860, 

1565315; 309031, 1565486; 309093, 

1565494; 309270, 1565486; 309332, 

1565415; 309354, 1565337; 309367, 

1565161; 309389, 1565153; 309440, 

1565161; 309492, 1565131; 309497, 

1565052; 309524, 1565041; 309568, 

1565055; 309587, 1565096; 309570, 

1565131; 309579, 1565174; 309560, 

1565223; 309573, 1565261; 309608, 

1565299; 309578, 1565369; 309820, 

1565486; 310001, 1565592; 310154, 

1565639; 310358, 1565685; 310369, 

1565665; 310596, 1565693; 310642, 

1565657; 310700, 1565655; 310795, 

1565726; 310937, 1565754; 310976, 

1565767; 311272, 1565802; 311282, 

1565660; 311408, 1565703; 311494, 

1565731; 311616, 1565734; 311782, 

1565734; 311858, 1565745; 312021, 

1565735; 312100, 1565743; 312203, 

1565779; 312306, 1565776; 312392, 

1565841; 312409, 1565811; 312398, 

1565757; 312439, 1565681; 312479, 

1565670; 312550, 1565678; 312596, 

1565678; 312601, 1565730; 312574, 

1565776; 312533, 1565838; 312950, 

1565848; 312983, 1565823; 313055, 

1565882; 313070, 1565943; 313113, 

1566024; 313256, 1566157; 313460, 

1566223; 313496, 1566305; 313555, 

1566443; 313631, 1566481; 313723, 

1566467; 313799, 1566489; 313878, 

1566481; 313921, 1566505; 313929, 

1566540; 313902, 1566559; 313864, 

1566557; 313826, 1566521; 313788, 

1566543; 313790, 1566603; 313783, 

1566660; 313813, 1566703; 313862, 

1566757; 313832, 1566768; 313788, 

1566749; 313704, 1566717; 313615, 

1566668; 313569, 1566627; 313498, 

1566527; 313478, 1566478; 313376, 

1566382; 313136, 1566223; 313101, 

1566254; 313101, 1566366; 313059, 

1566413; 313016, 1566416; 312962, 

1566413; 312874, 1566387; 312529, 

1566471; 312501, 1566632; 312565, 

1566815; 312693, 1566785; 312693, 

1566897; 312807, 1566917; 312813, 

1566980; 312802, 1567132; 312937, 

1567124; 312932, 1566925; 312996, 

1566927; 313121, 1567027; 313135, 

1567050; 313217, 1566988; 313282, 

1566936; 313292, 1566858; 313309, 

1566787; 313283, 1566731; 313320, 

1566717; 313355, 1566728; 313360, 

1566782; 313360, 1566833; 313368, 

1566863; 313401, 1566887; 313431, 

1566898; 313466, 1566955; 313562, 

1566958; 313585, 1567052; 313455, 

1567137; 313195, 1567213; 313129, 

1567244; 313040, 1567253; 312907, 

1567257; 312912, 1567448; 312909, 

1567729; 313019, 1567652; 313276, 

1567581; 313810, 1567411; 313916, 

1567327; 313989, 1567327; 314106, 

1567237; 314184, 1567248; 314220, 

1567360; 314192, 1567421; 314225, 

1567533; 314192, 1567611; 314198, 

1567679; 314314, 1567766; 314371, 

1567831; 314390, 1567888; 314428, 

1568004; 314439, 1568107; 314482, 

1568185; 314507, 1568231; 314596, 

62986 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

1568270; 314697, 1568359; 314764, 

1568357; 314813, 1568378; 314844, 

1568493; 314973, 1568590; 314995, 

1568674; 314984, 1568766; 315011, 

1568915; 315022, 1569162; 314960, 

1569181; 314905, 1569200; 314843, 

1569278; 314840, 1569343; 314846, 

1569390; 314819, 1569406; 314783, 

1569398; 314759, 1569406; 314743, 

1569444; 314637, 1569506; 314553, 

1569541; 314539, 1569571; 314569, 

1569612; 314396, 1569652; 314317, 

1569655; 314081, 1569785; 313920, 

1569813; 313815, 1569818; 313257, 

1569826; 312876, 1569836; 312896, 

1569509; 312912, 1569188; 312915, 

1568976; 312795, 1569012; 312588, 

1568997; 312425, 1569062; 312181, 

1569041; 312012, 1569001; 311943, 

1568999; 311943, 1568953; 311818, 

1568948; 311731, 1568905; 311711, 

1568926; 311675, 1568917; 311649, 

1568994; 311602, 1569082; 311636, 

1569226; 311450, 1569290; 311381, 

1569290; 311312, 1569132; 311517, 

1569055; 311570, 1568854; 311700, 

1568716; 311662, 1568629; 311565, 

1568547; 311369, 1568683; 311170, 

1568731; 311065, 1568532; 310647, 

1568535; 310624, 1568581; 310820, 

1568660; 310795, 1568734; 311062, 

1568848; 311027, 1569012; 310690, 

1568967; 310551, 1568963; 310396, 

1568926; 310236, 1568926; 310126, 

1568927; 310120, 1568838; 310077, 

1568824; 309975, 1568770; 309799, 

1568773; 309579, 1568794; 309474, 

1568767; 309396, 1568760; 309268, 

1568888; 309286, 1568889; 309252, 

1569042; 309251, 1569048. 

(B) Excluding seven areas: 

(1) Bounded by the following five 

points (7 ac; 3 ha): 309786, 1569596; 

309800, 1569484; 310060, 1569596; 

310059, 1569695; 310055, 1569695.

(2) Bounded by the following four 

points (13 ac; 5 ha): 310365, 1569567; 

310716, 1569564; 310716, 1569718; 

310366, 1569717. 

(3) Bounded by the following 53 

points (46 ac; 19 ha): 308686, 1564398; 

308762, 1564422; 308791, 1564444; 

308793, 1564466; 308784, 1564497; 

308797, 1564525; 308821, 1564528; 

308848, 1564503; 308874, 1564514; 

308905, 1564532; 308955, 1564666; 

308979, 1564736; 308994, 1564814; 

309056, 1564845; 309090, 1564889; 

309126, 1564869; 309248, 1564976; 

309277, 1565027; 309288, 1565060; 

309280, 1565083; 309271, 1565117; 

309213, 1565113; 309170, 1565106; 

309132, 1565058; 309100, 1565068; 

309047, 1565112; 308992, 1565145; 

308979, 1565217; 308948, 1565228; 

308887, 1565176; 308883, 1565150; 

308900, 1565075; 308876, 1564990; 

308839, 1564994; 308821, 1564996; 

308791, 1564924; 308813, 1564898; 

308839, 1564906; 308870, 1564928; 

308878, 1564915; 308808, 1564760; 

308756, 1564683; 308703, 1564628; 

308672, 1564595; 308668, 1564571; 

308677, 1564563; 308716, 1564574; 

308718, 1564560; 308673, 1564489; 

308647, 1564459; 308607, 1564406; 

308654, 1564386; 308671, 1564401. 

(4) Bounded by the following 80 

points (84 ac; 34 ha): 307624, 1562456; 

307687, 1562504; 307700, 1562504; 

307723, 1562493; 307768, 1562521; 

307804, 1562511; 307827, 1562494; 

307871, 1562552; 307897, 1562565; 

307928, 1562565; 307943, 1562545; 

307959, 1562519; 307976, 1562515; 

308031, 1562572; 307996, 1562594; 

307980, 1562618; 307978, 1562640; 

307930, 1562655; 307908, 1562675; 

307891, 1562697; 307891, 1562743; 

307856, 1562771; 307851, 1562810; 

307902, 1562852; 308068, 1562957; 

308134, 1562964; 308164, 1562997; 

308173, 1563049; 308204, 1563115; 

308197, 1563150; 308171, 1563159; 

308149, 1563172; 308158, 1563220; 

308153, 1563290; 308153, 1563334; 

308184, 1563347; 308234, 1563340; 

308316, 1563418; 308398, 1563405; 

308418, 1563437; 308367, 1563499; 

308373, 1563676; 308215, 1563726; 

308158, 1563576; 308126, 1563534; 

308091, 1563547; 308052, 1563487; 

308025, 1563486; 307965, 1563436; 

307886, 1563373; 307872, 1563313; 

307872, 1563199; 307896, 1563181; 

307911, 1563141; 307871, 1563095; 

307869, 1563073; 307904, 1563069; 

307880, 1563003; 307862, 1563010; 

307849, 1563025; 307803, 1563019; 

307807, 1562964; 307792, 1562951; 

307753, 1562946; 307713, 1562935; 

307700, 1562911; 307704, 1562881; 

307753, 1562828; 307768, 1562797; 

307733, 1562745; 307731, 1562727; 

307781, 1562683; 307729, 1562598; 

307713, 1562633; 307689, 1562635; 

307646, 1562613; 307495, 1562647; 

307488, 1562556; 307488, 1562533; 

307495, 1562490. 

(5) Bounded by the following seven 

points (9 ac; 3 ha): 308109, 1562663; 

308114, 1562663; 308280, 1562825; 

308197, 1562937; 308066, 1562859; 

308074, 1562799; 308043, 1562743.

(6) Bounded by the following 225 

points (4,517 ac; 1,828 ha): 304411, 

1562555; 304424, 1562519; 304395, 

1562481; 304302, 1562446; 304273, 

1562406; 304249, 1562358; 304254, 

1562282; 304261, 1562234; 304267, 

1562190; 304322, 1562154; 304363, 

1562125; 304393, 1562154; 304450, 

1562187; 304496, 1562219; 304553, 

1562195; 304591, 1562252; 304677, 

1562222; 304751, 1562222; 304756, 

1562184; 304707, 1562097; 304732, 

1562065; 304778, 1562078; 304848, 

1562116; 304883, 1562133; 304897, 

1562100; 304919, 1562054; 304965, 

1562055; 305014, 1562130; 305027, 

1562070; 305087, 1562070; 305138, 

1562106; 305178, 1562184; 305273, 

1562139; 305332, 1562082; 305502, 

1562089; 305578, 1562186; 305634, 

1562202; 305663, 1562153; 305654, 

1562055; 305625, 1562051; 305559, 

1561906; 305499, 1561766; 305502, 

1561677; 305536, 1561661; 305583, 

1561645; 305628, 1561651; 305657, 

1561733; 305750, 1562039; 305797, 

1562046; 305851, 1562027; 305884, 

1561946; 305962, 1561919; 306000, 

1561908; 306049, 1561932; 306083, 

1561909; 306124, 1561894; 306125, 

1561840; 306152, 1561740; 306149, 

1561664; 306171, 1561612; 306196, 

1561564; 306331, 1561523; 306475, 

1561523; 306637, 1561536; 306678, 

1561599; 306697, 1561618; 306795, 

1561601; 306862, 1561696; 306865, 

1561764; 306854, 1561781; 306837, 

1561785; 306821, 1561831; 306726, 

1561820; 306597, 1561737; 306383, 

1561737; 306312, 1561775; 306280, 

1561824; 306280, 1561867; 306328, 

1561986; 306326, 1562043; 306369, 

1562146; 306348, 1562193; 306359, 

1562248; 306396, 1562413; 306211, 

1562495; 306212, 1562642; 306491, 

1562590; 306893, 1562575; 307497, 

1563122; 307570, 1563395; 307632, 

1563500; 307765, 1563576; 307881, 

1563606; 307963, 1563657; 308014, 

1563772; 308065, 1564029; 308062, 

1564310; 308088, 1564565; 308044, 

1564754; 307833, 1564944; 307768, 

1565047; 307819, 1565112; 307805, 

1565168; 307749, 1565378; 307765, 

1565443; 307822, 1565486; 307811, 

1565570; 307779, 1565654; 307817, 

1565697; 307825, 1565828; 307842, 

1565852; 307741, 1565909; 307639, 

1565920; 307442, 1565987; 307386, 

1566039; 307223, 1566107; 307152, 

1566137; 307112, 1566137; 307082, 

1566183; 307047, 1566199; 306955, 

1566199; 306887, 1566191; 306824, 

1566142; 306643, 1566020; 306544, 

1565957; 306401, 1565931; 306247, 

1565886; 306225, 1565841; 306113, 

1565820; 306065, 1565846; 305956, 

1565740; 305864, 1565621; 305851, 

1565381; 305732, 1565386; 305724, 

1565275; 305583, 1565276; 305305, 

1565376; 305244, 1565424; 305104, 

1565593; 304938, 1565657; 304768, 

1565694; 304538, 1565717; 304173, 

1565710; 304059, 1565694; 303985, 

1565704; 303930, 1565725; 303903, 

1565726; 303881, 1565697; 303879, 

1565686; 303866, 1565617; 303819, 

1565548; 303760, 1565524; 303670, 

1565498; 303545, 1565484; 303504, 

1565453; 303445, 1565416; 303355, 

1565352; 303191, 1565289; 303022, 

1565141; 302927, 1565120; 302874, 

Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62987

1565088; 302601, 1565117; 302527, 

1565140; 302218, 1565153; 302086, 

1565142; 301948, 1565092; 301810, 

1565044; 301728, 1565024; 301675, 

1565037; 301588, 1565018; 301416, 

1565032; 301326, 1565030; 301284, 

1565055; 301215, 1564939; 301207, 

1564880; 301178, 1564669; 301199, 

1564611; 301215, 1564529; 301236, 

1564468; 301284, 1564460; 301363, 

1564476; 301459, 1564476; 301604, 

1564444; 301705, 1564365; 301734, 

1564277; 301781, 1564145; 301827, 

1564059; 301898, 1564026; 301972, 

1563986; 302078, 1563923; 302144, 

1563891; 302215, 1563817; 302318, 

1563661; 302371, 1563526; 302605, 

1563264; 302705, 1563179; 302736, 

1563065; 302743, 1562848; 302859, 

1562481; 302916, 1562366; 302961, 

1562293; 302983, 1562274; 303027, 

1562300; 303093, 1562406; 303115, 

1562459; 303159, 1562565; 303190, 

1562612; 303214, 1562638; 303250, 

1562687; 303323, 1562713; 303478, 

1562733; 303626, 1562749; 303778, 

1562811; 303847, 1562837; 303900, 

1562902; 303986, 1562937; 304081, 

1562943; 304196, 1562928; 304284, 

1562884; 304280, 1562804; 304302, 

1562749; 304315, 1562704; 304363, 

1562636; 304368, 1562613; 304379, 

1562567.

(7) Bounded by the following nine 

points (9 ac; 3 ha): 303885, 1562540; 

303916, 1562411; 303966, 1562370; 

304088, 1562398; 304081, 1562449; 

304077, 1562587; 304072, 1562590; 

303992, 1562579; 303895, 1562564. 

(C) Subunit B–2 (365 ac; 148 ha) 

consists of the following 64 boundary 

points: 308173, 1567760; 308132, 

1567750; 308105, 1567693; 308088, 

1567642; 308013, 1567625; 307908, 

1567625; 307634, 1567679; 307580, 

1567659; 307475, 1567659; 307410, 

1567632; 307391, 1567599; 307208, 

1567603; 307154, 1567586; 306999, 

1567537; 307000, 1567462; 306988, 

1567448; 306749, 1567420; 306700, 

1567489; 306815, 1567568; 307027, 

1567721; 307024, 1567751; 307254, 

1567843; 307310, 1567846; 307444, 

1568042; 307502, 1568160; 307586, 

1568258; 307614, 1568414; 307732, 

1568533; 307837, 1568655; 307942, 

1568733; 307986, 1568682; 308071, 

1568641; 308190, 1568658; 308312, 

1568709; 308444, 1568763; 308559, 

1568814; 308634, 1568872; 308630, 

1568950; 308684, 1568980; 308810, 

1568956; 308942, 1569004; 309033, 

1569041; 309095, 1569049; 309113, 

1568883; 309233, 1568887; 309213, 

1568855; 309372, 1568655; 309345, 

1568604; 309386, 1568509; 309416, 

1568424; 309399, 1568380; 309335, 

1568424; 309288, 1568401; 309243, 

1568452; 309196, 1568431; 309108, 

1568428; 309054, 1568428; 308968, 

1568389; 308922, 1568387; 308909, 

1568356; 308422, 1568364; 308411, 

1567945; 308285, 1567960; 308240, 

1567738.

(D) Note: Map 3 showing Unit B for 

Mariana crow follows:

BILLING CODE 4310–55–P

62988 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

* * * * *

Guam Micronesian Kingfisher (Halcyon 

cinnamomina cinnamomina)

(1) The critical habitat unit for the 

Guam Micronesian kingfisher is 

depicted for the Territory of Guam on 

the maps below. 

(2) The primary constituent elements 

required by the Guam Micronesian 

kingfisher for the biological needs of 

foraging, sheltering, roosting, nesting, 

and rearing of young are found in areas 

that support limestone, secondary, 

ravine, swamp, agricultural, and coastal 

forests composed of native and 

introduced plant species. These forest 

types include the primary constituent 

elements of: 

(i) Closed canopy and well-developed 

understory vegetation; large 

(approximately 43 cm (17 in) diameter 

at breast height), standing dead trees 

(especially Tristiropsis obtusangula

(faniok), Pisonia grandis (umumu), 

Artocarpus spp. (breadfruit), Ficus spp. 

(fig), and Cocos nucifera (coconut 

palm)); mud nests of Nasutitermes spp. 

termites; and root masses of epiphytic 

ferns for breeding; 

(ii) Sufficiently diverse structure to 

provide exposed perches and ground 

surfaces, leaf litter, and other substrates 

that support a wide range of vertebrate 

and invertebrate prey species for 

foraging kingfishers; and

(iii) Sufficient overall breeding and 

foraging area to support kingfisher 

territories of approximately 25 ac (10 

ha) each. 

(3) Critical habitat does not include 

existing features and structures within 

the boundaries of the mapped units, 

such as buildings, roads, aqueducts, 

antennas, water tanks, agricultural 

fields, paved areas, lawns, and other 

urban landscaped areas not containing 

one or more of the primary constituent 

elements. 

(4) The critical habitat unit is 

described below. Coordinates are in 

UTM Zone 55 with units in meters 

using North American Datum of 1983 

(NAD83) / World Geodetic System 1984 

(WGS 84).

(i) Note: Map 1-General Location of the 

Guam Micronesian Kingfisher Unit—follows:


ER28OC04.004</GPH>
Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 62989

(ii) Guam, Guam Micronesian 

kingfisher (376 ac; 152 ha): 

(A) Unit consists of the following nine 

boundary points: 267358, 1509113; 

267338, 1509107; 267277, 1509113; 

271077, 1508881; 271071, 1508878; 

270766, 1509058; 269030, 1510105; 

268659, 1510129; 267697, 1509376.

(B) Note: Map 2 showing Guam 

Micronesian Kingfisher Unit follows:


ER28OC04.005</GPH>
62990 Federal Register / Vol. 69, No. 208 / Thursday, October 28, 2004 / Rules and Regulations 

BILLING CODE 4310–55–C

* * * * *

Dated: October 18, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–23648 Filed 10–27–04; 8:45 am] 

BILLING CODE 4310–55–P


ER28OC04.006</GPH>