Federal Register / Vol. 49, No. 199 / Friday, October 12, 1984 / Proposed Rules MIdI ~.- --.

DEPARTMENT OF THE INTERIOR Fish and Wildlife Bervics 50 CFR Part 17 Endangered and Threatened Wildlife and ; Proposed Endangered Status and Critical Habitat for “ Brighamii” Mann (Na’u or Hawaiian Gardenia)

ACIENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule.

-_. .._- ..__ .- _--.- _“,I_-.,_- - -.-. -.. -- Federal Register / Vol. 49, No. 199 I Friday, October 12, 1984 1 Proposed Rules 49959

SUMMARY: The Service proposes to browsing animals [e.g., domestic cattle brighamii as an endangered species. Its determine Gardenia brighamii (na’u or and feral goats, respectively). The critical habitat is being proposed for the Hawaiian gardenia) to be an invasion of exotic plants such as first time. endangered species and to designate its Lantana camam, Leucaena Summary of Factors Affecting the critical habitat under the authority leucocephala, Schinus terebinthifoiius, Species contained in the Endangered Species and various grass species crowd out the Act of 1973, as amended. This is remaining dry forest and shades out any Section 4(a)(l) of the Endangered known only from about a dozen seedlings that may have survived rat Species Act (16 U.S.C. 1531 et seq.) and specimens located on the islands of predation on the fruits. The remaining regulations promulgated to implement [about 10 plants), (2 habitats on Lana? and Moloka’i are the listing provisions of the Act (codified plants), and (1 plant). State of found on marginal land used for grazing. at 50 CFR Part 424; under revision to . This species is vulnerable to Gardenia brighamii was a distinctive accommodate 1982 amendments, see any substantial habitat alteration and element of the lowland dry forest. It is a proposa! of August 6,1983,48 FR 36062- faces the potential threat of grazing and tree growing 20 to 30 feet in height, with 36069) set forth the procedures for browsing by domestic and feral animals, a smooth trunk six to 12 inches or more adding species to the Federal lists. A fire, soil erosion, introduced insect in diameter and a spreading canopy of species may be determined to be an pests, rodent predation, competition shiny dark-green leaves. The white to endangered or threatened species due to from exotic plants, and potential cream-colored flowers are one to two one or more of the five factors described development on and/or near the sites inches long, very fragrant, and resemble in section 4(a)(l). These factors and where it occurs. A determination that the Tahitian gardenia (G. tuitensis) in their application to Gardenia brighamii Gardenia brighomii is an endangered shape. Mann [Hawaiian gardenia or na’u) are species, and designation of its critical Section 12 of the Endangered Species as follows: habitat, would implement the protection Act of 1973 directed the Secretary of the provided by the Endangered Species Act Smithsonian Institution to prepare a A. The Present OF Threatened of 1973, as amended. The Service seeks report on those plants considered to be Destruction, Modification, OF data and comments from the public on endangered, threatened, or extinct. This Curtailment of its Habitat OF Range this proposal. The Service is requesting report, designated as House Document This species once grew on five of the further information on the species’ No. 94-51, was presented to Congress on Hawaiian islands, where, at least on the status and any economic impacts that January 9,1975. On July 1.1975, the island of Molokai, it was a fairly would result from designation of critical Director published a notice in the Federal Register (40 FR 27823-27924) of common component of the native habitat. dryland forests. Today it still occurs on DATES: Comments from all interested his acceptance of this report as a the islands of Lanai (about IO plants), parties must be received by December petition within the context of subsection Molokai (2 plants), and Oahu (I plant). It 11,1964. Public hearing requests must be 4(c)(2) of the Act (petition acceptance is is now believed extinct on Hawaii and received by November 261984. now governed by section 4(b)(3) of the . Grazing and browsing by Act, as amended), and of his intention to ADDRESS: Comments and materials review the status of the plant taxa domestic and feral animals and the concerning this proposal should be sent invasion of exotic shrubs, forbs, and to the Regional Direc!or, U.S. Fish and named within. On June 161976, the grasses have caused severe degradation Wildlife Service, 506 NE. Multnomah Service published a proposed rule in the of its habitat. Urbanization, pineapple Street, Portland, Oregon 97232. Federal Register (41 FR 24523-24572) to determine approximately 1,700 vascular fields (on Lanai and Molokai), sugar Comments and material received will be cane fields (on Oahu and Maui], and available for public inspection, by plant taxa to be endangered species. This list was assembled on the basis of pastures (on Oahu, Maui, and Hawaii) appointment, during normal business have replaced most of the dryland hours at the above address. comments and data received by the Smithsonian Institution and the Service forests in Hawaii. The Molokai FOR FURTHER IWFORMATION CONTACT: in response to House Document No. 94- population grows at the edge of an Chief, Division of Endangered Species, 51 and the July X1975, Federal Register erosion gully; several trees were lost U.S. Fish and Wildlife Service.-500 NE. publication. Gardenia brighamii was recently when the gully walls collapsed Multnomah Street, Portland, Oregon included in the July 1,1975, notice and during winter storms. Further grazing 97232(503/231-6131), orMr.John the June 16,1976, proposal. General and browsing by domestic and feral Spinks, Chief, Office of Endangered comments on the 1976 proposal were animals, further invasion and spread of Species, U.S. Fish and Wildlife Service, summarized in an April 26,1978, Federal exotic plants, potential urbanization or WashingtonI3.C. 20240(703/235-2771). Register publication (43 FR 17909- development, and, as the plants grow in SUPPLEMENTARY INFORMATION: 17916). dry parts of the islands, the continual The Endangered Species Act possibility of fires, are all existing Background Amendments of 1976 required that all threats to the future survival of the Past collections and field notes on proposals over two years old be species. Gardenia brighamii indicate that it once withdrawn. A l-year grace period was B. Or*erutiIization for Commercial, grew on the islands of Hawaii and Maui, given to those proposals already more Recreational, Scientific, OF Educational where none are known to be extant in than 2 years old. Subsequently, on Purposes the wild today. The species was first December 10,1979, ?he Service collected in 1864-65 by Horace Mann published a notice of the withdrawal of Not applicable to this species. and William Brigham, and was formally the portion of the June 16.1976, proposal C. Disease OF Predation described by Mann in 1867. It still that had not been made final along with occurs on Lanai [about 10 plants) and other proposals that had expired [44 FR The introduced Black Twig Borer, Molokai (2 plants), as well as on Oahu, 7079676797); this notice of withdrawal Xylosandrus compactus (Scolytidae), where a single plant remains in the wild. included Gardenia brighumii. The attacks the terminal shoots and has The current habitat has been severely Service now has sufficient information severely affected the one wild tree on degraded and altered by grazing and to warrant reproposing Gardenia Oahu. Rats appear to gnaw the fruit 4oo60 Federal Register / Vol. 49, No. 199 / Friday, October 12, 1984 / Proposed Rules while it is still on the tree, severely herbivores, is believed to provide the Federal protection, and prohibitions reducing the chances of successful best remaining site for long-term against certain practices. Recognition regeneration. The full impact of grazing survival and possible augmentation of through listing encourages and results in needs to be determined. Gardenia brighamii. The approximately conservation actions by Federal, State. IO individuals found within the area and private agencies, groups, and D. The Inadequacy of Existing Regulatory Mechanisms represent the largest remaining individuals. The Endangered Species oooulation of this soecies. While the Act provides for land acquisition and No regulatory mechanisms exist at the ‘e&e area to be de&mated a5 critical cooperation with the States and requires present time. Federal listing would habitat does not contain individuals of that recovery actions be carried out for automatically invoke listing under Gardenia, this area nevertheless all listed species. Such actions are Hawaii State law, which prohibit5 represents one of the few remnants of initiated by the Service following listing. taking and encourages conservation by the once-widespread Hawaiian dryland The protection required by Federal State government agencies. forest, and is the only such remnant agencies and taking prohibitions are E. Other Natuml or Man-Made Factors supporting a potentially viable discussed, in part, below. Affecting Its Continued Existence population of this species. Unless this Section 7(a) of the Act, as amended, remnant forest is conserved for future requires Federal agencies to evaluate The number of plants of this species transplantation or reestablishment their actions with respect to any species has been greatly reduced due to factors programs, future survival in the wild of that is proposed or listed as endangered enumerated above. Further reduction of the Hawaiian gardenia is unlikely. Thus, or threatened. Regulations implementing the breeding population [gene pool) may the entire remnant ecosystem is this interagency cooperation provision have adverse effects on the reproductive believed to be essential for the of the Act are codified at 59 CFR Part capacity and survival of this species. conservation of the species. The Service has carefully assessed the 402, and are now under revision (see Section 4(b)(8) requires. for any proposal at 48 FR 29989; June 29,1983). best scientific information available proposed or final regulation that concerning the past abundance and Section 7(a)(4) requires Federal agencies designates critical habitat, a brief to confer informally with the Service on subsequent decline of this species, as description and evaluation of those any action that is likely to jeopardize well as the threats faced by its remnant activities (public and private) which populations. Based on this evaluation, the continued existence of a proposed may adversely modify such habitat or species, or result in destruction or the preferred course of action is to may be affected by such designation. propose to list Gam’enia bfighamii as adverse modification of proposed Such activities are identified below for critical habitat. When a species is endangered and designate the area this species. It should be emphasized occupied by the largest remnant subsequently listed, section 7@)[2) that critical habitat designation may not requires Federal agencies to ensure that population as critical habitat for the affect al of the activities mentioned species. This choice reflects the strong activities they authorize, fund, or carry below, as critical habitat designation out are not likely to jeopardize the likelihood that, without the institution of only affects Federal agency activities appropriate conservation measures, the continued existence of such a species or through section 7 of the Act. to destroy or adversely modify its species is Iikely to become extinct Any activity that would significantly throughout its range. critical habitat. If an effect is expected, disturb the soil, topography or other the Federal agency must enter into Critical Habitat physical and biological components of consultation with the Service. Currently, the area where Gardenia brighamii Critical habitat, as defined by section occurs would adversely modify its no Federal involvement is known to 3 of the Act and at 59 CFR Part 424, critical habitat. Land uses in the exist with regard to Gamlenia brighamii. means: (i) The specific areas within the immediate locality of the population and The only known potential action that geographical area occupied by a species. in its surroundings would have to be may be affected by the listing is the at the time it is listed in accordance with carefully regulated to control such casual use of the Kanepu’u area. Federal the Act, on which are found those modifications. This might require listing automatically results in similar physical or biological features (al fencing of populations to exclude or listing by the State and, therefore. essential to the conservation of the eliminate feral animals from the area. enforcement of the State’s own species and (b) which may require Inasmuch as no Federal activities are regulations come into effect. These special management considerations or anticipated in the area proposed to be regulations may limit casual use by protection, and (ii) specific areas outside designated, it is unlikely that the prohibiting the taking of the plants. the geographical area occupied by the designation will affect any activities. Take, in the State law, is defined as species at the time it is listed, upon a Section 4(b)@!)of the Act requires the picking or otherwise damaging the determination that such areas are Service to consider economic and other plants. Voluntary or mandatory essential for the conservation of the impacts of designating a particular area protection of this species and its habitat species. as critical habitat. The Service will will require cooperation among the land Section 4(a)(3) of the Act requires that reevaluate the geographic critical owners, Castle and Cooke, Inc., the critical habitat be designated to the habitat designation prior to publishing State of Hawaii, the County of Maui, maximum extent prudent and any final rule, after considering any and the US. Fish and Wildlife Service. determinable concurrent with the public comments received and all The Act and its implementing determination that a species is relevant economic information that is regulations found at 59 CFR 17.61,17.62, endangered or threatened. Critical available. and 17.63 set forth a series of general habitat is being proposed for Gardenia trade prohibitions and exceptions that brighamii to include an area of about Available Conservation Measures apply to all endangered plant species. 685 acres just north of Kanepu’u. Conservation measures provided to With respect to Gardenia brighamii, ail ahupua’a of Ka’a. island of Lanai. It species listed as endangered or trade prohibitions of section 9(a)(2) of contains a remnant native dryland threatened under the Endangered the Act, implemented by 59 CFR 17.61, forest and, although influenced by the Species Act include recognition, would apply. These prohibitions, in part, presence of exotic vegetation and recovery actions, requirements for would make it illegal for any person Federal Register / Vol. 49, No. 199 / Friday, October 12, 1984 / Proposed Rules 40061 subject to the jurisdiction of the United (4) Current or planned activities in the Soil ConservationService: Washington, States to import or export, transport in subject area and their possible impacts D.C. 232 DR., 130 maus. interstate or foreign commerce in the on Gurdenia brighamii; and Gagne.I3.c. i992. Sta& report on Gardenia course of a commercial activity, or sell brighumii. Research Corporation of the (5) Any foreseeable economic and University of Hawaii, uncier contract I& or offer for sale this species in interstate other impacts resulting from the 16-OWl-79096 to the U.S. Fish and Wildlife or foreign commerce. Certain exceptions proposed designation of critical habitat. Service. 42 pp. would apply to agents of the Service and Final promulgation of the regulations Saence. G.. and S.L. Monteomerv. 1976. State conservation agencies. The Act on Gardenia brighamii will take into *Ecology of the dry land?oorestcat Kaneuu’u, and 56 CFR 17.62 and 16.63 also provide consideration any comments and island of Lana?. Newsletter, Haw’n Bit. for the issuance of permits to carry out SOC. 15(4/5): 62-60. additional information received by the otherwise prohibited activities involving Service, and such communications may Authors endangered species under certain lead to the adoption of a final regulation The primary authors of this proposed circumstances. No trade in this species that differs from this proposal. is known. It is anticipated that few trade rule are Dr. Derral Herbst, U.S. Fish and permits involving Gardenia brighumii The Endangered Species Act provides Wildlife Service, P.O. Box 50167. would ever be sought or issued since the for a public hearing on this proposal, if Honolulu, Hawaii 96850 (808/546-7530) species is not common in cultivation nor requested. Requests must be filed within and Betsy Harrison Gagne, B.P. Bishop in the wild. 45 days of the date of the proposal. Such Museum, P.O. Box 19666-A, Honolulu, Section 9(a)(Z)(B) of the Act, as requests should be made in writing and Hawaii 96819 (808/847-3511). The amended in 1982, states that it is addressed to the Regional Director, manuscript was edited by John L. unlawful to remove and reduce to Region 1, U.S. Fish and Wildlife Service, Paradiso of the Service’s Washington possession endangered plant species 500 NE., Multnomah Street, Portland, OR Office. 97232. from areas under Federal jurisdiction. List of Subjects in 50 CFR Part 17 The new prohibition will not apply to National Environmental Policy Act Gardenia briehamii since all of the Endangered and threatened wildlife, known plant; are on private property. In accordance with a recommendation Fish, Marine mammals, Plants Requests for copies of the regulations from the Council on Environmental (agriculture). on plants and inquiries regarding them Quality (CEQ), the Service has Proposed Regulations Promulgation may be addressed to the Federal determined that Environmental Wildlife Permit Office, U.S. Fish and Assessments need not be prepared in PART 17+AMENDED] Wildlife Service, Washington, DC. connection with regulations adopted 20240 (703/235-1903). pursuant to section 4(a) of the Accordingly, it is hereby proposed to If this species is listed under the Act, Endangered Species Act of 1978, as amend Part 17, Subchapter B of Chapter the Service will review it to determine amended. The recommendation from I, Title 59 of the Code of Federal whether it should be placed upon the CEQ was based, in part, upon the Regulations, as set forth below: Annex of the Convention on Nature decision by the Sixth Circuit Court of I. The authority citation for Part 17 Protection and Wildlife Preservation in Appeals, which held that the reads as follows: the Western Hemisphere, which is preparation of NEPA documentation Authority: Pub. L. 93-205, a7 Stat. 884; Pub. implemented through section 8A(e) of was not required as a matter of law for L. 94-359.90 Stat. 911; Pub. L. 95-632.92 Stat. the Act, and whether it should be listing actions under the Endangered 3751; Pub. L. -159, 93 Stat. 1225; Pub. L. 97- 304,96 Stat. 1411(16 USC. 1531 et seq.). considered for other appropriate Species Act; PLF v. Andrus 657 F. 2d 829 international agreements. (6th Cir. 1981). A notice outlining the 2. It is proposed to amend 0 17.12(h) by adding the following in alphabetical Public Comments Solicited Service’s reasons for this determination was published in the Federal Register on order under the family to the The Service intends that any final rule October 25,1983 (48 FR 49244). List of Endangered and Threatened adopted will be accurate and as Plants: effective as possible in the conservation References of each endangered or threatened Foote, D.E., EL. Hill, ‘9.Kakamura, znd F. 5 17.12 Endangered and threatened species. Therefore, any comments or Stephens.1972. Soil survey of the islands of planta. suggestions from the public, other Kauai, Oahu, Maui, Mc!okai. and Lanai, . . II l t concerned governmental agencies, the State of Hawaii. U.S. Dept. of Agriculture, (h) l * * scientific community, industry, or any other interested party concerning any Sp3WS HIStonc range SlatUS Whell critiil aspect of these proposed rules are Sczientltr flame Common name II&d h&tat %z hereby solicited. Comments particularly are sought concerning: (1) Biological, commercial trade, or Ruboceae-Coffee family Gardema bnghamti .._... Na’u (Hawaiian gardema). IJ S A. (HI) ,...._. E 17.%(a) NA other relevant data concerning any ...... threat (or lack thereof) to Gardeniu brighomii; (2) The location of any additional populations of Gardenia brighamii and 3. It is further proposed to amend 8 17.96 Critical habitat-plants.

the reasons why any habitat of this 8 17.96(a) by adding critical habitat of [a) * l * species should or should not be Gurdenia brighomiias follows: jThe . e . , . determined to be critical habitat as position of this and any following provided by section 4 of the Act: critical habitat entries under 4 17.96(a) Family RUBIACEAE: (3) Additional information concerning will be determined at the time of Gardenia brighamii [h’a ‘u, Hawaiian the range and distribution of this publication of a final rule.] gardenia) species; 40062 Federal Register 1 Vol. 49, No. 199 / Friday, October 12, ~184 1 Proposed Rules

Hawaii, Maui County, island of Lanai, WS3’10” N latitude by 156'58'2J3" W ahupua’a of Ka’a, a rectangle just north longitude of Kanepu’u comprising about 685 acres ZO”52’35” N latitude by 15638’28” W and enclosed by the following longitude coordinates: Known constituent elements include 20”52’35” N latitude by 157’00’00” W longitude very dry, well-drained later& soils of ~CI’%Y~O”N latitude bv 157”o(r1XY’W high acidity and low fertility. longitude - - ; SLAND OF , Y I N I LANAI I

D ::, i\$ 1 E , 910 I 0 J/f JY ‘JL E \ 93 I I P, I. I 4 \ I ; I ,

- 20°53’

- 20°52’

156o59’ 156O58’ 156O5 ‘7’

I I I -

Dated: August 30,1984. 1. Craig Potter, Acting Assistant Secretary far Fish and Mik~life and Parks. [FR Dot. @428X18 Filed 10-11-M 8:4S HI??] BILLING CODE 4310-53-M