Thursday, May 22, 2003

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and ; Designation of Critical Habitat for Five Species From the Northwestern Hawaiian Islands, Hawaii; Final Rule

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DEPARTMENT OF THE INTERIOR Sesbania tomentosa. A total of during normal business hours at U.S. approximately 493 hectares (1,219 Fish and Wildlife Service, Pacific Fish and Wildlife Service acres) of land on , Necker, and Islands Office, 300 Ala Moana Blvd., Islands fall within the Room 3–122, P.O. Box 50088, Honolulu, 50 CFR Part 17 boundaries of the seven critical habitat HI 96850–0001. RIN 1018–AH09 units designated for the five species. FOR FURTHER INFORMATION CONTACT: Paul This critical habitat designation requires Henson, Field Supervisor, Pacific Endangered and Threatened Wildlife the Service to consult under section 7 of Islands Office at the above address and Plants; Designation of Critical the Act with regard to actions carried (telephone 808/541–3441; facsimile Habitat for Five Plant Species From the out, funded, or authorized by a Federal 808/541–3470). Northwestern Hawaiian Islands, Hawaii agency. Section 4 of the Act requires us SUPPLEMENTARY INFORMATION: to consider economic and other relevant AGENCY: Fish and Wildlife Service, impacts when specifying any particular Background Interior. area as critical habitat. We solicited data In the List of Endangered and ACTION: Final rule. and comments from the public on all Threatened Plants (50 CFR 17.12(h)), aspects of the proposed rule, including SUMMARY: We, the U.S. Fish and there are six plant species that, at the data on economic and other impacts of Wildlife Service (Service), designate time of listing, were reported from the the designation. critical habitat pursuant to the Northwestern Hawaiian Islands (NWHI). Endangered Species Act of 1973, as DATES: This rule becomes effective on , amended (Act), for five of six plant June 23, 2003. remota, and Schiedea verticillata are species known historically from the ADDRESSES: Comments and materials endemic to the NWHI, while Northwestern Hawaiian Islands. The received, as well as supporting agrimonioides, Mariscus pennatiformis, five species are Amaranthus brownii, documentation, used in the preparation and Sesbania tomentosa are reported Mariscus pennatiformis, Pritchardia of this final rule will be available for from several other Hawaiian islands in remota, Schiedea verticillata, and public inspection, by appointment, addition to the NWHI (see Table 1).

TABLE 1.—SUMMARY OF ISLAND DISTRIBUTION OF SIX SPECIES FROM THE NWHI

Island distribution Species NWHI, Kahoolawe, Kauai Oahu Molokai Lanai Maui Hawaii Niihau

Amaranthus brownii (no common name) ...... Nihoa (C) Cenchrus agrimonioides (kamanomano) ...... C ...... H C R Kure (H*), Laysan (H), Midway (H) Mariscus pennatiformis (no common name) .. H H ...... C R Laysan (C) Pritchardia remota (loulu) ...... Nihoa (C), Laysan(**) Schiedea verticillata (no common name) ...... Nihoa (C) Sesbania tomentosa (ohai) ...... C CCHCCNiihau (H), Kahoolawe (C), Necker (C), Nihoa (C) Key: C (Current)—occurrence last observed within the past 30 years. H (Historical)—occurrence not seen for more than 30 years. R (Reported)—reported from undocumented observations. * Cenchrus agrimonioides var. laysanensis was last observed 23 years ago. ** It has been suggested that Pritchardia remota was the species of Pritchardia once extant on Laysan; however, this is not known for certain. NWHI include Kure Atoll, Midway Atoll, and Laysan, Necker, Nihoa islands.

Although we considered designating The Northwestern Hawaiian Islands Laysan Island, Lisianski Island, Pearl critical habitat on the NWHI for each of The NWHI are a chain of islands that and Hermes Atoll, Midway Atoll, and the six plant species, for the reasons extend along a linear path for Kure Atoll (Figure 1). They are remnants described below, the final designation approximately 1,600 kilometers (km) of once larger islands that have slowly includes critical habitat for five of six (1,000 miles (mi)) in a northwestern eroded and subsided and that exist plant species. Species that also occur on direction from Nihoa Island to Kure today as small land masses or coral other islands may have critical habitat Atoll and include the following: Nihoa atolls covering the remnants of volcanic designated on other islands in previous Island, Necker Island, French Frigate islands (Department of Geography 1998; or subsequent rulemakings. Shoals, Gardner Pinnacles, Maro Reef, Service 1998).

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Nihoa rises approximately 274 meters Island was altered considerably in the 1986). This failed as a profitable (m) (900 feet (ft)) above sea level and past and today suffers from enormous business, and no attempt was made to has an area of approximately 69 hectares nonnative species problems (Elizabeth control the number of rabbits on the (ha) (171 acres (ac)). Its steep Flint, Service, pers. comm., 2000). island. The rabbits were finally topography and crater shape reveal its One of the six listed plants was eradicated from Laysan Island in the volcanic origin. Necker Island, less than historically known from Kure Atoll early 1920s, although not before the 92 m (300 ft) in elevation and 19 ha (46 (Cenchrus agrimonioides var. vegetation had been thoroughly ac) in area, consists of thin-layered, laysanensis), two were known from devastated. Since then, the vegetation of weathered lava flows. La Perouse Laysan (C. agrimonioides var. Laysan has recovered to a remarkable Pinnacles at French Frigate Shoals and laysanensis and Mariscus pennatiformis degree, although some species, like the ssp. bryanii), one from Midway (C. Gardner Pinnacles are the last exposed native palms (Pritchardia sp.) (lolou), agrimonioides var. laysanensis), four volcanic remnants in the archipelago. are no longer naturally extant on the French Frigate Shoals is a crescent- from Nihoa (Amaranthus brownii, Pritchardia remota, Schiedea island (Tomich 1986; E. Flint, pers. shaped atoll nearly 29 km (18 mi) comm., 2000). across. More than a dozen small sandy verticillata, and Sesbania tomentosa), islands dot the fringes of this atoll. Maro and one from Necker (Sesbania Midway Atoll was discovered and Reef is a largely submerged area marked tomentosa) (see Table 1 above). named Middlebrook Islands in 1859 by Nihoa (209 km (140 mi) from Niihau) by breakers and a few pieces of coral Captain Nick Brooks. The atoll was and Necker (an additional 290 km (180 that intermittently protrude above the taken into possession by the United mi) northwest of Nihoa) are the islands waterline. Laysan Island is States in 1867, and in 1903, President in the northwestern group that are Theodore Roosevelt placed the atoll approximately 405 ha (1,002 ac) in size closest to the main Hawaiian Islands. and fringed by a reef. In the center of the under the control of the U.S. Navy. In Both are small, residual fragments of 1935, Pan American World Airways set island is a 52 ha (129 ac) hypersaline volcanoes that formed approximately lagoon. Lisianski Island is 147 ha (364 up an airbase for the weekly Trans- 7.2 and 10.3 million years ago, Pacific Flying Clipper Seaplane service. ac) in size and bounded to the north by respectively (Service 1986). Although an extensive reef system. The central In 1941, the Japanese attacked Midway both of these islands were uninhabited Atoll on their return from the attack on lagoon once found on this island has at the time of their modern discovery in Pearl Harbor. In 1942, the United States filled with sand. Pearl and Hermes Reef, the late eighteenth century, there is an defeated the Japanese Fleet north of the an inundated atoll, includes nearly extensive heiau (indigenous place of 40,469 ha (100,000 ac) of submerged worship or shrine) complex on Necker, atoll, turning the tide of World War II reef and seven small sandy islets and agricultural terraces and other in the Pacific. In 1988, the atoll was totaling less than 34 ha (85 ac). Midway Hawaiian archaeological features can be added to the National Wildlife Refuge Atoll is approximately 8 km (5 mi) in found on Nihoa (Cleghorn 1984; (NWR) system, and in 1996, the diameter and includes three islands: Department of Geography 1998; Service jurisdiction of Midway Atoll was Sand, Eastern, and Spit. Both Sand and 1986). transferred from the U.S. Navy to the Eastern Islands have been highly altered In 1892, a guano mining business Department of the Interior (Service by man. Kure Atoll is the northernmost began operation on Laysan and 2000). Despite this evidence of human exposed land in the Hawaiian flourished until 1904. During this time, use, these islands continue to support archipelago. Two islands, Green and rabbits were introduced to Laysan for a an assemblage of endemic plants and Sand, are found on the southern edge of rabbit canning industry, and the rabbits animals not found elsewhere in the the atoll and are included in the Hawaii were allowed to reproduce and roam archipelago (Department of Geography State Seabird Sanctuary System. Green freely (Morin and Conant 1998; Tomich 1998).

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Kure Atoll was discovered and named Discussion of Plant Taxa (aheahea), Eragrostis variabilis (kawelu), in 1827 by the captain of a Russian Ipomoea indica (koali awa), Ipomoea Species Endemic to the Northwestern vessel. Between 1876 and 1936, pes-caprae ssp. brasiliensis (pohuehue), Hawaiian Islands Australian Copra & Guano Ltd. mined Panicum torridum (kakonakona), guano from Green Island and Sand Amaranthus brownii (No Common Scaevola sericea (naupaka), Schiedea Island, the two islands that make up Name (NCN)) verticillata (NCN), Sicyos pachycarpus Kure Atoll. Military bases were built on Amaranthus brownii, a member of the (kupala), Sida fallax (ilima), and the islands during World War II, and a amaranth family (Amaranthaceae), is an Solanum nelsonii (akia) (Hawaii Natural Loran C station with two 158 m (518 ft) herbaceous annual with leafy upright or Heritage Program (HINHP) Database high masts was operated until 1998. The ascending stems, 30 to 90 centimeters 2000). The threats to Amaranthus brownii on towers are no longer on the islands. The (cm) (1 to 3 ft) in length. The slightly airstrip built on Green Island is no Nihoa include competition with the hairy, alternate are long, narrow, longer usable, and landing is only nonnative plant Portulaca oleracea and more or less folded in half possible by boat (Service 1998a). (pigweed), alteration of substrate, fire, lengthwise. The species is monoecious, potential introduction of rats and mice, Hawaiian Islands National Wildlife with male and female flowers being human disturbances, a risk of extinction Refuge found on the same plant. Amaranthus from naturally occurring events (such as The reefs and islets of the brownii can be distinguished from other hurricanes), and reduced reproductive Northwestern Hawaiian chain from Hawaiian members of the genus by its vigor due to the small number of extant Nihoa Island through Pearl and Hermes spineless axils (the points between individuals (Service 1998d). Atoll are protected as the Hawaiian the stem and a leaf branch), linear Islands National Wildlife Refuge leaves, and indehiscent (remaining Pritchardia remota (loulu) (HINWR). The HINWR was established closed at maturity) (Wagner et al., Pritchardia remota, a member of the in 1909 to protect the large colonies of 1999). palm family (), is a tree 4 to seabirds, which were being slaughtered The growing season for Amaranthus 5 m (13 to 16 ft) tall with a ringed, wavy for the millinery trade, and a variety of brownii extends from December to June trunk about 15 cm (5.9 in) in diameter. other marine organisms, including sea or July. Conant (1985) reported finding The rather ruffled, fan-shaped leaves are turtles and the critically endangered plants in an early flowering stage in approximately 80 cm (31 in) in diameter Hawaiian monk seal (Monachus February and collected seed from dead and somewhat waxy to pale green with schauinslandi), as well as to address the plants during June. Phenology may vary a few tiny scales on the lower surface. commercial exploitation of wildlife somewhat from year to year, depending The flowering stalks, which can be up resources (Executive Order 1019). on rainfall and climatic factors. to 30 cm (12 in) in length, are branched, Within the refuge’s boundaries are eight Pollination vectors, and the flowers are arranged spirally islands and atolls: Nihoa, Necker, agents, specific environmental along the hairless stalks. Pritchardia French Frigate Shoals, Gardner requirements, and limiting factors for remota is the only species of Pritchardia Pinnacles, Maro Reef, Laysan, Lisianski, this species are unknown (Service on Nihoa and can be distinguished from and Pearl and Hermes Atoll. There is no 1998d). other species in the genus by its wavy public or recreational use allowed at Amaranthus brownii is currently the leaves; short, hairless ; HINWR. Access is strictly regulated rarest native plant on Nihoa (Conant and small, round fruits (Read and Hodel through a permit system because of the 1985). When it was first collected in 1999; 61 FR 43178). sensitivity of the organisms on these 1923, it was ‘‘most common on the ridge Pritchardia remota is a long-lived islands to human disturbance and the leading to Miller’s Peak, but abundant perennial, and populations on Nihoa high risk of importation of nonnative also on the ridges to the east’’ (Herbst have remained stable for several years. plant and invertebrate species. For those 1977). In 1983, the two known groups Conant (1985) reported finding plants who do access the refuge, strict of colonies were separated by a distance with and flowers in the spring and quarantine procedures are in effect. of 0.4 km (0.25 mi) and contained a total summer. Phenology may vary somewhat Other than the refuge staff, only of approximately 35 plants: one from year to year, depending on rainfall individuals conducting scientific occurrence of about 23 plants near and climatic factors. Pollination vectors, research or undertaking natural history Miller’s Peak and a second occurrence seed dispersal agents, specific film recording have been granted official of approximately a dozen plants in three environmental requirements, and permission to visit the HINWR (E. Flint, small groups in Middle Valley. No limiting factors for this species are pers. comm., 2002). plants have been seen at either location unknown (Service 1998d). since 1983, even though Service staff Pritchardia remota occurs on Nihoa at Northwestern Hawaiian Islands Coral have surveyed for the species annually elevations between 15 and 151 m (50 Reef Ecosystem Reserve (Service 1998d). None of the surveys and 500 ft) and may have historically On December 4, 2000, President conducted since 1983 have been occurred on Laysan Island as well Clinton issued an Executive Order conducted in the winter months when (Beccari and Rock 1921). Currently, establishing the 33,993,594 ha (84 this annual species is easiest to find and Pritchardia remota is known from four million ac) Northwestern Hawaiian identify. Access to the island is colonies on Nihoa that are found along Islands Coral Reef Ecosystem Reserve. particularly limited during the winter 0.2 km (0.1 mi) of the length of two This reserve includes the marine waters due to difficult and dangerous landing valleys on opposite sides of the island, and submerged lands of the NWHI and conditions (Cindy Rehkemper, Service, approximately 0.6 km (0.4 mi) apart. covers an area approximately 2,222 km pers. comm., 2001). More than 680 plants, including (1,200 nautical mi) long and 185 km Amaranthus brownii typically grows seedlings, are found in West Palm (100 nautical mi) wide. The reserve is in shallow soil on rocky outcrops. It is Valley and at least 392 plants are found adjacent to State of Hawaii waters and found in fully exposed locations at in East Palm Valley (HINHP Database submerged lands and the Midway Atoll elevations between 30 and 242 m (100 2000). A few individuals are also found NWR and includes the HINWR outside and 800 ft). Associated native plant taxa at the bases of basalt cliffs on the steep of State waters. include Chenopodium oahuense outer slopes of each of the two valleys

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(HINHP Database 2000). Pritchardia this species are unknown (Service Little is known about the life history remota is also present in a shadehouse 1998d). of Cenchrus agrimonioides. It has been on Laysan Island as seedlings, from All but one of the historic colonies of observed to produce fruit year round seeds collected at Nihoa for outplanting Schiedea verticillata are known to be (Service 1999), but other information on Laysan as part of identified recovery extant on Nihoa. Colony locations and about its flowering, pollination vectors, efforts for this species (Service 1998d). plant numbers appear to shift, but total seed dispersal agents, longevity, specific Pritchardia remota is one of the few numbers islandwide have remained environmental requirements, and Hawaiian members of the genus that relatively stable for several years. Seven limiting factors is generally unknown. occurs in relatively dry climates like colonies, containing a total of 497 Historically, Cenchrus agrimonioides that found on Nihoa. Its distribution on individuals, were documented between var. agrimonioides was known from Nihoa, however, may be related to 1980 and 1983 (HINHP Database 2000). Oahu, Lanai, Maui, and (in an availability of water since many In 1992, Service staff counted between undocumented report) the island of individuals are found in valleys and 170 and 190 plants in 6 colonies. In Hawaii (61 FR 53108; 65 FR 79192). near freshwater seeps (Service 1998d). 1996, a total of 359 plants, distributed Cenchrus agrimonioides var. In the Pritchardia remota coastal forest in 10 colonies primarily on the western laysanensis was historically known community, this species assumes half of the island, were identified, with from Laysan and Midway Islands and complete dominance, creating a closed an occurrence of 13 plants on the east Kure Atoll in the NWHI but has not canopy and understory of thick layers of spur of the island near Tunnel Cave. been seen there since about 1980 fallen fronds (Gagne and Cuddihy 1999). Two previously unobserved colonies of (HINHP Database 2000; O’Connor 1999). Native plants which occur nearby 2 and 99 plants were located on the It occurred on coastal sandy substrate in include Chenopodium oahuense, north cliffs above Miller’s Valley. Other Scaevola sericea-Eragrostis variabilis Sesbania tomentosa (ohai), Sida fallax, colonies included 24 plants at Dog’s scrub at an elevation of 5 m (16 ft). and Solanum nelsonii, (Service 1998d). Head, 37 plants at Devil’s Slide, 10 Morin and Conant (1998) report that C. agrimonioides var. laysanensis The threats to Pritchardia remota on plants near Miller’s Peak, a previously disappeared from Laysan before 1923, Nihoa include competition with unknown occurrence of 62 plants on the from Midway Atoll sometime shortly nonnative plants, potential introduction ridge separating West and West Palm after 1902, and was last seen on Green of rats and mice, possible herbivory by valleys, 80 plants near lower West Island (Kure Atoll) in about 1980. nonnative insect species, fire, human Valley, 28 individuals near Pinnacle Cenchrus agrimonioides var. disturbances, a risk of extinction from Peak, and 4 plants northeast of Pinnacle laysanensis has not been relocated naturally occurring events (such as Peak (Service 1998). during periodic monitoring on Laysan landslides), and reduced reproductive Schiedea verticillata typically grows in rocky scree, soil pockets, and cracks for more than 20 years and has not been vigor due to the small number of extant seen on Midway during recent surveys individuals (Service 1998d). in coastal cliff faces and in Pritchardia remota coastal mesic forest at elevations in 1995 and 1999. It has not been seen Schiedea verticillata (NCN) between 30 and 242 m (100 and 800 ft). on Kure Atoll for over 20 years, in spite Associated native plant taxa include of DOFAW’s annual seabird surveys and Schiedea verticillata, a member of the a botanical survey conducted there as pink family (Caryophyllaceae), is a Eragrostis variabilis, Rumex albescens (huahuako), Tribulus cistoides (nohu), recently as 2001. In addition, no viable perennial herbaceous species, which genetic material of this variety is known dies back to an enlarged root during the and lichens (HINHP Database 2000). The threats to Schiedea verticillata on to exist. We believe that it is extremely dry season. Stems, which can reach 0.4 unlikely that individual plants will be to 0.6 m (1.3 to 2 ft) in length, are both Nihoa include competition with nonnative plant species, possible rediscovered on these three islands and upright or pendant (drooping). The atolls. stalkless leaves are fleshy, broad, and herbivory by nonnative insect species, pale green and are usually arranged in potential introduction of rats and mice, Mariscus pennatiformis (NCN) human disturbances, a risk of extinction threes. Schiedea verticillata, the only Mariscus pennatiformis is a member member of its genus to grow in the from naturally occurring events (such as of the sedge family (Cyperaceae). It is a NWHI, is distinguished from other rockslides), and reduced reproductive short-lived perennial with a woody root species in the genus by its exceptionally vigor due to the small number of system covered with brown scales. The large sepals and (usually) three leaves individuals (Conant 1985; Service stout, three-angled stems are between per node (Wagner et al., 1999). 1998d). 0.4 and 1.2 m (1.3 and 4 ft) tall. This Schiedea verticillata is a short-lived Multi-Island Species species differs from other members of perennial. Dr. Steve Weller, University the genus by its slightly concave, of California at Irvine, found that Cenchrus agrimonioides (kamanomano) smooth stems; the length and number of Schiedea verticillata produces more Cenchrus agrimonioides, a short-lived spikelets (elongated flower-clusters); seeds and more nectar than any other perennial member of the grass family leaf width; and the length and diameter species in its genus. It also has the (), has leaf blades that are flat or of stems. The two subspecies, M. highest degree of genetic diversity folded and a prominent midrib. The pennatiformis ssp. bryanii and M. among individuals of any species in the species is distinguished from others in pennatiformis ssp. pennatiformis, are genus (Service 1998d). This species’ the genus by a cylindrical to lance- distinguished by the length and width reproductive cycle may not be seasonal, shaped bur and the arrangement and of the spikelets; shape and length of the since Conant (1985) has found many life position of the bristles on the bur fruit; and color, length, and width of the stages simultaneously throughout the (O’Connor 1999; Wagner et al., 1999). glumes (scaly floral bracts) (Koyama year. Her observations also indicate that The two varieties, C. agrimonioides var. 1990). individual plants flower, set seed, and laysanensis and C. agrimonioides var. At the time Mariscus pennatiformis disperse seed in a relatively short period agrimonioides, differ from each other in was listed in 1994 (59 FR 94559), we of time. Pollination vectors, seed that C. agrimonioides var. laysanensis followed the taxonomic treatments in dispersal agents, specific environmental has smaller burs, shorter stems, and the Manual of the Flowering Plants of requirements, and limiting factors for narrower leaves. Hawaii (Wagner et al. 1990). Subsequent

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to this, we became aware of a new with silky hairs. The flowers are amended (Act) (16 U.S.C. 1531 et seq.), taxonomic treatment for the species and salmon-colored tinged with yellow, which directed the Secretary of the plan to publish a notice of taxonomic orange-red, scarlet, or, rarely, pure Smithsonian Institution to prepare a change to formalize this change after yellow. Sesbania tomentosa is the only report on plants considered to be publication of this final rule. endemic Hawaiian species in the genus, endangered, threatened, or extinct in the Individuals of Mariscus pennatiformis differing from the naturalized Sesbania United States. This report, designated as on Laysan Island were closely sesban in flower color, petal and calyx House Document No. 94–51, was monitored for 10 years, but the only length, and the number of seeds per pod presented to Congress on January 9, flowering observed was of one (Geesink et al. 1999). 1975. In that document Pritchardia individual from November to December, The pollination biology of Sesbania remota and Sesbania tomentosa (as S. coinciding with record high rainfall tomentosa has been studied by Dr. hobdyi and S. tomentosa var. (Service 1999). Little else is known David Hopper as part of his dissertation tomentosa) were considered about this plant’s flowering cycles, research conducted at the University of endangered. On July 1, 1975, we pollination vectors, seed dispersal Hawaii. His findings suggest that published a notice in the Federal agents, longevity, specific although many insects visit Sesbania Register (40 FR 27823) of our environmental requirements, or limiting flowers, the majority of successful acceptance of the Smithsonian report as factors (Service 1999). pollination is accomplished by native Historically, Mariscus pennatiformis bees of the genus Hylaeus and that a petition within the context of section was found on Kauai, Oahu, Maui, colonies at Kaena Point on Oahu are 4(c)(2) (now section 4(b)(3)) of the Act, Hawaii, and Laysan Island. Currently, probably pollinator-limited. Flowering and we gave notice of our intention to M. pennatiformis ssp. pennatiformis is at Kaena Point is highest during the review the status of the plant taxa found on Maui while M. pennatiformis winter-spring rains and gradually named therein. As a result of that ssp. bryanii is known only from Laysan declines throughout the rest of the year. review, on June 16, 1976, we published Island. This subspecies, M. Other aspects of this plant’s life history a proposed rule in the Federal Register pennatiformis ssp. bryanii, was found are unknown (Service 1999). (41 FR 24523) to determine endangered until recently on the southeast end of Currently, Sesbania tomentosa occurs status pursuant to section 4 of the Act the central lagoon and the west and on six of the eight main Hawaiian for approximately 1,700 northeast sides of Laysan (HINHP Islands (Kauai, Oahu, Molokai, taxa, including Amaranthus brownii, Database 2000; Koyama 1990). Numbers Kahoolawe, Maui, and Hawaii) and on Cenchrus agrimonioides var. have fluctuated from as many as 200 to Nihoa and Necker. Although once found laysanensis, and Sesbania tomentosa. only 1 individual over the past 10 years. on Niihau and Lanai, it is no longer The list of 1,700 plant taxa was Currently, a single occurrence of about extant on those islands (Geographic assembled on the basis of comments and 200 individuals of M. pennatiformis ssp. Decision Systems International (GDSI) data received by the Smithsonian bryanii remains on the southeast end of 2000; HINHP Database 2000; Service Institution and the Service in response the lagoon (Service 1999). 1999; 54 FR 56333). On Nihoa, this to House Document No. 94–51 and the Mariscus pennatiformis ssp. bryanii is species has been described as relatively July 1, 1975, Federal Register found on coastal sandy substrate at an common in some areas, with one publication (40 FR 27823). elevation of 5 m (16 ft). Associated population consisting of several General comments received in native species include Cyperus thousand plants. On Necker Island, S. response to the 1976 proposal were laevigatus (makaloa), Eragrostis tomentosa is known from the tops of all summarized in an April 26, 1978, variabilis, and Ipomoea sp. (HINHP hills of the main island. A few Federal Register publication (43 FR Database 2000; Koyama 1990). individuals are found on the Northwest The threats to Mariscus pennatiformis 17909). In 1978, amendments to the Act Cape as well (Service 1999). required that all proposals over 2 years ssp. bryanii on the island of Laysan Sesbania tomentosa is found in old be withdrawn. A 1-year grace period include seed predation by the shallow soil on sandy beaches and was given to proposals already over 2 endangered Laysan finch (Telespiza dunes in Chenopodium oahuense years old. On December 10, 1979, we cantans) and burrowing activities of coastal dry shrubland or mixed coastal published a notice in the Federal nesting seabirds. The native plant dry cliffs at elevations up to 84 m (276 Register (44 FR 70796) withdrawing the Ipomoea pes-caprae (beach morning ft) (HINHP Database 2000). Associated glory) is another possible threat since it plant species include Pritchardia portion of the June 16, 1976, proposal periodically overgrows Mariscus remota, Scaevola sericea, Sida fallax, that had not been made final, along with individuals (Service 1999). In addition, and Solanum nelsonii (Geesink et al. four other proposals that had expired. native Sicyos spp. (anunu) vines, 1999; HINHP Database 2000; Service The Service published updated Notices Eragrostis variabilis, and Boerhavia 1999). of Review for plants on December 15, repens (alena) appear to impede natural The primary threats to Sesbania 1980 (45 FR 82479), September 27, 1985 dispersal of M. pennatiformis ssp. tomentosa on Nihoa and Necker include (50 FR 39525), February 21, 1990 (55 FR bryanii into other suitable locations competition with various nonnative 6183), and September 30, 1993 (58 FR (Schultz 2000). plant species, lack of adequate 51144). We listed Amaranthus brownii, pollination, potential introduction of Cenchrus agrimonioides, Mariscus Sesbania tomentosa (ohai) rats and mice, predation by nonnative pennatiformis, Pritchardia remota, Sesbania tomentosa, a member of the insects, and fire (Service 1999). Schiedea verticillata, and Sesbania legume family (Fabaceae), is typically a tomentosa as endangered between 1994 sprawling short-lived perennial shrub to Previous Federal Action and 1996. A summary of the listing small tree. Each compound leaf consists Federal action on these plants began actions can be found in Table 2, and a of 18 to 38 oblong to elliptic leaflets that as a result of section 12 of the summary of the critical habitat actions are usually sparsely to densely covered Endangered Species Act of 1973, as can be found in Table 3.

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TABLE 2.—SUMMARY OF LISTING ACTIONS FOR SIX PLANT SPECIES FROM THE NWHI

Proposed rule Final rule Species Federal status Date Federal Register Date Federal Register

Amaranthus brownii ...... Endangered ...... 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Cenchrus agrimonioides ...... Endangered ...... 10/2/95 60 FR 51417 10/10/96 61 FR 53108 Mariscus pennatiformis ...... Endangered ...... 09/14/93 58 FR 48012 11/10/94 59 FR 56333 Pritchardia remota ...... Endangered ...... 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Schiedea verticillata ...... Endangered ...... 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Sesbania tomentosa ...... Endangered ...... 09/14/93 58 FR 48012 11/10/94 59 FR 56333

TABLE 3.—SUMMARY OF CRITICAL HABITAT ACTIONS, TO DATE, FOR SIX PLANT SPECIES FROM THE NORTHWESTERN HAWAIIAN ISLANDS

Proposed critical habitat des- Final critical habitat Species ignations or nondesignations Date(s) Federal Register Date(s) Federal Register

Amaranthus brownii ...... 05/14/02 67 FR 34522 (1) This final rule. Cenchrus agrimonioides ...... 12/18/00 65 FR 79192 05/14/03 68 FR 25934. 04/03/02 67 FR 15856 03/04/02 67 FR 9806 Mariscus pennatiformis ...... 12/18/00 65 FR 79192 02/27/03 68 FR 9116. 01/28/02 67 FR 3940 05/15/03 68 FR 25934. 04/03/02 67 FR 15856 05/14/02 67 FR 34522 05/28/02 67 FR 15856 05/28/02 67 FR 36968 Pritchardia remota ...... 05/14/02 67 FR 34522 (1) This final rule. Schiedea verticillata ...... 05/14/02 67 FR 34522 (1) This final rule. Sesbania tomentosa ...... 11/07/00 65 FR 66808 02/27/03 68 FR 9116. 12/18/00 65 FR 79192 03/18/03 68 FR 12982. 12/29/00 65 FR 83158 05/14/03 68 FR 25934. 01/28/02 67 FR 3940 (1) This final rule. 04/03/02 67 FR 15856 03/04/02 67 FR 9806 04/05/02 67 FR 16492 05/14/02 67 FR 34522 05/28/02 67 FR 37108 05/28/02 67 FR 36968 1 See DATES section of this rule.

At the time each of the six plants were also held that we failed to balance any (DOFAW), and Federal agencies (U.S. listed, we determined that designation risks of designating critical habitat Department of Defense—Army, Navy, of critical habitat was not prudent against any benefits (id. at 1283–85). Air Force). Only a few responses offered because it would not benefit the plant On August 10, 1998, the court ordered information on the status of individual or would increase the degree of threat to us to publish proposed critical habitat plant species or on current management the species. The not prudent designations or nondesignations for at actions for one or more of the 245 determinations for these species, along least 100 species by November 30, 2000, Hawaiian plants. While some of the with others, were challenged in and to publish proposed designations or respondents expressed support for the Conservation Council for Hawaii v. nondesignations for the remaining 145 designation of critical habitat for 245 Babbitt, 2 F. Supp. 2d 1280 (D. Haw. species by April 30, 2002 (Conservation Hawaiian plants, more than 80 percent 1998). On March 9, 1998, the United Council for Hawaii v. Babbitt, 24 F. opposed the designation of critical States District Court for the District of Supp. 2d 1074 (D. Haw., 1998)). habitat for these plants. In general, these Hawaii directed us to review the On November 30, 1998, we published respondents opposed designation prudency determinations for 245 listed a notice in the Federal Register because they believed it would cause plant species in Hawaii, including requesting public comments on our economic hardship, chill cooperative Amaranthus brownii, Cenchrus reevaluation of whether designation of projects, polarize relationships with agrimonioides, Mariscus pennatiformis, critical habitat is prudent for the 245 hunters, or potentially increase trespass Pritchardia remota, Schiedea Hawaiian plants at issue (63 FR 65805). or vandalism on private lands. In verticillata, and Sesbania tomentosa. The comment period closed on March 1, addition, commenters also cited a lack Among other things, the court held that 1999, and was reopened from March 24, of information on the biological and in most cases we did not sufficiently 1999, to May 24, 1999 (64 FR 14209). ecological needs of these plants, which, demonstrate that the species are We received more than 100 responses they suggested, may lead to designation threatened by human activity or that from individuals, nonprofit based on guesswork. The respondents such threats would increase with the organizations, county governments, the who supported the designation of designation of critical habitat. The court State’s Division of Forestry and Wildlife critical habitat cited that designation

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would provide a uniform protection by April 30, 2002, as required by the The majority of commenters supported plan for the Hawaiian Islands, promote 1998 court order. the designation of critical habitat for the funding for management of these plants, In the May 14, 2002, proposal, critical NWHI, and no commenters were educate the public and State habitat was proposed for 493 ha (1,219 expressly opposed to the designation. government, and protect partnerships ac) on Nihoa, Necker, and Laysan with landowners and build trust. Islands. In that proposed rule, we Peer Review On November 7, 2000, we published indicated that critical habitat was In accordance with our policy the first of the court-ordered proposed prudent, and we proposed critical published on July 1, 1994 (59 FR critical habitat designations or habitat, for Amaranthus brownii, 34270), we solicited independent nondesignations for Kauai and Niihau Pritchardia remota, and Schiedea opinions from 13 knowledgeable plants (65 FR 66808). The proposed verticillata. We also proposed critical individuals with expertise in one or critical habitat designations or habitat for Mariscus pennatiformis and several fields, including familiarity with nondesignations for Maui and Sesbania tomentosa. Critical habitat was the species, the geographic region that Kahoolawe plants were published on not proposed for Cenchrus the species occurs in, and knowledge of December 18, 2000 (65 FR 79192), for agrimonioides in the NWHI because the the principles of island conservation Lanai plants on December 27, 2000 (65 only variety of that species that occurs biology. We received comments from FR 82086), and for Molokai plants on there, C. a var. laysanensis, has not been four of these individuals who generally December 29, 2000 (65 FR 83158). All seen in the wild for over 20 years and supported our methods and conclusion of these proposed rules had been sent to no genetic material of this variety is and who provided additional the Federal Register by, or on, known to exist. Publication of the information. Comments received from November 30, 2000, as required by the proposed rule opened a 60-day public court’s order. In those proposals, we comment period. peer reviewers are summarized in the proposed that critical habitat was On July 11, 2002, we submitted joint following section and were considered prudent for three of the NWHI species stipulations with Earthjustice to the U.S. in the development of the final rule. (Cenchrus agrimonioides, Mariscus District Court requesting extension of All comments received were reviewed pennatiformis, and Sesbania tomentosa) the court orders for the final rules to for substantive issues, notation of errors, that are reported from Kauai and/or designate critical habitat for plants from and new information regarding critical Niihau, as well as from Maui and Lanai (December 30, 2002), Kauai and habitat for Amaranthus brownii, Molokai. Critical habitat was proposed Niihau (January 31, 2003), Molokai Cenchrus agrimonioides, Mariscus for Cenchrus agrimonioides and (February 28, 2003), Maui and pennatiformis, Pritchardia remota, Mariscus pennatiformis on Maui, and Kahoolawe (April 18, 2003), the Schiedea verticillata, and Sesbania for Sesbania tomentosa on Kauai, Maui, Northwestern Hawaiian Islands (April tomentosa. Similar comments received and Molokai. 30, 2003), Oahu (April 30, 2003), and were grouped into four general issues On October 3, 2001, we submitted a the island of Hawaii (May 30, 2003), and are addressed in the following joint stipulation with Earthjustice to the citing the need to conduct additional summary. U.S. District Court requesting extension review of the proposals, address of the court order for the final rules to comments received during the public Issue 1: Biological Justification and designate critical habitat for plants from comment periods, and to conduct a Methodology Kauai and Niihau (July 30, 2002), Maui series of public workshops on the (1) Comment: One peer reviewer and Kahoolawe (August 23, 2002), Lanai proposals. The joint stipulations were questioned the Service for considering (September 16, 2002), and Molokai approved and ordered by the court on all three critical habitat units (Nihoa, (October 16, 2002), citing the need to July 12, 2002. Necker, and Laysan Islands) to be On September 12, 2002, we published revise the proposals to incorporate or critical habitat for Amaranthus brownii, a notice announcing the availability of address new information and comments Mariscus pennatiformis, Pritchardia received during the comment periods. the draft economic analysis on the remota, Schiedea verticillata, and The joint stipulation was approved and proposed critical habitat for NWHI (67 Sesbania tomentosa as there is no ordered by the court on October 5, 2001. FR 57784). We accepted comments on record that any of these species On January 28, 2002, we published the draft analysis until the comment occurred on all three islands and as at revised proposed critical habitat period closed on October 15, 2002. designations or nondesignations for least one species (i.e., Mariscus plant species from Kauai and Niihau (67 Summary of Comments and pennatiformis ssp. bryanii) is a single- FR 3940), for plant species from Lanai Recommendations island endemic. on March 4, 2002 (67 FR 9806), for plant In the proposed rule published on Our Response: All three islands are species from Maui and Kahoolawe on May 14, 2002 (67 FR 34522), we not considered to be critical habitat for April 3, 2002 (67 FR 15856), and for requested that all interested parties all five of the species. On Nihoa Island, plant species from Molokai on April 5, submit written comments on the critical habitat is designated for 2002 (67 FR 16492); these proposals proposed designation or nondesignation Amaranthus brownii, Pritchardia included critical habitat on one or more of critical habitat for six plant species remota, Schiedea verticillata, and islands for three of the NWHI species: from the NWHI. We also contacted all Sesbania tomentosa. On Necker Island, Cenchrus agrimonioides, Mariscus appropriate Federal, State, and local critical habitat is designated for pennatiformis, and Sesbania tomentosa. agencies, scientific organizations, and Sesbania tomentosa, and on Laysan On May 14, 2002, we published the other interested parties and invited Island critical habitat is designated for proposed critical habitat designations or them to comment. No request for a Mariscus pennatiformis and Pritchardia nondesignations for plant species from public hearing was received. We remota (as a recovery population). The the NWHI (67 FR 34522), for Hawaii received individually written letters critical habitat units on each island are Island plants on May 28, 2002 (67 FR from 13 parties, including 4 of the 13 designated for species within extant or 36968), and for Oahu plants on May 28, designated peer reviewers, 2 State historic range or within areas identified 2002 (67 FR 37108). These proposed agencies, 2 branches of the military, and in the recovery plans for conservation of rules were sent to the Federal Register 5 private organizations or individuals. the species.

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Issue 2: Effects of Critical Habitat that: (1) Contain the primary constituent are deleterious to habitat for listed Designation elements that are essential to the species or biota of the islands or that (2) Comment: One peer reviewer conservation of one or more of the could compromise human safety. noted that while the designation of species; (2) are within the historical Typically, access to Federal lands that critical habitat is unlikely to have a range or are identified in the recovery are designated as critical habitat is not major impact on the future of NWHI plans for conservation of one or more of restricted unless access is determined to plant species, it would increase the species; and (3) are sufficient to result in the destruction or adverse awareness of the unique biological meet our overall recovery goals for these modification of the critical habitat. attributes of these islands and species. For Mariscus pennatiformis, the However, Nihoa, Necker, and Laysan ultimately increase the likelihood that only subspecies known from the NWHI Islands, and their surrounding reefs, are is M. p. ssp. bryanii. Critical habitat also part of the HINWR, which we manage these species will persist. Another is designated for this taxon on Laysan in accordance with the National reviewer supported the designation of Island. Critical habitat also was Wildlife Refuge System Administration critical habitat stating that such designated for M. p. ssp. pennatiformis Act of 1966. There is no general public designation would provide an added, on Kauai and Maui (68 FR 9116, 68 FR or recreational use allowed at HINWR. and much needed, layer of protection 25934, May 14, 2003) and is proposed Access is strictly regulated through a for plant habitat insofar as: (1) The on Oahu (67 FR 37108). Critical habitat permit system because of the sensitivity Departments of the Interior and was designated on Nihoa and Necker for of the organisms on these islands to Commerce disagree on the seaward Sesbania tomentosa as well as Kauai, human disturbance and the high risk of boundaries of the HINWR; (2) the State Molokai, and Maui (68 FR 9116, 68 FR importation of nonnative plant and of Hawaii has overlapping jurisdiction 12982, 68 FR 25934, May 14, 2003) and invertebrate species. Other than the with the HINWR; (3) a public process is is proposed on Oahu and the island of refuge staff, only individuals conducting currently in motion to establish a Hawaii (67 FR 37108, 67 FR 36968). scientific research or undertaking National Marine Sanctuary in the We are not designating critical habitat natural history film recording have been NWHI, which could create an increased for Cenchrus agrimonioides at this time granted official permission to visit the commercial interest in eco-tourism in for the following reasons: C. a. var. HINWR, and these persons are required the area; and (4) the native Hawaiian laysanensis, the only variety of this to apply for a Special Use Permit and community has expressed a desire for species known from the NWHI, is abide by the terms and conditions set access to Nihoa and Necker Islands for historically known from Laysan, forth in this permit in order to ensure ceremonial purposes. A final reviewer Midway, and Kure Atoll. This plant has that the biological integrity, diversity, stated that, although the protection not been reported on Laysan and and environmental health of the refuge afforded by the designation of critical Midway for over 70 and 100 years, are maintained for the benefit of present habitat is unclear, such designation has respectively. A permanent year-round and future generations of Americans (E. advocacy value because the courts are camp on Laysan, staffed by paid Flint, pers. comm., 2002). Examples of more likely to find violations of the Act employees and volunteers, conducts preventative measures put in place by for listed species within such habitat. periodic monitoring of both native and the Special Use Permit program include Our Response: Critical habitat is one nonnative plant species, and C. a. var. quarantine protocols to prevent of a number of conservation tools laysanensis has not been seen during introduction of unwanted plants or established in the Act. these monitoring efforts. On Midway, C. insects, and a limitation on the number (3) Comment: One reviewer a. var. laysanensis was not seen during of people on the island(s) at any one commented that the Service should the most recent botanical surveys of time. In addition, through the Special consider unoccupied, historic habitat 1995 and 1999. Cenchrus agrimonioides Use Permit program, we are able to that falls outside of the HINWR (i.e., var. laysanensis has not been seen on protect the cultural artifacts present on Kure Atoll) for designation as critical Kure Atoll for over 20 years though the these islands. habitat as some plant species may need State DOFAW conducts annual seabird to be re-introduced into such habitat to surveys and a botanical survey was Issue 3: Species-Specific Biological avoid extinction. Another reviewer conducted there as recently as 2001. In Comments expressed concern that the Service was addition, no viable genetic material of (5) Comment: One peer reviewer restricting the designation of critical this variety is known to exist (see D. found it unlikely that the species of habitat to areas within the HINWR in Criteria Used to Identify Critical Pritchardia that once occurred on order to avoid public controversy. Habitat). The rediscovery of currently Laysan Island would have been Our Response: We recognize that the unknown individual plants on these Pritchardia remota. Species of this long-term conservation of the NWHI three islands and atolls is believed to be genus are single-island endemics, and species is dependent upon the extremely unlikely. no collections of Pritchardia remota are protection of existing populations and (4) Comment: The Office of Hawaiian known from Laysan Island. This the establishment and protection of Affairs, a State agency, commented that reviewer did feel that the introduction additional populations within the critical habitat must allow traditional of Pritchardia remota to Laysan Island historic range (i.e., unoccupied habitat) cultural gathering rights of Native was ecologically appropriate given that of each species or within areas Hawaiians as reflected in Article XII of there is suitable habitat for the species identified in the recovery plans for the State constitution and upheld by the and that the species of Pritchardia that conservation of the species. As such, we Hawaii Supreme Court in the Public once occurred on Laysan Island is no examined the current and historically Access Shoreline Hawaii and Ka Pa akai longer extant. occupied habitat, and areas identified in o Ka Aina decisions. Our Response: The now extinct the recovery plans for conservation of Our Response: We understand and species of Pritchardia that once the species. For Amaranthus brownii, support the cultural significance of occurred on Laysan Island was not Pritchardia remota, and Schiedea these islands to the Native Hawaiian clearly identified; however, the idea that verticillata, species known only from people, and it is our policy to permit P. remota did occur on Laysan was the islands within the NWHI, we were religious and ceremonial gatherings as suggested by Joseph Rock in 1921. We able to locate sites within the HINWR long as they do not result in effects that have revised the text in the final rule to

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reflect the uncertainty of the species Oahu, and Hawaii. As such, C. p. ssp. 1995 and 1999. Cenchrus agrimonioides that was once extant on Laysan. bryanii should be acknowledged as a var. laysanensis has not been seen on Pritchardia remota has been distinct genetic population, even if the Kure Atoll for over 20 years though the recommended as a replacement because subspecies are not separately listed State DOFAW conducts annual seabird it is believed to be closest to the species under the Act. surveys and a botanical survey was of Pritchardia that once was present on Our Response: We acknowledge that conducted there as recently as 2001. In the island. The recovery plan prepared the current accepted nomenclature for addition, no viable genetic material of for three plant species on Nihoa Island, this species has changed since the final this variety is known to exist. The including P. remota, proposes rule listing Mariscus pennatiformis as rediscovery of currently unknown establishing a population on Laysan endangered was published in 1994 (59 individual plants on these three islands Island as part of the recovery process for FR 94559). At that time, however, we and atolls is believed to be extremely this species. HINWR staff are working followed the accepted taxonomic unlikely (see D. Criteria Used to Identify with staff from our Ecological Services, treatment in The Manual of Flowering Critical Habitat). Pacific Islands Office, in this effort. At Plants of Hawaii (Wagner et al. 1990). In Issue 4: Nonnative Species one time, there were 11 palms the revised edition of the manual outplanted on Laysan from seeds (Wagner et al. 1999), the species has (9) Comment: One peer reviewer brought directly from Nihoa Island. been assigned to the genus Cyperus, and commented that the most important These survived until they were flooded its subspecies are now varieties (Strong factor in maintaining biota on these by high lake levels and died. HINWR & Wagner 1997; Wagner et al. 1999). We remote islands is to have a vigorous and staff now have approximately 400 plan to publish a notice revising the comprehensive quarantine system and a seedlings (from seed gathered at Nihoa name for this species; however, this method to eliminate and investigate Island) in a shade house on Laysan could not be accomplished prior to the unauthorized landings. Additionally, Island. These will be outplanted to completion of this final rule. The the reviewer stressed the crucial nature suitable habitat on Laysan (E. Flint, discussion of Mariscus pennatiformis in of both an active and proactive pers. comm., 2002). the section on Multi-Island Species eradication and management scheme for (6) Comment: One peer reviewer under ‘‘Discussion of Plant Taxa’’ states nonnative species. commented that it is essential that that M. p. ssp. bryanii occurs only on Our Response: We have in place surveys for Amaranthus brownii be Laysan Island. Listing as endangered at quarantine procedures for the HINWR, conducted on Nihoa Island in the winter the species level provides protection for which include very strict measures to to maximize its detection. This reviewer all varieties and subspecies of the prevent the introduction of invasive feels that it is inappropriate to species. Critical habitat is designated on invertebrate and vertebrate species. On recommend protective measures for a Laysan Island for M. p. ssp. bryanii. islands where invasive nonnative plant whose population has not been Critical habitat was designated for M. p. species have already been introduced, assessed in 20 years. ssp. pennatiformis on Kauai and Maui we are implementing measures targeted Our Response: Amaranthus brownii (68 FR 9116, 68 FR 25934, May 14, at their eradication. In those areas where was last seen on Nihoa Island in 1983 2003) and is proposed on Oahu (67 FR such eradication efforts have not yet as two colonies that totaled 35 plants. 37108). been initiated, we are gathering We have surveyed Nihoa for this species (8) Comment: One reviewer expressed information on methods by which we for over 20 years. While we agree that concern regarding the Service’s decision can best control and eliminate invasive the winter months are the optimal time not to designate critical habitat for taxa. Text was also provided in the to survey for this winter annual species, Cenchrus agrimonioides var. ‘‘Discussion of Plant Taxa’’ to make it as it is more easily detected during this laysanensis because the taxon had not clear that the presence of rats and mice period, access to the island during this been seen in the wild for over 20 years on Nihoa, Necker, and Laysan was a season is extremely limited. Landings and no viable genetic material is known potential threat as these nonnative during the winter months can be to exist. The reviewer asserts that there species are not currently present. difficult and dangerous due to sea have been no comprehensive botanical conditions that can change without surveys of all of the islands where the Summary of Changes From the warning, stranding visitors on an island taxon was known to exist, citing that the Proposed Rule with a limited source of fresh water and Service had made a similar decision for Based on a review of public no regular food supply. Because another plant species on Kauai, only to comments received on the critical Amaranthus brownii was detected on have it rediscovered. habitat proposal, we have included the Nihoa Island in 1983 and habitat Our Response: Critical habitat is not following several changes in this final conditions are the same, we consider designated for Cenchrus agrimonioides rule: the species to be extant (as a seedbank) var. laysanensis, the only variety of this (1) Based upon more refined GIS and have found it appropriate to species known from the NWHI, for the analysis, we corrected the total land designate critical habitat for this species following reasons: C. a. var. laysanensis area, 498 ha (1,232 ac) proposed as on Nihoa Island. is historically known from Laysan, critical habitat for Pritchardia remota (7) Comment: One peer reviewer Midway, and Kure Atoll. This plant has and Mariscus pennatiformis on Laysan requested that the Service use Cyperus not been reported on Laysan and Island to 493 ha (1,219 ac) designated as pennatiformis, the currently accepted Midway for over 70 and 100 years, critical habitat for Pritchardia remota name for Mariscus pennatiformis. respectively. A permanent year-round and Mariscus pennatiformis on Laysan Concern was expressed, as the current camp on Laysan, staffed by paid Island. nomenclature is what will be used in employees and volunteers, conducts (2) At the time we listed Mariscus scientific and grey literature, that there periodic monitoring of both native and pennatiformis (59 FR 94559), we could be confusion otherwise. The nonnative plant species, and C. a. var. followed the taxonomic treatment in the reviewer also noted that Cyperus laysanensis has not been seen during widely used and accepted Manual of the pennatiformis ssp. bryanii occurs only these monitoring efforts. On Midway, C. Flowering Plants of Hawaii (Wagner et on Laysan Island and that C. p. ssp. a. var. laysanensis was not seen during al., 1990). Since that time, the species pennatiformis occurs on Kauai, Maui, the most recent botanical surveys of has been assigned to the genus Cyperus

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(Wagner et al., 1999). We plan to species’ survival and its recovery has outside the geographic area occupied by publish a notice of name change for been a source of confusion to some in the species. Mariscus pennatiformis subsequent to the past. We believe that a species’ Our Policy on Information Standards publishing this final rule. ability to recover depends on its ability Under the Endangered Species Act, (3) We revised the text to reflect that to survive into the future when its published in the Federal Register on the species of Pritchardia historically recovery can be achieved; thus, the July 1, 1994 (59 FR 34271), provides extant on Laysan Island is uncertain but concepts of long-term survival and criteria, establishes procedures, and that it had been suggested that the recovery are intricately linked. provides guidance to ensure that our species may have been P. remota However, in the March 15, 2001, decisions represent the best scientific (Wagner et al., 1999). We have also decision of the United States Court of and commercial data available. It revised the primary constituent Appeals for the Fifth Circuit (Sierra requires our biologists, to the extent elements for P. remota on Laysan and Club v. U.S. Fish and Wildlife Service et consistent with the Act and with the use Nihoa. al., 245 F.3d 434) regarding a not of the best scientific and commercial (4) We revised the list of excluded, prudent finding, the court found our data available, to use primary and manmade features in the ‘‘Criteria Used definition of destruction or adverse original sources of information as the to Identify Critical Habitat’’ and section modification as currently contained in basis for recommendations to designate 17.99 ‘‘Critical Habitat-Plants’’ to delete 50 CFR 402.02 to be invalid. In response critical habitat. When determining from the final rule reference to roads, to this decision, we are reviewing the which areas are critical habitat, a aqueducts, radar, missile launch sites, regulatory definition of adverse primary source of information should be airports, paved areas, or rural modification in relation to the the listing package for the species. landscaping because these features conservation of the species. Additional information may be obtained either do not exist on these islands or In order to be included in a critical from recovery plans, articles in peer- do not contain primary constituent habitat designation, habitat in areas reviewed journals, conservation plans elements for these plants on these known to be occupied at the time of developed by States and counties, islands. listing must contain physical or scientific status surveys and studies, Critical Habitat biological features essential to the and biological assessments or other conservation of the species and which unpublished materials. Critical habitat is defined in section 3 It is important to clearly understand may require special management of the Act as—(i) the specific areas that critical habitat designations do not considerations or protection. Outside within the geographical area occupied signal that habitat outside the the areas known to have been occupied by a species, at the time it is listed in designation is unimportant or may not at the time of listing, an area must be accordance with the Act, on which are be required for recovery. Areas outside essential to the conservation of the found those physical or biological the critical habitat designation will species in order to qualify for features (I) essential to the conservation continue to be subject to conservation of the species and (II) that may require designation. Thus, critical habitat actions that may be implemented under special management considerations or designations identify, to the extent section 7(a)(1) and to the regulatory protection; and (ii) specific areas known, using the best scientific and protections afforded by the Act’s 7(a)(2) outside the geographical area occupied commercial data available, habitat areas jeopardy standard and section 9 by a species at the time it is listed, upon that provide essential life-cycle needs of prohibitions, as determined on the basis a determination that such areas are the species (i.e., areas on which are of the best available information at the essential for the conservation of the found the primary constituent elements, time of the action. We specifically species. ‘‘Conservation,’’ as defined by as defined at 50 CFR 424.12(b)). anticipate that federally funded or the Act, means the use of all methods Section 4 requires that we designate assisted projects affecting listed species and procedures that are necessary to critical habitat for a species, to the outside their designated critical habitat bring an endangered or threatened extent such habitat is determinable, at areas may still result in jeopardy species to the point at which listing the time of listing. When we designate findings in some cases. Similarly, under the Act is no longer necessary. critical habitat at the time of listing or critical habitat designations made on the Critical habitat receives protection under short court-ordered deadlines, we basis of the best available information at under section 7 of the Act through the may not have sufficient information to the time of designation will not control prohibition against destruction or identify all the areas essential for the the direction and substance of future adverse modification of critical habitat conservation of the species. recovery plans, habitat conservation with regard to actions carried out, Nevertheless, we are required to plans, or other species conservation funded, or authorized by a Federal designate those areas we believe to be planning efforts if new information agency. Section 7 also requires critical habitat, using the best available to these planning efforts calls conferences on Federal actions that are information available to us. for a different outcome. Furthermore, likely to result in the destruction or Our regulations state that ‘‘The we recognize that designation of critical adverse modification of proposed Secretary shall designate as critical habitat may not include all of the critical habitat. In our regulations at 50 habitat areas outside the geographical habitat areas that may eventually be CFR 402.02, we define destruction or area presently occupied by a species determined to be necessary for the adverse modification as ‘‘direct or only when a designation limited to its recovery of the species. indirect alteration that appreciably present range would be inadequate to diminishes the value of critical habitat ensure the conservation of the species’ A. Prudency for both the survival and recovery of a (50 CFR 424.12(e)). Accordingly, when The designation of critical habitat is listed species. Such alterations include, the best available scientific and not prudent when the species is but are not limited to, alterations commercial data do not indicate that the threatened by taking or other human adversely modifying any of those conservation needs of the species activity, and identification of critical physical or biological features that were require designation of critical habitat habitat can be expected to increase the the basis for determining the habitat to outside of occupied areas, we will not degree of such threat to the species (50 be critical.’’ The relationship between a designate critical habitat in areas CFR 424.12(a)(1)).

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To determine whether critical habitat are contained in the final rules Plants (Service 1999). The HPPRCC would be prudent for Amaranthus published on January 9, 2003, and expects that there will be subsequent brownii, Pritchardia remota, and February 27, 2003, respectively (68 FR efforts to further refine the locations of Schiedea verticillata, we analyzed the 1220 and 68 FR 9116). The reasons why important habitat areas and that new potential threats and benefits for each we believe designation of critical habitat survey information or research may also species in accordance with the court’s is prudent for Cenchrus agrimonioides lead to additional refinement of order. Due to low numbers of are contained in the final rule published identifying and mapping of habitat individuals and populations and their on January 9, 2003 (68 FR 1220). important for the recovery of these inherent immobility, the three plants Although critical habitat for Cenchrus species. may be vulnerable to unrestricted agrimonioides is not being designated The HPPRCC identified essential collection, vandalism, or disturbance, on the NWHI (as it has not been seen habitat areas for all listed, proposed, though this is unlikely given their there for over 20 years and no viable and candidate plants and evaluated inaccessibility. Recently, we received genetic material exists), we are species of concern to determine if information on the commercial trade in designating critical habitat for this essential habitat areas would provide for palms conducted through the Internet species on Maui (68 FR 25934, May 14, their habitat needs. However, the (Grant Canterbury, Service, in litt., 2003). HPPRCC’s mapping of habitat is distinct 2000). Several nurseries advertise and from the regulatory designation of B. Methods sell seedlings and young plants, critical habitat as defined by the Act. including 13 species of Hawaiian As required by the Act and More data have been collected since the Pritchardia. Seven of these species are regulations (section 4(b)(2) and 50 CFR recommendations made by the HPPRCC federally protected, including 424.12), we used the best scientific in 1998. Much of the area that was Pritchardia remota. While we have information available to determine areas identified by the HPPRCC as determined that designation of critical that contain the physical and biological inadequately surveyed has now been habitat is not prudent for other species features that are essential for the surveyed to some degree. New location of Pritchardia because the benefits of conservation of Amaranthus brownii, data for many species have been designating critical habitat do not Mariscus pennatiformis, Pritchardia gathered. Also, the HPPRCC identified outweigh the potential increased threats remota, Schiedea verticillata, and areas as essential based on species from vandalism or collection (65 FR Sesbania tomentosa. Using the best clusters (areas that included listed 66808, 65 FR 83158), we do not believe information available, we could not species, as well as candidate species this species is threatened by these same identify areas in the NWHI that are and species of concern) while we have activities because of its inaccessibility. essential for Cenchrus agrimonioides for only delineated areas that are essential Nihoa is more than 273 km (170 mi) the reasons described in section D. for the conservation of the specific from Lihue, Kauai, and more than 1,600 Criteria Used to Identify Critical listed species at issue. As a result, the km (1,000 mi) from Midway. It is a part Habitat. This information included the critical habitat designations in this rule of the HINWR, and a permit is required known locations and site-specific include not only some habitat that was for access to the island. Access to the species information from the HINHP identified as essential in the 1998 island is further limited due to difficult database and our own rare plant recommendations but also habitat that and dangerous landing conditions. database; species information from the was not identified as essential in those Passengers must be dropped off and the Center for Plant Conservation’s (CPC) recommendations. rare plant monitoring database housed boat sent back out to sea, as there are no C. Primary Constituent Elements mooring docks or beaches. The boat at the University of Hawaii’s Lyon must return later to pick up the Arboretum; islandwide Geographic In accordance with section 3(5)(A)(i) passengers, when conditions allow. Sea Information System (GIS) coverages of the Act and regulations at 50 CFR conditions are apt to change without (e.g., vegetation, soils, annual rainfall, 424.12, in determining which areas to warning, stranding visitors on this elevation contours, landownership); the propose as critical habitat, we are inhospitable island that has no fresh final listing rules for these species; the required to base critical habitat water and no regular food supply (C. May 14, 2002, proposal of critical determinations on the best scientific Rehkemper, pers. comm., 2001). habitat; information received during the and commercial data available and to We examined the evidence available public comment period; recent consider those physical and biological for Amaranthus brownii and Schiedea biological surveys and reports; recovery features (primary constituent elements) verticillata and have not, at this time, plans for these species; discussions with that are essential to the conservation of found specific evidence of taking, botanical experts; and recommendations the species and that may require special vandalism, collection, or trade of these from the Hawaii and Pacific Plant management considerations or taxa or of similar species. Therefore, Recovery Coordinating Committee protection. These features include, but consistent with applicable regulations (HPPRCC) (see also the discussion are not limited to: Space for individual (50 CFR 424.12(a)(1)(i)) and the court’s below) (CPC in litt. 1999; GDSI 2000; and population growth, and for normal discussion of these regulations, we do HINHP Database 2000; HPPRCC 1998; behavior; food, water, air, light, not believe that these three species are Service 1998d, 1999; 59 FR 56333; 61 minerals, or other nutritional or currently threatened by taking or other FR 43178; 61 FR 53108; 65 FR 83158; physiological requirements; cover or human activity, which would be 67 FR 16492; 67 FR 34522). shelter; sites for breeding, reproduction, exacerbated by the designation of In 1994, the HPPRCC initiated an or rearing of offspring, germination, or critical habitat. effort to identify and map habitat it seed dispersal; and habitats that are Therefore, we believe that designation believed to be important for the protected from disturbance or are of critical habitat is prudent for recovery of 282 endangered and representative of the historic Amaranthus brownii, Pritchardia threatened Hawaiian plant species. The geographical and ecological remota, and Schiedea verticillata. The HPPRCC identified these areas on most distributions of a species. reasons why we believe designation of of the islands in the Hawaiian chain, Much of what is known about the critical habitat is prudent for Sesbania and in 1999, we published them in our specific physical and biological tomentosa and Mariscus pennatiformis Recovery Plan for the Multi-Island requirements of Amaranthus brownii,

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Mariscus pennatiformis, Pritchardia existing population sites and potentially be considered when they have reached remota, Schiedea verticillata, and suitable unoccupied habitat within their a minimum of 100 mature individuals Sesbania tomentosa is described in the historic range. per colony for Pritchardia remota, a ‘‘Background’’ section of this final rule. The lack of detailed scientific data on minimum of 300 mature individuals per All areas designated as critical habitat the life history of these plant species colony for Schiedea verticillata, and a are within the historical range or have makes it impossible for us to develop a minimum of 500 mature individuals for been identified in the recovery plans for robust quantitative model (e.g., a Amaranthus brownii. Each colony these species as sites for conservation of population viability analysis) to identify should be stable or increasing for a one or more of the five species at issue, the optimal number, size, and location minimum of five consecutive years. If and contain one or more of the physical of critical habitat units needed to the establishment of additional colonies or biological features (primary achieve recovery (Beissinger and on an island other than Nihoa proves constituent elements) essential for the Westphal 1998; Burgman et al. 2001; infeasible for these taxa, they may be conservation of the species. Ginzburg et al. 1990; Karieva and considered recovered if five colonies of As described in the discussions for Wennergren 1995; Menges 1990; each species reach the population each of the five species for which we are Murphy et al. 1990; Taylor 1995). At targets described above (Service 1998d). designating critical habitat, we are this time, and consistent with the listing The critical habitat designations reflect defining the primary constituent of these species and their recovery these exceptions for these species. elements on the basis of the habitat plans, the best available information By adopting these specific recovery features of the areas from which the leads us to conclude that the current objectives, the adverse effects of genetic plant species are reported, as described size and distribution of the extant inbreeding and random environmental by the type of plant community (e.g., populations are not sufficient to expect events and catastrophes, such as Pritchardia remota mesic coastal forest), a reasonable probability of long-term landslides, hurricanes, or tsunamis, associated native plant species, locale survival and recovery of these plant which could destroy a large percentage information (e.g., steep rocky cliffs, species. We used the same information, of a species at any one time, may be talus slopes, gulches), and elevation. along with the opinions of scientists reduced (Menges 1990; Podolsky 2001). The habitat features provide the familiar with these species, to identify These recovery objectives were initially ecological components required by the potentially suitable habitat within the developed by the HPPRCC and are plant. The type of plant community and known historic range of each species. found in all of the recovery plans for associated native plant species indicate The recovery goals stated in the these species. While they are expected specific microclimate (localized recovery plans for these species include to be further refined as more climatic) conditions, retention and the following: Establishment of 8 to 10 information on the population biology availability of water in the soil, soil populations with a minimum of 300 of each species becomes available, the microorganism community, and mature, reproducing individuals per justification for these objectives is found nutrient cycling and availability. The population for Mariscus pennatiformis in the current conservation biology locale indicates information on soil and Sesbania tomentosa distributed literature addressing the conservation of type, elevation, rainfall regime, and among the islands of each species rare and endangered plants and animals temperature. Elevation indicates known historic range (Service 1999). For (Beissinger and Westphal 1998; information on daily and seasonal purposes of this discussion, a Burgman et al. 2001; Falk et al. 1996; temperature and sun intensity. population, as defined in the recovery Ginzburg et al. 1990; Hendrix and Kyhl Therefore, the descriptions of the plan for these species, is a unit in which 2000; Karieva and Wennergren 1995; physical elements of the locations of the individuals could be regularly cross- Luijten et al. 2000; Meffe and Carroll each of these species, including habitat pollinated and influenced by the same 1996; Menges 1990; Murphy et al. 1990; type, plant communities associated with small-scale events (such as landslides), Podolsky 2001; Quintana-Ascencio and the species, location, and elevation, as and which contains a minimum of 300 Menges 1996; Taylor 1995; Tear et al. described in the SUPPLEMENTARY mature, reproducing individuals for 1995; Wolf and Harrison 2001). The INFORMATION: Discussion of Plant Taxa these short-lived perennial species overall goal of recovery in the short- section above, constitute the primary (Service 1999). term is a successful population that can constituent elements for these species in Within the five species at issue, there carry on basic life history processes, the NWHI. are three exceptions to this general such as establishment, reproduction, recovery goal of 8 to 10 populations for D. Criteria Used To Identify Critical and dispersal, at a level where the species that are believed to be very probability of extinction is low. In the Habitat narrowly distributed. The recovery goals long-term, the species and its The Service considered a number of for Amaranthus brownii, Pritchardia populations should be at a reduced risk factors in the selection and proposal of remota, and Schiedea verticillata of extinction and be adaptable to specific boundaries for critical habitat. include one to three additional colonies environmental change through For each, the overall recovery strategy of each species on an island other than evolution and migration. outlined in the recovery plans includes: Nihoa (Service 1998d). In the case of Many aspects of species life history (1) Stabilization of existing wild Pritchardia remota, Laysan Island are considered to determine guidelines populations, (2) protection and should be considered, since a palm that for species’ interim stability and management of habitat, (3) enhancement may have been this species formerly recovery, including longevity, breeding of existing small populations and occurred there. For Amaranthus brownii system, growth form, fecundity, ramet (a reestablishment of new populations and Schiedea verticillata, Necker Island plant that is an independent member of within historic range or within areas should be considered since it is adjacent a clone) production, survivorship, seed identified in the recovery plans for to Nihoa, has similar habitat, and is longevity, environmental variation, and conservation of the species, and (4) protected as a U.S. Fish and Wildlife successional stage of the habitat. research on species biology and ecology Service refuge (Service 1998d). Should Hawaiian species are generally poorly (Service 1998d, 1999). Thus, the long- establishment of one to three colonies of studied, and the only one of these term recovery of these species is any or all of these taxa on an island characteristics that can be uniformly dependent upon the protection of other than Nihoa occur, delisting may determined for all Hawaiian plant

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species is longevity (i.e., long-lived critical habitat unit could result in an —The factors that led to the listing of perennial, short-lived perennial, and increase in the risk that the entire listed the species, as described in the final annual). In general, long-lived woody species may not survive and recover. rules for listing each of the species. perennial species would be expected to Similarly, actions that eliminate, or For all or nearly all endangered plants be viable at population levels of 50 to reduce the function of, a primary in the NWHI, the major threats 250 individuals per population, while constituent element could result in an include adverse impacts due to short-lived perennial species would be increase in the risk of adverse nonnative plants and invertebrates, viable at population levels of 1,500 to modification of critical habitat. seed or fruit predation by rats and 2,500 individuals or more per Due to the reduced size of suitable mice, and fire (USFWS 1998d, 1999; population. The HPPRCC revised these habitat areas for these Hawaiian plant 59 FR 56333; 61 FR 43178). population numbers for Hawaiian plant species, they are more susceptible to the —The recommendations from the species due to the restricted distribution variations and weather fluctuations HPPRCC in their 1998 report to the of suitable habitat and the likelihood of affecting quality and quantity of Service (‘‘Habitat Essential to the smaller genetic diversity of several available habitat, as well as direct Recovery of Hawaiian Plants’’). —The management actions needed for species that evolved from a single pressure from hundreds of species of introduction. For recovery of Hawaiian assurance of survival and ultimate nonnative plants and animals. plants, the HPPRCC recommended a recovery of Hawaii’s endangered Establishing and conserving the specific general recovery guideline of 100 plants. These actions are described in target number of populations or colonies mature, reproducing individuals per the Service’s recovery plans for these on one or more islands within the population for long-lived perennial five species (USFWS 1998d, 1999) historic range of the species will species, 300 mature, reproducing and in the 1998 HPPRCC report to the provide each species with a reasonable individuals per population for short- Service (HPPRCC 1998). These actions expectation of persistence and eventual lived perennial species, and 500 mature, include, but are not limited to, the recovery, even with the high potential reproducing individuals per population following: (1) Nonnative plant that one or more of these populations for annual species (HPPRCC 1994). control; (2) rodent control; (3) will be eliminated by normal or random invertebrate pest control; (4) fire The HPPRCC recommended the adverse events, such as the hurricanes conservation and establishment of 8 to control; (5) maintenance of genetic which occurred in 1982 and 1992 on the material of the endangered plants 10 populations of multi-island plant island of Kauai, fires, and nonnative species and establishment of additional species; (6) propagation, plant invasions (HPPRCC 1994; Luijten reintroduction, and/or augmentation colonies on other islands for Nihoa et al. 2000; Mangel and Tier 1994; Pimm plant species in order to address the of existing populations into areas et al. 1998; Stacey and Taper 1992). deemed essential for the recovery of numerous risks to the long-term survival Based upon this information, we and conservation of these species. these species; (7) ongoing conclude that designation of adequate management of the wild, outplanted Although absent the detailed suitable habitat to meet recovery goals information inherent to population (the planting of propagated plants for these five plant species is essential (material) into the wild)), and viability analysis models (Burgman et to give each of the species a reasonable al. 2001), this approach employs two augmented populations; (8) habitat likelihood of long-term survival and management and restoration in areas widely recognized and scientifically recovery. accepted goals for promoting viable deemed essential for the recovery of populations of listed species: (1) The All currently or historically occupied these species; and (9) monitoring of creation or maintenance of multiple sites or sites identified as conservation the wild, outplanted, and augmented populations so that a single or series of areas within the recovery plans for these populations. catastrophic events cannot destroy the species, containing one or more of the In general, taking all of the above entire listed species (Luijten et al. 2000; primary constituent elements recommended management actions into Menges 1990; Quintana-Ascencio and considered essential to the conservation account, the following management Menges 1996); and (2) increasing the of the five plant species were examined actions are ranked in order of size of each population in the respective to determine if special management importance. It should be noted, critical habitat units to a level where the considerations or protection are however, that, on a case-by-case basis, threats of genetic, demographic, and required. We reviewed all available some of these actions may rise to a normal environmental uncertainties are management information on these higher level of importance for a diminished (Hendrix and Kyhl 2000; plants at these sites including published particular species or area, depending on Luijten et al. 2000; Meffe and Carroll and unpublished reports, surveys, and the biological and physical 1996; Podolsky 2001; Service 1997; Tear plans; internal letters, memos, trip requirements of the species and the et al. 1995; Wolf and Harrison 2001). In reports; and, section 7 consultations. location(s) of the individual plants: (1) general, the larger the number of Additionally, we contacted staff of the Nonnative plant control; (2) Rodent populations (or colonies) and the larger HINWR to discuss their current control; (3) Invertebrate pest control; (4) the size of each population (or colony), management for these plants on national Fire control; (5) Maintenance of genetic the lower the probability of extinction wildlife refuge lands. material of the endangered plant (Meffe and Carroll 1996; Raup 1991). Pursuant to the definition of critical species; (6) Propagation, reintroduction, This basic conservation principle of habitat in section 3 of the Act, the and/or augmentation of existing redundancy when applied to Hawaiian primary constituent elements as found populations into areas deemed essential plant species reduces the threats in any area so designated must require for the recovery of the species; (7) represented by a fluctuating ‘‘special management considerations or Ongoing management of the wild, environment and offers the species a protections.’’ In determining and outplanted, and augmented populations; greater likelihood of achieving long- weighing the relative significance of the (8) Maintenance of natural pollinators term survival and recovery. Conversely, threats that would need to be addressed and pollinating systems, when known; loss of one or more of the plant in management plans or agreements, we (9) Habitat management and restoration populations (colonies) within any considered the following: in areas deemed essential for the

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recovery of the species; (10) Monitoring special management or protection for on which the species are found or were of the wild, outplanted, and augmented the five species for which we have historically found. populations; (11) Rare plant surveys; designated critical habitat. Critical habitat is not designated for and (12) Control of human activities/ In summary, the long-term Cenchrus agrimonioides in the NWHI access. conservation of Hawaiian plant species for the following reasons. In the NWHI, All five species of plants are known requires the designation of critical this taxon is historically known from from Federal lands within the HINWR. habitat units on one or more of the only Laysan and Midway Islands, and Management of the HINWR has been Hawaiian islands with suitable habitat Kure Atoll. It has not been reported on guided by the 1986 HINWR Master in accordance with species-specific Laysan and Midway for over 70 and 100 Plan/Environmental Impact Statement, recovery goals as outlined in adopted years, respectively. A permanent year- which places primary emphasis on recovery plans. Some of this designated round camp on Laysan, staffed by paid protecting and enhancing refuge critical habitat is currently unoccupied employees and volunteers, conducts wildlife resources, particularly by these species but in order to recover periodic monitoring of both native and threatened and endangered species the species, it is essential to conserve nonnative plant species, and Cenchrus (USFWS 1986). This plan does not suitable habitat in these unoccupied agrimonioides has not been seen during specifically document management units. This, in turn, will allow for the these monitoring efforts (Morin and actions that maintain or enhance establishment of additional populations Conant 1998). On Midway, Cenchrus populations of endangered plants or through natural recruitment or managed agrimonioides was not seen during the their habitat on the islands of the reintroduction. Establishment of these most recent botanical surveys HINWR. We are aware that current additional populations (colonies) will conducted in 1995 and 1999 (Chris management actions within HINWR for increase the likelihood that the species Swenson, Service, pers. comm., 2002). these species include monitoring of will survive and recover in the face of Cenchrus agrimonioides has not been populations and potential pests, and normal and stochastic events (Mangel seen on Kure Atoll for over 20 years control or eradication of some alien and Tier 1994; Pimm et al., 1998; Stacey even though DOFAW conducts annual plants (E. Flint, pers. comm., 2000; and Taper 1992). seabird surveys and a botanical survey Morin and Conant 1998; Shultz 2000; In this rule, we have defined the was conducted there as recently as 2001 USFWS 1998d). However, funding primary constituent elements based on (DOFAW 2001). In addition, no viable limitations and the difficulty of travel the general habitat features of the areas genetic material of this the specific logistics allow only a maximum of one from which the plants are reported, variety that occurs in the NWHI is short visit per year to Nihoa Island, and such as the type of plant community, known to exist. The rediscovery of less frequent visits to Necker. the associated native plant species, the currently unknown individual plants on Morin and Conant’s draft ‘‘Laysan physical location (e.g., steep rocky cliffs, these three islands and atolls is believed Island Ecosystem Restoration Plan’’ talus slopes), and elevation. The areas to be extremely unlikely because we (1998), a long-term planning document we are designating as critical habitat believe this perennial plant would have that was developed as an integrated provide some or all of the habitat been seen during these surveys. approach to managing the entire biota of components essential for the Although genetic material of the closely Laysan Island, outlines conservation conservation of the five plant species. related Cenchrus agrimonioides var. management actions for the endangered Our approach to delineating critical agrimonioides exists, this variety is plant species on Laysan. These habitat units was applied in the known only from mountainous habitat conservation management actions following manner: on Oahu, which is very different from include the prevention of new plant or (1) Critical habitat was proposed and the habitat on the NWHI where animal introductions to the island, will be designated on an island-by- Cenchrus agrimonioides var. restoration of the Laysan Island island basis for ease of understanding laysanensis occurred. We would not use ecosystem that was present prior to for landowners and the public, for ease var. agrimonioides for restoration major human-caused habitat of conducting the public hearing purposes in the NWHI because this modification, control/eradication of process, and for ease of conducting variety is not known from the NWHI nonnative species, reintroduction of public outreach. In Hawaii, landowners and its preferred habitat is not available native species which are currently and the public are most interested and in the NWHI. extinct on the island, and establishment affected by issues centered on the island Following publication of the proposed of periodic comprehensive ecosystem on which they reside. critical habitat rules for the 245 monitoring (Morin and Conant 1998). A (2) We focused on designating units Hawaiian plants (67 FR 3940, 67 FR permanent year-round camp on Laysan, representative of the known current and 9806, 67 FR 15856, 67 FR 16492, 67 FR staffed by paid employees and historical geographic and elevation 34522, 67 FR 36968, 67 FR 37108), some volunteers, has enabled some control of range of each species; and of which were revised, we reevaluated nonnative plant species, propagation (3) Critical habitat units were proposed critical habitat for Mariscus and outplanting of native plants for designed to allow for expansion of pennatiformis and Sesbania tomentosa, restoration efforts, and periodic existing wild populations and Statewide, using the recovery guidelines monitoring of both native and nonnative reestablishment of wild populations to determine if we had inadvertently plant species (E. Flint, pers. comm., within the historic range, or within sites proposed for designation too much or 2000; Morin and Conant 1998). In the identified as conservation areas in the not enough habitat to meet the essential future, the plan may serve as a guiding recovery plans for these species. recovery goals for these species document for endangered plant species For Amaranthus brownii, Mariscus distributed among the islands of its management on other NWHI as well. pennatiformis, Prichardia remota, known historic range (HINHP Database However, because the plan is not fully Schiedea verticillata, and Sesbania 2000, 2001; Wagner et al. 1990, 1999). funded or implemented yet, and tomentosa, currently and historically We then further evaluated areas of the because is has not yet been adopted for occupied habitat was examined in proposed critical habitat for all five the other islands on which these plants identifying and designating critical species for the existing quality of the occur, we know of no areas in the habitat. Critical habitat boundaries were primary constituent elements (i.e., intact HINWR at this time that do not require delineated to include the entire island native plant communities and

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predominance of associated native critical habitat. For Amaranthus constituent elements in adjacent critical plants versus nonnative plants), brownii, Pritchardia remota, and habitat. potential as a recovery area, and current Schiedea verticillata, taxa known only In summary, the critical habitat areas or expected management of known from the NWHI, we determined that described below constitute our best threats (e.g., weed control and critical habitat on the islands of Laysan assessment of the physical and nonnative insect, slug, and snail and Nihoa was essential for their biological features needed for the control). Areas that contain high quality conservation because it contains primary constituent elements, are zoned occupied habitat important for the conservation of Amaranthus brownii, or managed specifically for expansion of current colonies and the Mariscus pennatiformis, Pritchardia conservation, and have ongoing or establishment of additional colonies. In remota, Schiedea verticillata, and expected threat abatement actions were addition, these areas may require Sesbania tomentosa and the special considered the most essential within special management considerations or management needs of these species, and these areas, and we selected adequate protection in order to address the are based on the best scientific and area to meet recovery goals (e.g., 8 to 10 threats to each species. commercial information available and populations). Within the critical habitat boundaries, described above. We publish this final Of the proposed critical habitat for section 7 consultation is generally rule acknowledging that we have Mariscus pennatiformis and Sesbania necessary, and adverse modification incomplete information regarding many tomentosa, areas that did not contain could occur only if the primary of the primary biological and physical high quality constituent elements and constituent elements are affected. requirements for these species. that may provide habitat for populations Therefore, not all activities within However, both the Act and the relevant above the recovery goal of 8 to 10 critical habitat would trigger an adverse court orders require us to proceed with populations were determined not modification conclusion. In addition, designation at this time based on the essential for the conservation of the existing manmade features and best information available. As new species and excluded from final structures within boundaries of the information accrues, we may consider designation. However, all of the mapped unit do not contain one or more reevaluating the boundaries of areas that proposed critical habitat for Sesbania of the primary constituent elements and tomentosa on Nihoa and Necker and all would be excluded under the terms of warrant critical habitat designation. of the proposed critical habitat on this proposed regulation. Federal The approximate areas of the Laysan for Mariscus pennatiformis was actions limited to those areas would not designated critical habitat by considered essential for conservation of trigger a section 7 consultation unless landownership or jurisdiction are these species and is designated as they affect the species or primary shown in Table 4.

TABLE 4.—APPROXIMATE CRITICAL HABITAT DESIGNATED AREA BY UNIT AND LANDOWNERSHIP OR JURISDICTION, NORTHWESTERN HAWAIIAN ISLANDS, HAWAII

Unit name State/local Private Federal Total

Nihoa 1—Amaranthus brownii ...... none ...... none ...... 69 ha (171 ac) ...... 69 ha (171 ac) Nihoa 2—Pritchardia remota ...... none ...... none ...... 69 ha (171 ac) ...... 69 ha (171 ac) Nihoa 3—Scheidea verticillata ...... none ...... none ...... 69 ha (171 ac) ...... 69 ha (171 ac) Nihoa 4—Sesbania tomentosa ...... none ...... none ...... 69 ha (171 ac) ...... 69 ha (171 ac) Necker 1—Sesbania tomentosa ...... none ...... none ...... 19 ha (46 ac) ...... 19 ha (46 ac) Laysan 1—Mariscus pennatiformis ...... none ...... none ...... 405 ha (1,002 ac) ...... 405 ha (1,002 ac) Laysan 2—Pritchardia remota ...... none ...... none ...... 405 ha (1,002 ac) ...... 405 ha (1,002 ac)

Grand Total ...... none ...... none ...... 493 ha (1,219 ac) ...... 493 ha (1,219 ac)

Critical habitat includes habitat for area designated as critical habitat is Nihoa 2—Pritchardia remota these five species on the islands of considered to be the most likely to This unit is critical habitat for Nihoa, Necker, and Laysan. Lands contain a viable seed bank of Pritchardia remota and is 69 ha (171 ac) designated as critical habitat are under Amaranthus brownii. The habitat Federal ownership and managed by the on federally owned land. It includes the features contained in this unit that are entire island, which is part of the Department of the Interior (the Service). essential for this species include, but are The designated lands have been divided HINWR. This unit, which contains at not limited to, shallow soil and rocky least 4 colonies that consist of at least into seven units. A brief description of outcrops in fully exposed locations that each unit is presented below. 1,074 individuals (including seedlings) contain one or more of the following of P. remota, provides habitat that is Descriptions of Critical Habitat Units associated native plant species: essential to the conservation of 100 Chenopodium oahuense, Eragrostis Nihoa 1—Amaranthus brownii mature, reproducing individuals of this variabilis, Ipomoea indica, Ipomoea long-lived perennial species. The This unit is critical habitat for pes-caprae ssp. brasiliensis, Panicum habitat features contained in this unit Amaranthus brownii and is 69 ha (171 torridum, Scaevola sericea, Schiedea that are essential for this species ac) on federally owned land. It includes verticillata, Sicyos pachycarpus, Sida include, but are not limited to, a coastal the entire island, which is part of the fallax, and Solanum nelsonii. This forest community that contains one or HINWR. The unit is currently critical habitat unit is essential to the more of the following associated native unoccupied but provides habitat that is conservation of the species because it plant species: Chenopodium oahuense, essential to the conservation of up to supports habitat for the re-establishment Sesbania tomentosa, Solanum nelsonii, 500 reproducing individuals of this of populations of this endemic species. and Sida fallax. This unit is essential to annual species endemic to Nihoa. The the conservation of the species because

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it supports the only extant wild entire island, which is part of the long-lived perennial species. The occurrence of this species and is HINWR. The unit contains Annexation habitat features contained in this unit geographically separated from the and Summit Hills, is occupied by one that are essential for this species designated critical habitat unit on population of undetermined size, and include, but are not limited to, the Laysan Island to avoid destruction by provides habitat that is essential for the coastal strand community that contains one naturally occurring catastrophic conservation of up to one population of one or more of the following associated event. 300 mature, reproducing individuals of native plant species: Chenopodium this short-lived perennial species. The Nihoa 3—Schiedea verticillata oahuense and Solanum nelsonii. habitat features contained in this unit This unit is currently unoccupied but This unit is critical habitat for that are essential for this species is essential to the conservation of Schiedea verticillata and is 69 ha (171 include, but are not limited to, shallow Pritchardia remota because it provides ac) on federally owned land. It includes sandy soils on beaches and dunes in habitat for the establishment of a new the entire island, which is part of the Chenopodium oahuense coastal dry colony in order to achieve recovery HINWR. The unit provides habitat that shrubland that contain one or more of goals for the species. This unit is also is essential to the conservation of 300 the following associated native plant geographically separated from the mature, reproducing individuals of this species: Sida fallax, Scaevola sericea, occupied designated critical habitat unit short-lived perennial and, based on Solanum nelsonii, and Pritchardia on Nihoa, which serves to avoid the surveys conducted in 1996, contained at remota. This unit is essential to the destruction of both colonies by one least 11 colonies and a total of at least conservation of Sesbania tomentosa naturally occurring catastrophic event. 372 individuals. The habitat features because it supports the only extant contained in this unit that are essential colony of the species on Necker. This Effects of Critical Habitat Designation for this species include, but are not unit also includes habitat that is Section 7 Consultation limited to, rocky scree, soil pockets, and important for the expansion of the Section 7(a) of the Act requires cracks on coastal cliff faces and in present population, which is currently Federal agencies, including the Service, Pritchardia remota coastal mesic forest considered not viable. This unit is to ensure that actions they fund, that contain one or more of the located at the westernmost range of this following associated native species and multi-island species and is authorize, or carry out are not likely to lichens: Eragrostis variabilis, Rumex geographically separated from destroy or adversely modify critical albescens, and Tribulus cistoides. This designated critical habitat on other habitat. Destruction or adverse critical habitat unit is essential to the islands to avoid destruction by one modification of critical habitat occurs conservation of the species because it naturally occurring catastrophic event. when a Federal action directly or supports extant colonies of S. indirectly alters critical habitat to the verticillata and includes habitat that is Laysan 1—Mariscus pennatiformis extent that it appreciably diminishes the important to the expansion of the This unit is critical habitat for value of critical habitat for the present population on Nihoa. Mariscus pennatiformis and is conservation of the species. Individuals, approximately 405 ha (1,002 ac) in size, organizations, States, local governments, Nihoa 4—Sesbania tomentosa which includes a 52 ha (129 ac) and other non-Federal entities are This unit is critical habitat for hypersaline lagoon in its center. It is all directly affected by the designation of Sesbania tomentosa and is 69 ha (171 on Federal land and is part of the critical habitat when their actions occur ac) on federally owned land. It includes HINWR. The unit is occupied by one on Federal lands, require a Federal the entire island, which is part of the occurrence of approximately 200 permit, license, or other authorization, HINWR. The unit contains habitat individuals and provides habitat or involve Federal funding. essential to the conservation of 300 essential to the conservation of 300 Section 7(a) of the Act requires mature, reproducing individuals of this reproducing individuals. The habitat Federal agencies, including the Service, short-lived perennial and contains one features contained in this unit that are to evaluate their actions with respect to island-wide population of at least 1,000 essential for this species include, but are any species that is proposed or listed as individuals. The habitat features not limited to, coastal sandy substrate endangered or threatened, and with contained in this unit that are essential that contains one or more of the respect to its critical habitat, if any is for this species include, but are not following associated native plant designated or proposed. Regulations limited to, shallow sandy soils on species: Cyperus laevigatus, Eragrostis implementing this interagency beaches and dunes in Chenopodium variabilis, and Ipomoea sp. This critical cooperation provision of the Act are oahuense coastal dry shrubland that habitat unit is essential to the codified at 50 CFR part 402. Section contain one or more of the following conservation of Mariscus pennatiformis 7(a)(4) of the Act requires Federal associated native plant species: ssp. bryanii because it supports the only agencies (action agency) to confer with Pritchardia remota, Scaevola sericea, extant colony, which is currently us on any action that is likely to Sida fallax, and Solanum nelsonii. This considered not viable. It also contains jeopardize the continued existence of a critical habitat unit is essential to the habitat that is important to the species proposed for listing or result in conservation of the species because it expansion of this taxon. destruction or adverse modification of supports extant colonies of Sesbania proposed critical habitat. Laysan 2—Pritchardia remota tomentosa and is also geographically If a species is listed or critical habitat separated from designated critical This unit is critical habitat for is designated, section 7(a)(2) of the Act habitat on other islands to avoid Pritchardia remota and is approximately requires Federal agencies to ensure that destruction by one naturally occurring 405 ha (1,002 ac) in size, which actions they authorize, fund, or carry catastrophic event. includes a 52 ha (129 ac) hypersaline out are not likely to jeopardize the lagoon in its center. It is all on Federal continued existence of such a species or Necker 1—Sesbania tomentosa land and is part of the HINWR. The unit destroy or adversely modify its critical This unit is critical habitat for is currently unoccupied but provides habitat. If a Federal action may affect a Sesbania tomentosa and is 19 ha (46 ac) habitat essential to the conservation of listed species or its critical habitat, the on federally owned land. It includes the 100 reproducing individuals of this responsible Federal action agency must

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enter into consultation with us. Through (1) Activities that appreciably degrade Cir. 2001). The draft analysis was made this consultation, the action agency or destroy habitat defined in the available for review on September 12, would ensure that the permitted actions discussion of the primary constituent 2002 (67 FR 57784). We accepted do not destroy or adversely modify elements including, but not limited to: comments on the draft analysis until the critical habitat. Clearing or cutting of native live trees comment period closed on October 15, Regulations at 50 CFR 402.16 require and shrubs, whether by burning or 2002. Federal agencies to reinitiate formal mechanical, chemical, or other means No comments addressing the consultation on previously reviewed (e.g., woodcutting or herbicide economic analysis were received, and actions under certain circumstances, application); introducing or enabling the no information has come to light that including instances where critical spread of nonnative species; and taking might change the conclusions of the habitat is subsequently designated and actions that pose a risk of fire; draft economic analysis. Therefore, the the Federal agency has retained (2) Construction activities by the U.S. draft analyses constitutes the final discretionary involvement, or control Department of the Interior (the Service); economic analysis for this rule. The has been retained or is authorized by (3) Research activities funded by the economic analysis estimates that, over law. Consequently, some Federal U.S. Department of the Interior (the the next 10 years, the designation may agencies may request reinitiation of Service) or National Oceanic and result in potential economic effects of consultation or conferencing with us on Atmospheric Administration (National approximately $30,800, and that actions for which formal consultation Marine Sanctuaries Program, National economic benefits from the designation has been completed, if those actions Marine Fisheries Service); and of critical habitat would not be may affect designated critical habitat or (4) Activities not mentioned above significant. A more detailed discussion adversely modify or destroy proposed funded or authorized by the Department of our economic analysis is contained in critical habitat. of the Interior (U.S. Geological Survey, the draft economic analysis and the If we issue a biological opinion National Park Service), Department of addendum. Both documents are concluding that a project is likely to Commerce (National Oceanic and included in our administrative record result in the destruction or adverse Atmospheric Administration), Western and are available for inspection at the modification of critical habitat, we also Pacific Regional Fisheries Council, or Pacific Islands Fish and Wildlife Office provide ‘‘reasonable and prudent any other Federal Agency. (see ADDRESSES section). We do not alternatives’’ to the project, if any are If you have questions regarding believe the economic impacts of this identifiable. Reasonable and prudent whether specific activities will likely designation, which would result alternatives are defined at 50 CFR constitute adverse modification of primarily from section 7 consultations 402.02 as alternative actions identified critical habitat, contact the Field on FWS, NMS, and private research during consultation that can be Supervisor, Pacific Islands Ecological activities, would be significant. implemented in a manner consistent Services Field Office (see ADDRESSES Therefore, no critical habitat units in the with the intended purpose of the action, section). Requests for copies of the proposed rule were excluded or that are consistent with the scope of the regulations on listed wildlife and plants, modified due to economic impacts. Federal agency’s legal authority and and inquiries about prohibitions and As described above, section 4(b)(2) of jurisdiction, that are economically and permits, may be addressed to the U.S. the Act also requires us to consider technologically feasible, and that the Fish and Wildlife Service, Division of other relevant impacts, in addition to Director believes would avoid the Endangered Species, 911 N.E. 11th Ave., economic impacts, of designating likelihood of resulting in destruction or Portland, OR 97232–4181 (telephone critical habitat. No critical habitat units adverse modification of critical habitat. 503/231–2063; facsimile 503/231–6243). were excluded or modified due to non- Reasonable and prudent alternatives can Economic Analysis economic impacts. vary from slight project modifications to extensive redesign or relocation of the Exclusions Under Section 4(b)(2) Required Determinations project. Costs associated with Section 4(b)(2) of the Act requires us Regulatory Planning and Review implementing a reasonable and prudent to designate critical habitat on the basis alternative are similarly variable. of the best scientific and commercial In accordance with Executive Order Activities on Federal lands that may information available, and to consider 12866, the Office of Management and affect critical habitat of Amaranthus the economic and other relevant Budget (OMB) has determined that this brownii, Mariscus pennatiformis, impacts of designating a particular area critical habitat designation is not a Pritchardia remota, Schiedea as critical habitat. We may exclude areas significant regulatory action. This rule verticillata, or Sesbania tomentosa will from critical habitat upon a will not have an annual economic effect require section 7 consultation. determination that the benefits of such of $100 million or more or adversely Section 4(b)(8) of the Act requires us exclusions outweigh the benefits of affect any economic sector, to briefly describe and evaluate in any specifying such areas as critical habitat. productivity, competition, jobs, the proposed or final regulation that We cannot exclude areas from critical environment, or other units of designates critical habitat those habitat when the exclusion will result in government. This designation will not activities involving a Federal action that the extinction of the species concerned. create inconsistencies with other may adversely modify such habitat or agencies’ actions or otherwise interfere that may be affected by such Economic Impacts with an action taken or planned by designation. We note that such activities Following the publication of the another agency. It will not materially may also jeopardize the continued proposed critical habitat designation on affect entitlements, grants, user fees, existence of the species. May 14, 2002, a draft economic analysis loan programs, or the rights and Activities that, when carried out, was conducted to estimate the potential obligations of their recipients. Finally, funded, or authorized by a Federal economic impact of the designation, in this designation will not raise novel agency, may directly or indirectly accordance with recent decisions in the legal or policy issues. Accordingly, destroy or adversely modify critical N.M. Cattlegrowers Ass’n v. U.S. Fish OMB has not reviewed this final critical habitat include, but are not limited to: and Wildlife Serv., 248 F.3d 1277 (10th habitat designation.

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Regulatory Flexibility Act (5 U.S.C. 601 50,000 residents, as well as small productivity, innovation, or the ability et seq.) businesses. Small businesses include of U.S.-based enterprises to compete Under the Regulatory Flexibility Act manufacturing and mining concerns with foreign-based enterprises. Refer to (RFA) (as amended by the Small with fewer than 500 employees, the economic analysis for a discussion Business Regulatory Enforcement Act wholesale trade entities with fewer than of the effects of this determination. 100 employees, retail and service (SBREFA) of 1996), whenever an agency Executive Order 13211 is required to publish a notice of businesses with less than $5 million in annual sales, general and heavy On May 18, 2001, the President issued rulemaking for any proposed or final Executive Order 13211, on regulations rule, it must prepare and make available construction businesses with less than $27.5 million in annual business, that significantly affect energy supply, for public comment a regulatory special trade contractors doing less than distribution, and use. Executive Order flexibility analysis that describes the $11.5 million in annual business, and 13211 requires agencies to prepare effects of the rule on small entities (i.e., agricultural businesses with annual Statements of Energy Effects when small businesses, small organizations, sales less than $750,000. The RFA/ undertaking certain actions. According and small government jurisdictions). SBREFA defines ‘‘small organization’’ as to OMB, this rule is not a significant However, no regulatory flexibility any not-for-profit enterprise that is regulatory action under Executive Order analysis is required if the head of the independently owned and operated and 12866, and we do not expect it to agency certifies the rule will not have a is not dominant in its field (5 U.S.C. significantly affect energy production significant economic impact on a 601). supply and distribution facilities substantial number of small entities. For the purposes of the RFA/SBREFA, because no energy production, supply, SBREFA amended the RFA to require Federal agencies (e.g., the Service, U.S. and distribution facilities are included Federal agencies to provide a statement Geological Survey, National Park within designated critical habitat. of the factual basis for certifying that a Service, National Oceanic and Further, for the reasons described in the rule will not have a significant Atmospheric Administration, National economic analysis, we do not believe economic impact on a substantial Marine Fisheries Service, and Western the designation of critical habitat for the number of small entities. Pacific Regional Fisheries Council) are five NWHI plants will affect future SBREFA does not explicitly define not considered small governments and energy production. Therefore, this either ‘‘substantial number’’ or thus are not small entities. State action is not a significant energy action, ‘‘significant economic impact.’’ governments are not considered small and no Statement of Energy Effects is Consequently, to assess whether a governmental entities and thus DLNR is required. ‘‘substantial number’’ of small entities is not considered a small entity. The affected by this designation, this University of Hawaii is a large State Unfunded Mandates Reform Act (2 analysis considers the relative number university system, so it is also not a U.S.C. 1501 et seq.) of small entities likely to be impacted in small entity. The Bishop Museum, In accordance with the Unfunded the area. Similarly, this analysis which may sponsor research, is not Mandates Reform Act (2 U.S.C. 1501 et considers the relative cost of likely to be considered a small seq.): compliance on the revenues/profit organization because it is the largest (a) This rule will not ‘‘significantly or margins of small entities in determining museum in the State and thus is uniquely’’ affect small governments. A whether or not entities incur a dominant in its field. Small Government Agency Plan is not ‘‘significant economic impact.’’ Only Thus, none of the entities potentially required. All of the land being small entities that are expected to be impacted by the designation of critical designated as critical habitat in this rule directly affected by the designation are habitat are likely to be considered a is owned by the Federal government considered in this portion of the small entity under the RFA/SBREFA. and is managed as a National Wildlife analysis. This approach is consistent For these reasons, we are certifying that Refuge by the Service. Small with several judicial opinions related to the designation of critical habitat for governments will not be affected unless the scope of the RFA. (Mid-Tex Electric Amaranthus brownii, Mariscus they propose an action affecting the Co-Op, Inc. v. F.E.R.C. and America pennatiformis, Pritchardia remota, refuge and requiring Federal funds, Trucking Associations, Inc. v. EPA.) Schiedea verticillata, and Sesbania permits, or other authorizations. Any In today’s rule, we are certifying that tomentosa will not have a significant such activities will require that the the designation of critical habitat for the economic impact on a substantial Federal agency ensure that the action five plant species on the NWHI will not number of small entities. Therefore, a will not adversely modify or destroy have a significant effect on a substantial regulatory flexibility analysis is not designated critical habitat. number of small entities. The following required. (b) This rule will not produce a discussion explains our rationale. Federal mandate on State or local Small Business Regulatory Enforcement Federal courts and Congress have governments or the private sector of Fairness Act (5 U.S.C. 804(2)) indicated that an RFA/SBREFA analysis $100 million or greater in any year; that is appropriately limited to impacts to Under the Small Business Regulatory is, it is not a ‘‘significant regulatory entities directly regulated by the Enforcement Fairness Act (5 U.S.C. 801 action’’ under the Unfunded Mandates requirements of the regulation (Service et seq.), this rule is not a major rule. Our Reform Act. For the reasons described 2002). As such, entities not directly assessment of the economic effects of above, the designation of critical habitat regulated by the critical habitat this designation are described in the imposes no obligations on State or local designation are not considered in this economic analysis. Based on the effects governments. section of the analysis. identified in this analysis, we believe Small entities include small that this rule will not have an effect on Takings organizations, such as independent the economy of $100 million or more, In accordance with Executive Order nonprofit organizations and small will not cause a major increase in costs 12630 (‘‘Government Actions and governmental jurisdictions, including or prices for consumers, and will not Interference with Constitutionally school boards and city and town have significant adverse effects on Protected Private Property Rights’’), we governments that serve fewer than competition, employment, investment, have analyzed the potential takings

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implications of designating critical Paperwork Reduction Act of 1995 (44 five species does not involve any Tribal habitat for the five species from the U.S.C. 3501 et seq.) lands. NWHI in a takings implication This rule does not contain any References Cited assessment. The takings implications information collection requirements that assessment concludes that this final rule require OMB approval under the A complete list of all references cited does not pose significant takings Paperwork Reduction Act. An agency in this final rule is available upon implications. may not conduct or sponsor, and a request from the Pacific Islands Fish person is not required to respond to, a and Wildlife Office (see ADDRESSES Federalism collection of information unless it section). In accordance with Executive Order displays a valid OMB control number. Authors 13132, this final rule does not have National Environmental Policy Act The primary authors of this final rule significant Federalism effects. A We have determined that we do not are staff of the Pacific Islands Fish and Federalism assessment is not required. need to prepare an Environmental Wildlife Office (see ADDRESSES section). In keeping with Department of Interior Assessment and/or an Environmental List of Subjects in 50 CFR Part 17 policy, we requested information from Impact Statement as defined by the appropriate State agencies in Hawaii. National Environmental Policy Act of Endangered and threatened species, Because all of the designated critical 1969 in connection with regulations Exports, Imports, Reporting and habitat, including the unoccupied unit, adopted pursuant to section 4(a) of the recordkeeping requirements, is on Federal land, there should be no Endangered Species Act. We published Transportation. impact on State and local governments a notice outlining our reason for this Regulation Promulgation and their activities as a result of the determination in the Federal Register ■ designation of critical habitat in on October 25, 1983 (48 FR 49244). This Accordingly, we hereby amend part 17, subchapter B of chapter I, title 50 of currently unoccupied areas of the determination does not constitute a the Code of Federal Regulations as set NWHI. major Federal action significantly affecting the quality of the human forth below: Civil Justice Reform environment. PART 17—[AMENDED] In accordance with Executive Order Government-to-Government ■ 12988, the Department of the Interior’s Relationship With Tribes 1. The authority citation for part 17 continues to read as follows: Office of the Solicitor has determined In accordance with the President’s that this rule does not unduly burden memorandum of April 29, 1994, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. the judicial system and does meet the ‘‘Government-to-Government Relations 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. requirements of sections 3(a) and 3(b)(2) with Native American Tribal of the Order. We have designated Governments’’ (59 FR 22951), Executive ■ 2. Amend § 17.12(h) by revising the critical habitat in accordance with the Order 13175, and the Department of the entries for Amaranthus brownii, provisions of the Endangered Species Interior’s manual at 512 DM 2, we Mariscus pennatiformis, Pritchardia Act. The rule uses standard property readily acknowledge our responsibility remota, Schiedea verticillata, and descriptions and identifies the primary to communicate meaningfully with Sesbania tomentosa under FLOWERING constituent elements within the recognized Federal Tribes on a PLANTS in the List of Endangered and designated areas to assist the public in government-to-government basis. We Threatened Plants to read as follows: have determined that there are no Tribal understanding the habitat needs of the § 17.12 Endangered and threatened plants. five plant species from the NWHI. lands essential for the conservation of these five plant species. Therefore, * * * * * designation of critical habitat for these (h) * * *

Species Historic range Family Status When Critical habitat Special Scientific name Common name listed rules

FLOWERING PLANTS Amaranthus None ...... U.S.A. (HI) ...... Amaranthaceae .... E 587 17.99(g) ...... NA brownii. Mariscus None ...... U.S.A. (HI) ...... Cyperaceae ...... E 559 17.99(a)(1), (e)(1), NA pentiformis. (g). Pritchardia remota Loulu ...... U.S.A. (HI)...... Arecaceae ...... E 587 17.99(g) ...... NA Schiedea None ...... U.S.A. (HI) ...... Caryophyllaceae ... E 587 17.99(g) ...... NA verticillata. Sesbania Ohai ...... U.S.A. (HI) ...... Fabaceae ...... E 559 17.99(a)(1), (c), NA tomentosa. (e)(1), (g). *******

■ 3. Amend § 17.99 as set forth below: § 17.99 Critical habitat; plants on the (g) Maps and critical habitat unit ■ (1) By revising the section heading to islands of Kauai, Niihau, and Molokai, HI, descriptions for the Northwestern read as follows; and and on the Northwestern Hawaiian Islands. Hawaiian Islands. The following ■ (2) By adding new paragraphs (g) and * * * * * paragraphs contain the legal (h) to read as follows: descriptions of the critical habitat units

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designated for the Northwestern shrines) and other archaeological sites Map 1 for the the general locations of Hawaiian Islands. Existing manmade do not contain one or more of the the seven critical habitat units features within boundaries of the primary constituent elements described designated for the islands of Laysan, mapped areas, such as water features, for each species in paragraphs (h) of this Nihoa, and Necker. telecommunications equipment, section and therefore are not included (1) Index map—Map 1—follows: arboreta and gardens, and heiau in the critical habitat designations. (indigenous places of worship or Coordinates are in WGS84 datum. See

(2) Nihoa 1—Amaranthus brownii— (i) Nihoa Island is located between entire island (approximately 69 ha; 171 23°3′ N. and 23°4′ N. and between ac). 161°54′ W. and 161°56′ W. (i) Nihoa Island is located between (ii) Note: Map 3 follows: 23°3′ N. and 23°4′ N. and between 161°54′ W. and 161°56′ W. (ii) Note: Map 2 follows:

(5) Nihoa 4—Sesbania tomentosa— entire island (approximately 69 ha; 171 ac). (i) Nihoa Island is located between 23°3′ N. and 23°4′ N. and between (4) Nihoa 3—Schiedea verticillata— 161°54′ W. and 161°56′ W. entire island (approximately 69 ha; 171 ac). (ii) Note: Map 5 follows: (3) Nihoa 2—Pritchardia remota— (i) Nihoa Island is located between entire island (approximately 69 ha; 171 23°3′ N. and 23°4′ N. and between ac). 161°54′ W. and 161°56′ W. (ii) Note: Map 4 follows:

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(7) Laysan 1—Mariscus pennatiformis—entire island (approximately 405 ha; 1,219 ac). (i) Laysan Island is located between 25°45′ N. and 25°47′ N. and between 171°43′ W. and 171°45′ W. (ii) Note: Map 7 follows:

(6) Necker 1—Sesbania tomentosa— entire island (approximately 18 ha; 46 ac). (i) Necker Island is located between 23°34′ N. and 23°35′ N. and between 164°41′ W. and 164°43′ W. (ii) Note: Map 6 follows:

(9) Table of protected species within each critical habitat unit for the Northwestern Hawaiian Islands.

(8) Laysan 2—Pritchardia remota— entire island (approximately 405 ha; 1,219 ac). (i) Laysan Island is located between 25°45′ N. and 25°47′ N. and between 171°43′ W. and 171°45′ W. (ii) Note: Map 8 follows:

Island Species—Occupied Species—Unoccupied

Laysan ...... Mariscus pennatiformis ...... Pritchardia remota Necker ...... Sesbania tomentosa. Nihoa ...... Pritchardia remota, Schiedea verticillata, Sesbania Amaranthus brownii tomentosa.

(h) Plants on the Northwestern critical habitat for Amaranthus brownii. associated native plant species: Hawaiian Islands; Constituent elements. On Nihoa, the currently known primary Chenopodium oahuense, Eragrostis constituent elements of critical habitat Family Amaranthaceae: Amaranthus variabilis, Ipomoea indica, Ipomoea include, but are not limited to, the brownii (NCN) pes-caprae ssp. brasiliensis, Panicum habitat components provided by: torridum, Scaevola sericea, Schiedea Nihoa 1—Amaranthus brownii, (1) Shallow soil in fully exposed verticillata, Sicyos pachycarpus, Sida identified in the legal description in locations on rocky outcrops and fallax, or Solanum nelsonii; and (2) paragraph (g) of this section, constitutes containing one or more of the following

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Elevations between 30 and 242 m (100 Family Caryophyllaceae: Schiedea (1) Coastal sandy substrate containing and 800 ft). verticillata (NCN) one or more of the following associated native plant species: Cyperus laevigatus, Family Arecaceae: Pritchardia Nihoa 3—Schiedea verticillata, Eragrostis variabilis, or Ipomoea sp.; remota (loulu) identified in the legal description in and paragraph (g) of this section, constitutes (2) Elevation of 5 m (16 ft). Nihoa 2—Pritchardia remota, and critical habitat for Schiedea verticillata. Laysan 2— Pritchardia remota, On Nihoa, the currently known primary Family Fabaceae: Sesbania identified in the legal descriptions in constituent elements of critical habitat tomentosa (ohai) paragraph (g) of this section, consitute for Schiedea verticillata include, but are Nihoa 4—Sesbania tomentosa, and critical habitat for Pritchardia remota. not limited to, the habitat components Necker 1—Sesbania tomentosa, (1) On Nihoa, the currently known provided by: identified in the legal descriptions in primary constituent elements of critical (1) Rocky scree, soil pockets, and paragraph (g) of this section, constitute habitat include, but are not limited to, cracks on coastal cliff faces and in critical habitat for Sesbania tomentosa. the habitat components provided by: Pritchardia remota coastal mesic forest On Nihoa and Necker, the currently (i) Pritchardia remota coastal forest and containing one or more of the known primary constituent elements of community and containing one or more following associated native plant critical habitat for Sesbania tomentosa include, but are not limited to, habitat of the following associated native plant species: Eragrostis variabilis, Rumex components provided by: species: Chenopodium oahuense, albescens, Tribulus cistoides, or lichens; and (1) Shallow soil on sandy beaches and Sesbania tomentosa, Sida fallax, or dunes in Chenopodium oahuense Solanum nelsonii; and (2) Elevations between 30 and 242 m (100 and 800 ft). coastal dry shrubland or mixed coastal (ii) Elevations between sea level and dry cliffs and containing one or more of 151 m (500 ft). Family Cyperaceae: Mariscus the following associated native plant (2) On Laysan Island, the currently pennatiformis (NCN) species: Pritchardia remota, Scaevola known primary constituent elements of sericea, Sida fallax, or Solanum Laysan 1—Mariscus pennatiformis, nelsonii; and critical habitat include, but are not identified in the legal description in limited to, the habitat components (2) Elevations between sea level and paragraph (g) of this section, constitutes 84 m (0 and 276 ft). provided by: critical habitat for Mariscus (i) Coastal strand habitat with pennatiformis. On Laysan Island, the Dated: April 30, 2003. Chenopodium oahuensee and Solanum currently known primary constituent Craig Manson, nelsonii; and elements of critical habitat for Mariscus Assistant Secretary for Fish and Wildlife and pennatiformis include, but are not Parks. (ii) Elevations between sea level to 12 limited to, habitat components provided [FR Doc. 03–11157 Filed 5–21–03; 8:45 am] m (0 to 40 ft). by: BILLING CODE 6560–50–P

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