Tuesday, May 14, 2002
Part II
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Proposed Determinations of Prudency and Proposed Designations of Critical Habitat for Plant Species From the Northwestern Hawaiian Islands, HI; Proposed Rule
VerDate 11
DEPARTMENT OF THE INTERIOR Federal agencies to ensure that actions (telephone: 808/541–3441; facsimile: they carry out, fund, or authorize do not 808/541–3470). Fish and Wildlife Service destroy or adversely modify critical SUPPLEMENTARY INFORMATION: habitat to the extent that the action 50 CFR Part 17 appreciably diminishes the value of the Background RIN 1018–AH09 critical habitat for the conservation of In the Lists of Endangered and the species. Section 4 of the Act requires Threatened Plants (50 CFR 17.12), there Endangered and Threatened Wildlife us to consider economic and other are six plant species that, at the time of and Plants; Proposed Determinations relevant impacts of specifying any listing, were reported from the of Prudency and Proposed particular area as critical habitat. Northwestern Hawaiian Islands (Nihoa Designations of Critical Habitat for We solicit data and comments from Island, Necker Island, French Frigate Plant Species From the Northwestern the public on all aspects of this Shoals, Gardner Pinnacles, Maro Reef, Hawaiian Islands, HI proposal, including data on the Laysan Island, Lisianski Island, Pearl economic and other impacts of the AGENCY: Fish and Wildlife Service, and Hermes Atoll, Midway Atoll, and proposed designations. We may revise Interior. Kure Atoll) (Table 1). Amaranthus this proposal to incorporate or address brownii, Cenchrus agrimonioides var. ACTION: Proposed rule and notice of new information received during the laysanensis, Mariscus pennatiformis determinations of whether designation comment period. ssp. bryanii, Pritchardia remota, and of critical habitat is prudent. DATES: We will accept comments until Schiedea verticillata are endemic to the SUMMARY: We, the U.S. Fish and July 15, 2002. Public hearing requests Northwestern Hawaiian Islands, while Wildlife Service (Service), propose must be received by June 28, 2002. Sesbania tomentosa is reported from one or more other islands, as well as the critical habitat for five (Amaranthus ADDRESSES: If you wish to comment, Northwestern Hawaiian Islands. brownii, Mariscus pennatiformis, you may submit your comments and In previously published proposals we Pritchardia remota, Schiedea materials concerning this proposal by proposed that critical habitat was verticillata, and Sesbania tomentosa) of any one of the following methods: the six plant species known historically prudent for Cenchrus agrimonioides, (1) You may submit written comments from the Northwestern Hawaiian Islands Mariscus pennatiformis, and Sesbania and information to the Field Supervisor, (Nihoa Island, Necker Island, French tomentosa. No change is made to these U.S. Fish and Wildlife Service, Pacific Frigate Shoals, Gardner Pinnacles, Maro prudency determinations in this Islands Office, 300 Ala Moana Blvd., Reef, Laysan Island, Lisianski Island, proposal and they are hereby P.O. Box 50088, Honolulu, HI 96850– Pearl and Hermes Atoll, Midway Atoll, incorporated in this proposal (65 FR 0001. and Kure Atoll) that are listed under the 66808, 65 FR 79192, 67 FR 3940, 67 FR Endangered Species Act of 1973, as (2) You may hand-deliver written 9806). amended. Critical habitat is not comments to our Pacific Islands Office In this proposal, we propose that proposed for Cenchrus agrimonioides at 300 Ala Moana Blvd., Room 3–122, critical habitat designation is prudent var. laysanensis as it has not been seen Honolulu, HI 96850. for Amaranthus brownii, Pritchardia in the wild for over twenty years and no You may view comments and remota, and Schiedea verticillata for viable genetic material of this variety is materials received, as well as supporting which proposed prudency known to exist. documentation used in the preparation determinations have not been made We propose critical habitat of this proposed rule by appointment, previously, because the potential designations for five species on three during normal business hours at the benefits of designating critical habitat islands (Nihoa, Necker, and Laysan) Pacific Islands Office. essential for the conservation of these totaling approximately 498 hectares (ha) FOR FURTHER INFORMATION CONTACT: Paul species outweigh the risks that may (1,232 acres (ac)). If this proposal is Henson, Field Supervisor, Pacific result from human activity because of made final, section 7 of the Act requires Islands Office (see ADDRESSES section) critical habitat designation.
TABLE 1.—SUMMARY OF ISLAND DISTRIBUTION OF SIX SPECIES FROM THE NORTHWESTERN HAWAIIAN ISLANDS
Island Distribution NW Hawaiian Species Islands, Kauai Oahu Molokai Lanai Maui Hawaii Kahoolawe, Niihau
Amaranthus brownii (no common name) ...... Nihoa (C) Cenchrus agrimonioides var. laysanensis (kamanomano) Kure (H), Laysan (H), Midway ((H) Mariscus pennatiformis (no common name) ...... H H C R Laysan (C) Pritchardia remota (loulu) ...... Nihoa (C), Laysan (R) Schiedea verticillata (no common name) ...... Nihoa (C) Sesbania tomentosa (ohai) ...... C CCHCCNiihau (H), Kahoolawe (C), Necker (C), Nihoa (C) KEY: C (Current)—population last observed within the past 30 years. H (Historical)—population not seen for more than 30 years.
VerDate 11
R (Reported)—reported from undocumented observations. NW Hawaiian Islands includes Kure Atoll, Midway Atoll, and Laysan, Necker, Nihoa island.
In this proposal, we propose twenty years and no viable genetic approximately 1,600 kilometers (km) designation of critical habitat for five material of this variety is known to (1,000 miles (mi)) northwest from Nihoa (Amaranthus brownii, Mariscus exist. Island to Kure Atoll (Figure 1). They are pennatiformis, Pritchardia remota, Critical habitat is proposed for remnants of once larger islands that Schiedea verticillata, and Sesbania designation on the islands of Nihoa, have slowly eroded and subsided, tomentosa) of the six species reported Necker, and Laysan. The land area for which today exist as small land masses from the Northwestern Hawaiian these three islands totals approximately or coral atolls that cover the remnants Islands. Critical habitat is not proposed 498 ha (1,232 ac). of the volcanic islands (Department of for Cenchrus agrimonioides in the The Northwestern Hawaiian Islands Geography 1998; U.S. Fish and Wildlife Northwestern Hawaiian Islands, because Service (USFWS) 1998). C. agrimonioides var. laysanensis has The NWHI are a chain of islands that not been seen in the wild for over extend along a linear path
Nihoa rises approximately 274 meters center of the island. Lisianski Island is USFWS, pers. comm., 2000; USFWS (m) (900 feet (ft)) above sea level and 147 ha (364 ac) in size, but is bounded 1986). has an area of approximately 69 ha (171 to the north by an extensive reef system. One listed plant species was known ac). Its steep topography and crater A central lagoon once found on this from Kure Atoll (Cenchrus shape reveal its volcanic origin. Necker island has filled with sand. Pearl and agrimonioides var. laysanensis), three Island, less than 92 m (300 ft) in Hermes Reef, an inundated atoll, were known from Laysan (Cenchrus elevation and 19 ha (46 ac) in area, includes nearly 40,469 ha (100,000 ac) agrimonioides var. laysanensis, consists of thin-layered weathered lava of submerged reef and seven small Mariscus pennatiformis and Pritchardia flows. La Perouse Pinnacles at French sandy islets totaling less than 34 ha (85 remota), one from Midway (Cenchrus Frigate Shoals and Gardner Pinnacles ac). Midway Atoll is approximately 8 agrimonioides var. laysanensis), four are the last exposed volcanic remnants km (5 mi) in diameter and includes from Nihoa (Amaranthus brownii, in the archipelago. French Frigate three islands: Sand, Eastern, and Spit. Pritchardia remota, Schiedea verticillata Shoals is a crescent shaped atoll nearly Both Sand and Eastern islands are and Sesbania tomentosa) and one from 29 km (18 mi) across. More than a dozen highly altered by man. Kure Atoll is the Necker (Sesbania tomentosa) (Table 1). small sandy islands dot the fringes of northernmost exposed land in the Nihoa (209 km (140 mi) from Niihau) this atoll. Maro Reef is a largely Hawaiian archipelago. Two islands, and Necker (an additional 290 km (180 submerged area marked by breakers and Green and Sand, are found on the mi) beyond Nihoa) are closest to the a few pieces of coral that intermittently southern edge of the atoll and are main Hawaiian Islands. Both are small, protrude above the waterline. Laysan included in the Hawaii State Seabird residual fragments of volcanoes that Island is nearly 5.18 square kilometer Sanctuary System. Green Island was formed 7.2 and 10.3 million years ago (sq km) (2 square miles (sq mi)) in size altered considerably in the past and respectively (USFWS 1986). Although and is fringed by a reef. An 81 ha (200 today suffers from enormous alien both of these islands were uninhabited ac) hypersaline lagoon is located in the species problems (Elizabeth Flint, at the time of their modern discovery in
VerDate 11
the late eighteenth century, there is an Hawaiian Islands National Wildlife feet (ft)) long. The slightly hairy, extensive heiau (indigenous place of Refuge alternate leaves are long and narrow, 4 worship, shrine) complex on Necker, The reefs and islets of the to 7 cm (1.6 to 2.8 inches (in)) long, 1.5 and agricultural terraces and other Northwestern Hawaiian chain from to 4 millimeter (mm) (0.06 to 0.16 in) Hawaiian archaeological features can be Nihoa Island through Pearl and Hermes wide, and more or less folded in half lengthwise. Flowers are either male or found on Nihoa (Cleghorn 1984, Atoll are protected as the Hawaiian Department of Geography 1998, USFWS female, and both sexes are found on the Islands National Wildlife Refuge 1986). same plant. This species can be (HINWR). The HINWR was established In 1892, a guano mining business distinguished from other Hawaiian in 1909 to protect the large colonies of began operation on Laysan and members of the genus by its spineless seabirds, which were being slaughtered flourished until the last load was leaf axils, its linear leaves, and its fruit for the millinery trade, as well as a shipped in 1904. During this time, which does not split open when mature variety of other marine organisms, rabbits were introduced to Laysan for a (Wagner et al. 1999). rabbit canning industry, and allowed to including sea turtles and the critically Amaranthus brownii is an herbaceous reproduce and roam freely (Morin and endangered Hawaiian monk seal annual with a growing season that Conant 1998, Tomich 1986). This, too, ( Monachus schauinslandi), and to put a extends from December to June or July. failed as a profitable business and no halt to the unregulated commercial Conant (1985) reported finding plants in attempt was made to control the number exploitation of wildlife resources an early stage of flowering in February of rabbits on the island. The rabbits (Executive Order 1019). Within its and collecting seed from dead plants were finally eradicated from the island boundaries are eight islands and atolls: during June. Phenology may vary in the early 1920s, though not before the Nihoa, Necker, French Frigate Shoals, somewhat from year to year, depending vegetation had been thoroughly Gardner Pinnacles, Maro Reef, Laysan, on rainfall and climatic factors. The devastated. Since then, the vegetation of Lisianski, and Pearl and Hermes Atoll. means of pollination are unknown Laysan has recovered to a remarkable There is no general public or (USFWS 1998d). degree, though some species, like the recreational use allowed at HINWR. Amaranthus brownii is the rarest native palms (Pritchardia sp.), are no Access is strictly regulated through a native plant on the island of Nihoa longer found on the island (Tomich permit system because of the sensitivity (Conant 1985). When it was first 1986; E. Flint, pers. comm., 2000). of the organisms, like the Hawaiian collected in 1923, it was ‘‘most common Kure Atoll was discovered and named monk seal, on these islands to human on the ridge leading to Miller’s Peak, but in 1827 by the captain of a Russian disturbance and the high risk of abundant also on the ridges to the east’’ vessel. Between 1876 and 1936 importation of alien plant and (Herbst 1977). In 1983, the two known Australian Copra & Guano Ltd. mined invertebrate species. In addition, strict groupings of colonies were separated by guano from Green Island and Sand quarantine procedures are in effect for a distance of 0.4 km (0.25 mi) and Island, the two islands that make up those accessing the refuge. Other than contained approximately 35 plants: 1 Kure Atoll. Military bases were built on the refuge staff, only individuals colony of about 23 plants near Miller’s the islands during World War II and a conducting scientific research or Peak and about a dozen plants in 3 Loran C station with two 158 m (518 ft) undertaking natural history film small colonies in Middle Valley. No high masts was operated until 1998. The recording have been granted official plants have been seen at either location towers are no longer on the islands. The permission to visit the HINWR (E. Flint, since 1983, even though Service staff airstrip built on Green Island is no pers. comm., 2000). have surveyed for them annually longer usable and landing is only Northwestern Hawaiian Islands Coral (USFWS 1998d). In order to get an accurate population count and collect possible by boat (USFWS 1998a). Reef Ecosystem Reserve Midway Atoll was discovered and seeds or cuttings to establish ex situ named Middlebrook Islands in 1859 by On December 4, 2000, President populations, it will be necessary to Captain Nick Brooks. The atoll was Clinton issued an Executive Order conduct winter surveys. However, none taken into possession by the United establishing the 33,993,594 ha (84 of the surveys since 1983 have been States in 1867 and in 1903 President million ac) Northwestern Hawaiian done during the winter, when these Theodore Roosevelt placed the atoll Islands Coral Reef Ecosystem Reserve annuals are easiest to find and identify. under the control of the Navy. In 1935 that includes the marine waters and Access to the island is limited Pan American World Airways set up an submerged lands of the NWHI, particularly during the winter due to airbase for the weekly Trans-Pacific extending approximately 2,222 km difficult and dangerous landing Flying Clipper Seaplane service. In (1,200 nautical mi) long and 185 km conditions. Sea conditions are apt to 1941, the Japanese attacked Midway (100 nautical mi) wide. The Reserve is change without warning, stranding any Atoll on their return from the attack on adjacent to the State of Hawaii waters visitors on this inhospitable island that Pearl Harbor, but in 1942 the United and submerged lands and the Midway has no fresh water and no regular food States ambushed and defeated the Atoll National Wildlife Refuge, and supply (Cindy Rehkemper, USFWS, Japanese Fleet north of the atoll, turning includes the HINWR outside of state pers. comm., 2001). the tide of World War II in the Pacific. waters. Amaranthus brownii typically grows In 1988, the atoll was added to the in shallow soil on rocky outcrops. It is National Wildlife Refuge system and in Discussion of the Plant Taxa found in fully exposed locations at 1996 the jurisdiction of Midway Atoll Species Endemic to the Northwestern elevations between 30 and 242 m (100 was transferred from the U.S. Navy to Hawaiian Islands and 800 ft). Associated native plant taxa the Department of Interior (USFWS include Schiedea verticillata (no 2000). Despite this evidence of earlier Amaranthus brownii (no common common name (NCN)), Chenopodium human use, these islands continue to name) oahuense (aheahea), Ipomoea pes- support an assemblage of endemic Amaranthus brownii, a member of the caprae ssp. brasiliensis (pohuehue), plants and animals not found elsewhere amaranth family (Amaranthaceae), is an Ipomoea indica (koali awa), Scaevola in the archipelago (Department of herb with leafy upright or ascending sericea (naupaka), Sida fallax (ilima), Geography 1998). stems, 30 to 90 centimeters (cm) (1 to 3 Solanum nelsonii (akia), Sicyos
VerDate 11
pachycarpus (kupala), Eragrostis seeps by cliffs (USFWS 1998d). Within 1992, Service staff counted only 170 to variabilis (kawelu), and Panicum the Pritchardia remota coastal forest 190 plants in six populations (USFWS torridum (kakonakona) (Hawaii Natural community, Pritchardia remota assumes 1998d). However, in 1996, Rowland Heritage Program (HINHP) Database complete dominance with a closed counted a total of 359 plants in 10 2000). canopy and thick layers of fallen fronds populations (USFWS 1998d). These The threats to Amaranthus brownii on in the understory (Gagne and Cuddihy were distributed primarily on the Nihoa are competition with the alien 1999). Native plants growing nearby western half of the island, although a plant Portulaca oleracea (pigweed); include Chenopodium oahuense, population of 13 plants was seen on the changes in the substrate; fire; Sesbania tomentosa (ohai), Solanum east spur of the island near Tunnel introduction of rats; human nelsonii, and Sida fallax (USFWS Cave. Two previously unobserved disturbances; a risk of extinction from 1998d). populations containing 2 and 99 plants, naturally occurring events (such as The threats to Pritchardia remota on respectively, were seen on the north hurricanes); and reduced reproductive the island of Nihoa are competition with cliffs above Miller’s Valley. Other vigor due to the small number of extant alien plants, seed predation by rodents, locations included a population of 24 individuals (USFWS 1998d). possibly alien insects, fire, human plants at Dog’s Head; 37 plants at disturbances, a risk of extinction from Pritchardia remota (loulu) Devil’s Slide; 10 plants near Miller’s naturally occurring events (such as Peak; a previously unknown population Pritchardia remota, a member of the landslides), and reduced reproductive of 62 plants on the ridge separating palm family (Arecaceae), is a tree 4 to vigor due to the small number of extant West and West Palm valleys; 80 plants 5 m (13 to 16 ft) tall with a ringed, wavy individuals (USFWS 1998d). near lower West valley; 28 individuals trunk about 15 cm (5.9 in) in diameter. Schiedea verticillata (no common name) near Pinnacle Peak; and a small colony The rather ruffled, fan-shaped leaves are of 4 plants northeast of Pinnacle Peak about 80 cm (31 in) in diameter and are Schiedea verticillata, a member of the (USFWS 1998d). somewhat waxy to pale green with a few pink family (Caryophyllaceae), is a Schiedea verticillata typically grows tiny scales on the lower surface. The perennial herb which dies back to an in rocky scree, soil pockets, and cracks flowering stalks, up to 30 cm (12 in) enlarged root during dry seasons. The on coastal cliff faces and in Pritchardia long, are branched and have flowers stems, which can reach 0.4 to 0.6 m (1.3 remota coastal mesic forest at elevations arranged spirally along the hairless to 2 ft) in length, are upright or between 30 and 242 m (100 and 800 ft). stalks. It is the only species of sometimes pendent (drooping). The Associated taxa include Tribulus Pritchardia on the island of Nihoa and stalkless leaves are fleshy, broad, and cistoides (nohu), Eragrostis variabilis, can be distinguished from other species pale green; usually arranged in threes; Rumex albescens (huahuako), and of the genus in Hawaii by its wavy and measure 9 to 15 cm (3.5 to 5.9 in) lichens on surrounding rock (HINHP leaves; its short, hairless inflorescences; long and 7 to 9 cm (2.8 to 3.5 in) wide. Database 2000). and its small, globose (spherical/round) Flowers are arranged in open, branched The threats to Schiedea verticillata on fruits (Read and Hodel 1999, 61 FR clusters, usually 17 to 25 cm (6.7 to 9.8 the island of Nihoa are competition with 43178). in) long. This species, the only member alien plant species, possible herbivory Pritchardia remota is a long-lived of its genus to grow in the Northwestern by alien insect species, predation by perennial, and populations have Hawaiian Islands, is distinguished from rodents, human disturbances, a risk of remained stable for several years. other species of the genus by its extinction from naturally occurring Conant (1985) reported finding plants exceptionally large sepals and, usually, events (such as rockslides), and reduced with fruit and flowers in the spring and three leaves per node (Wagner et al. reproductive vigor due to the small summer. Phenology may vary somewhat 1999). Dr. Steve Weller of the University number of individuals (Conant 1985, from year to year, depending on rainfall of California at Irvine, found that USFWS 1998d). and climatic factors. The means of Schiedea verticillata produces more pollination are unknown. seeds and more nectar than any other Multi-Island Species Pritchardia remota was historically species in its genus. It also has the Cenchrus agrimonioides (kamanomano) known from Nihoa and Laysan islands. highest degree of genetic diversity Currently, Pritchardia remota is known between individuals of any species in Cenchrus agrimonioides, a short-lived from four colonies presently extant the genus (USFWS 1998d). perennial member of the grass family along 0.2 km (0.1 mi) of the length of Schiedea verticillata is a short-lived (Poaceae), is a grass with leaf blades each of two valleys which are about 0.6 perennial. Conant’s data (1985) which are flat or folded and have a km (0.4 mi) apart on opposite sides of indicated that the reproductive cycle prominent midrib. The two varieties, the island of Nihoa. Including seedlings, may not be seasonal, since many life Cenchrus agrimonioides var. more than 680 plants are found in West stages were found simultaneously laysanensis and Cenchrus Palm Valley and more than 392 plants throughout the year. Her observations agrimonioides var. agrimonioides, differ in East Palm Valley (HINHP Database also indicate that the individual plants from each other in that var. 2000). A few trees also grow at the bases flower, set, and disperse seed in a agrimonioides has smaller burs, shorter of basaltic cliffs on the steep outer relatively short period of time. The stems, and narrower leaves. Cenchrus slopes of each of the two valleys means of pollination are unknown agrimonioides var. agrimonioides is (HINHP Database 2000). Plants grow (USFWS 1998d). known only from the main Hawaiian from 15 to 151 m (50 to 500 ft) in All but one historically known colony Islands while Cenchrus agrimonioides elevation. of Schiedea verticillata are known to be var. laysanensis is known only from Pritchardia remota is unusual among extant on Nihoa. Colony locations and (endemic to) the NWHI. This species is Hawaiian members of the genus in that levels appear to have shifted somewhat, distinguished from others in the genus it occurs in the relatively dry climate but total numbers have remained by the cylindrical to lance-shaped bur found on Nihoa. However, its relatively stable for several years. Seven and the arrangement and position of the distribution on Nihoa may be related to populations, containing a total of 497, bristles (O’Connor 1999). water availability since many plants are individuals were counted between 1980 Little is known about the life history found in valleys and near freshwater and 1983 (HINHP Database 2000). In of this plant. Reproductive cycles,
VerDate 11
longevity, specific environmental overlapping and yellower glumes (scaly color tinged with yellow, orange-red, requirements, and limiting factors are bracts of spikelets) in ssp. pennatiformis scarlet, or rarely, pure yellow generally unknown; however, this as compared with ssp. bryanii (Koyama coloration. Sesbania tomentosa is the species has been observed to produce 1999). Mariscus pennatiformis ssp. only endemic Hawaiian species in the fruit year round (USFWS 1999). bryanii is the only subspecies found in genus, differing from the naturalized Historically, Cenchrus agrimonioides the Northwestern Hawaiian Islands. Sesbania sesban by the color of the var. agrimonioides was known from Individuals of Mariscus pennatiformis flowers, the longer petals and calyx, and Oahu, Lanai, and the south slope of ssp. bryanii on Laysan Island were the number of seeds per pod (Geesink et Haleakala and Ulupalakua on Maui; closely monitored for 10 years, but al. 1999). there is also an undocumented report flowering was never observed until the The pollination biology of Sesbania from Hawaii Island (61 FR 53108). continuous flowering of one individual tomentosa is being studied by David Currently, Cenchrus agrimonioides var. from November 1994 to December 1995 Hopper, a graduate student in the agrimonioides is known from Oahu and (USFWS 1999). This flowering event Department of Zoology at the University Maui (65 FR 79192). Historically, coincided with record high rainfall on of Hawaii at Manoa. His preliminary Cenchrus agrimonioides var. Laysan (USFWS 1999). Little else is findings suggest that although many laysanensis was known from Laysan, known about the life history of this insects visit Sesbania flowers, the Kure, and Midway in the Northwestern plant (USFWS 1999). majority of successful pollination is Hawaiian Islands but has not been seen Historically, Mariscus pennatiformis accomplished by native bees of the there since about 1980 (HINHP Database was found on Kauai, Oahu, and Hawaii. genus Hylaeus and that populations at 2000; O’Connor 1999). Morin and Currently, Mariscus pennatiformis ssp. Kaena Point on Oahu are probably Conant (1998) reported that Cenchrus pennatiformis is found on Maui while pollinator limited. Flowering at Kaena agrimonioides var. laysanensis Mariscus pennatiformis ssp. bryanii is Point is highest during the winter-spring disappeared from Laysan before 1923, known only from Laysan Island. This rains, and gradually declines throughout from Midway Atoll sometime shortly subspecies was found until recently on the rest of the year (USFWS 1999). after 1902, and was last seen on Green the southeast end of the central lagoon Other aspects of this plant’s life history Island, Kure Atoll in about 1980. The and the west and northeast sides of the are unknown. last comprehensive botanical surveys of island on sandy substrate at an elevation Currently, Sesbania tomentosa occurs all of these islands were conducted in of 5 m (16 ft) (HINHP Database 2000, on at least six of the eight main the 1980s. No viable genetic material of Koyama 1999). The population has Hawaiian Islands (Kauai, Oahu, this variety is known to exist. Because fluctuated from as many as 200 to as few Molokai, Kahoolawe, Maui, and Hawaii) this variety has not been seen in the as 1 individual over the past 10 years. and in the Northwestern Hawaiian wild for over 20 years and no viable Currently, a single population of about Islands (Nihoa and Necker). Although genetic material is known to exist, 200 individuals of Mariscus once found on Niihau and Lanai, it is no critical habitat is not proposed at this pennatiformis ssp. bryanii remains on longer extant on these islands (59 FR time. the southeast end of the lagoon (USFWS 56333, Geographic Decision Systems Cenchrus agrimonioides var. 1999). International (GDSI) 2000, USFWS laysanensis was historically found on Mariscus pennatiformis ssp. bryanii is 1999, HINHP Database 2000). On Nihoa coastal sandy substrate in Scaevola- found on coastal sandy substrate at an this species has been described as Eragrostis variabilis scrub at an elevation of 5 m (16 ft). Associated relatively common in some areas, with elevation of 5 m (16 ft). species include Cyperus laevigatus one population consisting of several This species was threatened by (makaloa), Eragrostis variabilis, and thousand individual plants known competition with various alien plant Ipomoea sp. (HINHP Database 2000, (USFWS 1999). On Necker Island, species, seed predation by rats and Koyama 1999). Sesbania tomentosa is known to occur mice, and, potentially, alien insects, and The threats to Mariscus pennatiformis from 45 m (150 ft) elevation to the 84 fire. ssp. bryanii on the island of Laysan are m (276 ft) summit, growing on the tops seed predation by the endangered Mariscus pennatiformis (no common of all hills of the main island. A few Laysan finch (Telespiza cantans) and name) individuals are found on the Northwest destruction of the remaining individuals Cape, as well (USFWS 1999). Mariscus pennatiformis, a member of during burrowing activities of nesting Sesbania tomentosa is found in the sedge family (Cyperaceae), is a seabirds. The native plant Ipomoea pes- shallow soil on sandy beaches and perennial plant with a woody root caprae (beach morning glory), is another dunes in Chenopodium oahuense system covered with brown scales. The possible threat since it periodically coastal dry shrubland (HINHP Database stout, smooth, three-angled stems are grows over the Mariscus individuals 2000, Geesink et al. 1999). Associated between 0.4 and 1.2 m (1.3 and 4 ft) (USFWS 1999). In addition, native plant species include Sida fallax, long, slightly concave, and 3 to 7 mm Sicyos spp. vines, Eragrostis variabilis, Scaevola sericea, Solanum nelsonii, and (0.1 to 0.3 in) in diameter in the lower and Boerhavia repens (alena) appear to Pritchardia remota (HINHP Database part. The three to five linear, somewhat have impeded natural dispersal of 2000). leathery leaves are 8 to 17 mm (0.3 to Mariscus pennatiformis ssp. bryanii to The primary threats to Sesbania 0.7 in) wide and at least as long as the other suitable locations (Schultz 2000). tomentosa on the islands of Nihoa and stem. This species differs from other Necker are competition with various Sesbania tomentosa (ohai) members of the genus by its three-sided, alien plant species; lack of adequate slightly concave, smooth stems; the Sesbania tomentosa, a member of the pollination; seed predation by rats and length and number of spikelets legume family (Fabaceae), is typically a mice and, potentially, alien insects; and (elongated flower-clusters); the leaf sprawling short-lived perennial shrub fire (USFWS 1999). width; and the length and diameter of but may also be a small tree. Each stems. The two subspecies are compound leaf consists of 18 to 38 Previous Federal Action distinguished primarily by larger and oblong to elliptic leaflets that are Federal action on these plants began more numerous spikelets, larger achenes usually sparsely to densely covered as a result of Section 12 of the Act, (dry, one-seeded fruits), and more with silky hairs. The flowers are salmon which directed the Secretary of the
VerDate 11
Smithsonian Institution to prepare a status pursuant to Section 4 of the Act Register (44 FR 70796) withdrawing the report on plants considered to be for approximately 1,700 vascular plant portion of the June 16, 1976, proposal endangered, threatened, or extinct in the taxa, including Amaranthus brownii, that had not been made final, along with United States. This report, designated as Cenchrus agrimonioides var. four other proposals that had expired. House Document No. 94–51, was laysanensis, and Sesbania tomentosa. The Service published updated notices presented to Congress on January 9, The list of 1,700 plant taxa was of review for plants on December 15, 1975. In that document Pritchardia assembled on the basis of comments and 1980 (45 FR 82479), September 27, 1985 remota and Sesbania tomentosa (as S. data received by the Smithsonian (50 FR 39525), February 21, 1990 (55 FR hobdyi and S. tomentosa var. Institution and the Service in response 6183), and September 30, 1993 (58 FR tomentosa) were considered to House Document No. 94–51 and the 51144). A summary of the status endangered. On July 1, 1975, we July 1, 1975, Federal Register categories for Amaranthus brownii, published a notice in the Federal publication. Register (40 FR 27823) of our General comments received in Cenchrus agrimonioides, Mariscus acceptance of the Smithsonian report as response to the 1976 proposal are pennatiformis, Pritchardia remota, a petition within the context of Section summarized in an April 26, 1978, Schiedea verticillata, and Sesbania 4(c)(2) (now Section 4(b)(3)) of the Act, Federal Register publication (43 FR tomentosa in the 1980 to 1993 notices and giving notice of our intention to 17909). In 1978, amendments to the Act of review can be found in Table 2(a). We review the status of the plant taxa required that all proposals over 2 years listed these six species as endangered named therein. As a result of that old be withdrawn. A 1-year grace period between 1994 and 1996. A summary of review, on June 16, 1976, we published was given to proposals already over 2 the listing actions can be found in Table a proposed rule in the Federal Register years old. On December 10, 1979, we 2(b). (41 FR 24523) to determine endangered published a notice in the Federal
TABLE 2(a).—SUMMARY OF CANDIDACY STATUS FOR SIX PLANT SPECIES FROM THE NORTHWESTERN HAWAIIAN ISLANDS
Federal Register Notice of Review Species 1980 1985 1990 1993
Amaranthus brownii ...... C1 C1 C1 Cenchrus agrimonioides var. laysanensis ...... C1* C1* C1* C2* Mariscus pennatiformis ...... C1 C1 Pritchardia remota ...... C1 C1 C1 Schiedea verticillata ...... C1 C1 C1 Sesbania tomentosa ...... C1* C1* C1 Key: C1: Taxa for which the Service has on file enough sufficient information on biological vulnerability and threat(s) to support proposals to list them as endangered or threatened species. C1*: Taxa of known vulnerable status in the recent past that may already have become extinct. C2*: Taxa for which information now in the possession of the Service indicates that proposing to list as endangered or threatened is possibly appropriate, but for which sufficient data on biological vulnerability and threat are not currently available to support proposed rules. Continued ex- istence of these species is in doubt. Federal Register Notices of Review: 1980: 45 FR 82479 1985: 50 FR 39525 1990: 55 FR 6183 1993: 58 FR 51144
TABLE 2(b).—SUMMARY OF LISTING ACTIONS FOR SIX PLANT SPECIES FROM THE NORTHWESTERN HAWAIIAN ISLANDS
Proposed Rule Final Rule Federal Species status Federal Federal Date Register Date Register
Amaranthus brownii ...... E 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Cenchrus agrimonioides ...... E 10/2/95 60 FR 51417 10/10/96 61 FR 53108 Mariscus pennatiformis ...... E 09/14/93 58 FR 48012 11/10/94 59 FR 56333 Pritchardia remota ...... E 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Schiedea verticillata ...... E 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Sesbania tomentosa ...... E 09/14/93 58 FR 48012 11/10/94 59 FR 56333 Key: E = Endangered.
Critical Habitat threatened. Our regulations (50 CFR species, or (2) such designation of 424.12(a)(1)) state that designation of critical habitat would not be beneficial Section 4(a)(3) of the Act, as critical habitat is not prudent when one to the species. At the time each plant amended, and implementing regulations or both of the following situations exist: was listed, we determined that (50 CFR 424.12) require that, to the (1) the species is threatened by taking or designation of critical habitat was not maximum extent prudent and determinable, the Secretary designate other human activity, and identification prudent because it would not benefit the critical habitat at the time the species is of critical habitat can be expected to plant and/or would increase the degree determined to be endangered or increase the degree of threat to the of threat to the species.
VerDate 11
The not prudent determinations for On November 30, 1998, we published Niihau plants (65 FR 66808). The these species, along with others, were a notice in the Federal Register prudency determinations and proposed challenged in Conservation Council for requesting public comments on our critical habitat designations for Maui Hawaii v. Babbitt. 2 F. Supp. 2d 1280 reevaluation of whether designation of and Kahoolawe plants were published (D. Haw. 1998). On March 9, 1998, the critical habitat is prudent for the 245 on December 18, 2000 (65 FR 79192), for United States District Court for the Hawaiian plants at issue (63 FR 65805). Lanai plants on December 27, 2000 (65 District of Hawaii directed us to review The comment period closed on March 1, FR 82086), and for Molokai plants on the prudency determinations for 245 1999, and was reopened from March 24, December 29, 2000 (65 FR 83158). All listed plant species in Hawaii, including 1999, to May 24, 1999 (64 FR 14209). of these proposed rules were sent to the Amaranthus brownii, Cenchrus We received over 100 responses from Federal Register by or on November 30, agrimonioides, Mariscus pennatiformis, individuals, non-profit organizations, 2000, as required by the Court’s order. Pritchardia remota, Schiedea county governments, the State of Revised proposals for the islands of verticillata, and Sesbania tomentosa. Hawaii’s Division of Forestry and Kauai and Niihau, Lanai, Maui and Among other things, the Court held that Wildlife, and Federal agencies (U.S. Kahoolawe, and Molokai have also been in most cases we did not sufficiently Department of Defense—Army, Navy, published, consistent with a court demonstrate that the species are Air Force). Only a few responses offered ordered stipulation dated October 5, threatened by human activity or that information on the status of individual 2001, extending the deadlines for the such threats would increase with the plant species or on current management rulemakings to allow us to prepare designation of critical habitat. The Court actions for one or more of the 245 revised proposals taking into account also held that we failed to balance any Hawaiian plants. While some of the information received during the public risks of designating critical habitat respondents expressed support for the comment periods. In earlier proposals against any benefits (id. at 1283–1285). designation of critical habitat for 245 we determined that critical habitat was Regarding our determination that Hawaiian plants, more than 80 percent prudent for three species (Cenchrus designating critical habitat would have opposed the designation of critical agrimonioides (65 FR 79192), Mariscus no additional benefits to the species habitat for these plants. In general, these pennatiformis (65 FR 79192), and above and beyond those already respondents opposed designation Sesbania tomentosa (65 FR 66808) that provided through the section 7 because they believed it will cause are reported from the Northwestern consultation requirement of the Act, the economic hardship, chill cooperative Hawaiian Islands. This prudency Court ruled that we failed to consider projects, polarize relationships with determination and proposed rule the specific effect of the consultation hunters, or potentially increase trespass designating critical habitat for requirement on each species (id. at or vandalism on private lands. In Amaranthus brownii, Cenchrus 1286–88). In addition, the Court stated addition, commenters also cited a lack agrimonioides, Mariscus pennatiformis, that we did not consider benefits of information on the biological and Pritchardia remota, Schiedea outside of the consultation ecological needs of these plants which, verticillata, and Sesbania tomentosa, requirements. In the Court’s view, these they suggested, may lead to designation from the NWHI responds to the court potential benefits include substantive based on guesswork. The respondents order in Conservation Council for and procedural protections. The Court who supported the designation of Hawaii v. Babbitt. held that, substantively, designation critical habitat cited that designation Critical Habitat establishes a ‘‘uniform protection plan’’ will provide a uniform protection plan prior to consultation and indicates Critical habitat is defined in section 3 for the Hawaiian Islands; promote where compliance with section 7 of the of the Act as—(i) the specific areas funding for management of these plants; Act is required. Procedurally, the Court within the geographical area occupied educate the public and State stated that the designation of critical by a species, at the time it is listed in government; and protect partnerships habitat educates the public and State accordance with the Act, on which are with landowners and build trust. and local governments and affords them found those physical or biological an opportunity to participate in the To comply with the Court’s order, we features (I) essential to the conservation designation (id. at 1288). The Court also are publishing seven rules that will of the species and (II) that may require stated that private lands may not be include proposed determinations of special management considerations or excluded from critical habitat whether critical habitat is prudent, protection; and (ii) specific areas designation even though section 7 along with proposed designations if outside the geographical area occupied requirements apply only to Federal appropriate. Each rule, arranged by by a species at the time it is listed, upon agencies. In addition to the potential island or island group (Kauai and a determination that such areas are benefit of informing the public and State Niihau; Maui and Kahoolawe; Lanai; essential for the conservation of the and local governments of the listing and Molokai; Northwestern Hawaiian species. ‘‘Conservation’’ means the use of the areas that are essential to the Islands; Hawaii; Oahu), has or will of all methods and procedures that are species’ conservation, the Court found contain the prudency determination (or necessary to bring an endangered or that there may be Federal activity on the incorporate the prudency determination threatened species to the point at which private property in the future, even when it has been published in a prior listing under the Act is no longer though no such activity may be proposal) and, when appropriate, necessary. occurring there at the present (id. at proposed designations of critical habitat Critical habitat receives protection 1285–88). for each plant species known to occur under section 7 of the Act through the On August 10, 1998, the Court from that island or group of islands. The prohibition against destruction or ordered us to publish proposed critical proposed rules for Kauai and Niihau, adverse modification of critical habitat habitat designations or non-designations Maui and Kahoolawe, Lanai, and with regard to actions carried out, for at least 100 species by November 30, Molokai have already been published. funded, or authorized by a Federal 2000, and to publish proposed On November 7, 2000, we published the agency. Section 7 also requires designations or non-designations for the first of the court-ordered prudency conferences on Federal actions that are remaining 145 species by April 30, 2002 determinations and proposed critical likely to result in the destruction or (24 F. Supp. 2d 1074). habitat designations for Kauai and adverse modification of proposed
VerDate 11
critical habitat. Destruction or adverse Section 4(b)(2) of the Act requires that plans, or other species conservation modification is direct or indirect we take into consideration the economic planning and recovery efforts if new alteration that appreciably diminishes impact, and any other relevant impact, information available to these planning the value of critical habitat for the of specifying any particular areas as efforts calls for a different outcome. conservation of a listed species. Such critical habitat. We may exclude areas A. Prudency Redeterminations alterations include, but are not limited from critical habitat designation when to, alterations adversely modifying any the benefits of exclusion outweigh the As previously stated, designation of of those physical or biological features benefits of including the areas within critical habitat is not prudent when one that were the basis for determining the critical habitat, provided the exclusion or both of the following situations exist: habitat to be critical. Aside from the will not result in extinction of the (i) the species is threatened by taking or added protection that may be provided species. other human activity, and identification under section 7, the Act does not Our Policy on Information Standards of critical habitat can be expected to provide other forms of regulatory Under the Endangered Species Act, increase the degree of such threat to the protection to lands designated as critical published on July 1, 1994 (59 FR species; or (ii) such designation of habitat. Because consultation under 34271), provides criteria, establishes critical habitat would not be beneficial section 7 of the Act does not apply to procedures, and provides guidance to to the species (50 CFR 424.12(a)(1)). activities on private or other non- ensure that decisions made by the To determine whether critical habitat Federal lands that do not involve a Service represent the best scientific and would be prudent for Amaranthus Federal nexus, critical habitat commercial data available. It requires brownii, Pritchardia remota, and that our biologists, to the extent designation would not afford any Schiedea verticillata, we analyzed the consistent with the Act and with the use additional regulatory protections under potential threats and benefits for each of the best scientific and commercial the Act against such activities. species in accordance with the court’s data available, use primary and original Critical habitat also provides non- order. Due to low numbers of sources of information as the basis for regulatory benefits to the species by individuals and populations and their recommendations to designate critical informing the public and private sectors inherent immobility, the three plants habitat. When determining which areas of areas that are important for species may be vulnerable to unrestricted are critical habitat, a primary source of recovery and where conservation collection, vandalism, or disturbance, information should be the listing rule actions would be most effective. though this is unlikely given their for the species. Additional information Designation of critical habitat can help may be obtained from a recovery plan, inaccessibility. Recently we received focus conservation activities for a listed articles in peer-reviewed journals, information on the commercial trade in species by identifying areas that contain conservation plans developed by States palms conducted through the internet the physical and biological features that and counties, scientific status surveys (Grant Canterbury, USFWS, in litt. are essential for the conservation of that and studies, and biological assessments 2000). Several nurseries advertise and species, and can alert the public, as well or other unpublished materials. sell seedlings and young plants, as land-managing agencies to the Section 4 requires that we designate including 13 species of Hawaiian importance of those areas. Critical critical habitat based on what we know Pritchardia. Seven of these species are habitat also identifies areas that may at the time of the designation. Habitat is federally protected, including require special management often dynamic, however, and Pritchardia remota. While we have considerations or protection, and may populations may move from one area to determined that designation of critical help provide protection to areas where another over time. Furthermore, we habitat is not prudent for other species significant threats to the species have recognize that designation of critical of Pritchardia because the benefits of been identified to help to avoid habitat may not include all of the designating critical habitat do not accidental damage to such areas. habitat areas that may eventually be outweigh the potential increased threats In order to be included in a critical determined to be necessary for the from vandalism or collection (65 FR habitat designation, the habitat must recovery of the species. For these 66808, 65 FR 83158), we do not believe first be ‘‘essential to the conservation of reasons, critical habitat designations do this species is threatened by these same the species.’’ Critical habitat not signal that habitat outside the activities because of its inaccessibility. designations identify, to the extent designation is unimportant or may not Nihoa is more than 273 km (170 mi) known using the best scientific and be required for recovery. Habitat areas from Lihue, Kauai, and more than 1,600 commercial data available, habitat areas outside the critical habitat designation km (1,000 mi) from Midway. It is a part that provide essential life cycle needs of will continue to be subject to of the HINWR and a permit is required the species (i.e., areas on which are conservation actions that may be for access to the island. Access to the found the primary constituent elements, implemented under section 7(a)(1) of island is further limited due to difficult as defined at 50 CFR 424.12(b)). Section the Act and to the regulatory protections and dangerous landing conditions. 3(5)(C) of the Act states that not all areas afforded by the section 7(a)(2) jeopardy There is only a 30 percent chance of a that can be occupied by a species standard, and the section 9 take safe landing on the rocky coast, needing should be designated as critical habitat prohibition, as determined on the basis a soft bottomed boat (such as a Zodiac), unless the Secretary determines that all of the best available information at the small waves, and good timing. such areas are essential to the time of the action. It is possible that Passengers must be dropped off and the conservation of the species. Our federally funded or assisted projects boat sent back out to sea (there are no regulations (50 CFR 424.12(e)) also state affecting listed species outside their mooring docks or beaches), returning to that, ‘‘The Secretary shall designate as designated critical habitat areas could pick up the passengers, if conditions critical habitat areas outside the jeopardize those species. Similarly, allow. Sea conditions are apt to change geographic area presently occupied by critical habitat designations made on the without warning, stranding any visitors the species only when a designation basis of the best available information at on this inhospitable island that has no limited to its present range would be the time of designation will not control fresh water and no regular food supply inadequate to ensure the conservation of the direction and substance of future (Cindy Rehkemper, USFWS, pers. the species.’’ recovery plans, habitat conservation comm., 2001).
VerDate 11
We examined the evidence available B. Primary Constituent Elements forest community containing one or for Amaranthus brownii and Schiedea In accordance with section 4(b)(2) of more of the following associated native verticillata and have not, at this time, the Act and regulations at 50 CFR plant species: Chenopodium oahuense, found specific evidence of taking, 424.12, in determining which areas to Sesbania tomentosa, Solanum nelsonii, vandalism, collection or trade of these propose as critical habitat, we are or Sida fallax; and (2) from 15 to 151 m taxa or of similar species. Consequently, required to base critical habitat (50 to 500 ft) in elevation. On Nihoa Island, the currently known while we remain concerned that these determinations on the best scientific primary constituent elements of critical activities could potentially threaten and commercial data available and to habitat for Schiedea verticillata are Amaranthus brownii, Pritchardia consider those physical and biological habitat components that provide: (1) remota, and Schiedea verticillata in the features that are essential to the Rocky scree, soil pockets and cracks on future, consistent with applicable conservation of the species and that may coastal cliff faces and in Pritchardia regulations (50 CFR 424.12(a)(1)(i)) and require special management remota coastal mesic forest and the Court’s discussion of these considerations or protection. Such regulations, we do not find that these containing one or more of the following requirements include, but are not associated native plant species: Tribulus three species are currently threatened by limited to, space for individual and taking or other human activity, which cistoides, Eragrostis variabilis, Rumex population growth, and for normal albescens, or lichens; and (2) elevations threats would be exacerbated by the behavior; food, water, air, light, designation of critical habitat. between 30 and 242 m (100 and 800 ft). minerals, or other nutritional or On Laysan Island, the currently In the absence of finding that critical physiological requirements; cover or known primary constituent elements of habitat would increase threats to a shelter; sites for breeding, reproduction, critical habitat for Mariscus species, if there are any benefits to or rearing of offspring, germination, or pennatiformis are habitat components critical habitat designation, then a seed dispersal; and, habitats that are that provide: (1) Coastal sandy substrate prudent finding is warranted. The protected from disturbance or are containing one or more of the following potential benefits include: (1) Triggering representative of the historic associated native plant species: Cyperus section 7 consultation in new areas geographical and ecological laevigatus, Eragrostis variabilis, or where it would not otherwise occur distributions of a species. Ipomoea sp.; and (2) elevation of 5 m because, for example, it is or has We are proposing to define the (16 ft). become unoccupied or the occupancy is primary constituent elements on the On Nihoa and Necker islands, the in question; (2) focusing conservation basis of general habitat features of the currently known primary constituent activities on the most essential areas; (3) areas in which the plant species are elements of critical habitat for Sesbania providing educational benefits to State reported from, such as the type of plant tomentosa are habitat components that or county governments or private community, associated native plant provide: (1) shallow soil on sandy entities; and (4) preventing people from species, locale information (e.g., steep beaches and dunes in Chenopodium causing inadvertent harm to the species. rocky cliffs, talus slopes, stream banks), oahuense coastal dry shrubland and and elevation. These habitat features In the case of Amaranthus brownii, containing one or more of the following provide the ecological components associated native plant species: Sida Pritchardia remota, and Schiedea required by the plants. The type of plant verticillata, there would be some fallax, Scaevola sericea, Solanum community and associated native plant nelsonii, or Pritchardia remota; and (2) benefits to critical habitat. The primary species provide information on specific regulatory effect of critical habitat is the elevations between sea level and 84 m microclimatic conditions, retention and (0 and 276 ft). section 7 requirement that Federal availability of water in the soil, soil agencies refrain from taking any action microorganism community, and C. Methods that destroys or adversely affects critical nutrient cycling and availability. The As required by the Act and habitat. All of these species are reported locale provides information on soil type, regulations (section 4(b)(2) and 50 CFR on Federal lands within national elevation, rainfall regime, and 424.12) we used the best scientific wildlife refuges where most actions temperature. Elevation provides information available to determine areas would be subject to section 7. Critical information on daily and seasonal that contain those physical and habitat designation for habitat currently temperature and sun intensity. biological features that are essential for occupied by these species would On Nihoa Island, the currently known the conservation of the five plant usually be unlikely to change the primary constituent elements of critical species. This information included site- section 7 consultation outcome, because habitat for Amaranthus brownii are specific species information from the an action that destroys or adversely habitat components that provide: (1) Hawaii Natural Heritage Program modifies such critical habitat would Shallow soil in fully exposed locations (HINHP) and our rare plant database, also be likely to result in jeopardy to the on rocky outcrops and containing one or biological surveys and reports, our species. However, there also may be more of the following associated native recovery plans for these five species, some educational or informational plant species: Schiedea verticillata, discussions with botanical experts, and benefits to the designation of critical Chenopodium oahuense, Ipomoea pes- recommendations (see below) from the habitat. Education benefits include the caprae ssp. brasiliensis, Ipomoea indica, Hawaii and Pacific Plant Recovery notification of land managers, and the Scaevola sericea, Sida fallax, Solanum Coordinating Committee (HPPRCC) general public of the importance of nelsonii, Sicyos pachycarpus, Eragrostis (HINHP 2000; HPPRCC 1998; USFWS protecting the habitat of these species variabilis, or Panicum torridum; and (2) 1998d, 1999). and dissemination of information elevations between 30 and 242 m (100 In 1994, the HPPRCC initiated an regarding their essential habitat and 800 ft). effort to identify and map habitat it requirements. On Laysan and Nihoa islands, the believed to be important for the Therefore, we propose that currently known primary constituent recovery of 282 endangered and designation of critical habitat is prudent elements of critical habitat for threatened plant species. The HPPRCC for Amaranthus brownii, Pritchardia Pritchardia remota are habitat identified these areas on most of the remota, and Schiedea verticillata. components that provide: (1) Coastal islands in the Hawaiian chain, and in
VerDate 11
1999 we published them in our non-native plant species, and Cenchrus to determine if additional special Recovery Plan for the Multi-Island agrimonioides var. laysanensis has not management considerations or Plants (USFWS 1999). The HPPRCC been seen during these monitoring protection are required above those expects there will be subsequent efforts efforts (Morin and Conant 1998). On currently provided. We reviewed all to further refine the locations of Midway, Cenchrus agrimonioides var. available management information on important habitat areas and that new laysanensis was not seen during the these plants at these sites including survey information or research findings most recent botanical surveys of 1995 published and unpublished reports, may also lead to additional refinements and 1999 (Chris Swenson, USFWS, pers. surveys, and plans; internal letters, (HPPRCC 1998). comm. 2002). Cenchrus agrimonioides memos, trip reports; and, section 7 Because the HPPRCC identified var. laysanensis has not been seen on consultations. Additionally, we essential habitat areas for all listed, Kure Atoll for over 20 years though the considered current management for proposed, and candidate plant species State DOFAW conducts annual seabird these plants on national wildlife refuge and evaluated species of concern to surveys and a botanical survey was lands. determine if essential habitat areas conducted there as recently as 2001 For the five species for which would provide for their habitat needs as (DOFAW, 2001). In addition, no viable designation of critical habitat is well, the HPPRCC’s mapping of habitat genetic material of this plant is know to prudent, we know of no areas in the is distinct from the regulatory exist. The rediscovery of currently HINWR at this time that do not require designation of critical habitat as defined unknown individual plants on these special management or protection. by the Act. More data has been collected three islands and atolls is believed to be Administration since the recommendations made by the extremely unlikely. On the other hand, HPPRCC in 1998. Much of the area that critical habitat is proposed for In summary, the proposed critical was identified by the HPPRCC as Amaranthus brownii, a plant that has habitat areas described below constitute inadequately surveyed has now been not been seen since the early 1980s, on our best assessment of the physical and surveyed in some way. New location Nihoa because it is believed that there biological features needed for the data for many species has been is a strong likelihood that this Nihoa conservation of the five plant species gathered. Also, the HPPRCC identified endemic is still extant on the island. ( Amaranthus brownii, Mariscus areas as essential based on species None of the surveys on Nihoa in the last pennatiformis, Pritchardia remota, clusters (areas that included listed twenty years have been conducted Schiedea verticillata, and Sesbania species, as well as candidate species, during the winter when Amaranthus tomentosa) and the special management and species of concern) while we have brownii, an annual, is most easily needs of the species, and are based on only delineated areas that are essential located and identified. Winter surveys the best scientific and commercial for the conservation of the five listed on the Nihoa have not been conducted information available and described species at issue. As a result, the because access to the island is above. We put forward this proposal proposed critical habitat designations in particularly limited during this season acknowledging that we may have this proposed rule include habitat that due to difficult and dangerous landing incomplete information regarding many was not identified as essential habitat in conditions. of the primary biological and physical the 1998 recommendations. Critical habitat boundaries were requirements for these species. We considered several criteria in the delineated to include the entire island However, both the Act and the relevant selection and proposal of specific on which the species are found or were court order require us to proceed with boundaries for critical habitat units for historically found, for mapping designation at this time based on the these five species. These criteria, which convenience. Within the critical habitat best information available. As new follow the recommendations in the boundaries, adverse modification could information accrues, we may reevaluate approved recovery plans, include occur only if the primary constituent which areas warrant critical habitat expansion of existing wild populations elements are affected. Therefore, not all designation. We anticipate that and reestablishment of wild populations activities within critical habitat would comments received through the public within historic range of each species trigger an adverse modification review process and from any public (USFWS 1998d, 1999). The long-term conclusion. In addition, existing man- hearings, if requested, will provide us probability of the conservation of these made features and structures within with additional information to use in species is dependent upon the boundaries of the mapped unit, such as our decision making process and in protection of existing population sites buildings, roads, aqueducts, assessing the potential impacts of and suitable unoccupied habitat within telecommunications equipment, radars, designating critical habitat for one or historic range. telemetry antennas, missile launch sites, more of these species. For these five plant species from the arboreta and gardens, heiau (indigenous Proposed critical habitat includes Northwestern Hawaiian Islands, places of worship or shrines), airports, habitat for five species on the islands of currently and historically occupied other paved areas, and other rural Nihoa, Necker, and Laysan. Lands habitat was examined. Critical habitat is residential landscaped areas do not proposed are under Federal ownership not proposed for Cenchrus contain one or more of the primary and managed by the Department of the agrimonioides var. laysanensis on the constituent elements and would be Interior (the Service). The entire islands Northwestern Hawaiian Islands for the excluded under the terms of this of Nihoa, Necker, and Laysan are following reasons. Cenchrus proposed regulation. Federal actions proposed as critical habitat. A brief agrimonioides var. laysanensis is limited to those areas would not trigger description of each island is presented historically known from Laysan, a section 7 consultation unless they below. Midway, and Kure Atoll. This plant has affect the species or primary constituent Descriptions of Critical Habitat in the not been reported on Laysan and elements in adjacent critical habitat. Midway for over 70 and 100 years, All currently or historically occupied Northwestern Hawaiian Islands respectively. A permanent year-round sites containing one or more of the Key for Nihoa, Necker, and Laysan. camp on Laysan, staffed by paid primary constituent elements ‡ Not all suitable habitat is proposed to be employees and volunteers, conducts considered essential to the conservation designated, only those areas essential to the periodic monitoring of both native and of the five plant species were examined conservation of the species.
VerDate 11
1. This unit is needed to meet the recovery 13. Species has extremely restricted, on Nihoa, and provides habitat to plan objectives of 8 to 10 viable populations specific habitat requirements. support one or more additional (self perpetuating and sustaining for at least 14. Hybridization is possible so distinct populations necessary to meet the 5 years) with 100 to 500 mature, reproducing populations of related species should not recovery objectives for this species of 8 individuals per species throughout its overlap, requiring more land area. historical range as specified in the recovery to 10 populations and 500 mature plans. Nihoa individuals per population for 2. Island endemic. Amaranthus brownii, throughout its 3. Multi-island species with current The proposed unit Nihoa provides known historical range considered by locations on other islands. occupied habitat for three species: the recovery plans to be necessary for 4. Multi-island species with no current Pritchardia remota, Schiedea the conservation of each species (see the locations on other islands. verticillata, and Sesbania tomentosa. It 5. Current locations do not necessarily discussion of conservation requirements represent viable populations with the is proposed for designation because it in Section D) (see Table Nihoa below). required number of mature individuals. contains the physical and biological Amaranthus brownii has not been seen 6. Several current locations may be affected features that are considered essential for in the wild since 1983. Service staff by one naturally occurring, catastrophic their conservation on Nihoa and have surveyed for this species annually, event. provides habitat to support one or more though never in the winter season when 7. Species with variable habitat of the 8 to 10 populations for each it is most likely to be seen. Access to the requirements, usually over wide areas. Wide species and 100 mature individuals per ranging species require more space per island is limited, particularly during the population for Pritchardia remota, or winter due to difficult and dangerous individual over more land area to provide 300 mature individuals per population needed primary constituent elements to landing conditions. Sea conditions are for Schiedea verticillata, and Sesbania maintain healthy population size. apt to change without warning, tomentosa throughout their known 8. Not all currently occupied habitat was stranding any visitors on this historical range considered by the determined to be essential to the recovery of inhospitable island that has no fresh the species. recovery plans to be necessary for the 9. Life history, long-lived perennial-100 conservation of each species (see the water and no regular food supply. There mature, reproducing individuals per discussion of conservation requirements is a high likelihood that the plants exist population. in Section D) (see Table Nihoa below). but are not detectable during the dry 10. Life history, short-lived perennial-300 This unit also provides unoccupied season and that there is a seed bank mature, reproducing individuals per habitat for one species: Amaranthus present on the island. population. 11. Life history, annual-500 mature, brownii. Designation of this unit is Nihoa has an area of approximately 69 reproducing individuals per population. essential to the conservation of this ha (171 ac). Nihoa is owned solely by 12. Narrow endemic, the species probably species because it contains the physical the Federal government. never naturally occurred in more than a and biological features that are BILLING CODE 4310–55–P single or a few populations. considered essential for its conservation
VerDate 11
The proposed unit Necker provides Sesbania tomentosa. It is proposed for physical and biological features that are occupied habitat for one species, designation because it contains the considered essential for its conservation
VerDate 11
on Necker and provides habitat to considered by the recovery plan to be Necker has an area of approximately support one or more of the 8 to10 necessary for the conservation of this 18 ha (46 ac). Necker is owned solely by populations and 300 mature individuals species (see the discussion of the Federal government. per population for Sesbania tomentosa, conservation requirements in Section D) throughout its known historical range (see Table Necker below).
VerDate 11
VerDate 11
Laysan considered essential for its conservation their known historical range considered on Laysan and provides habitat to by the recovery plan to be necessary for The proposed unit Laysan provides support one or more of the 8 to 10 the conservation of each species (see the occupied habitat for two species: populations for each species and 100 discussion of conservation requirements Mariscus pennatiformis ssp. bryanii and mature individuals per population for in Section D) (see Table Laysan below). Pritchardia remota. It is proposed for Pritchardia remota, or 300 mature Laysan has an area of approximately designation because it contains the individuals per population for Mariscus 411 ha (1,015 ac). Laysan is owned physical and biological features that are pennatiformis ssp. bryanii throughout solely by the Federal government.
VerDate 11
VerDate 11
Effects of Critical Habitat Designation Federal agency. Formal conference and Wildlife Service) or National reports on proposed critical habitat Oceanic and Atmospheric Section 7 Consultation contain a biological opinion that is Administration (National Marine Section 7(a)(2) of the Act requires prepared according to 50 CFR 402.14, as Sanctuaries Program, National Marine Federal agencies to ensure that actions if critical habitat were designated. We Fisheries Service); and they fund, authorize, or carry out do not may adopt the formal conference report (4) Activities not mentioned above jeopardize the continued existence of a as a biological opinion when the critical funded or authorized by the Department listed species or destroy or adversely habitat is designated, if no significant of Interior (U.S. Geological Survey, modify its critical habitat. Destruction new information or changes in the National Park Service), Department of or adverse modification of critical action alter the content of the opinion. Commerce (National Oceanic and habitat occurs when a Federal action See 50 CFR 402.10(d). Atmospheric Administration), Western directly or indirectly alters critical Regulations at 50 CFR 402.16 require Pacific Regional Fisheries Council, or habitat to the extent it appreciably Federal agencies to reinitiate any other Federal agency. diminishes the value of critical habitat consultation on previously reviewed If you have questions regarding for the conservation of the species. Such actions under certain circumstances, whether specific activities will alterations include, but are not limited including instances where critical constitute adverse modification of to, alterations adversely modifying any habitat is subsequently designated and critical habitat, contact the Field of those physical or biological features the Federal agency has retained Supervisor, Pacific Islands Office (see that were the basis for determining the discretionary involvement or control or ADDRESSES section). Requests for copies habitat to be critical (50 CFR 402.02). is authorized by law. Consequently, of the regulations on listed wildlife and Individuals, organizations, States, local some Federal agencies may request plants and inquiries about prohibitions governments, and other non-Federal reinitiation of consultation or and permits may be addressed to the entities are affected by the designation conferencing with us on actions for U.S. Fish and Wildlife Service, Division of critical habitat only if their actions which formal consultation has been of Endangered Species, 911 N.E. 11th occur on Federal lands, require a completed if those actions may affect Avenue, Portland, OR 97232 (telephone Federal permit, license, or other designated critical habitat or adversely 503/231–2063; facsimile 503/231–6243). authorization, or involve Federal modify or destroy proposed critical funding. habitat. Economic and Other Relevant Impacts Section 7(a) of the Act means that Activities on lands being proposed as Analysis Federal agencies must evaluate their critical habitat for these five species or actions with respect to any proposed or activities that may indirectly affect such Section 4(b)(2) of the Act requires us designated critical habitat. Regulations lands and that are conducted by a to designate critical habitat on the basis implementing this interagency Federal agency, funded by a Federal of the best scientific and commercial cooperation provision of the Act are agency or require a permit from a information available and to consider codified at 50 CFR part 402. If a Federal Federal agency will be subject to the the economic and other relevant action may affect critical habitat, the section 7 consultation process. Federal impacts of designating a particular area responsible Federal agency must enter actions not affecting critical habitat will as critical habitat. We may exclude areas into consultation with us. If, at the not require section 7 consultation. from critical habitat upon a conclusion of consultation, we issue a Section 4(b)(8) of the Act requires us determination that the benefits of such biological opinion concluding that the to briefly describe and evaluate in any exclusions outweigh the benefits of project is likely to result in the proposed or final regulation that specifying such areas as critical habitat. destruction or adverse modification of designates critical habitat those We cannot exclude such areas from critical habitat, we also provide activities involving a Federal action that critical habitat when such exclusion reasonable and prudent alternatives to may adversely modify such habitat or will result in the extinction of the the project, if any are identifiable. that may be affected by such species concerned. We will conduct an Reasonable and prudent alternatives are designation. We note that such activities analysis of the economic impacts of defined at 50 CFR 402.02 as alternative may also jeopardize the continued designating these areas as critical actions identified during consultation existence of the species. Activities that, habitat prior to a final determination. that can be implemented in a manner when carried out, funded, or authorized When completed, we will announce the consistent with the intended purpose of by a Federal agency, may directly or availability of the draft economic the action, that are consistent with the indirectly destroy or adversely modify analysis with a notice in the Federal scope of the Federal agency’s legal critical habitat include, but are not Register, and we will open a public authority and jurisdiction, that are limited to: comment period on the draft economic economically and technologically (1) Activities that appreciably degrade analysis and proposed rule at that time. feasible, and that the Director believes or destroy habitat defined in the We will utilize the final economic would avoid destruction or adverse discussion of primary constituent analysis, and take into consideration all modification of critical habitat. elements including but not limited to: comments, and information regarding Section 7(a)(4) requires Federal clearing or cutting of native live trees economic or other impacts submitted agencies to confer with us on any action and shrubs, whether by burning or during the public comment period and that is likely to result in destruction or mechanical, chemical, or other means any public hearings, if requested, to adverse modification of proposed (e.g., woodcutting or herbicide make final critical habitat designations. critical habitat. Conference reports application); introducing or enabling the We may exclude areas from critical provide conservation recommendations spread of non-native species; and taking habitat upon a determination that the to assist the agency in eliminating actions that pose a risk of fire; benefits of such exclusions outweigh the conflicts that may be caused by the (2) Construction activities by the U.S. benefits of specifying such areas as part proposed action. The conservation Department of Interior (U.S. Fish and of critical habitat; however, we cannot recommendations in a conference report Wildlife Service); exclude areas from critical habitat when are advisory. We may issue a formal (3) Research activities funded by the such exclusion will result in the conference report if requested by a U.S. Department of Interior (U.S. Fish extinction of the species.
VerDate 11
Public Comments Solicited several methods ( see ADDRESSES). Our paragraphing, etc.) aid or reduce its It is our intent that any final action practice is to make comments, including clarity? (4) Is the description of the resulting from this proposal be as names and home addresses of proposed rule in the ‘‘Supplementary accurate and as effective as possible. respondents, available for public review Information’’ section of the preamble Therefore, we solicit comments or during regular business hours. helpful in understanding the document? suggestions from the public, other Individual respondents may request that (5) What else could we do to make the concerned governmental agencies, the we withhold their home address, which proposed rule easier to understand? scientific community, industry, or any we will honor to the extent allowable by Send a copy of any comments that law. There also may be circumstances in other interested party concerning this concern how we could make this notice which we would withhold a proposed rule. easier to understand to: Office of respondent’s identity, as allowable by We invite comments from the public Regulatory Affairs, Department of the law. If you wish us to withhold your that provide information on whether Interior, Room 7229, 1849 C Street, NW, name and/or address, you must state lands within proposed critical habitat Washington, DC 20240. this request prominently at the are currently being managed to address beginning of your comment. However, Taxonomic Changes conservation needs of these listed we will not consider anonymous At the time we listed Mariscus plants. As stated earlier in this proposed comments. To the extent consistent with pennatiformis we followed the rule, if we receive information that any applicable law, we will make all taxonomic treatments in Wagner et al. of the areas proposed as critical habitat submissions from organizations or (1990), the widely used and accepted are adequately managed, we may delete businesses, and from individuals Manual of the Flowering Plants of such areas from the final rule, because identifying themselves as Hawaii. Subsequent to the final listing they would not meet the definition in representatives or officials of we became aware of new taxonomic section 3(5)(A)(i) of the Act. organizations or businesses, available treatments for this species. Due to the We are soliciting comments in this for public inspection in their entirety. court-ordered deadlines we are required proposed rule on whether current land Comments and materials received will to publish this proposal to designate management plans or practices applied be available for public inspection, by critical habitat on the Northwestern within the areas proposed as critical appointment, during normal business Hawaiian Islands before we can prepare habitat adequately address the threats to hours at our Pacific Islands Office. and publish a notice of taxonomic these listed species. changes for this species. We plan to In addition, we are seeking comments Peer Review publish a taxonomic change notice for on the following: In accordance with our policy this species after we have published the (1) The reasons why critical habitat published on July 1, 1994 (59 FR final critical habitat designations on the for any of these species is prudent or not 34270), we will seek the expert opinions Northwestern Hawaiian Islands. At that prudent as provided by section 4 of the of at least three appropriate and time we will evaluate the critical habitat Act and 50 CFR 424.12(a)(1), including independent specialists regarding this designations on the Northwestern whether the benefits of designation proposed rule. The purpose of such Hawaiian Islands for this species in would outweigh any threats to these review is to ensure listing and critical light of any changes that may result species due to designation; habitat decisions are based on from taxonomic changes in each species (2) The reasons why any particular scientifically sound data, assumptions, area should or should not be designated current and historical range and primary and analyses. We will send copies of constituent elements. as critical habitat for any of these this proposed rule to these peer species, as critical habitat is defined by reviewers immediately following Required Determinations section 3 of the Act (16 U.S.C. 1532 (5)); publication in the Federal Register. We Regulatory Planning and Review (3) Specific information on the will invite the peer reviewers to amount and distribution of habitat for comment, during the public comment In accordance with Executive Order Amaranthus brownii, Cenchrus period, on the specific assumptions and 12866, this document is a significant agrimonioides, Mariscus pennatiformis, conclusions regarding the proposed rule and was reviewed by the Office of Pritchardia remota, Schiedea designations of critical habitat. Management and Budget (OMB) in verticillata, and Sesbania tomentosa; We will consider all comments and accordance with the four criteria and what habitat is essential to the data received during the 60-day discussed below. We are preparing a conservation of the species and why; comment period on this proposed rule draft analysis of this proposed action, (4) Land use practices and current or during preparation of a final which will be available for public planned activities in the subject areas rulemaking. Accordingly, the final comment, to determine the economic and their possible impacts on proposed decision may differ from this proposal. consequences of designating the specific critical habitat; areas as critical habitat. The availability (5) Any economic or other impacts Clarity of the Rule of the draft economic analysis will be resulting from the proposed Executive Order 12866 requires each announced in the Federal Register so designations of critical habitat, agency to write regulations and notices that it is available for public review and including any impacts on small entities that are easy to understand. We invite comments. or families; and your comments on how to make this a. While we will prepare an economic (6) Economic and other potential proposed rule easier to understand analysis to assist us in considering values associated with designating including answers to questions such as whether areas should be excluded critical habitat for the above plant the following: (1) Are the requirements pursuant to section 4 of the Act, we do species such as those derived from non- in the proposed rule clearly stated? (2) not believe this rule will have an annual consumptive uses (e.g., hiking, camping, Does the proposed rule contain effect on the economy of $100 million and birding). technical language or jargon that or more or adversely affect in a material If you wish to comment, you may interferes with the clarity? (3) Does the way the economy, a sector of the submit your comments and materials format of the proposed rule (grouping economy, productivity, competition, concerning this proposal by any one of and order of sections, use of headings, jobs, the environment, public health or
VerDate 11
safety, or state or local governments or designation through our economic The following discussion explains our communities. Therefore, we do not analysis. rationale. believe a cost benefit and economic c. We do not believe this proposed According to the Small Business analysis pursuant to Executive Order rule, if made final, would materially Administration, small entities include 12866 is required. affect entitlements, grants, user fees, small organizations, such as Under the Act, critical habitat may loan programs, or the rights and independent non-profit organizations, not be adversely modified by a Federal obligations of their recipients. Federal and small governmental jurisdictions, agency action; critical habitat does not agencies are currently required to including school boards and city and impose any restrictions on non-Federal ensure that their activities do not town governments that serve fewer than persons unless they are conducting jeopardize the continued existence of a 50,000 residents, as well as small activities funded or otherwise listed species, and, as discussed above, businesses. Small businesses include sponsored, authorized, or permitted by we do not anticipate that the adverse manufacturing and mining concerns a Federal agency. modification prohibition, resulting from with fewer than 500 employees, Section 7 requires Federal agencies to critical habitat designation, will have wholesale trade entities with fewer than ensure that they do not jeopardize the any significant incremental effects in 100 employees, retail and service continued existence of these species. areas of occupied habitat. However, in businesses with less than $5 million in Based upon our experience with these those limited cases where activities annual sales, general and heavy species and their needs, we conclude occur on designated critical habitat construction businesses with less than that most Federal or Federally- where one or more of these five plant $27.5 million in annual business, authorized actions that could species are not found at the time of the special trade contractors doing less than potentially cause an adverse action, section 7 consultation may be $11.5 million in annual business, and modification of the proposed critical necessary for actions funded, agricultural businesses with annual habitat would currently be considered authorized, or carried out by Federal sales less than $750,000. To determine as ‘‘jeopardy’’ under the Act in areas agencies. Designation of critical habitat if potential economic impacts to these small entities are significant, we occupied by the species. Designation of in areas that are not known to be consider the types of activities that critical habitat in areas that are not occupied by any of these five species might trigger regulatory impacts under known to be occupied by any of these will also not likely result in a significant this rule as well as the types of project five species also is highly unlikely to increased regulatory burden because the modifications that may result. In have a significant economic affect Service already reviews proposed general, the term significant economic because all of the lands proposed as projects on refuge lands to ensure impact is meant to apply to a typical critical habitat are federally owned and compatibility with refuge purposes. We small business firm’s business managed as part of the Service’s will evaluate any additional impacts as operations. national wildlife refuge system. part of an economic analysis. To determine if the rule would affect Economic uses on a national wildlife d. OMB has determined that this rule a substantial number of small entities, refuge are limited by the National may raise novel legal or policy issues, we consider the number of small Wildlife Refuge System Administration and as a result, this rule has undergone entities affected within particular types Act, 16 U.S.C. 668dd, to activities that OMB review. of economic activities (e.g., housing are compatible with the purposes of the development, grazing, oil and gas refuge. We are not aware of any Regulatory Flexibility Act (5 U.S.C. 601 et seq.) production, timber harvesting, etc.). We commercial activities occurring on the apply the ‘‘substantial number’’ test refuge. Taken with the remove location Under the Regulatory Flexibility Act individually to each industry to and inaccessibility of these islands, we (5 U.S.C. 601 et seq., as amended by the determine if certification is appropriate. believe there will be a few economic Small Business Regulatory Enforcement In estimating the numbers of small impacts resulting from this designation. Act (SBREFA) of 1996), whenever an entities potentially affected, we also In addition, each of the 3 units contains agency is required to publish a notice of consider whether their activities have occupied habitat for one or more rulemaking for any proposed or final any Federal involvement; some kinds of species. rule, it must prepare and make available activities are unlikely to have any b. We do not believe this rule would for public comment a regulatory Federal involvement and so will not be create inconsistencies with other flexibility analysis that describes the affected by critical habitat designation. agencies’ actions. As discussed above, effects of the rule on small entities (i.e., Designation of critical habitat only Federal agencies have been required to small businesses, small organizations, affects activities conducted, funded, or ensure that their actions not jeopardize and small government jurisdictions). permitted by Federal agencies; non- the continued existence of Amaranthus However, no regulatory flexibility Federal activities are not affected by the brownii, Mariscus pennatiformis, analysis is required if the head of the designation. In areas where the species Pritchardia remota, Schiedea agency certifies the rule will not have a is present, Federal agencies are already verticillata, and Sesbania tomentosa significant economic impact on a required to consult with us under since their listing between 1994 and substantial number of small entities. section 7 of the Act on activities that 1996. For the reasons discussed above, SBREFA amended the Regulatory they fund, permit, or implement that the prohibition against adverse Flexibility Act (RFA) to require Federal may affect Amaranthus brownii, modification of critical habitat would agencies to provide a statement of the Mariscus pennatiformis, Pritchardia not be expected to impose any factual basis for certifying that rule will remota, Schiedea verticillata, and significant additional restrictions to not have a significant economic effect Sesbania tomentosa. If these critical those that currently exist in the on a substantial number of small habitat designations are finalized, proposed critical habitat on currently entities. SBREFA also amended the RFA Federal agencies must also consult with occupied lands. However, we will to require a certification statement. In us if their activities may affect evaluate any impact of designating areas today’s rule, we are certifying that the designated critical habitat. However, in where section 7 consultations would not rule will not have a significant effect on areas where the species is present, we have occurred but for the critical habitat a substantial number of small entities. do not believe this will result in any
VerDate 11
additional regulatory burden on Federal development, land uses, and activities consultations would not likely affect a agencies or their applicants because because of remote locations and lack of substantial number of small entities consultation would already be required access. Also, all of this land is within a because the managing agency, the due to the presence of the listed species, National Wildlife Refuge (NWR) where Service, is not a small entity. Therefore and the duty to avoid adverse Federal laws and/or policies severely we are certifying that the proposed modification of critical habitat would limit development and most activities. designation of critical habitat for the not trigger additional regulatory impacts We are not aware of any commercial following species: Amaranthus brownii, beyond the duty to avoid jeopardizing activities occurring on these islands. Mariscus pennatiformis, Pritchardia the species. Therefore, we conclude that the remota, Schiedea verticillata, and Even if the duty to avoid adverse proposed rule would not affect a Sesbania tomentosa will not have a modification does not trigger additional substantial number of small entities. significant economic impact on a regulatory impacts in areas where the Even where the requirements of substantial number of small entities, species is present, designation of critical section 7 might apply due to critical and an initial regulatory flexibility habitat could result in an additional habitat designation, based on our analysis is not required. However, economic burden on small entities due experience with section 7 consultations should the economic analysis of this to the requirement to reinitiate for all listed species, virtually all rule indicate otherwise, or should consultation for ongoing Federal projects-including those that, in their landownership change in the NWHI, we activities. However, since these five initial proposed form, would result in will revisit this determination. plant species were listed (between 1994 jeopardy or adverse modification and 1996), there have been no formal or determinations under section 7 Executive Order 13211 informal consultations conducted consultations-can be implemented On May 18, 2001, the President issued involving these five plant species in successfully with, at most, the adoption Executive Order 13211, on regulations NWHI. The NWR system is not a small of reasonable and prudent alternatives. that significantly affect energy supply, entity. Therefore, the requirement to These measures must be economically distribution, and use. Executive Order reinitiate consultations for ongoing feasible and within the scope of 13211 requires agencies to prepare projects will not affect a substantial authority of the Federal agency involved Statements of Energy Effects when number of small entities on any of the in the consultation. undertaking certain actions. Although Northwestern Hawaiian Islands. As required under section 4(b)(2) of this rule is a significant regulatory In areas where the species is clearly the Act, we will conduct an analysis of action under Executive Order 12866, it not present, designation of critical the potential economic impacts of this is not expected to significantly affect habitat could trigger additional review proposed critical habitat designation, energy supplies, distribution, or use. of Federal activities under section 7 of and will make that analysis available for Therefore, this action is not a significant the Act, that would otherwise not be public review and comment before energy action and no Statement of required. However, only one of the three finalizing these designations. In the Energy Effects is required. units (Nihoa) being proposed for absence of this economic analysis, we Unfunded Mandates Reform Act (2 designation includes habitat for a believe that the designations would U.S.C. 1501 et seq.) species that is not verified to occur there have modest economic impacts because (Amaranthus brownii), and three of the all of the land within the critical habitat In accordance with the Unfunded species are known to occur there. In units has limited suitability for Mandates Reform Act (2 U.S.C. 1501 et addition, while activities within the development, land uses, and activities seq.): HINWR may occur within the proposed because of remote locations and lack of a. We believe this rule, as proposed, critical habitat areas for these five plants access. In addition, these lands are will not ‘‘significantly or uniquely’’ and therefore have Federal involvement, within a National Wildlife Refuge where affect small governments. A Small most of the activities involve natural Federal laws and/or policies severely Government Agency Plan is not resources management that is beneficial limit development and activities. The required. Small governments will not be to the six plants, and therefore would proposed critical habitat designations affected unless they propose an action require only informal consultation or are expected to cause little or no requiring Federal funds, permits or reinitiation of already completed increase in the number of section 7 other authorizations. Any such activities consultations for on-going projects. As consultations; few, if any, increases in will require that the Federal agency mentioned above, we have not costs associated with consultations; and ensure that the action will not adversely conducted formal or informal few, if any delays in, or modifications modify or destroy designated critical consultations under section 7 involving to planned projects, land uses and habitat. However, as discussed above, any of the species. As result, we can not activities. these actions are currently subject to easily identify future consultations that In summary, we have considered equivalent restrictions through the may be due to the listings of the species whether this proposed rule would result listing protections of the species, and no or the increment of additional in a significant economic effect on a further restrictions are anticipated to consultations that may be required by substantial number of small entitites. It result from critical habitat designation this critical habitat designation. would not affect a substantial number of of occupied areas. In our economic Therefore, for the purposes of this small entities. None of the lands analysis, we will evaluate any impact of review and certification under the proposed as critical habitat are on state designating areas where section 7 Regulatory Flexibility Act, we are or private lands. All of the land consultations would not have occurred assuming that any future consultations proposed as critical habitat are Federal but for the critical habitat designation. in the area proposed as critical habitat lands within the National Wildlife b. This rule, as proposed, will not will be due to the critical habitat Refuge system. The most likely future produce a Federal mandate on State or designations. section 7 consultation resulting from local governments or the private sector In the NWHI, all of the designations this rule would be for intra-Service of $100 million or greater in any year, are on Federal land. All of the land consultations on natural resource that is, it is not a ‘‘significant regulatory within the critical habitat units will management activities, species-specific action’’ under the Unfunded Mandates have limited suitability for surveys and research projects. These Reform Act. The designation of critical
VerDate 11
habitat imposes no obligations on State unduly burden the judicial system and government-to-government basis. We or local governments. does meet the requirements of sections have determined that there are no Tribal 3(a) and 3(b)(2) of the Order. We are lands essential for the conservation of Takings proposing to designate critical habitat in Amaranthus brownii, Mariscus In accordance with Executive Order accordance with the provisions of the pennatiformis, Pritchardia remota, 12630 (‘‘Government Actions and Endangered Species Act. The rule uses Schiedea verticillata, and Sesbania Interference with Constitutionally standard property descriptions and tomentosa because Tribal lands do not Protected Private Property Rights’’), we identifies the primary constituent occur on the three islands or atolls have analyzed the potential takings elements within the designated areas to (Nihoa, Necker, and Laysan) within the implications of designating critical assist the public in understanding the Northwestern Hawaiian Islands. habitat for the five species on three habitat needs of Amaranthus brownii, Therefore, designation of critical habitat islands or atolls (Nihoa, Necker, and Mariscus pennatiformis, Pritchardia for these five species has not been Laysan) within the Northwestern remota, Schiedea verticillata, and proposed on Tribal lands. Hawaiian Islands. The takings Sesbania tomentosa. implications assessment concludes that References Cited this proposed rule does not pose Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) A complete list of all references cited significant takings implications. Once in this proposed rule is available upon the economic analysis is completed for This rule does not contain any request from the Pacific Islands Office this proposed rule, we will review and information collection requirements for (see ADDRESSES section). revise this preliminary assessment as which Office of Management and warranted. Budget (OMB) approval under the Authors Paperwork Reduction Act is required. Federalism The primary authors of this notice are An agency may not conduct or sponsor, In accordance with Executive Order Christa Russell, Michelle Stephens, and a person is not required to respond Marigold Zoll, and Gregory Koob ( see 13132, the rule does not have significant to, a collection of information unless it ADDRESSES section). Federalism effects. A Federalism displays a valid OMB control number. assessment is not required. In keeping List of Subjects in 50 CFR Part 17 with Department of Interior policy, we National Environmental Policy Act requested information from appropriate We have determined we do not need Endangered and threatened species, State agencies in Hawaii. The to prepare an Environmental Exports, Imports, Reporting and designation of critical habitat in areas Assessment and/or an Environmental recordkeeping requirements, currently occupied by these species Impact Statement as defined by the Transportation. imposes no additional restrictions to National Environmental Policy Act of Proposed Regulation Promulgation those currently in place and, therefore, 1969 in connection with regulations has little incremental impact on State adopted pursuant to section 4(a) of the Accordingly, we propose to amend and local governments and their Endangered Species Act, as amended. part 17, subchapter B of chapter I, title activities. The designations may have We published a notice outlining our 50 of the Code of Federal Regulations as some benefit to these governments in reason for this determination in the set forth below: that the areas essential to the Federal Register on October 25, 1983 PART 17—[AMENDED] conservation of these species are more (48 FR 49244). This proposed clearly defined, and the primary determination does not constitute a 1. The authority citation for part 17 constituent elements of the habitat major Federal action significantly continues to read as follows: necessary to the survival of the species affecting the quality of the human are specifically identified. While this environment. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– definition and identification does not Government-to-Government 625, 100 Stat. 3500; unless otherwise noted. alter where and what federally Relationship With Tribes sponsored activities may occur, it may 2. In § 17.12(h) revise the entries for assist these local governments in long In accordance with the President’s Amaranthus brownii, Mariscus range planning rather than waiting for memorandum of April 29, 1994, pennatiformis, Pritchardia remota, case-by-case section 7 consultations to ‘‘Government-to-Government Relations Schiedea verticillata, and Sesbania occur. with Native American Tribal tomentosa under ‘‘FLOWERING Governments’’ (59 FR 22951), Executive PLANTS’’ to read as follows: Civil Justice Reform Order 13175 and 512 DM 2, we readily In accordance with Executive Order acknowledge our responsibility to § 17.12 Endangered and threatened plants. 12988, the Office of the Solicitor has communicate meaningfully with * * * * * determined that this rule does not recognized Federal Tribes on a (h) * * *
Species Historic Family Status When Critical Special rules Scientific name Common name range name listed habitat
FLOWERING PLANTS
******* Amaranthus brownii None ...... U.S.A. (HI) ...... Amaranthaceae ..... E 587 17.96(a) NA
******* Mariscus None ...... U.S.A. (HI) ...... Cyperaceae ...... E 559 17.96(a) NA pennatiformis.
VerDate 11
Species Historic Family Status When Critical Special rules Scientific name Common name range name listed habitat
******* Pritchardia remota .. Loulu ...... U.S.A. (HI) ...... Arecaceae ...... E 587 17.96(a) NA
******* Schiedea verticilla .. None ...... U.S.A. (HI) ...... Caryophyllaceae .... E 587 17.96(a) NA
******* Sesbania tomentosa Ohai ...... U.S.A. (HI) ...... Fabaceae ...... E 559 17.96(a) NA
*******
3. Section 17.96, as proposed to be § 17.96 Critical habitat—plants. residential landscaped areas do not amended at 65 FR 66865 (November 7, (a) * * * contain one or more of the primary 2000), 65 FR 79192 (December 18, (1) * * * constituent elements described for each 2000), 65 FR 82086 (December 27, (i) Maps and critical habitat unit species in paragraphs (a)(1)(ii)(A) and 2000), 65 FR 83193 (December 29, descriptions. The following sections (a)(1)(ii)(B) of this section and are not 2000), 67 FR 4072 (January 28, 2002), 67 contain the legal descriptions of the included in the critical habitat FR 9806 (March 4, 2002), 67 FR 15856 critical habitat units designated for each designation. (April 3, 2002), and 67 FR 16492 (April of the Hawaiian Islands. Existing * * * * * manmade features and structures within 5, 2002) is proposed to be further (G) Northwestern Hawaiian Islands. amended as follows: the boundaries of the mapped unit, such as buildings, roads, aqueducts, Critical habitat areas are described a. Add paragraph (a)(1)(i)(G) railroads, telecommunications below. Coordinates are in WGS84 (paragraph (a)(1)(i) introductory text is equipment, telemetry antennas, radars, datum. The following map shows the republished); and missile launch sites, arboreta and general locations of the five critical gardens, heiau (indigenous places of habitat units designated for the islands b. Amend paragraph (a)(1)(ii)(A) by of Laysan, Nihoa, and Necker. adding the entries set forth below. worship or shrines), airports, other paved areas, lawns, and other rural (1) Note: Map 1—Index map follows:
VerDate 11
(2) Critical Habitat Nihoa Island— (3) Critical Habitat Necker Island— entire island (approximately 69 ha; 171 entire island (approximately 18 ha; 46 ac). ac). (i) Nihoa Island is located between (i) Necker Island is located between 23°3′ N. and 23°4′ N. and between ° ′ ° ′ ° ′ ° ′ 23 34 N. and 23 35 N. and between 161 54 W. and 161 56 W. ° ′ ° ′ (ii) Note: Map 2 follows: 164 41 W. and 164 43 W. (ii) Note: Map 3 follows:
(4) Critical Habitat Laysan Island— entire island (approximately 411 ha; 1,015 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 4 follows:
TABLE (a)(1)(I)(G).—PROTECTED SPECIES IN THE NORTHWESTERN HAWAIIAN ISLANDS (NWHI)
Island Species
Laysan ...... Mariscus pennatiformis, Pritchardia remota.
Necker ...... Sesbania tomentosa.
Nihoa ...... Amaranthus brownii, Pritchardia remota, Schiedea verticillata, Sesbania tomentosa.
(ii) Hawaiian plants—constituent sericea, Sida fallax, Solanum nelsonii, Sesbania tomentosa, Solanum nelsonii, elements. Sicyos pachycarpus, Eragrostis or Sida fallax; and (A) Flowering plants. variabilis, or Panicum torridum; and (2) From 15 to 151 m (50 to 500 ft) in Family Amaranthaceae: Amaranthus (2) Elevations between 30 and 242 m elevation. brownii (no common name). (100 and 800 ft). Family Caryophyllaceae: Schiedea Nihoa Island. Nihoa Island, identified Family Arecaceae: Pritchardia remota verticillata (no common name). in the legal descriptions in paragraph (loulu). Nihoa Island. Nihoa Island, identified (a)(1)(i)(G) of this section constitutes Laysan and Nihoa Islands. Laysan in the legal descriptions in paragraph critical habitat for Amaranthus brownii. and Nihoa islands, identified in the (a)(1)(i)(G) of this section constitutes On this island the currently known legal descriptions in paragraph critical habitat for Schiedea verticillata. primary constituent elements of critical (a)(1)(i)(G) of this section constitutes On this island the currently known habitat for Amaranthus brownii are critical habitat for Pritchardia remota. primary constituent elements of critical habitat components that provide: On these islands the currently known habitat for Schiedea verticillata are (1) Shallow soil in fully exposed primary constituent elements of critical habitat components that provide: locations on rocky outcrops and habitat for Pritchardia remota are (1) Rocky scree, soil pockets and containing one or more of the following habitat components that provide: cracks on coastal cliff faces and in associated native plant species: (1) Pritchardia remota coastal forest Pritchardia remota coastal mesic forest Schiedea verticillata, Chenopodium community containing one or more of and containing one or more of the oahuense, Ipomoea pes-caprae ssp. the following associated native plant following associated native plant brasiliensis, Ipomoea indica, Scaevola species: Chenopodium oahuense, species: Tribulus cistoides, Eragrostis
VerDate 11
variabilis, Rumex albescens, or lichens; native plant species: Cyperus laevigatus, coastal dry shrubland and containing and Eragrostis variabilis, or Ipomoea sp.; one or more of the following associated (2) Elevations between 30 and 242 m and native plant species: Sida fallax, (100 and 800 ft). (2) Elevation of 5 m (16 ft). Scaevola sericea, Solanum nelsonii, or Family Cyperaceae: Mariscus Family Fabaceae: Sesbania tomentosa Pritchardia remota; and pennatiformis (no common name). (ohai). Laysan Island. Laysan Island, Nihoa and Necker Islands. Nihoa and (2) Elevations between sea level and identified in the legal description in Necker islands, identified in the legal 84 m (0 and 276 ft). paragraph (a)(1)(i)(G) of this section descriptions in paragraph (a)(1)(i)(G) of Dated: April 30, 2002. constitutes critical habitat for Mariscus this section constitute critical habitat for Craig Manson, pennatiformis. On this island the Sesbania tomentosa. On these islands, currently known primary constituent the currently known primary Assistant Secretary for Fish and Wildlife and Parks. elements of critical habitat for Mariscus constituent elements of critical habitat pennatiformis are habitat components for Sesbania tomentosa are habitat [FR Doc. 02–11225 Filed 5–13–02; 8:45 am] that provide: components that provide: BILLING CODE 4310–55–P (1) Coastal sandy substrate containing (1) Shallow soil on sandy beaches and one or more of the following associated dunes in Chenopodium oahuense
VerDate 11