2348 Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations

representing them should also be

submitted.

§ 268.17 Project selection criteria.

Except as qualified by § 268.19, the

following criteria will govern FRA’s

selection of projects to receive funding

under the Maglev Deployment Program.

(a) Purpose and significance of the

project.

(1) The degree to which the project

description demonstrates attractiveness

to travelers, as measured in passengers

and passenger-miles.

(2) The extent to which

implementation of the project will

reduce congestion, and attendant delay

costs, in other modes of transportation;

will reduce emissions and/or energy

consumption; or will reduce the rate of

growth in needs for additional highway

or airport construction. Measures for

this criterion will include but not be

limited to the present value of

congestion reduction, pollution

reduction, and/or facility cost-avoidance

benefits.

(3) The degree to which the project

will demonstrate the variety of

operating conditions which are to be

expected in the United States.

(4) The degree to which the project

will augment a Maglev corridor or

network that has been identified, by any

State, group of States, or the FRA, as

having Partnership Potential.

(b) Timely implementation. The speed

with which the project can realistically

be brought into full revenue service,

based on the project description and on

the current and projected development

status of the Maglev technology selected

by the applicant for the project.

(c) Benefits for the American

economy. The extent to which the

project is expected to create new jobs in

traditional and emerging industries in

the United States.

(d) Partnership potential. The degree

to which the project description

demonstrates Partnership Potential for

the corridor in which it is involved,

and/or for the project independently.

(e) Funding limits and sources.

(1) The extent and proportion to

which States, regions, and localities

commit to financially contributing to

the project, both in terms of their own

locally-raised, entirely non-Federal

funds, and in terms of commitments of

scarce Federal resources from nonMaglev funds; and

(2) The extent and proportion to

which the private sector contributes

financially to the project.

Note to § 268.17: FRA recognizes that

applicants for preconstruction planning

assistance may not have detailed information

with respect to each of these criteria, and that

the purpose of the preconstruction planning

assistance is to develop much of this

information with respect to a particular

Maglev project. The preconstruction

planning application requirements of this

part 268 are designed to elicit whatever

information an applicant may have

pertaining to these criteria.

§ 268.19 Evaluation of applications for

preconstruction planning assistance.

The FRA will evaluate the

applications for their completeness and

responsiveness to the requirements

listed in § 268.15. In addition,

applicants are advised that the Maglev

Deployment Program contains a number

of project eligibility standards

(minimum threshold standards) and

project evaluation criteria that will

guide the FRA’s review of the project

descriptions produced under the

Planning Grants. The FRA’s

implementation of these standards and

criteria appears in § 268.11 and

§ 268.17, respectively. Although subject

to revision, the information in § 268.11

and § 268.17 should assist the States in

completing their applications in the

competition for planning grants, since

the project descriptions will need to

respond to the standards and criteria. In

evaluating the applications for planning

grants, FRA will consider how

consistent the applicant’s project is to

the standards and criteria, and the

application’s likelihood of leading to a

project that meets all the standards and

criteria.

§ 268.21 Down-selection of one or more

Maglev projects for further study and

selection of one project for final design,

engineering, and construction funding.

(a) Upon completion of Phase III of

the Maglev Deployment Program, FRA

will down-select one or more projects to

complete additional environmental

studies, investment grade revenue

forecasts, and other studies and analyses

necessary prior to initiation of

construction. Final design and

engineering work will also be initiated

for the down-selected project(s). To be

down-selected a project must appear to

meet the project eligibility standards

contained in § 268.11 (b), rate highly in

the project selection criteria specified in

§ 268.17, be judged by FRA to have a

good chance of being constructed with

the Federal funds authorized for this

program, and be successfully operated

by a public/private partnership.

(b) Only one project will be selected

in Phase IV of the Maglev Deployment

Program and be eligible for any Federal

construction funds that Congress

chooses to make available. That one

project must meet each and every

project eligibility standard contained in

§ 268.11 (b). If more than one project

down-selected in Phase III and funded

through Phase IV meets all of these

standards, then FRA will evaluate and

compare the eligible projects according

to the set of project selection criteria

contained in § 268.17.

(c) In reviewing competing projects

under the project eligibility standards

and project selection criteria, the FRA

will exercise particular vigilance

regarding the following elements of the

preconstruction planning process,

although not to the exclusion of others:

(1) The credibility of the demand and

revenue forecasts, cost estimates, and

benefit/cost comparisons; and

(2) The credibility of the financial

plan.

(d) FRA intends to make periodic

reviews of the processes and products of

grant recipients. Such reviews may

include, at the FRA’s option, reviews at

key milestones in the preparation of

project descriptions.

Issued in Washington, DC on January 4,

2000.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 00–613 Filed 1–13–00; 8:45 am]

BILLING CODE 4910–06–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018—AE39

Endangered and Threatened Wildlife

and Plants; Final Rule To List Two

Cave Animals From Kauai, Hawaii, as

Endangered

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), determine

endangered status pursuant to the

Endangered Species Act of 1973, as

amended (Act), for two animals—the

Kauai cave wolf spider (Adelocosa

anops), and the Kauai cave amphipod

(Spelaeorchestia koloana). These two

species are found on the Hawaiian

island of Kauai. The Kauai cave wolf

spider is known from three populations,

and the Kauai cave amphipod is known

from five populations. These animals

and their habitats have been variously

affected or are currently threatened by

the following—habitat degradation and

loss through the removal of perennial

vegetation, soil fill, grading, paving,

quarrying, and other activities

Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations 2349

associated with development and

agriculture; predation and competition

for space, water, and nutrients by

introduced, alien animals; biological

and chemical pesticide control

activities; and an increased likelihood of

extinction from naturally occurring

events due to the small number of

remaining populations and their limited

distribution. This final rule implements

the Federal protection and recovery

provisions provided by the Act for these

animal taxa.

EFFECTIVE DATE: This rule takes effect

February 14, 2000.

ADDRESSES: The complete file for this

rule is available for inspection, by

appointment during normal business

hours, at the office of the U.S. Fish and

Wildlife Service, Pacific Islands

Ecoregion, 300 Ala Moana Boulevard,

Room 3–122, P.O. Box 50088, Honolulu,

Hawaii 96850.

FOR FURTHER INFORMATION CONTACT:

Robert P. Smith, Pacific Islands

Ecoregion Manager, at the above address

(808/541–3441); facsimile: 808/541–

3470.

SUPPLEMENTARY INFORMATION:

Background

The Kauai cave wolf spider

(Adelocosa anops) and Kauai cave

amphipod (Spelaeorchestia koloana) are

known only from the Hawaiian island of

Kauai. The Kauai cave wolf spider is

known from three populations, and the

Kauai cave amphipod, from five

populations.

The Hawaiian archipelago includes

eight large volcanic islands (Niihau,

Kauai, Oahu, Molokai, Lanai,

Kahoolawe, Maui, and Hawaii), as well

as offshore islets, shoals, and atolls set

on submerged volcanic remnants at the

northwest end of the chain (the

Northwestern Hawaiian Islands). Each

island was built sequentially from

frequent, voluminous basaltic lava flows

(Stearns 1985). The youngest island,

Hawaii, is still volcanically active and

retains its form of coalesced, gently

sloping, relatively unweathered shield

volcanoes. Vulcanism on the older

islands has long since ceased, and

subsequent erosion formed numerous

valleys with steep walls and welldeveloped streams and soils

(Zimmerman 1948).

In the formation of the islands, the

lava flows created caves, cracks, gas

pockets, and smaller, interconnected

subterranean spaces or mesocaverns

(Howarth 1973; 1987a). While unique

subterranean faunas have long been

known from temperate continental cave

systems, until the 1970s obligate caveinhabiting (dependent on cave habitat)

animals were thought to be absent from

tropical and island systems (Howarth

1987a). In the last 3 decades, however,

a remarkable assemblage of about 50

species of cave-adapted animals have

been discovered in Hawaiian caves

(Howarth 1972; 1987a, b). Cave-adapted

species evolved directly from native

surface-dwelling ancestors in at least 12

groups of Hawaiian arthropods

(Howarth 1991a).

These obligate cave-dwellers are

generally found on the younger islands

where an abundance of young lava

flows exist (Howarth 1983a). On older

islands, soil formation, erosion, and

siltation have filled in most

subterranean voids, thus eliminating the

habitat for cave animals. The island of

Kauai is the oldest of the eight major

Hawaiian islands and was formed by a

single shield volcano (formed by one

volcano) approximately 5.6 million

years ago (Stearns 1985). Four million

years of weathering eliminated most

cave habitats formed during this initial

vulcanism. Between 0.6 and 1.4 million

years ago, the Koloa series of posterosional lava flows again provided

available habitat for subterranean

animals. Subsequent erosion also filled

in most of the habitat in the Koloa

series, leaving only a small area of

suitable cave habitat along the arid

southern coast.

Because of the age of Kauai and the

extensive erosion, it was not originally

expected to harbor any cave animals.

However, in 1971, two eyeless cave

arthropods, a spider and amphipod

were discovered in caves of the Koloa

series lava flows. These animals are

known only from a single exposed lava

flow in the ‘‘very rocky’’ to ‘‘extremely

rocky’’ Waikomo soil series (U.S.

Department of Agriculture, Soil

Conservation Service 1972). The lava

flow covers approximately 10.5 square

kilometers (sq km) (4 sq miles (mi)), and

exhibits no covering by erosional

sediments. The amphipod also occurs in

a younger limestone cave formed on top

of a portion of the exposed Koloa series

flow. These animals are restricted to the

dark, moist areas of larger caverns and

smaller subterranean spaces. The

amphipod is a detritivore, feeding

primarily on rotting tree roots, whereas

the spider is a carnivore, preying upon

the amphipod and alien arthropods that

venture underground. The land

supporting these two animal species is

privately owned, as are adjacent areas

with potentially suitable habitat.

Discussion of the Two Animal Taxa

Included in This Final Rule

Frank Howarth first discovered the

Kauai cave wolf spider (Adelocosa

anops) in Koloa Cave # 2 in 1971

(Gertsch 1973), and Willis Gertsch

(Gertsch 1973) formally described the

spider. This species is a member of the

wolf spider family (Lycosidae). Spiders

in this family are characterized by a

distinct eye pattern, including two

particularly large eyes in the middle

row (Foelix 1982). The most

conspicuously diagnostic character of

the Kauai cave spider is its complete

lack of eyes. This character is unique

among wolf spiders and its distinction

justifies the recognition of a separate

genus for this taxon. A few species of

wolf spider have reduced eyes,

including another cave-adapted species

on the island of Hawaii, but only in the

Kauai cave wolf spider are the eyes

entirely absent. Adults of the Kauai cave

wolf spider are about 12.7 to 19.0

millimeters (mm) (0.5 to 0.75 inches

(in)) in total length with a reddishbrown carapace (hard outer covering),

pale abdomen, and bright orange legs.

The hind margin of each chelicera

(biting jaw) bears three large teeth: Two

situated basally (on the bottom), and the

third at the distal (far) end of the

chelicera. The tibiae (inner large bone of

the leg) of the two anterior pairs of legs

have four pairs of ventral spines, and

tarsi (ultimate segments) and metatarsi

(penultimate segments) of all legs bear

unusually long and silky trichobothria

(sensory hairs).

The Kauai cave wolf spider is a

predator and, although blind, can detect

the presence of potential food items by

touch or by detecting chemical

compounds; this species actively stalks

its prey (Howarth 1983b). Although

predation has not been observed in the

field, the spider probably feeds

primarily on the Kauai cave amphipod

and, to a lesser extent on alien species

of arthropods that enter the cave system.

Compared to most wolf spiders, the

reproductive capacity of the Kauai cave

wolf spider is extremely low, with only

15 to 30 eggs laid per clutch (Howarth

1981; Wells et al. 1983). Newly hatched

spiderlings are unusually large, and

carried on the back of the female for

only a few days (Howarth 1991a;

Howarth and Mull 1992).

Biologists found the Kauai cave wolf

spider only in two lava tube systems in

the Koloa area of Kauai; specifically the

Koloa Caves and Kiahuna Caves

(Gertsch 1973; Frank Howarth, Bishop

Museum, in litt. 1979). The spider is

restricted to the dark zones (Howarth

1981) of the caves and adjoining

fissures. Similar to other Hawaiian caveadapted spiders, this species is highly

susceptible to desiccation (Hadley et al.

1981; Ahearn and Howarth 1982). The

spider is active in the large caverns only

2350 Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations

during wetter times of the year

(Howarth, in litt. 1979) or in smaller

areas of the cave that maintain a

saturated atmosphere (Howarth 1981).

Because of the seasonal and spatial

movement of the spider, as well as an

inability to mark or tag the animals,

survey methods have not been

developed to obtain accurate population

estimates. However, survey counts of

the spider have ranged from 12 to 28 in

Koloa Cave #2, 0 to 4 in Kiahuna Cave

Makai (cave #210), and 0 to 2 in

Kiahuna Cave Mauka (Service,

unpublished data, 1998–99).

Frank Howarth also discovered the

Kauai cave amphipod (Spelaeorchestia

koloana) along with the Kauai cave wolf

spider in Koloa Cave #2 in 1971

(Bousfield and Howarth 1976). Because

of the unusual attributes of a highly

reduced pincher-like condition of the

first gnathopod (cephalothoracic

appendage—an appendage located on

the part of the amphipod which is the

fused head and thorax (the middle

region)) and the second gnathopod

being mitten-like in both sexes, this

taxon is placed in its own unique genus

(Spelaeorchestia) within the family

Talitridae (Bousfield and Howarth

1976). This species is also distinctive in

its lack of eye facets (lenslike division

of a compound eye) and pigment, and

extremely elongate, spiny, postcephalic

(behind the head) appendages. Adult

amphipods are 7 to 10 mm (0.25 to 0.4

in) in length and very slender-bodied,

with a hyaline cuticle (translucent outer

layer). Gnathopod 1 is highly reduced,

and gnathopod 2 is mitten-like. Antenna

2 is slender and elongate, with the

flagellum (long thread-like structure

used for movement) only slightly longer

than the peduncle (a stalklike structure).

Peraeopods (abdominal walking legs)

are very elongate, with slender,

attenuated claws. All pleopods

(swimming legs) are reduced, with

branches vestigial (small rudimentary

part, usually non-functioning) or

lacking. Uropods (tail-like appendages)

1 and 2 have well developed

prepeduncles, and brood plates in the

mature female are vestigial or entirely

absent (Bousfield and Howarth 1976).

The Kauai cave amphipod is a

detritivore (feeds on organic debris from

decomposing plants, animals, and fecal

material) and has been observed feeding

on rotting roots of Pithecellobium dulce

(Manila tamarind) and Ficus sp. (fig);

rotting sticks, branches, and other plant

material washed into the caves; and

arthropod fecal material. In large cave

passages, most individuals are found on

or underneath roots or rotting debris.

However, this amphipod does not

appear to be particularly gregarious.

When disturbed, this species typically

moves slowly away rather than jumping

like other amphipods. Nothing is known

of the reproductive biology of this

amphipod, but the vestigial brood plates

of the female suggest they give birth to

a small brood of large offspring

(Bousfield and Howarth 1976; Poulson

and White 1969).

While found in the same caves as the

Kauai cave wolf spider, the cave

amphipod is also known from a short

lava tube (cave #210) located 1 km (0.6

mi) inland of the seaward Kiahuna

Cave, the Limestone Quarry Cave 7 km

(4.5 mi) to the east at Mahaulepu, and

most recently from a small cave that was

exposed during construction of the

Koloa Town road (Adam Asquith,

Service, pers. comm. 1999; Jan

Tenbruggencate, Honolulu Star Bulletin,

in litt. 1999). The Mahaulepu Cave

occurs in a calcareous (containing

calcium) sandstone hill formed from a

cemented sand-dune that was deposited

on top of a disjunct exposure of the

Koloa lava formation during a higher

stand of the sea (Stearns 1985). The

limestone cave was formed by water

erosion from the ocean and a still-active

freshwater stream that runs through the

lowest cave level. The amphipod

probably colonized this cave by

migrating from the underlying Koloa

lava formation. Due to the inability to

mark amphipods for demographic

studies, no attempt has been made to

estimate the population sizes of the cave

amphipod. However, survey counts for

this species in the caves where they

have been surveyed regularly range from

8 to 27 in Koloa Cave #2 and 11 to 71

in Kiahuna Cave Mauka (Service,

unpublished data, 1998–99).

The two cave animals are restricted to

dark, moist areas of larger caverns and

smaller subterranean spaces or

mesocaverns (Howarth 1983a). As with

the subterranean animals on younger

Hawaiian islands (Howarth 1991a), the

small mesocaverns may be the primary

habitat for these species. For example,

the Kauai cave amphipod was not seen

during initial surveys of Kiahuna cave

#210 (Miura and Howarth 1978). On a

subsequent survey however, the floor of

a small, dead end passage was saturated

with 40 liters (10 gallons) of water, and

24 hours later amphipods had moved

into this area, presumably from the

surrounding mesocaverns (Howarth, in

litt. 1979; Howarth 1983a). On younger

islands, these mesocaverns also allow

animals to move among larger, adjacent

lava tubes (Howarth 1991a). However,

because these smaller voids become

filled with erosional sediment in older

flows like Koloa and as a result of

surface disturbance (Hammatt et al.

1988; Adam Asquith, in litt. 1994a), it

is unlikely that the Kauai cave animals

can move among separate lava tube

systems. Because distinct species can

evolve in adjacent lava tubes even when

cave animals can move extensively

through mesocaverns (Hoch and

Howarth 1993), it is prudent to consider

the separate localities of these animals

as different populations, even though

intervening areas of potential habitat

cannot be surveyed. Thus, the Koloa

Caves #1 and #2 and adjacent areas are

considered to harbor one population of

the spider and one population of the

amphipod. The seaward Kiahuna Caves

#267 and #276 harbor another

population of both the spider and

amphipod; the Kiahuna Cave #210

harbors a separate population each of

the spider and amphipod; the

Mahaulepu Cave harbors a population

of the cave amphipod (Service,

unpublished data, 1998–99); and a small

cave near the Koloa Town road harbors

a fifth amphipod population.

The restricted area where these

animals occur is rapidly undergoing

development. The shallow cave habitat

is degraded or destroyed through

surface alterations such as the removal

of perennial vegetation, soil fill, grading,

paving, and other activities associated

with development and agriculture. In

fact, the Koloa cave systems are

considered to be 1 of the 10 most

endangered cave ecosystems worldwide

(Culver in litt., 1998). These animals are

also increasingly at risk from predation

and competition for space, water, and

nutrients by introduced, alien animals;

biological and chemical pesticide

control activities associated with

residential and golf course

development; and an increased

likelihood of extinction from naturally

occurring events due to the small

number of remaining individuals and

populations and their limited

distribution.

Previous Federal Action

On June 16, 1978, we published a

proposal in the Federal Register (43 FR

26084) to list the Kauai cave wolf spider

as an endangered species and the Kauai

cave amphipod as threatened. We

withdrew that proposal on September 2,

1980 (45 FR 58171) as a result of a

provision in the 1978 Amendments to

the Endangered Species Act of 1973 that

required withdrawal of all pending

proposals that were not made final

within 2 years of the proposal or within

1 year after passage of the Amendments,

whichever period was longer. We

published an initial comprehensive

Notice of Review for invertebrate

animals on May 22, 1984 (49 FR 21664),

Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations 2351

in which we treated the Kauai cave wolf

spider and Kauai cave amphipod as

category 2 candidates for Federal listing.

Category 2 taxa were those for which

conclusive data on biological

vulnerability and threats were not

currently available to support proposed

rules. We published an updated Notice

of Review for animals on January 6,

1989 (54 FR 554). In this notice, we

treated the Kauai cave wolf spider and

Kauai cave amphipod as category 1

candidates for Federal listing. Category

1 taxa were those for which we had on

file substantial information on

biological vulnerability and threats to

support preparation of listing proposals.

In the Notice of Review for all animal

taxa we published on November 21,

1991 (58 FR 58804), we again listed the

two Kauai cave arthropods as category

2 candidates. In the November 15, 1994,

Notice of Review for all animal taxa (59

FR 58982), we elevated the two Kauai

cave arthropods to category 1

candidates. Upon publication of the

February 28, 1996, Notice of Review (61

FR 7596), we stopped using category

designations and included the two cave

arthropods simply as candidate species.

Candidate species are those for which

we have on file sufficient information

on biological vulnerability and threats

to support proposals to list the species

as threatened or endangered. We also

included the two cave arthropods as

candidate species in the September 19,

1997 (62 FR 49398), Notice of Review.

We published a proposed rule to list

these two species as endangered on

December 5, 1997 (62 FR 64340).

The processing of this final rule

conforms with our Listing Priority

Guidance published in the Federal

Register on October 22, 1999 (64 FR

57114). The guidance clarifies the order

in which we will process rulemakings.

Highest priority is processing

emergency listing rules for any species

determined to face a significant and

imminent risk to its well-being (Priority

1). Second priority (Priority 2) is

processing final determinations on

proposed additions to the lists of

endangered and threatened wildlife and

plants. Third priority is processing new

proposals to add species to the lists. The

processing of administrative petition

findings (petitions filed under section 4

of the Act) is the fourth priority. This

final rule is a Priority 2 action and is

being completed in accordance with the

current Listing Priority Guidance. We

have updated this rule to reflect any

changes in information concerning

distribution, status, and threats since

the publication of the proposed rule.

Summary of Comments and

Recommendations

In the December 5, 1997, proposed

rule (62 FR 64340), we requested

interested parties to submit comments

or information that might contribute to

the final listing determination for these

two species. The public comment

period ended on February 3, 1998. We

contacted and sent announcements of

the proposed rule to appropriate Federal

and State agencies, county governments,

scientific organizations, and other

interested parties. We also published

announcements of the proposed rule in

the following newspapers—the Garden

Island on December 18, 1997, the

Honolulu Advertiser on December 24,

1997, and the Honolulu Star-Bulletin on

December 24, 1997.

We received a total of seven

comments. Two individuals and one

conservation organization supported the

proposal. Two commenters did not

support the proposal. Two commenters

neither supported nor objected to the

proposal, including a Kauai county

agency that asked us to identify habitat

areas for the two cave species so that the

agency’s concerns about potential utility

easements could be discussed.

In addition, we solicited formal

scientific peer review of the proposal in

accordance with our July 1, 1994,

Interagency Cooperative Policy (59 FR

34270). We requested three qualified

and independent specialists to review

the proposed rule and comment on the

pertinent scientific and/or commercial

data and assumptions relating to the

taxonomy, demography, and supportive

biological and ecological information of

the Kauai cave wolf spider and Kauai

cave amphipod. We received written

comments from one of these experts;

that information is incorporated into

this final rule.

We grouped and discussed comments

of a similar nature under the following

issue headings. In addition, we

considered and incorporated, as

appropriate, into the final rule, all

biological and commercial information

obtained through the public comment

period.

Issue 1: One commenter suggested

that these species would be better

protected if a Candidate Conservation

Agreement (CCA) or Habitat

Conservation Plan (HCP) was developed

for the animals.

Our Response: We are required to

base listing decisions on the best

available scientific and commercial

information. In this regard, we reviewed

information from the scientific literature

as well as commercial information.

Based on this information, we conclude

that the Kauai cave wolf spider and

Kauai cave amphipod are in danger of

extinction throughout a significant

portion of their ranges. In addition, no

new information was submitted during

the public comment period that

indicated other viable populations of

these animals existed or that the

remaining populations are not at risk.

HCPs provide excellent opportunities

for conservation of species. We

encourage landowners and managers to

explore all the conservation

mechanisms available.

Issue 2: One commenter opposed the

listing of the Kauai cave wolf spider and

Kauai cave amphipod because of

economic impacts of the listing on the

local economy.

Our Response: In accordance with 16

U.S.C. sec. 1533(b)(1)(A) and 50 CFR

424.11(b), listing decisions are made

solely on the basis of the best scientific

and commercial data available. In

adding the word ‘‘solely’’ to the

statutory criteria for listing a species,

Congress specifically addressed this

issue in the 1982 amendments to the

Act. The legislative history of the 1982

amendments states: ‘‘The addition of the

word ‘solely’ is intended to remove from

the process of the listing or delisting of

species any factor not related to the

biological status of the species. The

Committee strongly believes that

economic considerations have no

relevance to determinations regarding

the status of species. * * *’’ H.R. Rep.

No. 567, Part I, 97th Cong., 2d Sess. 20

(1982). Therefore, we have not

considered the impacts of listing on

economic development in making this

listing determination.

Issue 3: One commenter argued that

we lacked authority to list the Kauai

cave wolf spider and Kauai cave

amphipod under the Endangered

Species Act because such power would

exceed the scope of Federal Commerce

Clause power.

Our Response: We believe that listing

these species is within the scope of the

Commerce Clause for the reasons

contained in Judge Wald’s opinion and

Judge Henderson’s concurring opinion

in National Association of Home

Builders v. Babbitt, 130 F.3d 1041 (D.C.

Cir. 1997) cert. denied, 1185 S.Ct. 2340

(1998). That case involved a challenge

to the application of the Act’s

prohibitions to protect the listed Delhi

Sands flower-loving fly (Rhaphiomidas

terminatus abdominalis) under the Act.

As with these two Kauai cave species,

the Delhi Sands flower-loving fly is

endemic only to one State. However,

Judge Wald held that application of the

Act’s prohibition against taking of

endangered species to this fly was a

2352 Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations

proper exercise of Commerce Clause

power to regulate the use of channels of

interstate commerce, and activities

substantially affecting interstate

commerce, because it prevented

destruction of biodiversity and

destructive interstate competition. Judge

Henderson concluded that the

protection of the Delhi Sands flowerloving fly was within the Federal

Government’s Commerce Clause

authority because the listing of the fly

prevents harm to the ecosystem upon

which interstate commerce depends,

and because doing so regulates

commercial development that is part of

interstate commerce.

Summary of Factors Affecting These

Species

After a thorough review and

consideration of all information

available, we determined that the Kauai

cave wolf spider and Kauai cave

amphipod should be classified as

endangered species. We followed the

procedures found at section 4(a)(1) of

the Act and regulations implementing

the listing provisions of the Act (50 CFR

part 424). A species may be determined

to be an endangered or threatened

species due to one or more of the five

factors described in section 4(a)(1).

These factors and their application to

the Kauai cave wolf spider (Adelocosa

anops) and the Kauai cave amphipod

(Spelaeorchestia koloana) are as

follows:

A. The present or threatened

destruction, modification, or

curtailment of its habitat or range.

These animals are restricted to a 10.5 sq

km (4 sq mi) coastal section of the Koloa

series lava flows that have not been

filled with erosional sediment. Surface

modifications in this area directly

impact the subterranean habitat that

supports the spider and amphipod

(Hammatt et al. 1988; Miller and Burgett

1995; Asquith, in litt. 1994). Prior to

arrival of Polynesians in Hawaii, the

aboveground habitat of this area

probably comprised a coastal dry

shrubland and would have included

plants such as Sida fallax (ilima),

Myoporum sandwicense (naio),

Chamaesyce celastroides (akoko), and

Santalum ellipticum (iliahialoe) (Gagne

and Cuddihy 1990). On the islands of

Maui and Hawaii, these plants are

known to produce extensive root

systems into underlying lava tube

fissures, and probably also formed the

primary nutrient source for the cave

ecosystem at Koloa.

The first thousand years of Polynesian

habitation in Hawaii had little

significant impact on the cave system at

Koloa. However, with a rapid

population increase after 1400 A.D.,

heavy modification of most leeward

areas of the Hawaiian Islands probably

occurred (Kirch 1982; Cuddihy and

Stone 1990). This modification was due

to the subsequent expansion of

agriculture from more favorable, mesic

(an environment that is neither

extremely wet nor extremely dry)

valleys and the use of fire to clear plant

communities. A perennial stream

flowing directly through the Koloa area

allowed Polynesians to develop

extensive irrigated fields of Colocasia

esculenta (taro), Ipomoea batatas (sweet

potato), and Saccharum officinarum

(sugar cane) and to cultivate sweet

potato on dry land (Handy and Handy

1972; Hammatt and Tomonari 1978;

Hammatt et al. 1988; Sinoto 1975).

Field irrigation of traditional crops

continued in the Koloa area until 1835,

when the first sugar plantation in the

Hawaiian Islands was established at

Koloa. Thereafter, most of the land with

suitable topsoil was used for large-scale

sugar cane cultivation (Hammatt et al.

1988). This activity included the

mechanical clearing of stones and

boulders and consolidation of smaller

field plots. The surface modifications

associated with these past agricultural

activities greatly reduced underground

root biomass through the destruction of

perennial vegetation (Howarth 1981;

Miller and Burgett 1995), which

removes the necessary food base for the

amphipod and other cave-dwelling

herbivores (Howarth 1973, 1981, 1982).

Large-scale agricultural practices

brought on by the sugar cane industry

also increased the amount and mobility

of the overlying sediments. As a

consequence, the rate of sediment

deposition into the underlying

subterranean voids increased,

eliminating or greatly reducing the

amount of available cave habitat

(Howarth 1973; Hammatt et al. 1988;

Asquith, in litt. 1994).

Thus, with the exception of a narrow

0.5 km-wide (0.25 mi-wide) strip of

particularly rocky land immediately

along the coast, most of the habitat for

both the spider and the amphipod was

heavily modified prior to the 1950s. On

interior lands, small areas of exposed

pahoehoe lava, rock outcrops, and the

entrances to lava tubes were generally

unsuited for cultivation of crops and

were left less disturbed. In areas

improved for pasture use, however,

some cave entrances were filled or

covered (Hammatt et al. 1988; Howarth,

in litt. 1977). The remaining pockets of

uncultivated land around collapsed lava

tubes and exposed lava probably served

as refugia for the cave animals.

Significantly, all the known populations

of both the spider and amphipod are in

areas never used for plantation sugar

cane cultivation.

In the last 5 decades, the Koloa area

changed from an agriculture-based

economy to one increasingly dependent

on tourism (Kauai Office of Economic

Development, in litt. 1994).

Approximately 75 percent of the

original habitat available for the cave

animals is now designated as ‘‘urban’’ or

‘‘urban residential’’ (County of Kauai, in

litt. 1994), and the human population of

the Koloa area is expected to double by

the year 2015 (KPMG Peat Marwick

1993). This population growth has led

to rapid development of homes,

condominiums, and resort hotels

originally centered along the coastal

strip. In recent years, interior lands

supporting both populations of the

spider and all but one population of the

amphipod have been rezoned from

agriculture to urban usage and are

undergoing development. With the

construction of roads, residences, and

golf courses, the subterranean habitat is

degraded through the removal of

perennial vegetation and its root

systems, the collapse of lava tubes from

heavy construction equipment, and

increased siltation of caves from grading

and filling activities (Howarth 1973;

Hammatt et al. 1988; Asquith, in litt.

1994a). The population of the Kauai

cave wolf spider in Koloa Cave #2 is

threatened by a proposed bypass road,

as well as blasting and excavation of a

drainage ditch from an adjacent housing

development (David Hopper, Service, in

litt. 1998, 1999). The recent uncovering

of a lava tube during the construction of

the Koloa bypass road exemplifies the

continuing threat posed by ongoing

development (Jan Tenbruggencate, in

litt. 1999). Until recently, the disjunct

population of the amphipod in the

limestone cave was threatened by a

quarrying operation directly above and

adjacent to the cave system (Howarth, in

litt. 1977, 1978). Thus, most of the land

that potentially harbored these animals

has been highly modified, and an

estimated 75 percent of the area has

probably been rendered uninhabitable.

The remaining habitat, harboring

virtually all known populations of the

spider and amphipod, is being degraded

by current land use or is threatened

with degradation and destruction from

proposed development.

B. Overutilization for commercial,

recreational, scientific, or educational

purposes. Direct overutilization of the

organisms is not known to be a factor,

but unrestricted collecting for scientific

purposes or excessive visits by

individuals interested in exploring the

lava tubes could result from increased

Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations 2353

publicity associated with listing under

the Act.

Increased human use of caves can

result in the direct trampling,

intentional or otherwise, of cave

animals as well as indirect impacts due

to destruction of root systems (Howarth

1982; Culver 1992). In addition to direct

habitat destruction, human impacts

include the use of campfires (D. Hopper,

pers. comm. 1988) as well as

introduction of cigarette smoke into the

cave environment. Cigarette smoke

contains a strong insecticide which,

within the enclosed cave, is likely to

negatively impact the resident cave

animals (Howarth 1982). Both the

smoke from cigarettes and fires dries the

cave air, and studies and observations

have shown that reduced cave humidity

is detrimental to cave organisms

(Ahearn and Howarth 1982; Howarth

1981, 1982). Such disturbances by

human visitation can also promote

greater invasion by alien arthropod

species, such as cockroaches and their

predators, through the introduction of

trash (Howarth 1982; D. Hopper, pers.

comm. 1998). Howarth (1982) indicated

that species diversity and population

levels of cave invertebrates are inversely

related to human visitation and

disturbance.

C. Disease and predation. Several

alien spiders including the brown violin

spider (Loxosceles rufescens), spitting

spider (Scytodes longipes), and Dysdera

crocata (no common name (NCN)) have

invaded the cave habitats in Koloa

(Gerstch 1973; F. Howarth, pers comm.

1994; Asquith, in litt. 1994b), and prey

on immature stages of the Kauai cave

wolf spider and probably all life stages

of the cave amphipod (Howarth 1981).

The American cockroach (Periplaneta

americana) is abundant in some of the

caves (Bousfield and Howarth 1976;

Asquith, in litt. 1994a) and probably

opportunistically preys on immature

cave amphipods (F. Howarth, pers.

comm. 1994) and competes for space at

amphipod food sources (Asquith, in litt.

1994a). In the Limestone Quarry Cave,

the introduced amphipod Tallitroides

topitotum (NCN) may compete with the

Kauai cave amphipod for detritus food

(Bousfield and Howarth 1976; F.

Howarth, pers. comm. 1994).

In addition, as noted in the

Background section of this final rule,

the Kauai cave wolf spider is a predator.

Although predation has not been

observed in the field, this spider

probably feeds primarily on the Kauai

cave amphipod and, to a lesser extent,

on alien species of arthropods that

periodically enter the cave system.

D. The inadequacy of existing

regulatory mechanisms. The Kauai cave

wolf spider and the Kauai cave

amphipod are found entirely on private

land. One population of the cave spider

is provided some protection by a County

ordinance requiring the landowner to

conserve two Kiahuna lava tubes known

to harbor the spider (County of Kauai

Development Plan 1979). However,

existing conservation measures under

this ordinance protect only the cave

entrances and not the surface footprint,

adjacent mesocaverns, or surrounding

aboveground habitat that help to

maintain the microhabitat conditions

within the caves that the animals need

to survive. Evaluation of one of the

caves conserved under this ordinance

showed significant degradation from

surface disturbance over the dark zone

of the cave (Asquith, in litt. 1994). In

addition, this ordinance protects only a

single population of each of the cave

animals, which is not sufficient to

ensure the continued existence of these

species, given the range of threats that

affect all remaining populations.

No State laws or existing regulatory

mechanisms at the present time protect

or prevent further decline of these

animals. However, Federal listing would

automatically invoke listing under

Hawaii State law, which prohibits

taking and encourages conservation by

State government agencies (see ‘‘Hawaii

State Law’’ section of this final rule).

E. Other natural or manmade factors

affecting its continued existence.

Insecticide use, coincident with the

change to urban land development,

poses a serious threat to the cave

animals (Howarth and Stone 1993).

While plantation-scale sugar cane

cultivation in the Koloa area involves

seasonal use of herbicides, intensive

usage is generally limited to spot

applications of glyphosate (trademark

name, Roundup), and generally no

insecticides are used (Murdoch and

Green 1989). Furthermore, in recent

years most sugar cane cultivation in the

area has been restricted to land with

deep soil, which is generally unsuitable

habitat for the cave animals.

Golf courses exist on, or are proposed

for, the land directly above or adjacent

to both populations of the spider and all

but one population of the amphipod. At

least 30 different pesticides are used on

golf courses in Hawaii, including

insecticides to control pests of turf grass

(Murdoch and Mitchell 1975; Murdoch

and Green 1989). Most golf courses in

Hawaii apply the insecticide

chlorpyrifos at the rate of 453 grams

active ingredient per 0.41 hectares (1

pound active ingredients per acre), 1 to

3 times per year, but rates and frequency

of applications are sometimes much

higher (Murdoch and Green 1989;

Brennan et al. 1992). Predators, such as

the Kauai cave wolf spider, are generally

more susceptible to insecticides than

the target pests (Croft 1990). Even if not

killed outright, the sublethal effects of

both insecticides and herbicides on the

cave animals could include reduced

fecundity (reproductive capacity),

reduced lifespan, slowed development

rate, and impaired mobility and feeding

efficiency (Messing and Croft 1990).

In addition to the use of pesticides on

golf courses, pesticide usage on

residential property also poses a threat.

It is estimated that residential lots use

more pesticides per unit area than either

sugar cane cultivation or golf courses

and that 90 percent of this use involves

insecticides. Much of this insecticide is

applied directly to the ground for

termite control (Hawaii Office of State

Planning 1992). With an estimated

increase of 4,000 houses in the Koloa

area by the year 2015 (KPMG Peat

Marwick 1993), residential pesticides

are considered a serious threat to the

cave animals.

These cave animals are particularly

susceptible to pesticides because of

their tendency to seek water sources

(Howarth 1983a; Asquith, in litt. 1994a).

Even if pesticides are not used directly

above a lava tube, pesticides that leach

into adjacent subterranean caverns with

water from runoff or irrigation are

serious threats because the animals may

be attracted to the water and come into

contact with the chemicals.

Biological control agents (living

organisms used to control pests) are

usually perceived as preferable to the

use of chemicals because they represent

less of a threat to human health and

generally do not stimulate resistance in

pests. Some of these organisms,

however, attack species other than their

intended targets and have caused or

contributed to the decline and

extinction of several Hawaiian insects

(Gagne and Howarth 1985; Howarth

1983b; Howarth 1991b). The nematode

Steinernema carpocapsae (NCN) is

marketed for use against turf pests and

has been petitioned for use on golf

courses in Hawaii (Faust 1992). This

nematode can infect at least 250 species

of arthropods (Poinar 1979), including

arachnids such as the Kauai cave wolf

spider (Poinar and Thomas 1985). Other

biocontrol agents such as Bacillus

bacteria, which have been used for

mosquito control, have caused serious

damage to nontarget species of insects

(Howarth 1991b). Unlike most chemical

pesticides, biocontrol agents will not

break down or decay. Should such

biocontrols become established, they

will likely remain resident in the area,

spread to new areas with suitable host

2354 Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations

arthropods, and become impossible to

eliminate. Lastly, biocontrol agents may

undergo great proliferations in the

presence of ubiquitous and numerous

arthropod pests and other species. The

resultant population increase of

biocontrol predators or parasites would

have devastating impacts on species

such as the Kauai cave spider and cave

amphipod, given their restricted ranges

and low fecundities. Biological controls

have been emphasized for golf course

management in the Koloa area

(Townscape 1993) and are a potential

threat to the cave spider and amphipod.

The small number of populations and

small numbers of observed individuals

of the Kauai cave wolf spider (three

populations) and Kauai cave amphipod

(five populations) increases the risk of

extinction from naturally occurring

events such as storms or earthquakes.

At present, there are a number of

conservation activities that are planned

for three of the Koloa caves. In 1995, we

signed a Cooperative Agreement with

the Kukui‘ula Development Company (a

subsidiary of Alexander & Baldwin),

which includes a number of

conservation activities for two caves

(Koloa Caves # 1 & 2). These activities

include gating of the cave openings to

restrict human access and reduce airflow (to increase ambient humidity) and

planting of native plant species over the

caves to develop a root system that will

serve as a food base for the cave

animals. Kukui‘ula Development

Company agreed to set aside the land

area above these two caves as either a

limited-use park or reserve. The entire

land area to be protected includes a

45.7-meter (150-foot) wide buffer area

around both caves, in which restricted

or no development will occur. In

addition, no pesticides or dumping will

be allowed within this buffer area or

above the caves. At present, the

National Resource Conservation Service

(NRCS) is planning to assist the

Kukui‘ula Development Company in

more extensive planting of native plants

in the park/reserve area. We and the

NRCS are currently working with a

second landowner (Sport Shinko Group)

to conduct similar conservation

activities over a single cave located

below a portion of their golf course

(Kiahuna Golf Club). We are currently

reviewing a Cooperative Agreement

between us and the Sport Shinko Group.

We carefully assessed the best

scientific and commercial information

available regarding the past, present,

and future threats faced by these species

and determined that the Kauai cave wolf

spider and Kauai cave amphipod should

be listed as endangered. These two

species are threatened by one or more of

the following—habitat degradation and

loss through the removal of perennial

vegetation, soil fill, grading, paving,

quarrying, and other activities

associated with development and

agriculture; predation and competition

for space, water, and nutrients by

introduced, alien animals; direct or

indirect mortality from the use of

biological control agents and chemical

pesticides; and an increased likelihood

of extinction from naturally occurring

events due to the small number of

remaining populations and their limited

distribution. Because the two species

are in danger of extinction throughout

all or a significant portion of their

ranges, they fit the definition of

endangered, as defined in the Act.

Therefore, the determination of

endangered status for the Kauai cave

wolf spider and Kauai cave amphipod is

warranted.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(i) The specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those 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 geographical area occupied

by a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures needed

to bring the species to the point at

which listing under the Act is no longer

necessary.

In the proposed rule, we indicated

that designation of critical habitat was

not prudent for the Kauai cave wolf

spider and Kauai cave amphipod

because of a concern that publication of

precise maps and descriptions of critical

habitat in the Federal Register could

increase human visitation to their

highly sensitive cave habitats which

could lead to incidents of vandalism

and destruction of habitat. We also

indicated that designation of critical

habitat was not prudent because we

believed it would not provide any

additional benefit beyond that provided

through listing as endangered.

In the last few years, a series of court

decisions have overturned Service

determinations regarding a variety of

species that designation of critical

habitat would not be prudent (e.g.,

Natural Resources Defense Council v.

U.S. Department of the Interior 113 F.

3d 1121 (9th Cir. 1997); Conservation

Council for Hawaii v. Babbitt, 2 F. Supp.

2d 1280 (D. Hawaii 1998)). Based on the

standards applied in those judicial

opinions, we have reexamined the

question of whether critical habitat for

the Kauai cave wolf spider and Kauai

cave amphipod would be prudent.

Due to the small number of

populations, the Kauai cave wolf spider

and Kauai cave amphipod are

vulnerable to collection, vandalism, or

other disturbance. We remain concerned

that these threats might be exacerbated

by the publication of critical habitat

maps and further dissemination of

locational information. However, we

have examined the evidence available

for the Kauai cave wolf spider and

Kauai cave amphipod and have not

found specific evidence of taking,

vandalism, collection, or trade of these

species or any similarly situated

species. Consequently, consistent with

applicable regulations (50 CFR

424.12(a)(1)(i)) and recent case law, at

this time we cannot make a finding that

the identification of critical habitat will

increase the degree of threat to these

species of taking or other human

activity.

In the absence of a finding that critical

habitat would increase threats to a

species, if there are any benefits to

critical habitat designation, then a

prudent finding is warranted. In the

case of these species, there may be some

benefits to designation of critical

habitat. The primary regulatory effect of

critical habitat is the section 7

requirement that Federal agencies

refrain from taking any action that

destroys or adversely modifies critical

habitat. While a critical habitat

designation for habitat currently

occupied by these species would not be

likely to change the section 7

consultation outcome because an action

that destroys or adversely modifies such

critical habitat would also be likely to

result in jeopardy to these species, there

may be a few instances where section 7

consultation would be triggered only if

critical habitat is designated, such as

habitat that may become unoccupied in

the future. There may also be some

educational or informational benefits to

designating critical habitat. Therefore,

while we believe the benefits of

designating critical habitat for these

species would not be significant, we

find that critical habitat is prudent for

the Kauai cave wolf spider and Kauai

cave amphipod.

The Final Listing Priority Guidance

for FY 2000 (64 FR 57114) states, ‘‘The

processing of critical habitat

determinations (prudency and

determinability decisions) and proposed

or final designations of critical habitat

will be funded separately from other

Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations 2355

section 4 listing actions and will no

longer be subject to prioritization under

the Listing Priority Guidance. Critical

habitat determinations, which were

previously included in final listing rules

published in the Federal Register, may

now be processed separately, in which

case stand-alone critical habitat

determinations will be published as

notices in the Federal Register. We will

undertake critical habitat

determinations and designations during

FY 2000 as allowed by our funding

allocation for that year.’’ As explained

in detail in the Listing Priority

Guidance, our listing budget is currently

insufficient to allow us to immediately

complete all of the listing actions

required by the Act. Deferral of the

critical habitat designation for the Kauai

cave wolf spider and Kauai cave

amphipod will allow us to concentrate

our limited resources on higher priority

critical habitat and other listing actions,

while allowing us to put in place

protections needed for the conservation

of the Kauai cave wolf spider and Kauai

cave amphipod without further delay.

We plan to employ a priority system

for deciding which outstanding critical

habitat designations should be

addressed first. We will focus our efforts

on those designations that will provide

the most conservation benefit, taking

into consideration the efficacy of critical

habitat designation in addressing the

threats to the species, and the

magnitude and immediacy of those

threats. We will develop a proposal to

designate critical habitat for the Kauai

cave wolf spider and Kauai cave

amphipod as soon as feasible,

considering our workload priorities.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain activities.

Recognition through listing results in

public awareness and conservation

actions by Federal, State, and local

agencies, private organizations, and

individuals. The Act provides for

possible land acquisition and

cooperation with the States and requires

that recovery actions be carried out for

all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act requires

Federal agencies to evaluate their

actions with respect to any species that

is proposed or listed as endangered or

threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(4) requires Federal

agencies to confer with us on any action

that is likely to jeopardize the continued

existence of a species proposed for

listing or result in destruction or

adverse modification of proposed

critical habitat. If a species is listed

subsequently, section 7(a)(2) requires

Federal agencies to insure that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of a listed species or to

destroy or adversely modify its critical

habitat. If a Federal action may affect a

listed species or its critical habitat, the

responsible Federal agency must enter

into formal consultation with us.

All known populations of the Kauai

cave wolf spider and the Kauai cave

amphipod are located on private

property. Federally supported activities

that could affect these taxa and their

habitat in the future include, but are not

limited to, the following—construction

of roads and highways; construction of

public or private facilities; construction

of diversions for flood control; pesticide

use; and the release of biological control

agents.

The Act and its implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all endangered wildlife. The

prohibitions, codified at 50 CFR 17.21,

in part, make it illegal for any person

subject to the jurisdiction of the United

States to take (includes harass, harm,

pursue, hunt, shoot, wound, kill, trap,

or collect; or attempt any of these),

import or export, ship in interstate

commerce in the course of a commercial

activity, or sell or offer for sale in

interstate or foreign commerce any

endangered wildlife. It is also illegal to

possess, sell, deliver, carry, transport, or

ship any such wildlife that has been

taken illegally. Certain exceptions apply

to our agents and agents of State

conservation agencies.

We may issue permits to carry out

otherwise prohibited activities

involving endangered wildlife under

certain circumstances. Regulations

governing permits are codified at 50

CFR 17.22 and 17.23. Such permits are

available for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

the course of otherwise lawful activities.

Our policy, published in the Federal

Register on July 1, 1994 (59 FR 34272),

is to identify to the maximum extent

practicable at the time a species is listed

those activities that would or would not

constitute a violation of section 9 of the

Act. The intent of this policy is to

increase public awareness of the effect

of this listing on proposed and ongoing

activities within the species’ range. We

believe that, based on the best available

information, the following actions will

not likely result in a violation of section

9:

(1) Possession, delivery, or movement,

including interstate transport, involving

no commercial activity, of dead

specimens of these taxa that were

collected prior to the publication in the

Federal Register of the final regulation

adding these taxa to the list of

endangered species; and

(2) Landscaping that does not include

filling or grading the area above or

adjacent to the surface footprint of the

caves.

Potential activities involving these

taxa that we believe will likely be

considered a violation of section 9

include, but are not limited to, the

following:

(1) Collection of specimens of these

taxa for private possession or deposition

in an institutional collection;

(2) The use of chemical insecticides

that results in killing or injuring these

taxa;

(3) The unauthorized release of

biological control agents that attack any

life stage of these taxa; and

(4) Habitat modification that results in

actually killing or injuring these taxa by

significantly impairing essential lifesustaining requirements such as

breeding, feeding, and shelter. Such

habitat modification may include but

may not be limited to—removal or

destruction of perennial vegetation

within or adjacent to the surface

footprint of the caves; construction,

clearing, grading, digging, or filling

within or adjacent to the surface

footprint of the caves; blasting for

construction in proximity to the caves;

and alteration of the natural drainage of

surface and subsurface water flow into

the caves.

You should direct any questions

regarding whether specific activities

will constitute a violation of section 9

of the Act to the Field Supervisor of the

Service’s Pacific Islands Ecoregion (see

ADDRESSES section). Address your

requests for copies of the regulations

concerning listed wildlife and inquiries

about prohibitions and permits to the

U.S. Fish and Wildlife Service,

Endangered Species Permits, 911 N.E.

11th Avenue, Portland, Oregon, 97232–

4181 (telephone 503/231–6241;

facsimile 503/231–6243).

Hawaii State Law

Federal listing will automatically

invoke listing under the State’s

endangered species act. Hawaii’s

2356 Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations

Endangered Species Act (HRS, Sect.

195D–4(a)) states, ‘‘Any species of

aquatic life, wildlife, or land plant that

has been determined to be an

endangered species pursuant to the

(Federal) Endangered Species Act shall

be deemed to be an endangered species

under the provisions of this chapter and

any indigenous species of aquatic life,

wildlife, or land plant that has been

determined to be a threatened species

pursuant to the (Federal) Endangered

Species Act shall be deemed to be a

threatened species under the provisions

of this chapter.’’ Listing of these two

arthropod species will, therefore, also

invoke protection available under State

law, which prohibits the taking of listed

wildlife species in the State, encourages

conservation of such species by State

agencies, and triggers other State

regulations to protect the species (HRS,

sect. 195AD–4 and 5).

National Environmental Policy Act

We determined that we do not need

to prepare Environmental Assessments

and Environmental Impact Statements,

as defined under the authority of the

National Environmental Policy Act of

1969, in connection with regulations

adopted pursuant to section 4(a) of the

Endangered Species Act of 1973, as

amended. On October 25, 1983, we

published in the Federal Register (48

FR 49244), a notice outlining our

reasons for this determination.

Required Determinations

This rule does not contain any new

collections of information other than

those already approved under the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq., and assigned Office of

Management and Budget clearance

number 1018–0094. For additional

information concerning permit and

associated requirements for endangered

species, see 50 CFR 17.22.

References Cited

A complete list of all references we

cited is available upon request from the

Pacific Islands Ecoregion (see

ADDRESSES above).

Author

The primary author of this final rule

is Mr. David Hopper, with significant

contributions by Dr. Adam Asquith,

U.S. Fish and Wildlife Service (phone

808/541-3441; or facsimile 808/541–

3470) (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and record

keeping requirements, Transportation.

Regulation Promulgated

Amend part 17, subchapter B of

chapter I, title 50 of the Code of Federal

Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

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

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

625, 100 Stat. 3500; unless otherwise noted.

2. We amend section 17.11(h) by

adding the following, in alphabetical

order under ARACHNIDS and

CRUSTACEANS, to the List of

Endangered and Threatened Wildlife:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Federal Register / Vol. 65, No. 10 / Friday, January 14, 2000 / Rules and Regulations 2357

Species

Historic

range

Vertebrate

population

where

endangered or

threatened

Status When

listed

Critical

habitat

Special

rules Common name Scientific name

ARACHNIDS:

*******

Spider, Kauai cave wolf ........ Adelocosa anops ......................... U.S.A. (HI) NA E 676 NA NA

*******

CRUSTACEANS:

*******

Amphipod, Kauai cave .......... Spelaeorchestia koloana ............. U.S.A. (HI) NA E 676 NA NA

*******

Dated: December 31, 1999.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 00–982 Filed 1–13–00; 8:45 am]

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