43178 Federal Register / Vol. 61, No. 163 / Wednesday, August 21, 1996 / Rules and Regulations navigational device, guide or menu shall § 76.1514 Bundling of video and local endemic to the island of , . be subject to the requirements of Section exchange services. Nihoa is the largest and highest of the 653(b)(1)(E) of the Communications Act; * * * * * uninhabited islands of Hawaii. The (5) An open video system operator (b) Any local exchange carrier offering Hawaiian Archipelago is made up of may permit video programming such a package must impute the 132 islands, reefs, and shoals forming an providers, including its affiliate, to unbundled tariff rate for the regulated arch 1,600 statute mi (2,580 km) long in develop and use their own navigational service. the middle of the Pacific Ocean. The devices. If an open video system [FR Doc. 96–21262 Filed 8–20–96; 8:45 am] eight major occur in the southeast 400 mi (650 km) of the operator permits video programming BILLING CODE 6712±01±P providers, including its affiliate, to arch. Northwest of , small islands develop and use their own navigational and atolls are widely scattered over the remaining 1,200 mi (1,930 km) of the devices, the operator must create an DEPARTMENT OF THE INTERIOR electronic menu or guide that all video arch and make up the Northwestern programming providers must carry Fish and Wildlife Service Hawaiian Islands (NWHI) (formerly containing a non-discriminatory listing called the Leeward Islands) (Department of programming providers or 50 CFR Part 17 of Geography 1983, Macdonald et al. 1983, Walker 1990). Nihoa, the largest of programming services available on the RIN 1018±AB88 system and informing the viewer how to the islands west of Niihau, is the obtain additional information on each of Endangered and Threatened Wildlife closest to the main islands, situated 170 the services listed; and ; Endangered Status for mi (275 km) northwest of . Over (6) An open video system operator Three Plants From the Island of Nihoa, many years, waves driven by prevailing must grant access, for programming Hawaii trade winds eroded the island into its providers that do not wish to use their current shape, which is the remnant own navigational device, to the AGENCY: Fish and Wildlife Service, southwest quadrant of the original huge navigational device used by the open Interior. volcanic cone. The east, west, and north video system operator or its affiliate; ACTION: Final rule. sides of Nihoa are sheer cliffs, and the south coast comprises low cliffs with and SUMMARY: The U.S. Fish and Wildlife (7) If an operator provides an rock benches and one small beach Service (Service) determines (Cleghorn 1987, Gagne and Conant electronic guide or menu that complies endangered status pursuant to the with paragraph (b)(5) of this section, its 1983, Macdonald et al. 1983). The Act of 1973, as island, formed about 7.5 million years programming affiliate may create its amended (Act), for three plants: own menu or guide without being ago by a single shield volcano, now (no common name measures only 0.85 mi (1.4 km) long, an subject to the requirements of Section (NCN)), remota (loulu), and 653(b)(1)(E) of the Communications Act. average of 0.3 mi (0.5 km) wide, and 156 Schiedea verticillata (NCN). These three acres (ac) (63.1 hectares (ha)) in area (c) An open video system operator species are endemic to the island of (Macdonald et al. 1983, Walker 1990). shall ensure that video programming Nihoa, Hawaiian Islands. Two of the The highest point, 896 feet (ft) (273 providers or copyright holders (or both) species are threatened by competition meters (m)) in elevation (Conant 1985), are able to suitably and uniquely with the one widespread alien that is located at one of the two peaks on identify their programming services to has established on the island. Two of Nihoa, which are separated by a subscribers. the species grow in steep, rocky habitats depression dissected by six valleys (d) An open video system operator which are easily disturbed. Because of (Macdonald et al. 1983). The elevation shall transmit programming the small numbers of existing of the island is not sufficient to increase identification without change or individuals and populations and their precipitation from that which would fall alteration if such identification is narrow distributions, which are limited on a flat island, and the yearly rainfall transmitted as part of the programming to the 0.25 square mile (sq mi) (0.65 sq of 20 to 30 inches (in) (508 to 762 signal. kilometer (km)) island, these species are millimeters (mm)) per year, usually 10. Section 76.1513 is amended by subject to a danger of and/or concentrated in the winter months, is adding a note following paragraph reduced reproductive vigor. This final the result of unpredictable rain squalls (e)(1)(viii) to read as follows: rule implements the Federal protection passing over the island (Carlquist 1980, provisions provided by the Act. § 76.1513 Dispute resolution. Cleghorn 1987). Valleys are deep and EFFECTIVE DATE: September 20, 1996. have little sediment, indicating that * * * * * ADDRESSES: The complete file for this their streams were once powerful, but (e) * * * rule is available for public inspection, the only water on the island now is (1) * * * by appointment, during normal business found in three freshwater seeps (viii) * * * hours at the U.S. Fish and Wildlife (Cleghorn 1987). Note to paragraph (e)(1)(viii): Upon Service, Pacific Islands Ecoregion, 300 Nihoa, with the most diverse flora and request by a complainant, the preliminary Ala Moana Boulevard, Room 3108, P.O. fauna of any of the NWHI, presents a carriage rate estimate shall include a Box 50088, , Hawaii 96850. calculation of the average of the carriage rates relatively intact low-elevation dryland FOR FURTHER INFORMATION CONTACT: paid by the unaffiliated video programming ecosystem with a complement of native providers receiving carriage from the open Robert P. Smith, Pacific Islands plants, arthropods, and birds (Gagne video system operator, including the Ecoregion Manager, at the above address 1982). Such areas were probably information needed for any weighting of the (808/541–2749). common in the main Hawaiian Islands individual carriage rates that the operator has SUPPLEMENTARY INFORMATION: prior to their disturbance by Polynesian included in the average rate. agricultural practices (Cuddihy and * * * * * Background Stone 1990). Nihoa was first inhabited 11. Section 76.1514 is amended by Amaranthus brownii, Pritchardia in the thirteenth century by a small revising paragraph (b) to read as follows: remota, and Schiedea verticillata are group of Polynesian settlers who Federal Register / Vol. 61, No. 163 / Wednesday, August 21, 1996 / Rules and Regulations 43179 terraced and cultivated most of the popolo as codominants, as well as ’ilima refuge staff have of necessity taken place gently sloping area of the island, a total and several other less frequent species. well after this annual plant’s normal of 12 to 31 ac (4.9 to 12.5 ha) or 7.7 to The Loulu (Pritchardia) Coastal Forest, growing season. During the dry summer 20 percent of the area of the island. a type of Coastal Mesic Forest, contains months when surveys are conducted, Most of the island was unsuitable for as the only dominant individuals of A. brownii are difficult to cultivation, and habitation did not (Gagne and Cuddihy 1990). distinguish from other desiccated persist for a long period of time; Nihoa is owned by the Federal herbaceous or seedling plants. The therefore, much of the natural government and is included within the unusually dry conditions of the past ecosystem remained intact (Cleghorn boundaries of the City and County of several years are another probable factor 1987, Emory 1928, Harrison 1990). Honolulu. Nihoa is part of the Hawaiian in the lack of A. brownii reported. Animals now found on or near Nihoa Islands National Wildlife Refuge, which During this species’ normal growing include—a small, resident population of is managed by the Service, and has been season of December through March, the Hawaiian monk seal (Monachus designated a Research Natural Area seas are too rough to permit landing on schauinslandi), a listed endangered (Clapp et al. 1977; Conant 1985; Nihoa by survey personnel. The Service species; green sea turtle (Chelonia Department of the Interior 1986a, 1986b; continues to attempt winter surveys of mydas), a listed threatened species; 17 Harrison 1990; Honolulu 1988; Miller Nihoa with veteran field botanist Steve species of breeding ; several 1983). Perlman of the Hawaii Plant migratory seabirds; 2 endemic land Discussion of the Three Plant Species Conservation Center, who believes that birds (Nihoa millerbird (Acrocephalus the species is likely present during the familiaris) and (Telespiza Amaranthus brownii was first wetter winter months. Amaranthus ultima)), both listed endangered species; collected by Edward L. Caum during the brownii typically grows on rocky 6 species of endemic land snails; and 35 in 1923. Erling outcrops in fully exposed locations at endemic and 26 indigenous arthropods, Christophersen and Caum named it in elevations between 390 and 700 ft (120 many only recently discovered. honor of Dr. F.B.H. Brown in 1931. and 213 m). Associated species include A total of 26 taxa have Amaranthus brownii, a member of the ’aheahea, kakonakona, and kupala. been found on Nihoa: Three species family (), is an Pigweed, an invasive alien species, is endemic to Nihoa—Amaranthus annual herb with leafy upright or widespread on Nihoa and grows in brownii, Pritchardia remota (loulu), and ascending stems, 1 to 3 ft (30 to 90 habitat similar to A. brownii. Because it Schiedea verticillata; nine taxa endemic centimeters (cm)) long. The slightly grows on rocky outcrops, A. brownii is to the Hawaiian Islands—Chamaesyce hairy, alternate are long and more likely to be affected by substrate celastroides var. celastroides (’akoko), narrow, 1.6 to 2.8 in (4 to 7 cm) long, changes. Due to the small numbers of oahuense (’aheahea), 0.06 to 0.16 in (1.5 to 4 mm) wide, and populations and individuals and its (kawelu), Panicum more or less folded in half lengthwise. limited distribution, this species is torridum (kakonakona), Portulaca Flowers are either male or female, and threatened by extinction from naturally villosa (’ihi), Rumex albescens both sexes are found on the same plant. occurring events and/or reduced (hu’ahu’ako), The green flowers are subtended by two reproductive vigor. This species may (’ohai), Sicyos pachycarpus (kupala), oval, bristle-tipped bracts about 0.04 in have experienced a reduction in total and nelsonii (popolo); eight (1 mm) long and 0.03 in (0.7 mm) wide. numbers due to disturbances resulting taxa indigenous to Hawaii—Boerhavia Each flower has three bristle-tipped from Polynesian settlement of Nihoa diffusa (alena), Heliotropium sepals which are lance-shaped and 0.05 (Hawaii Heritage Program (HHP) currassavicum (seaside heliotrope), in (1.3 mm) long by 0.03 in (0.8 mm) 1990a1, 1990a2; Wagner et al. 1985, (koali ’awa), Ipomoea wide in male flowers and spatula- 1986, 1990; Kenneth McDermond and pes-caprae ssp. brasiliensis (pohuehue), shaped and 0.03 to 0.04 in (0.8 to 1 mm) Elizabeth Flint, U.S. Fish and Wildlife Portulaca lutea (’ihi), long by 0.01 to 0.02 in (0.2 to 0.5 mm) Service (USFWS), in litt., 1993; Steve (’ilima), Solanum americanum (glossy wide in female flowers. Male flowers Perlman, Hawaii Plant Conservation nightshade), and Tribulus cistoides have three stamens; female flowers have Center, pers. comm., 1996). (nohu); and six alien species which two stigmas. The flattened, oval , In 1858, Dr. Rooke brought seed of a have naturalized in Hawaii—Cenchrus which does not split open at maturity, palm from Nihoa and planted it on the echinatus (common sandbur), is 0.03 to 0.04 in (0.8 to 1 mm) long and palace grounds in Honolulu (Hillebrand Nephrolepis multiflora (sword fern), 0.02 to 0.03 in (0.6 to 0.8 mm) wide and 1888). A Hillebrand specimen, probably Paspalum sp., contains one shiny, lens-shaped, collected from this cultivated tree, was (pigweed), Setaria verticillata (bristly reddish black seed. This species can be used by Odoardo Beccari (1890) to foxtail), and Tetragonia tetragonioides distinguished from other Hawaiian describe Pritchardia remota. Otto (New Zealand ) (Conant 1985, members of the genus by its spineless Kuntze transferred the species to other Conant and Herbst 1983, Gagne and axils, its linear leaves, and its fruit genera, resulting in Washingtonia Conant 1983, Harrison 1990, Herbst which does not split open when mature remota (Kuntze 1891) and later 1977). (Wagner et al. 1990). Eupritchardia remota (Beccari and Rock Bare rock and unvegetated soil make When Amaranthus brownii was first 1921). In their 1921 monograph of the up about one-third of the surface of collected in 1923, it was ‘‘most common genus, Beccari and Joseph Rock Nihoa. All vegetation is classified as on the ridge leading to Millers Peak, but included the species in Pritchardia, as being part of Coastal Communities, abundant also on the ridges to the east’’ do the authors of the current treatment including Coastal Dry Communities and (Herbst 1977). The two known (Read and Hodel 1990). a Coastal Mesic Community. Coastal Dry populations are separated by a distance Pritchardia remota, a member of the Shrublands include two forms of ’Ilima of 0.25 mi (0.4 km) and contained palm family (), is a tree 13 to (Sida) Shrubland—prostrate plants near approximately 35 plants—about 23 16 ft (4 to 5 m) tall with a ringed, wavy the shore and erect plants in more plants near Millers Peak and about a trunk about 5.9 in (15 cm) in diameter. sheltered sites. The ’Aweoweo dozen plants in Middle Valley. The rather ruffled, fan-shaped leaves are (Chenopodium or ’aheahea) Coastal Although the species was last reported about 31 in (80 cm) in diameter and are Shrubland includes ’aheahea and in 1983, annual surveys by Service somewhat waxy to pale green with a few 43180 Federal Register / Vol. 61, No. 163 / Wednesday, August 21, 1996 / Rules and Regulations tiny scales on the lower surface. The pileatus), two of the resident seabirds on seen in the upper portion and 30 to 38 flowering stalks, up to 12 in (30 cm) Nihoa (Conant 1985). Pritchardia plants have been counted in the lower long, are branched and have flowers remota is in cultivation in several portion; the Pinnacle Peak population arranged spirally along the hairless botanical gardens. The species is contained 12 to 25 individuals; at stalks. Below each flower is a bract 0.08 threatened by extinction from naturally Millers Peak, 2 to 5 plants have been to 0.1 in (2 to 3 mm) long. The flower occurring events due to the small observed; and another population on the consists of a cup-shaped, three-lobed number of populations and the plant’s east spur of the island contains 148 calyx (fused sepals); three petals, each narrow range (Conant 1985; Karen plants (HHP 1990b1 to 1990b6). In 1992, about 0.2 in (6 mm) long; six stamens; Shigematsu, Lyon Arboretum, pers. the Service’s refuge staff counted only and a three-lobed stigma. The pale comm., 1991). 170 to 190 plants in all 6 populations greenish brown fruit is almost globose, The first specimens of Schiedea (K. McDermond and E. Flint, in litt., 0.7 to 0.8 in (1.9 to 2 cm) long and about verticillata were collected near Derbys 1993). Schiedea verticillata typically 0.7 in (1.9 cm) in diameter. This is the Landing in 1923. Brown (in grows in soil pockets and cracks on only species of Pritchardia on Nihoa Christophersen and Caum 1931) chose coastal cliff faces at elevations between and can be distinguished from other the specific epithet to refer to the 100 and 890 ft (30 and 270 m) (Wagner species of the genus in Hawaii by its verticillate (whorled) arrangement of the et al. 1990, Weller et al. 1990). wavy leaves; its short, hairless leaves. Although Sherff (1944) Associated species include ’aheahea, ; and its small, globose transferred the species to the genus pohuehue, koali ’awa, kupala, kawelu, (Beccari and Rock 1921, Read and , current workers (Wagner and lichens on surrounding rock. Hodel 1990). et al. 1990) consider it to be a species Schiedea verticillata is threatened by of Schiedea. Pritchardia remota is known from two competition with pigweed, which is Schiedea verticillata, a member of the widespread on Nihoa and grows in extant populations along 0.1 mi (0.2 km) pink family (), is a of the length of each of two valleys habitats similar to this species. perennial herb which dies back to an Catastrophic events are especially which are about 0.4 mi (0.6 km) apart enlarged root during dry seasons. The threatening to the survival of these three on opposite sides of Nihoa. Including stems, which can reach 1.3 to 2 ft (0.4 plant species. Natural events occurring seedlings, 680 plants are found in to 0.6 m) in length, are upright or on the island of Nihoa could further scattered groups: 387 plants in West sometimes pendent. The stalkless leaves restrict the plants’ ranges, and because Palm Valley and 293 in East Palm are fleshy, broad, and pale green, are of the limited number of individuals, Valley (Herbst 1977). Earlier totals were usually arranged in threes, and measure extinction from catastrophic natural somewhat smaller, probably because 3.5 to 5.9 in (9 to 15 cm) long and 2.8 events is of major concern. Specifically, younger seedlings were not counted to 3.5 in (7 to 9 cm) wide. Flowers are erosion, landslides, rock slides, and (Herbst 1977). An uncollected palm, no arranged in open, branched clusters, flooding could result in severe habitat longer extant, was observed growing on usually 6.7 to 9.8 in (17 to 25 cm) long. destruction and death of individual Island and may have been this Opposite or whorled pale green bracts, plants. Evidence of heavy flash floods species (Ely and Clapp 1973, Rock located at branches and has been noted in the lower part of East 1913). Most of the populations of P. underneath the flowers, measure 0.2 to Palm Valley, where Pritchardia remota remota are crowded into scattered, 1.6 in (6 to 40 mm) long at the central specimens are located (Kramer 1962). small groves on abandoned agricultural branch and 0.1 to 0.2 in (3.5 to 6 mm) Continued existence of these species, terraces lower in the valleys. A few trees long on the side branches and which have limited numbers and also grow at the bases of basaltic cliffs underneath the flowers. Each petalless narrow ranges, is imperiled by naturally on the steep outer slopes of each of the flower is positioned on a stalk 0.2 to 0.8 occurring events because of the two valleys. Plants grow from 660 to 896 in (5 to 20 mm) long and has five lance- vulnerability of these plants to ft (200 to 273 m) in elevation (Wagner shaped sepals 0.3 to 0.4 in (8 to 10 mm) disturbance events in their steep, rocky et al. 1990). Pritchardia remota is long, five nectaries, 10 stamens, and habitat (Conant 1985; S. Conant, pers. unusual among Hawaiian members of four or five styles. The ovoid capsule comm., 1991). the genus in that it occurs in a dry area. measures 0.3 to 0.4 in (7 to 9 mm) long Fossil loulu stems have been found near and releases reddish to grayish brown Previous Federal Action sea level on , which may indicate seeds, about 0.03 in (0.7 to 0.8 mm) Federal action on these plants began that the genus was more widespread long. This species, the only member of as a result of section 12 of the Act, before so much lowland habitat was its genus to grow in the NWHI, is which directed the Secretary of the altered for human use (Carlquist 1980, distinguished from other species of the Smithsonian Institution to prepare a Cuddihy and Stone 1990). Within the genus by its exceptionally large sepals report on plants considered to be Loulu Coastal Forest Community, P. and, usually, three leaves per node endangered, threatened, or extinct in the remota assumes complete dominance (Wagner et al. 1990). United States. This report, designated as with a closed canopy and thick layers of All historically known populations of House Document No. 94–51, was fallen fronds in the understory (Gagne Schiedea verticillata are known to be presented to Congress on January 9, and Cuddihy 1990). Plants growing near extant. Five populations are scattered in 1975. In that document, Pritchardia the groves and in association with the the western 10 percent of the island in remota was considered to be single individuals include ’aheahea, an area about 0.06 mi (0.1 km) by 0.4 mi endangered. On July 1, 1975, the Service ’ilima, popolo, and some ’ohai. Lichens (0.6 km), and a sixth population is published a notice in the Federal grow on the trunks of the trees (Sheila found on the far eastern end of the Register (40 FR 27823) of its acceptance Conant, University of Hawaii, pers. island 0.7 mi (1.2 km) away. The six of the Smithsonian report as a petition comm., 1991; Derral Herbst, USFWS, populations contained a total of 385 to within the context of section 4(c)(2) pers. comm., 1991). Pritchardia remota 414 individuals prior to 1992—at Dogs (now section 4(b)(3)) of the Act, and provides nesting and other habitat for Head, at least 95 plants have been giving notice of its intention to review red-footed boobies (Sula sula rubipes) as observed; a population at Devils Slide the status of the plant taxa named well as occasional perching space for consisted of 96 to 100 plants; in West therein. As a result of that review, on brown noddies (Anous stolidus Palm Valley, 2 or 3 plants have been June 16, 1976, the Service published a Federal Register / Vol. 61, No. 163 / Wednesday, August 21, 1996 / Rules and Regulations 43181 proposed rule in the Federal Register proposed rule constituted the final one- available, the Service has determined (41 FR 24523) to determine endangered year finding for these species. that Amaranthus brownii Christoph. & status pursuant to section 4 of the Act On March 24, 1993, the Service Caum (NCN), Pritchardia remota Becc. for approximately 1,700 vascular plant published in the Federal Register (58 (loulu), and Schiedea verticillata F. taxa. Amaranthus brownii and Schiedea FR 15828) a proposal to list these three Brown (NCN) should be classified as verticillata were considered to be plants from the island of Nihoa, Hawaii, endangered species. Procedures found endangered in the proposed rule, but P. as endangered. This proposal was based at section 4(a)(1) of the Act and remota was not included. The list of primarily on information supplied by regulations implementing the listing 1,700 plant taxa was assembled on the the Hawaii Heritage Program and provisions of the Act (50 CFR part 424) basis of comments and data received by observations by botanists and were followed. A species may be the Smithsonian Institution and the naturalists. The Service now determines determined to be an endangered or Service in response to House Document these three species from the island of threatened species due to one or more No. 94–51 and the July 1, 1975, Federal Nihoa to be endangered with the of the five factors described in section Register publication. publication of this final rule. 4(a)(1). These factors and their General comments received in The processing of this final rule application to Amaranthus brownii response to the 1976 proposal are follows the Service’s listing priority Christoph. & Caum (NCN), Pritchardia summarized in an April 26, 1978, guidance published in the Federal remota Becc. (loulu), and Schiedea Federal Register publication (43 FR Register on May 16, 1996 (61 FR 24722). verticillata F. Brown (NCN) are as 17909). In 1978, amendments to the Act The guidance clarifies the order in follows: required that all proposals over 2 years which the Service will process old be withdrawn. A 1-year grace period rulemakings following two related A. The Present or Threatened was given to proposals already over 2 events: 1) the lifting, on April 26, 1996, Destruction, Modification, or years old. On December 10, 1979, the of the moratorium on final listings Curtailment of its Habitat or Range Service published a notice in the imposed on April 10, 1995 (Public Law Amaranthus brownii and Schiedea Federal Register (44 FR 70796) 104–6), and 2) the restoration of verticillata grow on rocky outcrops and withdrawing the portion of the June 16, significant funding for listing through cliff faces, making these plants 1976, proposal that had not been made passage of the omnibus budget vulnerable to substrate changes. Because final, along with four other proposals reconciliation law on April 26, 1996, of the steep slope and rocky nature of that had expired. The Service published following severe funding constraints Nihoa, the habitat is very easily updated notices of review for plants on imposed by a number of continuing disturbed. Currently, the only legal December 15, 1980 (45 FR 82479), resolutions between November 1995 visitors are those with Service approval, September 27, 1985 (50 FR 39525), and and April 1996. The guidance calls for usually refuge personnel or scientific February 21, 1990 (55 FR 6183). In these prompt processing of final rules researchers who are very aware of the notices, Amaranthus brownii and containing species facing threats of high fragile nature of the island’s Schiedea verticillata, which were in the magnitude. Both Pritchardia remota and environment (Conant 1985). Access to proposed rule, were treated as Schiedea verticillata face high this island for Hawaiian religious candidates for Federal listing. The two magnitude threats. The Service’s Pacific ceremonies would be a permitted species that were proposed as Regional Office confirmed on June 6, action, but visitors would be endangered in the June 16, 1976, 1996, that the status of the three species accompanied by refuge personnel (Jerry proposed rule were considered in this rule did not change during the Leinecke, USFWS, pers. comm., 1991). candidates on all three of these notices. moratorium on final listings. With increased commercial fishing in Pritchardia remota was included as a the NWHI, there is a greater possibility Summary of Comments and candidate in the 1980 notice and of mishaps and unauthorized landings Recommendations remained so on the 1985 and 1990 on Nihoa (Gagne and Conant 1983). notices. In the March 24, 1993, proposed rule Section 4(b)(3)(B) of the Act requires and associated notifications, all B. Overutilization for Commercial, the Secretary to make findings on interested parties were requested to Recreational, Scientific, or Educational petitions that present substantial submit factual reports or information Purposes information indicating the petitioned that might contribute to the Illegal collecting for scientific or action may be warranted within 12 development of a final listing decision. horticultural purposes or visits by months of their receipt. Section 2(b)(1) The public comment period ended on individuals interested in seeing rare of the 1982 amendments further May 24, 1993. Appropriate State plants could result from increased requires all petitions pending on agencies, county governments, Federal publicity, and would threaten these October 13, 1982, be treated as having agencies, scientific organizations, and three species, especially Amaranthus been newly submitted on that date. On other interested parties were contacted brownii and Schiedea verticillata. The October 13, 1983, the Service found that and requested to comment. One letter of limited legal access to Nihoa and the the petitioned listing of these taxa was comment was received from a Federal island’s distance from the inhabited warranted but precluded by other agency, supporting the listings of these main Hawaiian Islands reduces the pending listing actions, in accordance three plant species due to their low effect of this impact. However, the with section 4(b)(3)(B)(iii) of the Act; numbers and the recent decline in island’s isolation also decreases the notification of this finding was population sizes of two of the species. amount of monitoring which can be published on January 20, 1984 (49 FR Additional information included in the provided by Federal and State 2485). Such a finding requires the letter has been incorporated into this authorities. Service to consider the petition as final rule. having been resubmitted, pursuant to C. Disease or section 4(b)(3)(C)(i) of the Act. The Summary of Factors Affecting the Rats (Rattus spp.) and house mice finding was reviewed in October of Species (Mus musculus), which have made their 1984, 1985, 1986, 1987, 1988, 1989, After a thorough review and way to several small islands and islets 1990, and 1991. Publication of the consideration of all information in the Hawaiian chain (Tomich 1986), 43182 Federal Register / Vol. 61, No. 163 / Wednesday, August 21, 1996 / Rules and Regulations could be introduced to Nihoa from a taxa for space, water, nutrients, and the NWHI and is thought to have arrived nearby ship. Rodent predation could light. Six alien plant species, which are by wind dispersal. Caution on the part prove disastrous for Pritchardia remota; naturalized in other parts of the of personnel working on the island and predation of seeds by rodents has Hawaiian Islands, have been found on frequent monitoring of the vegetation reduced the reproductive capacity of Nihoa. and removal of alien plants have helped other Hawaiian Pritchardia species Three of the alien plant species were keep established exotic plant species to (Center for Plant Conservation (CPC) first recorded in the area of Millers a minimum on Nihoa (Conant 1983a, 1990b, Cuddihy and Stone 1990). Peak, where a military installation was 1983b, 1985; Herbst 1980; Marshall Rodents might also find the fleshy roots located during the 1960s. Cenchrus 1964). of Schiedea verticillata palatable (CPC echinatus (common sandbur) was first With its low amount of rainfall, Nihoa 1990a). The former presence of house noticed between 1961 and 1969. In often has much dry vegetation, which is cats (Felis catus) and the current 1962, a soldier’s towel at the military very susceptible to fire. An 1885 trip to presence of geckos (Lepidodactylus camp was found with six sandbur fruits Nihoa by a group led by Queen lugubris) and at least 70 species of alien stuck to it. This was burned, but it Liliuokalani illustrates this insects are proof that introductions to illustrates how easily alien propagules vulnerability. The group had to leave the island occur (Beardsley 1966; Bryan can be brought to Nihoa by human the island abruptly after they started a 1978; Conant et al. 1984; John visitors. Service policy has been to fire which quickly swept across the Strazanac, , pers. destroy all sandbur plants, and none island (Culliney 1988). Fires caused by comm., 1991). Carmine spider mites were seen after 1969 until 1981, when smoking or cooking remain potential (Tetranychus cinnabarinus) have been one plant with fewer than 10 fruits was threats. discovered and destroyed. An collected several times on Nihoa and Erosion, landslides, rock slides, and could threaten Schiedea verticillata unidentified species of the grass genus Paspalum was observed in 1962 near flooding due to natural causes (CPC 1990a; J. Strazanac, pers. comm., potentially could result in the death of 1991). the military camp, but it has not been found since so has evidently not individual plants as well as habitat D. The Inadequacy of Existing established. Three small colonies of destruction. This especially affects the Regulatory Mechanisms Portulaca oleracea (pigweed) were continued existence of species or populations with limited numbers and/ All populations of the three plant found in 1977 near the military or narrow ranges, including all three species are located on Federal land installation. It has now spread over the plant species in this rule. Evidence of within a national wildlife refuge entire island, having become the only heavy flash floods has been noted in the managed by the Service. The National widespread exotic plant present. lower part of East Palm Valley, where Wildlife Refuge System Administration Pigweed grows in shallow soil pockets, there are specimens of Pritchardia Act prohibits unauthorized entry, use, especially near ridge tops, the type of remota (Kramer 1962). or occupancy of refuge areas, as well as habitat in which Amaranthus brownii disturbance, injury, cutting, burning, and Schiedea verticillata grow. It may The very limited range of all three of removal, destruction or possession of be replacing individuals of two native the plant species, the small number of ‘‘natural growth’’ (16 U.S.C. 668dd(c). species of Portulaca and potentially populations of two of the species, and However, the remoteness of this could threaten Amaranthus brownii and the small number of individuals of one uninhabited island makes enforcement Schiedea verticillata. of the species increases the potential for of these restrictions and monitoring of Two have been extinction from naturally occurring threats difficult. found near the southern coast. Setaria events. The limited gene pool may verticillata (bristly foxtail) was found in depress reproductive vigor, or a single E. Other Natural or Manmade Factors 1969 but has not been collected since, human-caused or natural environmental Affecting its Continued Existence so it has probably not become disturbance could destroy a significant Nihoa’s plant populations, as well as established. Tetragonia tetragonioides percentage of the individuals or an its many birds, are vulnerable to the (New Zealand spinach) was collected in entire population. All three of the plant intentional or inadvertent introduction 1977 and again in 1991. In 1981 one species are restricted in their natural of alien animals. The difficulty in colony of Nephrolepis multiflora (sword range to small portions of an island with landing on the island provides a degree fern), an alien species established in the an area of only 0.25 sq mi (0.65 sq km). of protection from animal introductions, main Hawaiian Islands, was found in Two of the species, Amaranthus brownii but a wrecked fishing boat could the southern part of Nihoa some and Pritchardia remota, have only two accidentally introduce rats, which could distance from the usual landing site. populations each, and fewer than 40 cause a severe and rapid degradation of Two other colonies were found in 1983 individuals of A. brownii have ever been both the flora and fauna of Nihoa. in the northwestern part of the island. counted. Alien plant species naturalizing on This is the first fern naturalized in the The threats facing these three species Nihoa would compete with native plant main Hawaiian Islands to have reached are summarized in Table 1.

TABLE 1.ÐSUMMARY OF THREATS

Substrate Limited num- Species Rats Alien plants Fire loss * bers **

Amaranthus brownii ...... X P X X1,2 Pritchardia remota ...... P P P P X1 Schiedea verticillata ...... P X P X X=Immediate and significant threat. P=Potential threat. *=Substrate loss includes erosion, rock slides, and landslides. **=No more than 100 individuals and/or no more than 5 populations. 1=No more than 5 populations. Federal Register / Vol. 61, No. 163 / Wednesday, August 21, 1996 / Rules and Regulations 43183

2=No more than 50 individuals.

The Service has carefully assessed the human activity, and identification of actions with respect to any species that best scientific and commercial critical habitat can be expected to is proposed or listed as endangered. information available regarding the past, increase the degree of threat to the Regulations implementing this present, and future threats faced by species, or (2) such designation of interagency cooperation provision of the these species in issuing this final rule. critical habitat would not be beneficial Act are codified at 50 CFR part 402. Based on this evaluation, this to the species. Section 7(a)(2) requires Federal agencies rulemaking will list these three plant The publication of precise maps and to ensure that activities they authorize, species as endangered. One of the descriptions of critical habitat in the fund, or carry out are not likely to species is known from only 2 Federal Register and local newspapers jeopardize the continued existence of a populations and fewer than 40 as required in a proposal for critical listed species or to destroy or adversely individuals; another species is known habitat would increase the degree of modify its critical habitat. If a Federal from only 2 populations. Each of the threat to these plants by making them action may affect a listed species or its three species is threatened by one or more vulnerable to take or vandalism critical habitat, the responsible Federal more of the following—competition and their fragile habitat more agency must enter into formal with the alien plant pigweed, substrate susceptible to damage. The listing of consultation with the Service. All loss, and increased likelihood of these species as endangered also populations of the three species occur extinction and/or reduced reproductive publicizes their rarity and, thus, can on land managed by the Service as a vigor due to small numbers of make these plants attractive to National Wildlife Refuge. There are no individuals and populations and their researchers, collectors, and those other known Federal activities that extremely limited range. Because these wishing to see rare plants. This could occur within the present known habitat three species are in danger of extinction contribute to their decline and/or of these species. throughout all or a significant portion of increase enforcement problems. The The Act and implementing their ranges, they fit the definition of only known populations of the three regulations at 50 CFR 17.61, 17.62, and endangered as defined in the Act. species occur on land owned and 17.63 for endangered species set forth a Critical habitat is not being designated managed by the Federal government, series of general prohibitions and for these species for reasons discussed which is aware of the location and exceptions that apply to all endangered in the ‘‘Critical Habitat’’ section of this importance of protecting the plants and plant species. With respect to the three final rule. their habitat. Protection of the species’ plant species from the island of Nihoa, habitat will be addressed through the all prohibitions of section 9(a)(2) of the Critical Habitat recovery process and through the Act, implemented by 50 CFR 17.61, Critical habitat is defined by section section 7 consultation process. All the apply. These prohibitions, in part, make 3 of the Act as: (1) the specific areas plants are located on a national wildlife it illegal with respect to any endangered within the geographical area occupied refuge, one of the policies of which is plant, for any person subject to the by a species, at the time it is listed in to conserve native vegetation, so it is jurisdiction of the United States to accordance with the Act, on which are unlikely that Federal activities would import or export; transport in interstate found those physical or biological negatively affect the continued or foreign commerce in the course of a features (I) essential to the conservation existence of these plants. Therefore, the commercial activity; sell or offer for sale of the species and (II) that may require Service finds that designation of critical these species in interstate or foreign special management considerations or habitat for these species is not prudent commerce; or to remove and reduce to protection and; (2) specific areas outside at this time, because such designation possession any such species from areas the geographical area occupied by a would increase the degree of threat from under Federal jurisdiction; maliciously species at the time it is listed, upon a vandalism, collecting, or other human damage or destroy any such species on determination that such areas are activities and because it is unlikely to any area under Federal jurisdiction; or essential for the conservation of the aid in the conservation of these species. remove, cut, dig up, damage or destroy species. ‘‘Conservation’’ means the use any such species on any other area in of all methods and procedures needed Available Conservation Measures knowing violation of any State law or to bring the species to the point at Conservation measures provided to regulation or in the course of any which listing under the Act is no longer species listed as endangered under the violation of a State criminal trespass necessary. Act include recognition, recovery law. Certain exceptions apply to agents Section 4(a)(3) of the Act, as actions, requirements for Federal of the Service and State conservation amended, and implementing regulations protection, and prohibitions against agencies. The Act and 50 CFR 17.62 and (50 CFR 424.12) require that, to the certain activities. Recognition through 17.63 also provide for the issuance of maximum extent prudent and listing results in public awareness and permits to carry out otherwise determinable, the Secretary designate conservation actions by Federal, State, prohibited activities involving critical habitat at the time a species is and local agencies, private endangered plant species under certain determined to be endangered or organizations, and individuals. The Act circumstances. threatened. The Service finds that provides for possible land acquisition It is the policy of the Service (59 FR designation of critical habitat is not and cooperation with the State and 34272, July 1, 1994) to identify to the prudent for Amaranthus brownii, requires that recovery actions be carried maximum extent practicable at the time Pritchardia remota, and Schiedea out for all listed species. The protection a species is listed those activities that verticillata at this time. Service required of Federal agencies and the would or would not be likely to regulations (50 CFR 424.12(a)(1)) state prohibitions against certain activities constitute a violation of section 9 of the that designation of critical habitat is not involving listed plants are discussed, in Act. Such information is intended to prudent when one or both of the part, below. clarify the potential impacts of a following situations exist—(1) The Section 7(a) of the Act requires species’ listing on proposed and species is threatened by taking or other Federal agencies to evaluate their ongoing activities within the species’ 43184 Federal Register / Vol. 61, No. 163 / Wednesday, August 21, 1996 / Rules and Regulations range. All three of these species occur National Environmental Policy Act List of Subjects in 50 CFR Part 17 solely on Federal refuge lands. The Service has determined that an Endangered and threatened species, Collecting and damaging these species Exports, Imports, Reporting and are prohibited without a Federal permit. Environmental Assessment or Environmental Impact Statement, as recordkeeping requirements, and The Service is not otherwise aware of Transportation. any legal activities currently being defined under the authority of the conducted by the public that will be National Environmental Policy Act of Regulation Promulgation affected by this listing and result in a 1969, need not be prepared in Accordingly, part 17, subchapter B of violation of section 9. Illegal boat connection with regulations adopted chapter I, title 50 of the Code of Federal landing or entry to the island have pursuant to Section 4(a) of the Regulations, is amended as set forth already been discussed as potentially Endangered Species Act of 1973, as below: threatening these three species. amended. A notice outlining the Requests for copies of the regulations Service’s reasons for this determination PART 17Ð[AMENDED] was published in the Federal Register concerning listed plants and inquiries 1. The authority citation for part 17 on October 25, 1983 (48 FR 49244). regarding prohibitions and permits may continues to read as follows: be addressed to the U.S. Fish and References Cited Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Wildlife Service, Ecological Services, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Endangered Species Permits, 911 N.E. A complete list of all references cited 625, 100 Stat. 3500; unless otherwise noted. 11th Avenue, Portland, Oregon 97232– herein is available upon request from the Pacific Islands Ecoregion (see 2. Section 17.12(h) is amended by 4181 (telephone 503–231–6241; FAX adding the following, in alphabetical ADDRESSES section). 503–231–6243). Questions regarding order under FLOWERING PLANTS, to whether specific activities will Authors the List of Endangered and Threatened constitute a violation of section 9 Plants, to read as follows: should be directed to the Ecoregion The primary authors of this final rule Manager of the Service’s Pacific Islands are Marie M. Bruegmann and Zella E. § 17.12 Endangered and threatened plants. Office (see ADDRESSES section). Ellshoff, Pacific Islands Ecoregion (see * * * * * ADDRESSES section). (h) * * *

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

Flowering plants

******* Amaranthus brownii None ...... U.S.A. (HI) ...... Amaranthacae. E 587 NA NA

******* Pritchardia remota .... Loulu ...... U.S.A. (HI) ...... Arecaceae ...... E 587 NA NA

******* Schiedea verticillata None ...... U.S.A. (HI) ...... Caryophyllaceae E 587 NA NA

*******

Dated: August 12, 1996. ACTION: Closure. authority of the Atlantic Tunas John G. Rogers, Convention Act (16 U.S.C. 971 et seq.) Acting Director, Fish and Wildlife Service. SUMMARY: NMFS has determined that governing the harvest of ABT by persons [FR Doc. 96–21334 Filed 8–20–96; 8:45 am] the Atlantic bluefin tuna (ABT) General and vessels subject to U.S. jurisdiction category quota for the August period BILLING CODE 4310±55±P are found at 50 CFR part 285. Section will be attained by August 17, 1996. 285.22 subdivides the U.S. quota Therefore, the General category fishery recommended by the International for the August period will be closed Commission for the Conservation of DEPARTMENT OF COMMERCE effective at 11:30 p.m. on August 17, Atlantic Tunas among the various 1996. This action is being taken to domestic fishing categories. National Oceanic and Atmospheric prevent overharvest of the adjusted 193 Administration metric tons (mt) subquota for the August General Category Closure period. NMFS is required, under 285.20(b)(1), 50 CFR Part 285 EFFECTIVE DATE: The General category to monitor the catch and landing statistics and, on the basis of these [I.D. 081596C] closure for the August period is effective 11:30 p.m. local time on August 17, statistics, to project a date when the Atlantic Tuna Fisheries; Fishery 1996, through August 31, 1996. catch of ABT will equal the quota and Closure publish a Federal Register FOR FURTHER INFORMATION CONTACT: John announcement to close the applicable AGENCY: National Marine Fisheries Kelly, 301–713–2347, or Mark Murray- fishery. Service (NMFS), National Oceanic and Brown, 508–281–9260. Implementing regulations for the Atmospheric Administration (NOAA), SUPPLEMENTARY INFORMATION: Atlantic tuna fisheries at 50 CFR 285.22 Commerce. Regulations implemented under the provide for a quota of 186 mt of large