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establishes procedures for 49 U.S.C. (b) Upon submission of its ‘‘before DEPARTMENT OF THE INTERIOR 5309 (‘‘Section 5309’’) capital and after’’ data documenting that the investment project sponsors to apply for project meets the cost and ridership Fish and Wildlife Service and receive incentive awards if their criteria, the project sponsor may request project meets eligibility criteria for both that FTA award the project sponsor a 50 CFR Part 17 cost and ridership estimates. performance incentive. [FWS–R1–ES–2008–0016; 1111 FY07 MO– B2] § 612.3 Definitions. § 612.9 Incentive award standards. As used in this part, the following RIN 1018–AV00 definitions apply: (a) For a project sponsor to be eligible Before and After Study refers to the to receive a performance incentive Endangered and Threatened Wildlife project sponsor’s comparison and award, the project must meet criteria for and Plants; Listing Phyllostegia analysis of planning assumptions, both cost and ridership estimates. hispida (No Common Name) as forecast results, and existing transit (1) Actual opening year ridership Endangered Throughout Its Range system characteristics ‘‘before’’ shall be not less than 90 percent of that AGENCY: Fish and Wildlife Service, implementation of a New Starts project forecast; and Interior. with the project costs and benefits (2) Actual capital costs, adjusted for ACTION: Proposed rule; request for realized ‘‘after’’ two years of revenue inflation, shall be not more than 110 public comments. service. percent of those estimated; at the time Contractor Performance Assessment SUMMARY: We, the U.S. Fish and the project entered Preliminary Report refers to an annual report to Wildlife Service (Service), propose to Congress, in which FTA reports the Engineering (PE). list Phyllostegia hispida (no common accuracy of contractor projections for (b) FTA will base its incentive award name), a plant species from the island cost and ridership from entry into eligibility determination on the cost and of in the Hawaiian Islands, as Preliminary Engineering (PE) through ridership information provided by the endangered under the Endangered two years after the system is open for project sponsor to FTA for the purposes Species Act of 1973, as amended (Act). service. of the ‘‘Before and After Study’’ and the If we finalize this rule as proposed, it Full Funding Grant Agreement ‘‘Contractor Performance Assessment would extend the Act’s protections to (FFGA) refers to an instrument that Report.’’ this species. We have determined that defines the scope of a project, the critical habitat for Phyllostegia hispida Federal financial contribution, and § 612.11 Incentive amount. is prudent but not determinable at this other terms and conditions for funding FTA will determine the amount of the time. New Starts projects as required by 49 performance incentive award based on DATES: We will accept comments U.S.C. 5309(d)(1) and (g)(2). received or postmarked on or before Project Construction Grant Agreement the size and complexity of the project and may award up to an additional five April 21, 2008. We must receive (PCGA) refers to an instrument that requests for public hearings, in writing, defines the scope of a project, the percent of the federal grant amount identified in the FFGA or PCGA. at the address shown in the ADDRESSES Federal financial contribution, and section by April 4, 2008. other terms and conditions for funding § 612.13 Funding source. ADDRESSES: You may submit comments Small Starts projects as required by 49 by one of the following methods: Incentive funds will be available from U.S.C. 5309(e)(7). • Federal eRulemaking Portal: http:// Section 5309 capital investment New Starts funds available under 49 www.regulations.gov. Follow the project refers to a new fixed guideway U.S.C. 5309(d) or 5309(e). instructions for submitting comments. system or an extension to an existing • § 612.15 Eligible uses of award. U.S. mail or hand-delivery: Public fixed guideway system, but does not Comments Processing, Attn: RIN 1018– include rail modernization or non- The performance incentive award AV00; Division of Policy and Directives corridor bus capital projects funded may be: Management; U.S. Fish and Wildlife under 49 U.S.C. 5309. (a) used to fund any item eligible Service; 4401 N. Fairfax Drive, Suite § 612.5 Eligible candidates. under 49 U.S.C. 5309(b)(1) or (b)(4); or 222, Arlington, VA 22203. We will not accept e-mail or faxes. We All Section 5309 capital investment (b) shared with contractors that will post all comments on http:// project sponsors who will or have prepared reliable cost and ridership www.regulations.gov. This generally receive(d) a Full Funding Grant estimates for the project. means that we will post any personal Agreement (FFGA) or a Project information you provide us (see the Construction Grant Agreement (PCGA) Issued in Washington, DC, this 12th day of Public Comments Solicited section after August 10, 2005, are eligible to February 2008. below for more information). receive incentive awards. James S. Simpson, Administrator. FOR FURTHER INFORMATION CONTACT: § 612.7 Payment mechanism. [FR Doc. E8–3025 Filed 2–15–08; 8:45 am] Patrick Leonard, Field Supervisor, U.S. (a) Full Funding Grant Agreements Fish and Wildlife Service, Pacific BILLING CODE 4910–57–P (FFGA) and Project Construction Grant Islands Fish and Wildlife Office, 300 Agreements (PCGA) for Section 5309 Ala Moana Boulevard, Box 50088, capital investment projects will include Honolulu, HI 96850; telephone 808– an incentive clause that will allow for 792–9400; facsimile 808–792–9581. If an amendment to either increase the you use a telecommunications device Federal funding contribution, allow for for the deaf (TDD), call the Federal the addition of scope, or provide a Information Relay Service (FIRS) at financial award, when the criteria of 800–877–8339. § 612.9 have been met. SUPPLEMENTARY INFORMATION:

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Public Comments information from public review. influence on the unique native forests of We intend that any final action However, we cannot guarantee that we the Hawaiian Islands, and are widely resulting from this proposed rule will be will be able to do so. recognized as one of the greatest threats Comments and materials we receive, based on the best scientific and to forest ecosystems in today as well as supporting documentation we commercial data available and be as (Aplet, et al. 1991, p. 56; Anderson and used in preparing this proposed rule, accurate and as effective as possible. Stone 1993, p. 195; Loope 1999, p. 56). will be available for public inspection Therefore, we request comments or Introduced (nonnative) plant species, on http://www.regulations.gov, or by information from the public, other which now comprise approximately half appointment, during normal business of the plant taxa in the islands, have concerned governmental agencies, the hours, at the U.S. Fish and Wildlife come to dominate many Hawaiian scientific community, industry, or any Service, Pacific Islands Fish and ecosystems, and frequently outcompete other interested party concerning this Wildlife Office (see FOR FURTHER native plants for space, light, water, and proposed rule. We particularly seek INFORMATION CONTACT section). nutrients, as well as alter ecosystem comments concerning: function, rendering habitats unsuitable (1) Biological, commercial trade, or Background for native species (Cuddihy and Stone other relevant data concerning any Phyllostegia hispida is known only 1990, pp. 73–91; Vitousek 1986, pp. 29– threats (or lack thereof) to this species from the island of Molokai, Hawaii. 41). and regulations that may be addressing Molokai is approximately 38 miles (mi) The plant Phyllostegia hispida, those threats; (61 kilometers (km)) long and up to 10 known only from the island of Molokai, (2) Additional information concerning mi (16 km) wide, and encompasses an has only a few recorded occurrences, the range, distribution, and population area of about 260 square (sq) mi (674 sq and for a short period of time recently, size of this species, including the km) (Foote, et al. 1972, p. 11; was thought to be possibly extinct in the locations of any additional populations Department of Geography 1998, p. 13). wild. Alteration of the plant’s native of this species; Three shield volcanoes make up most of habitat by feral pigs and nonnative (3) Any information on the biological the land mass, dividing the island into plants are thought to be the primary or ecological requirements of the roughly three geographic segments— threats to P. hispida, in conjunction species; West Molokai Mountain, East Molokai with the threat of predation by feral (4) Current or planned activities in the Mountain, and a volcano that formed pigs, competition with nonnative plants, areas occupied by the species and Kalaupapa Peninsula (Department of and the negative demographic and possible impacts of these activities on Geography 1998, pp. 11, 13). genetic consequences of extremely small this species; The taller and larger East Molokai population size. (5) Which areas would be appropriate Mountain which makes up eastern as critical habitat for the species and Molokai rises 4,970 ft (1,514 m) above Species Information why they should be proposed for sea level on the island’s summit at Phyllostegia hispida was first designation as critical habitat; and and comprises roughly 50 described by William Hillebrand in (6) The reasons why areas should or percent of the island’s land area 1870 from a specimen collected from an should not be designated as critical (Department of Geography 1998, p. 11; area that he described as the ‘‘heights of habitat as provided by section 4 of the Foote, et al. 1972, p. 11). Phyllostegia Mapulehu’’ on the island of Molokai Act (16 U.S.C. 1531, et seq.), including hispida is known only from the wet (Wagner, et al. 2005), and is recognized whether the benefits of designation forests of eastern Molokai, at elevations as a distinct taxon in Wagner, et al. would outweigh threats to the species from 2,300 to 4,200 feet (ft) (700 to 1,280 (1999, pp. 817–819). Wagner, et al. that designation could cause, such that meters (m)) (Wagner, et al. 1999, p. 819). describes the plant as a non-aromatic the designation of critical habitat is The wet forests where Phyllostegia member of the mint family (Lamiaceae). prudent. hispida has been recorded are found P. hispida is described as a loosely You may submit your comments and only on the windward side of East spreading, many-branched vine that materials concerning this proposed rule Molokai, which differs topographically often forms large tangled masses. Leaves by one of the methods listed in the from the leeward side. Precipitous cliffs are thin and flaccid with hispid hairs ADDRESSES section. We will not accept line the northern windward coast, with and glands. The leaf margins are comments sent by e-mail or fax or to an deep inaccessible valleys dissecting the irregularly and shallowly lobed. Six to address not listed in the ADDRESSES coastline. The annual rainfall on the eight white flowers make up each section. We will not accept anonymous windward side ranges from 75 to over verticillaster (a false whorl, composed of comments; your comment must include 150 inches (in) (200 to over 375 a pair of nearly sessile cymes in the your first and last name, city, State, centimeters (cm)), distributed axils of opposite leaves or bracts), and country, and postal (zip) code. Finally, throughout the year. The soils are nutlets are approximately 0.1 in (2.5 we will not consider hand-delivered poorly drained and high in organic millimeters (mm)) long (Wagner, et al. comments that we do not receive, or matter. The gulches and valleys are 1999, pp. 817–819). No life history mailed comments that are not usually very steep, but sometimes gently information is currently available on postmarked, by the date specified in the sloping (Foote, et al. 1972, p. 14). this species. DATES section. The native habitats and vegetation of The few documented specimens of We will post your entire comment— the Hawaiian Islands have undergone Phyllostegia hispida are typically found including your personal identifying extreme alterations because of past and in wet (ohia)- information—on http:// present land use, as well as the dominated forest at an elevation www.regulations.gov. If you provide intentional or inadvertent introduction between 3,650 and 4,200 ft (1,112 and personal identifying information in of nonnative plant and animal species. 1,280 m). Associated native species addition to the required items specified Introduced mammals, particularly pigs included Cheirodendron trigynum in the previous paragraph, such as your (Sus scrofa), have greatly impacted (olapa), Ilex anomala (aiae), Cibotium street address, phone number, or e-mail native Hawaiian plant communities. glaucum (hapuu), Broussaisia argutus address, you may request at the top of Pigs have been described as the most (kanawao), Rubus hawaiensis (akala), your document that we withhold this pervasive and disruptive nonnative Sadleria cyatheoides (amau), Pipturus

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albidus (mamaki), Nertera granadensis 2005), and the wild plant and In addition to the newly identified (makole), Athyrium microphyllum, outplantings in Puu Alii NAR, which wild plants, 12 of the cuttings that were Elaphoglossum fauriei, and bryophytes may possibly have been Phyllostegia grown out at KNHP were outplanted (HBMP Database 2005). manni and not P. hispida (see above; the into an enclosure in TNCH’s Kamakou From 1910 to 1979, there were a total question of taxonomic identity was Preserve in April 2007, and 11 of these of 8 recorded occurrences of never resolved), died several years ago were still doing well as of June 2007. Phyllostegia hispida in the wet forests of (S. Perlman, pers. comm. 2005; K. Another 12 were outplanted into a eastern Molokai (Hawaii Biodiversity Wood, pers. comm. 2005; Guy Hughes, second enclosure in Kamakou Preserve and Mapping Program (HBMP) Database Kalaupapa National Historic Park in June 2007 (H. Oppenheimer, pers. 2005). None of these historic (KNHP), pers. comm. 2006). The comm. 2007), bringing the total number occurrences have been relocated during University of Hawaii’s Lyon Arboretum of Phyllostegia hispida plants in the surveys conducted in the wet forests of has material from the individual that wild to 10 naturally occurring and 23 east Molokai over the past several years was growing along the Puu Alii fence recently outplanted individuals. (The Nature Conservancy of Hawaii and from the Pepeopae Boardwalk Previous Federal Action (TNCH) 1997b, pp. 1–19; Steve Perlman individual in micropropagation (Service and Ken Wood, National Tropical Captive Propagation Database (SCPD) We first identified Phyllostegia Botanical Garden (NTBG), pers. comms. 2005). hispida as a candidate for listing in the 2006). In 1996, two adult plants were Surveys have been conducted in the September 19, 1997, Notice of Review of found in eastern Molokai within wet forests of east Molokai over the Plant and Animal Taxa that are TNCH’s Kamakou Preserve, one next to years, but failed to locate additional Candidates or Proposed for Listing as the Pepeopae Boardwalk and the other Phyllostegia hispida plants. The species Endangered or Threatened Species east of Hanalilolilo growing along the was thought to have been extirpated (Notice of Review) (62 FR 49397). fence within the State of Hawaii’s Puu from the wild until 2005, when two Candidates are those taxa for which we Alii Natural Area Reserve (NAR). seedlings were found in a Hanalilolilo have on file sufficient information on Within only a few months of discovery, stream bank in Kamakou Preserve, biological vulnerability and threats to the individual growing along the Puu indicating the possible presence of a support preparation of a listing Alii fence died (HBMP Database 2005; mature plant, or plants, somewhere in proposal, but for which development of TNCH 1997a, p. 2). In 1997, a single the vicinity (TNCH 1997b, pp. 1–19; S. a listing regulation is precluded by other Phyllostegia individual was discovered Perlman, pers. comm. 2005; S. Perlman higher priority listing activities. on the rim of Pelekunu Valley in the and K. Wood, pers. comms. 2006). One On May 4, 2004, the Center for Puu Alii NAR (HBMP Database 2005; of the seedlings was collected by a Biological Diversity petitioned the TNCH 1997b, p. 6). There is some botanist with HBMP and provided to Service to list 225 species of plants and uncertainty, however, as to whether this Lyon Arboretum in Honolulu, which in animals as endangered under the individual was, in fact, P. hispida, as it turn provided it to KNHP on Molokai provisions of the Act, including was identified as P. manni by Hawaii for attempted propagation. That plant Phyllostegia hispida. In our Notice of Division of Forestry and Wildlife has since died (G. Hughes and Bill Review, dated September 12, 2006, we (DOFAW) staff based upon the size and Garnett, KNHP, pers. comms. 2006). The retained a listing priority number of 2 lobing of its leaves (Robert Hobdy, other seedling was collected by a for this species, in accordance with our Robert Hobdy Environmental botanist with NTBG. Cuttings were priority guidance published on Consultant, pers. comm. 2006; Joel Lau, propagated from this seedling and September 21, 1983 (48 FR 43098). A HBMP, pers. comm. 2006; Torrie provided to KNHP for growing out (S. listing priority of 2 reflects threats that Nohara, DOFAW, pers. comm. 2006). Perlman, pers. comm. 2006). are both imminent and high in This individual plant was protected Phyllostegia hispida was again magnitude, as well as the taxonomic from feral ungulates inside a fenced thought to be extirpated from the wild classification of P. hispida as a full exclosure. Seeds were collected, and until a single juvenile plant was species. We determined that publication seedlings were produced by DOFAW discovered in May 2006 within the Puu of a proposed rule to list the species was and outplanted into the exclosure with Alii NAR along the Puu Alii fenceline precluded by our work on higher the wild plant (T. Nohara, pers. comm. at 4,100 ft (1,250 m) elevation (S. priority listing actions during the period 2006). Perlman, pers. comm. 2006). Although from May 2, 2005, through August 23, In November 1996, TNCH erected an protected within a 10-ft (3-m) diameter 2006 (71 FR 53756). However, we have exclosure around the Pepeopae fenced exclosure (Bryan Stevens, Maui since completed those actions. As such, Boardwalk individual and began DOFAW, pers. comm. 2006), that we had available resources to initiate frequent, recurrent weeding and individual has died for unknown the proposal to list this species. monitoring within the fenced area reasons (H. Oppenheimer, Maui Plant (TNCH 1997a, p. 2). They also built an Extinction Prevention Program (PEP), Summary of Factors Affecting the exclosure approximately 656 ft (200 m) pers. comm. 2007). However, 10 new Species away for future outplantings of wild plants were discovered within the Section 4 of the Act and its propagated individuals. Plants grown Puu Alii NAR in April 2007; although implementing regulations (50 CFR part from leaf buds collected from the most are seedlings, one of these 424) set forth the procedures for adding Pepeopae Boardwalk plant were individuals is mature and has fruited species to the Federal list of endangered outplanted into the exclosure in and produced seeds (H. Oppenheimer, and threatened species. A species may December 1997 (TNCH 1998a, p. 7). pers. comm. 2007). Seeds were collected be determined to be an endangered or They survived through 1998 (TNCH from the mature plant and sent to the threatened species due to one or more 1998b, Appendix 1, dot 28), but have Lyon Arboretum, and cuttings were of the five factors described in section since been confirmed dead (Sam Aruch, taken from some of the other plants for 4(a)(1) of the Act. The five listing factors TNCH, pers. comm. 2006; Ed Misaki, propagation. Four of the newly are: (A) The present or threatened TNCH, pers. comm. 2006). discovered seedlings were found next to destruction, modification, or The Pepeopae Boardwalk individual the Puu Alii fence, and are enclosed curtailment of its habitat or range; (B) died in 1998 or 1999 (HBMP Database with temporary fencing material. overutilization for commercial,

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recreational, scientific, or educational pp. 64–65; Loope, et al. 1991, pp. 1–21; that many of these introduced plant taxa purposes; (C) disease or predation; (D) Wagner, et al. 1999, p. 52). outcompete and displace native plants, the inadequacy of existing regulatory Feral pigs are present in the wet forest and often alter the habitat to the point mechanisms; and (E) other natural or habitat formerly and currently inhabited that it is no longer suitable for the native manmade factors affecting its continued by Phyllostegia hispida within Puu Alii plant species; these studies include existence. NAR and Kamakou Preserve, and their nonnative pest plants found in habitat impacts continue to degrade the similar to that of Phyllostegia hispida A. The Present or Threatened condition of the forest there (DOFAW (Smathers and Gardner 1978, pp. 274– Destruction, Modification, or 1991, pp. 3, 14–23; TNCH 1994, pp. 6, 275; Smith 1985, pp. 196, 206, 230; Curtailment of Its Habitat or Range 9–12; HBMP Database 2005). They are Loope and Medeiros 1992, pp. 7–8; As with virtually every other native considered a major threat to native Medeiros, et al. 1992, pp. 30–32; plant community in the islands, the wet species and to the overall health of the Ellshoff, et al. 1995, pp. 1–5; Meyer and forests of Molokai where Phyllostegia watershed in which P. hispida occurs Florence 1996, pp. 777–780; Medeiros, hispida occurs have been impacted by (DOFAW 1991, pp. 3, 14–23; TNCH et al. 1997, pp. 30–32; Loope, et al. introduced (nonnative) pigs and 1994, pp. 6, 9–12). Significant 2004, pp. 1472–1473). In particular, introduced (nonnative) plants (DOFAW management actions are directed at feral nonnative pest plants may make habitat 1991, pp. 3, 14–23; TNCH 1994, pp. 6, ungulate control in the area where P. less suitable for native plants by 9–12; HBMP Database 2005). The poor hispida has been found within Puu Alii modifying availability of light, altering reproduction and survivorship of P. NAR and Kamakou Preserve on soil-water regimes, modifying nutrient hispida clearly indicate that the current Molokai, such as large-scale watershed cycling, or altering fire characteristics of conditions are less than optimal for this fencing, construction of ungulate native plant communities (Smith 1985, species, although we do not yet fully exclosures around rare plants, public pp. 206, 217, 225, 227–233; Cuddihy understand the specific mechanisms hunting, and staff hunting (TNCH and Stone 1990, p. 74). Although there that are undermining its viability. 1997a, pp. 2–3; TNCH 1998a, pp. 1–2, is no empirical evidence specific to P. 7; DOFAW 2000, pp. 3, 12; HBMP hispida due to the lack of research on Feral Pigs Database 2005). When the individual P. the species, scientists familiar with P. hispida was discovered in 1996 next to hispida believe it does not handle either European pigs, introduced to Hawaii the boardwalk at Pepeopae, TNCH noted shade or competition well (H. by Captain James Cook in 1778, pig signs (e.g., droppings, evidence of Oppenheimer, pers. comm. 2007), and hybridized with domesticated rooting, wallows) in the vicinity (HPMP nonnative plants are likely to contribute Polynesian pigs, became feral, and Database 2005) and immediately erected to both of these conditions. Examples of invaded forested areas, especially wet a fenced exclosure around the plant to some of the nonnative plants and mesic forests and dry areas at high protect it (TNCH 1997a, pp. 2–3). documented in the area occupied by P. elevations. They are currently present Similarly, a fenced exclosure was hispida include Axonopus fissifolius on Kauai, Niihau, Oahu, Molokai, Maui, erected around the individual that was (narrow-leaved carpetgrass), Clidemia and Hawaii. These introduced pigs are discovered within the Puu Alii NAR in hirta (Koster’s curse), Erechtites extremely destructive and have both 1997 to protect it from feral pigs (T. valerianifolia (fireweed), Juncus effuses direct and indirect impacts on native Nohara, pers. comm. 2006). The juvenile (Japanese mat rush), Rubus rosifolius plant communities. While rooting in the plant discovered within the Puu Alii (thimbleberry), and Sacciolepis indica earth in search of invertebrates and NAR in 2005 was immediately fenced to (Glenwood grass). Because of plant material, pigs directly impact protect it from feral pigs (B. Stevens, demonstrated habitat modification and native plants by disturbing and pers. comm. 2006), as were four of the resource competition by nonnative plant destroying vegetative cover, trampling most recently discovered plants along species in habitat similar to the wet plants and seedlings, and may reduce or the fenceline at Puu Alii NAR (H. forest habitat of P. hispida, and the eliminate plant regeneration by Oppenheimer, pers. comm. 2007). Due ongoing presence of high numbers of damaging or eating seeds and seedlings to the well-documented negative invasive nonnative plant species in the (further discussion of predation is under impacts of feral pigs on native Hawaiian area currently occupied by P. hispida, Factor C, below). Pigs are a major vector plant communities, the known habitat we consider habitat modification and for the establishment and spread of degradation caused by pigs in the degradation by nonnative plants to be a competing invasive nonnative plant habitat occupied by P. hispida, and the significant and immediate threat to this species, by dispersing these plant seeds continuing presence of pigs in the species. on their hooves and coats as well as limited area where P. hispida is found, through their digestive tracts, and by we consider habitat modification and B. Overutilization for Commercial, fertilizing the disturbed soil through degradation by feral pigs to be a Recreational, Scientific, or Educational their feces. Pigs feed preferentially on significant and immediate threat to this Purposes the fruits of many nonnative plants, species. Overutilization for commercial, such as Passiflora mollisima (banana recreational, scientific, or educational Nonnative Plants poka) and Psidium cattleianum purposes is not known to be a threat to (strawberry guava), thereby facilitating Introduced nonnative plant species Phyllostegia hispida, and as such is not the spread of these invasive species, and are a pervasive threat to the native flora addressed in this proposal. also contribute to erosion by clearing throughout the Hawaiian Islands. Of the vegetation and creating large areas of current total of nearly 2,000 native and C. Disease or Predation disturbed soil, especially on slopes naturalized plant taxa, approximately Because the native vegetation of (Aplet, et al. 1991, p. 56; Smith 1985, half are introduced nonnative species Hawaii evolved without any browsing pp. 190, 192, 196, 200, 204, 230–231; from other parts of the world, and or grazing mammals present, many Stone 1985, pp. 254–255, 262–264; nearly 100 of these are considered plant species do not have natural Medeiros, et al. 1986, pp. 27–28; Scott, invasive pest species (Smith 1985, p. defenses against such impacts (Carlquist et al. 1986, pp. 360–361; Tomich 1986, 180). On the Hawaiian Islands and other 1980, pp. 173–175; Lamoureux 1994, pp. 120–126; Cuddihy and Stone 1990, tropical islands, studies have shown pp. 54–55). Native plants such as

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Phyllostegia hispida do not have Pimm, et al. 1988, pp. 757–785). In the Available Conservation Measures physical or chemical adaptations, such case of Phyllostegia hispida, the entire Conservation measures provided to as thorns or noxious compounds, to population of the species is small and species listed as endangered or protect them, thereby rendering them restricted to a highly localized threatened under the Act include particularly vulnerable to predation by geographic area, rendering it highly recognition, recovery actions, introduced pigs or other ungulates vulnerable to the risk of extinction in requirements for Federal protection, and (Department of Geography 1998, pp. the wild due to the lack of redundancy prohibitions against certain practices. 137–138; Carlquist 1980, p. 175). in populations. Although some species Recognition through listing results in Browsing by ungulates has been are naturally rare, the poor survivorship public awareness and conservation by observed on many other native plants, of P. hispida suggest that the requisite Federal, State, and local agencies, including common and rare or biological or ecological needs of the private organizations, and individuals. endangered species (Cuddihy and Stone species are not being met under current The Act encourages cooperation with 1990, pp. 64–65). In a study of feral pig conditions. Deterministic factors, such the States and requires that recovery populations in the Kipahulu Valley on as habitat alteration or loss of a key actions be carried out for all listed the island of Maui, pigs were observed pollinator, may have reduced this species. The protection required of feeding on at least 40 plant species in population to such a small size that it Federal agencies and the prohibitions the rainforest ecosystem, 75 percent of is now vulnerable to a stochastic against certain activities involving listed which were native plants occurring in extinction event (Gilpin and Soule´ 1986, plants are discussed, in part, below. the herbaceous understory and pp. 24–25). Small population size has Section 7(a) of the Act, as amended, subcanopy layer (Diong 1982, p. 160). therefore become a primary and requires Federal agencies to evaluate Therefore, even though we have no immediate threat to this species. their actions with respect to any species evidence of direct browsing for P. that is proposed or listed as endangered hispida, given the presence of pigs in Proposed Determination or threatened and with respect to its the area where P. hispida occurs, we critical habitat, if any is designated. consider it likely that pigs may impact We have carefully assessed the best Regulations implementing this the species directly through predation. scientific and commercial information Therefore, we believe feral pigs pose a available regarding the past, present, interagency cooperation provision of the potentially significant and immediate and future threats to Phyllostegia Act are codified at 50 CFR part 402. threat to the species. hispida. The species’ extremely low Section 7(a)(4) requires Federal agencies numbers and highly restricted to confer with the Service on any action D. The Inadequacy of Existing geographic range make it particularly that is likely to jeopardize the continued Regulatory Mechanisms susceptible to extinction at any time existence of a species proposed for Currently, there are no Federal, State, from random events such as hurricanes. listing or result in destruction or or local laws, treaties, or regulations that There is only one plant known to exist adverse modification of proposed specifically conserve or protect in the wild that is reproductively critical habitat. If a species is listed Phyllostegia hispida from the threats mature. Although several individuals subsequently, section 7(a)(2) requires described in this rule. have recently been outplanted, no Federal agencies to ensure that activities outplanting effort for this species has they authorize, fund, or carry out are not E. Other Natural or Manmade Factors likely to jeopardize the continued Affecting Its Continued Existence yet been successful. Therefore, the future of these propagated individuals is existence of the species or destroy or The most significant threat to highly uncertain. Although the species adversely modify its critical habitat. If a Phyllostegia hispida is its extremely low is found on protected lands, it Federal action may adversely affect a numbers. A total of 33 plants, only one nonetheless faces immediate and listed species or its critical habitat, the of which is reproductively mature, are continuing threats from habitat responsible Federal agency must enter currently known to exist in the wild. destruction and degradation due to feral into formal consultation with the Twenty-three of these are only recently pig activity, competition with nonnative Service. For Phyllostegia hispida, Federal outplanted. Although propagules of P. plant species, and predation by agency actions that may require hispida have been collected on an nonnative mammals, as well as the opportunistic basis and some controlled consultation as described in the threat of extinction at any time from a propagation of the species has taken preceding paragraph include the random stochastic event such as a place, there is no dedicated funding for provision of Federal funds to State and hurricane. propagation of the species and no private entities through Federal formal plan exists for outplanting and The Endangered Species Act (Sec. programs, such as the Service’s reintroduction. Outplantings have been 3(5)(C)(6)) defines an endangered Landowner Incentive Program, State attempted on an ad hoc basis, but species as ‘‘any species which is in Wildlife Grant Program, and Federal unfortunately none of these danger of extinction throughout all or a Aid in Wildlife Restoration program, as outplantings has yet proven successful significant portion of its range.’’ Based well as the various grants administered for more than the short-term. on the immediate and ongoing by the U.S. Department of Agriculture, Species that are known from few wild significant threats to Phyllostegia Natural Resources Conservation Service. individuals and are endemic to a single, hispida throughout its entire limited Other types of actions that may require small island are inherently more range, as described above, and the fact consultation include Army Corps of vulnerable to extinction than that there is only one adult reproductive Engineers activities, such as the widespread species because of the individual of the species known, we construction or maintenance of higher risks posed to a few populations consider the species P. hispida to be in boardwalks and bridges subject to and individuals by genetic bottlenecks, danger of extinction throughout all of its section 404 of the Clean Water Act (33 random demographic fluctuations, and range. Therefore, on the basis of the best U.S.C. 1344, et seq.). localized catastrophes, such as available scientific and commercial The Act and its implementing hurricanes and disease outbreaks information, we are proposing to list P. regulations set forth a series of general (Mangel and Tier 1994, pp. 607–614; hispida as an endangered species. prohibitions and exceptions that apply

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to endangered plants. All prohibitions protection; and (ii) specific areas question; (2) focusing conservation of section 9(a)(2) of the Act, outside the geographic area occupied by activities on the most essential features implemented by 50 CFR 17.61, apply. a species at the time it is listed, upon and areas; (3) providing educational These prohibitions, in part, make it a determination that such areas are benefits to State or county governments illegal for any person subject to the essential for the conservation of the or private entities; and (4) preventing jurisdiction of the United States to species. Conservation, as defined under people from causing inadvertent harm import or export, transport in interstate section 3 of the Act, means to use and to the species. or foreign commerce in the course of a the use of all methods and procedures The primary regulatory effect of commercial activity, sell or offer for sale that are necessary to bring an critical habitat is the section 7(a)(2) in interstate or foreign commerce, or endangered or threatened species to the requirement that Federal agencies remove and reduce the species to point at which the measures provided refrain from taking any action that possession from areas under Federal pursuant to the Act are no longer destroys or adversely affects critical jurisdiction. In addition, for plants necessary. habitat. At present, the only known listed as endangered, the Act prohibits Critical habitat receives protection extant individuals of Phyllostegia the malicious damage or destruction on under section 7 of the Act through the hispida occur on State and private land, areas under Federal jurisdiction and the prohibition against destruction or and all previously known occurrences removal, cutting, digging up, or adverse modification of critical habitat have been on State and privately owned damaging or destroying of such plants with regard to actions carried out, lands. Further, there are no Federal in knowing violation of any State law or funded, or authorized by a Federal lands or lands under Federal regulation, including State criminal agency. Section 7(a)(2) requires jurisdiction in the forests of east trespass law. Certain exceptions to the consultation on Federal actions that Molokai, the historic range of this prohibitions apply to agents of the may affect critical habitat. The species. Therefore, it is unlikely that Service and State conservation agencies. designation of critical habitat does not this species currently occurs, or would Although Hawaii has a strong affect land ownership or establish a occur in the future, on Federal lands. Endangered Species law (HRS, Sect. refuge, wilderness, reserve, preserve, or Nevertheless, lands that may be 195–D), Phyllostegia hispida is not other conservation area. Such designated as critical habitat in the currently protected under that law. designation does not allow government future for this species may be subject to Federal listing of Phyllostegia hispida or public access to private lands. Federal actions that trigger the section 7 will automatically invoke State listing Section 7(a)(2) is a purely protective consultation requirement, such as the under Hawaii’s Endangered Species law measure and does not require granting of Federal monies for and supplement the protection available implementation of restoration, recovery, conservation projects and/or the need under other State laws. The Federal or enhancement measures, although for Federal permits for projects, such as Endangered Species Act will, therefore, conservation measures are required the construction and maintenance of offer additional protection to this under section 7(a)(1) of the Act. boardwalks and bridges subject to section 404 of the Clean Water Act (33 species. Prudency Determination The Act and 50 CFR 17.62 also U.S.C. 1344, et seq.). There may also be Section 4(a)(3) of the Act, as provide for the issuance of permits to some educational or informational amended, and implementing regulations carry out otherwise prohibited activities benefits to the designation of critical (50 CFR 424.12), require that, to the habitat. Educational benefits include the involving endangered plants under maximum extent prudent and certain circumstances. Such permits are notification of land owners, land determinable, we designate critical managers, and the general public of the available for scientific purposes and to habitat at the time the species is enhance the propagation or survival of importance of protecting the habitat of determined to be endangered or this species. In the case of Phyllostegia the species. We anticipate that the only threatened. Our regulations (50 CFR permits that would be sought or issued hispida, these aspects of critical habitat 424.12(a)(1)) state that the designation designation would potentially benefit for Phyllostegia hispida would be in of critical habitat is not prudent when association with recovery efforts, as this the conservation of the species. one or both of the following situations Therefore, since we have determined species is not common in cultivation or exist: (1) The species is threatened by that the designation of critical habitat the wild. Requests for copies of the taking or other human activity, and will not likely increase the degree of regulations regarding listed species and identification of critical habitat can be threat to the species and may provide inquiries about prohibitions and permits expected to increase the degree of threat some measure of benefit, we find that may be addressed to U.S. Fish and to the species, or (2) such designation of designation of critical habitat is prudent Wildlife Service, Ecological Services, critical habitat would not be beneficial for Phyllostegia hispida. Eastside Federal Complex, 911 NE. 11th to the species. Avenue, Portland, OR 97232–4181 There is no documentation that Primary Constituent Elements (telephone 503–231–6158; facsimile Phyllostegia hispida is threatened by In accordance with sections 3(5)(A)(i) 503–231–6243). taking or other human activity. In the and 4(b)(1)(A) of the Act and regulations Critical Habitat absence of finding that the designation at 50 CFR 424.12, in determining which of critical habitat would increase threats areas to propose as critical habitat, we Background to a species, if there are any benefits to must consider those physical and Critical habitat is defined in section 3 a critical habitat designation, then a biological features (primary constituent of the Act as (i) the specific areas within prudent finding is warranted. The elements in the necessary and the geographical area occupied by a potential benefits include: (1) Triggering appropriate quantity and spatial species, at the time it is listed in consultation under section 7 of the Act, arrangement) essential to the accordance with the Act, on which are in new areas for actions in which there conservation of the species. We must found those physical or biological may be a Federal nexus where it would also consider those areas essential to the features (I) essential to the conservation not otherwise occur because, for conservation of the species that are of the species and (II) that may require example, it is or has become outside the geographical area occupied special management considerations or unoccupied or the occupancy is in by the species. These primary

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constituent elements include, but are of that habitat are currently lacking for understand if it were divided into more not limited to, space for individual and P. hispida. As we are unable to identify (but shorter) sections? (5) Is the population growth and for normal the physical and biological features description of the rule in the behavior; food, water, or other essential to the conservation of P. SUPPLEMENTARY INFORMATION section of nutritional or physiological hispida, we are unable to identify areas the preamble helpful in understanding requirements; cover or shelter; sites for that contain these features. the emergency rule? What else could we breeding, reproduction, rearing of Therefore, although we have do to make the rule easier to offspring, germination, or seed determined that the designation of understand? dispersal; and habitats that are protected critical habitat is prudent for Send a copy of any comments that from disturbance or are representative of Phyllostegia hispida, since the concern how we could make this rule the historical geographical and biological requirements of the species easier to understand to Office of ecological distributions of a species. are not sufficiently known, we find that Regulatory Affairs, Department of the We are currently unable to identify critical habitat for P. hispida is not the primary constituent elements for determinable at this time. Interior, Room 7229, 1849 C Street, Phyllostegia hispida, because NW., Washington, DC 20240. You also information on the physical and Peer Review may e-mail the comments to this biological features that are considered In accordance with our joint policy address: [email protected]. essential to the conservation of this published in the Federal Register on Paperwork Reduction Act of 1995 (44 species is not known at this time. As July 1, 1994 (59 FR 34270), we will seek U.S.C. 3501, et seq.) discussed in the ‘‘Species Information’’ the expert opinions of at least three section of this proposed rule, between appropriate and independent specialists This rule does not contain any new the years 1910 and 1996 only 10 regarding this proposed rule. The collections of information that require occurrences of P. hispida were purpose of such review is to ensure that approval by Office of Management and documented, and the location our proposed rule is based on Budget (OMB) under the Paperwork information for these occurrences was scientifically sound data, assumptions, Reduction Act. This rule will not recorded at a relatively coarse scale. and analyses. We will send these peer impose recordkeeping or reporting Elevations are known only for the few reviewers copies of this proposed rule requirements on State or local individuals discovered within the last immediately following publication in governments, individuals, businesses, or 10 years. From 1996 through 2005 a the Federal Register. We will invite organizations. An agency may not total of only 6 plants (3 adults, 2 these peer reviewers to comment, conduct or sponsor, and a person is not seedlings, and 1 juvenile) were located, during the public comment period, on required to respond to, a collection of all existing only as single individuals in the specific assumptions and information unless it displays a disparate locations. All of the conclusions regarding the proposal to currently valid OMB control number. previously known adults have died list Phyllostegia hispida as endangered without reproducing naturally in the and our decision regarding critical National Environmental Policy Act wild; the first mature plant to be habitat for this species. observed fruiting was just discovered in We will consider all comments and We have determined that April 2007. The two seedlings information received during the environmental assessments and discovered in 2005 were collected and comment period on this proposed rule environmental impact statements, as deposited with propagation facilities to during preparation of a final defined under the authority of the attempt production of additional rulemaking. Accordingly, the final National Environmental Policy Act of seedlings for outplanting in the future. decision may differ from this proposal. 1969, need not be prepared in The reasons for the deaths of the three connection with regulations adopted adult and one juvenile plants are Public Hearings pursuant to section 4(a) of the Act. We unknown, as are the reasons for poor The Act provides for one or more published a notice outlining our reasons natural reproduction in the wild. Key public hearings on this proposal, if for this determination in the Federal features of the plant’s life history, such requested. Requests must be received Register on October 25, 1983 (48 FR as longevity, dispersal mechanisms, or within 45 days after the date of 49244). publication of this proposal in the vectors for pollination, are unknown. References Cited The plant community where the few Federal Register. Such requests must be remaining wild individuals of made in writing and be addressed to the A complete list of all references cited Phyllostegia hispida are found has been Field Supervisor at the address in the in this rule is available on the Internet highly modified by the presence of ADDRESSES section. at http://www.regulations.gov or upon nonnative plants and feral pigs, and the Clarity of the Rule request from the Field Supervisor, poor viability of the species occurrences Pacific Islands Fish and Wildlife Office observed in recent years indicates that Executive Order 12866 requires each (see FOR FURTHER INFORMATION CONTACT current conditions are not sufficient to agency to write regulations that are easy section). meet the basic biological requirements to understand. We invite your of this species. Because P. hispida has comments on how to make this rule Author(s) never been observed in an unaltered easier to understand including answers environment, the optimal conditions to questions such as the following: (1) The primary author of this document that would provide the biological or Are the requirements in the rule clearly is staff from the Pacific Islands Fish and ecological requisites of the species are stated? (2) Does the rule contain Wildlife Office (see ADDRESSES). not known. Although, as described technical language or jargon that List of Subjects in 50 CFR Part 17 above, we can surmise that habitat interferes with its clarity? (3) Does the degradation from a variety of factors has format of the rule (grouping and order Endangered and threatened species, contributed to the decline of the species, of sections, use of headings, Exports, Imports, Reporting and we do not know specifically what paragraphing, etc.) aid or reduce its recordkeeping requirements, and essential physical or biological features clarity? (4) Would the rule be easier to Transportation.

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Proposed Regulation Promulgation PART 17—[AMENDED] 2. In § 17.12(h) add the following to the List of Endangered and Threatened Accordingly, we propose to amend 1. The authority citation for part 17 Plants in alphabetical order under part 17, subchapter B of chapter I, title continues to read as follows: Flowering Plants: 50 of the Code of Federal Regulations, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. § 17.12 Endangered and threatened plants. as set forth below: 1531–1544; 16 U.S.C. 4201–4245; Public Law 99–625, 100 Stat. 3500, unless otherwise * * * * * noted. (h) * * *

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

******* FLOWERING PLANTS

******* Phyllostegia hispida None ...... U.S.A. (HI) ...... Lamiaceae—Mint .... E TBD NA NA

*******

Dated: February 5, 2008. Kenneth Stansell, Deputy Director, U.S. Fish and Wildlife Service. [FR Doc. E8–2841 Filed 2–15–08; 8:45 am] BILLING CODE 4310–55–P

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