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option is chosen (for those pleadings the Board through the e-filing process, Background and documents that are appropriate for a copy of the e-filed document should Nesogenes rotensis, e-filing, as determined by reference to be emailed to other parties if that means mariannense, and Tabernaemontana the information on the Board’s Web of service is acceptable to those other rotensis all occur on the island of site), then the applicable requirements parties, or a paper copy of the document in the CNMI; Tabernaemontana rotensis will be those specified on the Web site, should be personally served on the is also found in the U.S. Territory of and any requirements of 49 CFR part other parties, but if email is not . 1104 that are specifically applicable to acceptable to the receiving party and We provided detailed physical filing of paper copies will not apply to personal service is not feasible, service descriptions for these species and their the e-filed pleadings and documents of a paper copy should be by first-class habitats for Guam and Rota in the (these requirements include, but are not or express mail. When a party is proposed listing rule (65 FR 35025, June limited to, number of copies, stapling or represented by a practitioner or 1, 2000). binding specifications, submission of attorney, service upon the practitioner is compact disks or floppy diskettes for deemed to be service upon the party. Discussion of the Three Species documents of 20 pages or more, * * * * * Nesogenes rotensis signature ‘‘in ink,’’ etc.). Persons are not [FR Doc. 04–8074 Filed 4–7–04; 8:45 am] Williams has observed Nesogenes required to e-file, and may continue to BILLING CODE 4915–01–P use the Board’s processes for filing rotensis in flower throughout the year; paper copies. however, she has never observed it in fruit (Laura Williams, CNMI Division of § 1104.2 [Amended] DEPARTMENT OF THE INTERIOR Fish and Wildlife (DFW), pers. comm. 2004). I 3. Amend the first sentence in Fish and Wildlife Service § 1104.2(a) by adding the words ‘‘, Biannual surveys for this species have been conducted since 2000. The species except electronic filings,’’ after the word 50 CFR Part 17 ‘‘Documents’’. was observed in flower in February RIN 1018–AG09 2000, and a direct count was made on § 1104.3 [Amended] June 27, 2000 (L. Arriola, in litt. 2000). I 4. Amend § 1104.3 as follows: Endangered and Threatened Wildlife At that time there were 80 individuals I A. In paragraph (a), in the first and ; Determination of within an approximate area of 960 yd 2 sentence, remove the words ‘‘of every Endangered Status and Prudency (800 m 2). In May and November 2001, pleading,’’ and add in their place ‘‘of Determination for Designation of direct counts made by staff from CNMI every paper pleading,’’. Critical Habitat for Two Plant Species DFW identified 458 and 579 adult I B. In paragraph (b), add the words From the Commonwealth of the plants, respectively. No individuals of ‘‘accompanying paper filings’’ after the Northern Nesogenes rotensis were observed in words ‘‘Electronic submissions’’. AGENCY: Fish and Wildlife Service, May or November of 2003 following I C. In paragraph (b)(1), remove the Interior. supertyphoon Pongsona; however, 34 words ‘‘in WordPerfect 9.0 format or adults were observed in December 2003 ACTION: Final rule. earlier releases’’. (L. Williams, pers. comm. 2004). I 5. Amend § 1104.6 by adding the SUMMARY: We, the U.S. Fish and Osmoxylon mariannense following sentence at the end of the Wildlife Service (Service), determine section: endangered status and critical habitat In 2000, a survey conducted by prudency pursuant to the Endangered biologists with the CNMI DFW § 1104.6 Timely filing required. Species Act of 1973, as amended (Act), identified six living, and five dead, * * * If the e-filing option is chosen for two plant species: Nesogenes individual trees on Rota (L. Arriola, in (for those pleadings and documents that rotensis (no common name) and litt. 2000). A survey conducted in 2002 are appropriate for e-filing, as Osmoxylon mariannense (no common by Taisacan confirmed eight determined by reference to the name). Nesogenes rotensis and occurrences in this same vicinity, again information on the Board’s Web site), Osmoxylon mariannense are found only with only one living mature tree in then the e-filed pleading or document is on the island of Rota in the U.S. each. Osmoxylon mariannense timely filed if the e-filing process is Commonwealth of the Northern Mariana individuals were defoliated during completed before 5 p.m. eastern time on Islands (CNMI). Based on a public supertyphoon Pongsona; however, are the due date. comment, we have re-examined the leafing out and appear to be recovering I 6. Amend §1104.12 by revising basis of recognition of (E. Taisacan, pers. comm. 2003). paragraph (a) to read as follows: Tabernaemontana rotensis as a distinct Tabernaemontana rotensis § 1104.12 Service of pleadings and papers. endemic species on Rota and the U.S. Territory of Guam, and are not listing Tabernaemontana rotensis has been (a) Generally. Every document filed this species as endangered. This rule recognized as an endemic species on with the Board should include a implements the protection and recovery Guam and Rota by most who have certificate showing simultaneous service provisions afforded by the Act for these studied the flora of the Marianas upon all parties to the proceeding. species. (Fosberg in Stone 1980, Raulerson pers. Service on the parties should be by the comm., Herbst pers. comm.) and is DATES: same method and class of service used This rule is effective May 10, recognized as distinct by the in serving the Board, with charges, if 2004. government of Guam. Nevertheless, in any, prepaid. One copy should be FOR FURTHER INFORMATION CONTACT: Gina an authoritative monographic work on served on each party. If service is made M. Shultz, Acting Field Supervisor, the the genus in the Old World on the Board in person, and personal Pacific Islands Fish and Wildlife Office; (Leeuwenberg 1991), it was submerged service on other parties is not feasible, telephone, 808/792–9400; facsimile, in an expansive interpretation of the service should be made by first-class or 808/792–9581. widespread species T. pandacaqui, express mail. If a document is filed with SUPPLEMENTARY INFORMATION: which was originally described from the

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Philippines, but that in Leeuwenberg’s Summary of Comments and 2000. We received oral comments from interpretation ranges from southern Recommendations a representative from the Mayor’s office China to Australia and includes several In our June 1, 2000, proposed rule and on Rota and four representatives from dozen previously recognized species. associated notifications, we requested the CNMI DLNR at this public hearing. Differences of this sort are not that all interested parties submit Representatives of the Mayor’s office uncommon regarding species or groups comments, data, or other information and the CNMI DLNR also responded by of related species that have broad and that might contribute to the letter or e-mail during the first comment discontinuous ranges. Prompted in part development of a final rule. A 60-day period. This final rule has been revised and by a comment from the Air Force, we comment period closed on July 31, updated to reflect the comments and have re-examined the basis for 2000. Appropriate CNMI and information received during the recognition of T. rotensis as a distinct Government of Guam agencies, Federal comment periods. We address those agencies, and other interested parties endemic species and now consider substantive comments concerning the were contacted and requested to Leeuwenberg’s treatment to be the most rule in the summary that follows. credible taxonomic interpretation of the comment. A legal notice announcing the native Tabernaemontana of Guam and publication of the listing proposal was Peer Review Rota. Since we have no authority to list published in the Marianas Variety Our Interagency Cooperative Policy plants at a level below subspecies or newspaper on June 16, 2000, and the for Peer Review in Endangered Species variety, and there is no indication that Pacific Daily News on June 23, 2000. Act Activities published in the Federal T. pandacaqui is endangered or During this period we received one Register (59 FR 34270) states that the threatened throughout all or a request for a public hearing from the Service will incorporate independent significant portion of its range, we are CNMI DFW. On October 30, 2000, we peer review in listing decisions during not listing T. rotensis. Despite this gave notice in the Federal Register (65 the public comment period in the determination, we recognize that native FR 64649) and the Marianas Variety of following manner: (1) solicit the expert Tabernaemontana is an important the public hearing to be held on the opinions of a minimum of three natural resource and an element of the island of Rota and reopened the public appropriate and independent specialists comment period until November 29, native biodiversity of these two islands. regarding pertinent scientific and 2000. On November 16, 2000, we held It is perfectly appropriate that local commercial data and assumptions a public hearing at the Rota Resort, Rota. relating to the , population authorities seek to conserve this species, We reopened the public comment but under our current understanding of models, and supportive biological and period on January 9, 2004, because we ecological information for species under its taxonomy, it does not qualify for believed that additional review was consideration for listing; and (2) protection under the Act. If further warranted at this time since three years summarize in the final decision information becomes available that had passed since publication of the document the opinions of all supports recognition of an endemic proposed rule (69 FR 1560). In order to independent peer reviewers received on taxon, we will reconsider the need to address any additional comments the species under consideration. The list. received in response to reopening the purpose of such review is to ensure that Previous Federal Action comment period and to meet the August listing decisions are based on 21, 2002, court order to submit to the scientifically sound data, assumptions On June 1, 2000, we published the Federal Register a final listing decision and analyses, including input of proposed rule to list as endangered for these three plants no later than April appropriate experts and specialists. three plant species from the Mariana 1, 2004, the comment period was open In accordance with our policy, we Islands (65 FR 35025). In that proposed for 18 days, closing on January 26, 2004. sought the expert opinions of seven rule (beginning on page 35027), we The reopening of the comment period independent reviewers regarding the included a detailed summary of the gave all interested parties additional proposed rule. The purpose of such previous Federal actions completed time to consider the proposed rule’s review is to ensure that our decisions prior to publication of the proposal. We information and submit comments on are based on scientifically sound data, now provide updated information on the proposal. assumptions, and analyses. We invited the actions that we have completed During the comment periods, we these peer reviewers to comment, received a total of 18 letters, facsimile during the public comment periods, on since publication of the proposed rule. transmissions, comment cards, and e- the accuracy of the data used regarding Our final listing decision for Nesogenes mails from public agencies and the proposed listing of Nesogenes rotensis, Osmoxylon mariannense, and individuals. Eleven of these written rotensis, Osmoxylon mariannense, and Tabernaemontana rotensis was deferred communications were from various Tabernaemontana rotensis and due to lack of resources because the departments of the government of the conclusions drawn from these data. We Service’s Pacific Islands Office (where CNMI and Guam, two were from the Air received comments from four peer the proposed listing was initiated) staff Force, and the remaining five were from reviewers during the comment period. were under court orders to designate non-governmental entities. Of the Three reviewers concur with our critical habitat for 255 Hawaiian plants written comments, four reviewers determination to list based upon and four Hawaiian invertebrates. supported the listing of Nesogenes available information on the species. Pursuant to a settlement agreement rotensis, Osmoxylon mariannense, and One peer reviewer recommended a approved by the U.S. District Court for Tabernaemontana rotensis, ten opposed delay in the listing of Tabernaemontana the District of Hawaii on August 21, the listing, three provided information rotensis pending the collection and 2002, the Service must make a final on the species but remained neutral on analysis of an additional five years of decision on whether to list these species the listing, and one recommended data. All of the reviewers agreed that the and submit this decision to the Federal delaying the listing of proposed rule was based on Register by April 1, 2004 (Center for Tabernaemontana rotensis. Five scientifically sound data, assumptions, Biological Diversity v. Norton, Civil No. persons provided testimony at the and analysis. These experts’ comments 99–00603 (D. Haw.)). public hearing held on November 16, are incorporated in the final rule and

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summarized in the following responses information. We have determined that destructive pests or diseases of these to comments. Nesogenes rotensis and Osmoxylon two species. Individuals of Osmoxylon mariannense meet the definition of mariannense have been reported to Issue 1: Biological Justification and endangered. However, we are not listing suffer defoliation by an unknown agent Methodology Tabernaemontana rotensis on the basis (L. Mehrhoff and C. Russell, pers. Comment 1: One peer reviewer of taxonomy. comm. 1997; E. Taisacan, pers. comm. recommended that as additional As cited above in the response to 1997). Invertebrate pests, rats, or disease individuals of Tabernaemontana Comment 1, since publication of the are suspected to be the cause for a lack rotensis have been found since the time proposed listing in 2000, we have of seedlings or juveniles of Osmoxylon of the proposed listing we continue to compiled new information on the mariannense, deleterious effects on the gather information on population data numbers of individuals and distribution leaves, and the death of several mature and monitor select groups of individuals of Nesogenes rotensis and Osmoxylon individual trees (D. Grout, pers. comm. of to determine local trends in numbers, mariannense and incorporated this 1997). seedling survival rates, and causes of information into the final rule. These We are aware of ongoing efforts by the mortality in populations on the islands two species have been the subject of CNMI DNLR to propagate Osmoxylon of Guam and Rota. Based on the analysis searches conducted in the last 20 years mariannese for outplanting on Rota (E. of this new information, the status of the on Rota by knowledgeable biologists Taisacan, in litt. 2002). A summary of species would then be re-assessed after and technicians, including staff from the these efforts is provided in this final five years. Other reviewers also CNMI DLNR and DFW. Biannual rule below under Factor 3. There is no suggested that, based on the detection of surveys for Nesogenes rotensis have species-specific management plan. new individuals, Tabernaemontana been conducted on Rota since 2000 by Currently, no Federal recovery plans rotensis, may be more widespread than biologists from the CNMI DFW to assess exist for Nesogenes rotensis and originally believed. The peer reviewer the health and status of the single Osmoxylon mariannense because such also believed that we had failed to known population at Pon˜ a Point Fishing documents are prepared for species incorporate information on a significant Cliff; however, no surveys have been subsequent to their listing as population of Tabernaemontana conducted for Nesogenes rotensis in endangered or threatened under the Act. rotensis which occurs on an upper other coastal habitat areas on Rota. Following the listing of Nesogenes terrace of Tagua Point. Nesogenes rotensis is currently known rotensis and Osmoxylon mariannese, Our Response: The Service collected, from a single population of 34 recovery plans will be completed collated, and analyzed that new individuals. Surveys between 1980 and pursuant to section 4(f)(1) of the Act for information on the newly documented 1995 on Rota located 20 individuals of these three species. These plans will individuals of Tabernaemontana Osmoxylon mariannense in the same provide a framework for combining and rotensis and distribution on Guam and limestone forest area that it had been coordinating Federal, State, and regional Rota since the publication of the reported from almost 50 years earlier (D. agency efforts for conservation of the proposed listing rule in 2000. This Grout and L. Mehrhoff, pers. species as well as establish recovery included field observations and comm.1997; L. Raulerson, pers. comm. priorities and estimate the cost of tasks information from persons with direct 1998). Surveys conducted in 1997 and necessary to accomplish these priorities. knowledge of the species. The new 1998 in the same area following several They will also describe site-specific information was provided by typhoons located only eight individuals management actions necessary to knowledgeable private individuals, (E. Taisacan and G. Hughes, pers. achieve conservation and survival of Territory of Guam and Commonwealth comm. 1998). In a survey conducted in these species. biologists, and the Air Force. However, 2000, CNMI DFW identified six living Comment 4: The GDOA also we are not listing T. rotensis on the and five dead trees (L. Arriola, in litt. commented that they did not feel that basis of taxonomy. 2000). And in a 2002 survey, eight fire was a threat to Tabernaemontana living trees were reported in the same rotensis because none of the trees occur Section 4(i) Comments Received From vicinity (E. Taisacan, pers. comm. 2003). in a fire-prone area, and fire is not Commonwealth and Territorial Comment 3: The CNMI DLNR known to occur in limestone forests on Government Agencies requested that, in addition to Guam or Rota. Rather, they point out comprehensive, island-wide surveys, Issue 1: Biological Justification and that fires originate from human use of the following issues be considered prior Methodology an area or vandalism. In addition, to listing: species distribution, GDOA feels that few obvious threats to Comment 2: The Guam Department of identification of destructive pests and Tabernaemontana rotensis have been Agriculture (GDOA) and the Air Force diseases, propagation techniques, land noted on Guam. Finally, GDOA suggests provided additional information on the ownership rights, public education and that clearings created by typhoons or locations and population numbers of awareness, management plans for humans might actually favor Tabernaemontana rotensis. Several existing populations, and short- and reproduction in this species and that the reviewers, including the GDOA, CNMI long-term recovery plans for the species. species, overall, appears to be quite DLNR, and the Air Force commented, Our Response: As cited above in hardy and resilient to adverse however, that listing of one or more of response to Comment 2, since environmental and anthropogenic the three species should be based on the publication of the proposed listing in damage. results of comprehensive, island-wide 2000, we compiled new information on Our Response: The threat of fire is no surveys as it would be premature to list the numbers of individuals and the longer an issue because we are not them absent the results of such survey distributions of Nesogenes rotensis and listing T. rotensis on the basis of efforts. Osmoxylon mariannense, and have taxonomy. Our Response: As required by the Act incorporated this information into this (section 4(a)(1)) and its implementing final rule. Issue 2: Effects of Listing regulations, we must list species as To date, no specific diseases have Comment 5: The CNMI DLNR endangered or threatened based on the been identified for these species, and we commented that Tabernaemontana best available scientific and commercial are not aware of any research on rotensis and Osmoxylon mariannense

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are currently listed as endangered under any species that is proposed or listed as Species Listed Under the Act’’ (65 FR CNMI public law and that stakeholders endangered or threatened, and with 56916) addresses botanical facilities and have taken the initiative, under local respect to its critical habitat if any is others who may be involved in the home rule, to protect the resources designated (50 CFR part 402). If a propagation of listed species. The goals under their jurisdiction. Federal action may affect a listed of this policy include coordinating Our Response: Section 4 of the Act species or its critical habitat, the recovery actions specific to controlled provides guidance regarding the listing responsible Federal agency must enter propagation activities; maximizing of species. Listing decisions are based into consultation with the Service to benefits to the listed species from upon the best scientific and commercial ensure that its actions are not likely to controlled propagation efforts; assuring data available and take into jeopardize the continued existence of that appropriate recovery measures consideration those efforts, if any, being the species or destroy or adversely other than controlled propagation and made by any State or foreign nation, or modify its critical habitat. Examples of other existing recovery priorities are any political subdivision of a State or Federal agency actions on private lands considered in making controlled foreign nation, to protect such species, in the Commonwealth of the Northern propagation decisions; and ensuring whether by predator control, protection Mariana Islands that may require prudent use of funds. We have also of habitat and food supply, or other consultation include the following: made substantial efforts to avoid conservation practices, within any area Army Corps of Engineers projects, such adverse impacts, economic or otherwise, under its jurisdiction. With Federal as the construction of roads, firebreaks, in order that cooperative recovery protection as listed species, Federal and bridges; various U.S. armed forces partnership opportunities may be agencies all insure that these species are activities on the northern Mariana maintained or increased with qualified not jeopardized pursuant to section 7 Islands, including combat and mobility organizations and individuals. As such, actions and Federal monies may be training and construction; Natural no significant adverse impacts to made available for their conservation Resources Conservation Service persons or entities involved in the pursuant to section 6 of the Act. projects; Federal Emergency propagation of federally-listed plant Osmoxylon mariannense and Nesogenes Management Agency activities; and U.S. species, including Osmoxylon rotensis are endemic to Rota. Department of Housing and Urban mariannense and Nesogenes rotensis, Osmoxylon mariannense is included on Development projects. Conservation of are anticipated. the ‘‘List of Protected Wildlife and Plant these plant species may be consistent Comment 9: One reviewer commented Species in the CNMI’’ (Table 3 of the with some ongoing operations at these that the Service should propose critical 1999 revised DFW regulations sites; however, the listing of these habitat for Nesogenes rotensis, implementing CNMI Public Law 2–51) species in the CNMI could result in Osmoxylon mariannense, and for Rota; however, Nesogenes rotensis is some restrictions on certain Federal Tabernaemontana rotensis concurrent not. Pursuant to these DFW regulations, activities and the use of certain lands. with the final rule to list the species. protected species may not be hunted or Comment 7: The Air Force and Our Response: In this final rule, we harassed. These regulations do not, another reviewer commented that the find that critical habitat for N. rotensis however, identify specific prohibitions Service should accept the taxonomic and O. mariannense is prudent but not regarding collection or possession of inclusion of Tabernaemontana rotensis determinable at this time due to a lack protected plant species or any into Tabernaemontana pandacaqui of information regarding the physical requirements to analyze the effects of based on Leeuwenburg (1991) as it is the and biological features or specific areas any proposed actions on such species. only peer-reviewed study directly essential to the conservation of these Cooperative efforts between the Service applicable on Guam. three species. In accordance with and the Rota DFW have resulted in the Our Response: We have re-examined section 4(b)(6)(C)(ii) of the Act, construction of fenced exclosures the basis for recognition of T. rotensis’ however, it is our intent, if funded, to around several individuals of as a distinct endemic species and now gather this information and to propose Osmoxylon mariannense on Rota. We consider Leeuwenberg’s treatment to be critical habitat for these two plant are unaware of any other actions to the most credible taxonomic species within one year of their listing. protect the unfenced trees and to interpretation of the native In the interim, we will protect the two alleviate the threats posed by feral Tabernaemontana of Guam and Rota. plant species through the provisions Sambal deer and pigs as well as invasive Accordingly, we are not listing T. provided pursuant to sections 7 and 9 non-native plant species. rotensis. of the Act. However, we are not listing Comment 6: The Mayor of Rota Non-Government Comments T. rotensis on the basis of taxonomy. commented that there are no Federal Comment 10: One reviewer asked if lands on Rota and asked if Federal Comment 8: One reviewer asked if the the listing of Nesogenes rotensis, protection would extend to private listing of Nesogenes rotensis, Osmoxylon mariannense, and property. Osmoxylon mariannense, and Tabernaemontana rotensis would result Our Response: Federal protection of Tabernaemontana rotensis would in extra protection for these three listed plants extends to private lands impede local recovery efforts with the species. under two circumstances: (1) removal, need to obtain numerous Federal Our Response: This is discussed in cutting, digging up, damaging, or permits and extra paperwork that would Our Response to Comment 6. However, destroying endangered plants would be required by the Service policy we are not listing T. rotensis on the constitute a violation of section 9 if regarding the propagation of listed basis of taxonomy. conducted in knowing violation of State species. law or regulations or in violation of Our Response: Under the Act, the Summary of Factors Affecting the State criminal trespass law and (2) any controlled propagation of animals and Species activity that would be authorized, plants in certain situations is recognized Section 4(a)(1) (16 U.S.C. 1531 et seq.) funded, or implemented by a Federal as an essential tool for the conservation of the Act and regulations (50 CFR part entity requires, pursuant to section 7(a) and recovery of listed species. In 424) promulgated to implement the Act of the Act, that the Federal entity recognition of this, our ‘‘Policy describe the procedures for adding evaluate their actions with respect to Regarding Controlled Propagation of species to the Federal lists. We may

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determine a species to be endangered or park’s facilities. Casuarina equisetifolia As such, given the current single threatened due to one or more of the (ironwood), a large-stature, fast-growing population is comprised of only 34 five factors described in section 4(a)(1) non-native tree, is colonizing the Pon˜ a individuals, Nesogenes rotensis is of the Act. These factors and their Point Fishing Cliff area. Ironwoods can extremely vulnerable to other factors. application to Nesogenes rotensis and reach heights of up to 65 ft (20 m) and For example, two typhoons have made Osmoxylon mariannense are discussed form monotypic stands that can shade landfall on Guam and Rota since this in the following sections. The primary out other plant species. Dominance by species was proposed for listing: threats facing these two species are Casuarina equisetifolia takes up much typhoon Chataan in July 2002 and summarized in Table 1. of the available nutrients, and the supertyphoon Pongsona in December The only known population of species is believed to release 2002. While the species appears to be Nesogenes rotensis at Pon˜ a Point allelopathic chemicals that prevent recovering from the effects of Fishing Cliff occurs in an area adjacent understory growth (Neal 1965; Smith supertyphoon Pongsona, it remains to a trail that is subject to bonfires, 1985). Ironwoods presence constitutes a extremely vulnerable during this collecting, trampling by fishermen and major threat to Nesogenes rotensis recovery period (L. Williams, pers. tourists, and potential expansion of the through degradation of suitable habitat. comm. 2004).

TABLE 1.—SUMMARY OF PRIMARY THREATS TO Nesogenes rotensis AND Osmoxylon mariannense

Feral Non-native Invertebrate Development/ Typhoons/ Trampling/ Van- Limited Species animals Rodents plants pests road work storms collection dalism numbers

Nesogenes Unknown Unknown Yes ...... Unknown ..... Yes ...... Yes ...... Yes ...... Potential Yes; 34 indi- rotensis. viduals. Osmoxylon Yes ...... Potential Yes ...... Potential ...... Yes ...... Yes ...... Unknown .. Potential Yes; 8 indi- mariannense. viduals.

The primary threat to Osmoxylon Rota was subject to extensive 1992). Remaining habitat is threatened mariannense is degradation or agricultural development (particularly by fragmentation and degradation disturbance of native forest habitat from cultivation of sugar cane in the lowland associated with resort development, a variety of factors including areas) by the Japanese prior to World agricultural activities, and road competition from invasive non-native War II. The island was not, however, maintenance and construction (D. Grout species and feral ungulate activity. Rota invaded by allied forces during World and L. Mehrhoff, pers. comms. 1997). has historically experienced typhoon War II. Rota retains less than 60 percent Individuals of Osmoxylon mariannense disturbances that have opened the of its historic native forest (Falanruw et on Rota were almost lost during road- canopy of the sabana forest al. 1989). Continued loss of native forest widening activities that occurred in the considerably, creating conditions is attributable to application of the late 1990s (D. Grout and L. Mehrhoff, favorable to invasive non-native shrubs Agricultural Homestead Act of 1990 that pers. comms. 1997). Coastal habitat is and vines that compete with Osmoxylon allows for the distribution of 2.5-ac (1- threatened by fragmentation and mariannense (L. Mehrhoff, in litt. 1995). ha) parcels of public land to eligible degradation associated with resort Feral pigs (Sus scrofa) and deer (Cervus participants. Land use plans have development, and potential beach park mariannus) are abundant on Rota, and proposed that approximately 25 to 45 expansion and development of park their browsing and trampling threaten percent of Rota be designated private facilities at the only known location of unfenced individuals (G. Hughes, pers. agricultural homestead land or as land Nesogenes rotensis. comm. 1998; L. Williams, pers. comm. likely to be converted to agricultural B. Overutilization for commercial, 2004). Predation of seeds that fall to the homesteads (Resources Northwest, Inc. recreational, scientific, or educational forest floor by insects, house mice (Mus 1997). In 2001, the Agricultural purposes. At this time, overutilization of musculus), and/or rats (Rattus spp.) is Homestead Act of 1990 was amended to the two species is not known to be an also a suspected cause of reduced or allow agricultural homestead permitting important factor. Unrestricted scientific absent reproductive vigor. Since several on any public lands not required for or horticultural collecting by interested individuals occur in close proximity to government use or reserved for other individuals may significantly affect roadways, routine road maintenance purposes by any other provision of the these species due to their extremely low and/or improvement also pose a threat law. Thus, individuals awaiting permits numbers. The only population of to the species. may choose many areas of Rota’s public Nesogenes rotensis is located in a public A. The present or threatened lands for agricultural homesteads, rather park and threatened by trampling by destruction, modification, or than areas planned and reserved foot traffic and bonfires set by tourists curtailment of its habitat or range. specifically for those purposes (Pub. L. and fishermen. Due to the small Native vegetation, including cloud 12–53). Therefore, the potential for population size, reproductive vigor may limestone forest habitat for Osmoxylon agricultural development continues to also be depressed by a limited gene mariannense and open coastal threaten the remaining limestone forests pool. scrubland habitat for Nesogenes rotensis on Rota, which include habitat for Propagation studies are ongoing only on Rota, has undergone extreme Osmoxylon mariannense. for Osmoxylon mariannense on Rota. alteration due to past and present land Throughout the Mariana Islands, Seeds were collected from wild use practices, including ranching, goats, pigs, cattle, and deer have individuals of Osmoxylon mariannense deliberate and unintentional non-native severely damaged forest vegetation by and planted in October 2001 and March animal and plant introductions, browsing on plants, causing habitat 2002. From the October planting, agricultural, and military activities degradation and erosion (Kessler 1997; approximately 150 individuals had during World War II (Falanruw et al. Marshall et al. 1995) that then retards germinated by November, and, as of 1989). forest growth and regeneration (Lemke March 2002, 11 are surviving in a

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nursery. The seeds planted in March tropical typhoons (Weir 1991). While random environmental events. On Rota, 2002, produced approximately 100 native biota are adapted to these events, 8 individuals of Osmoxylon seedlings. Thirty-five of these these typhoons, in combination with mariannense, and a single population of individuals survived and are in good anthropogenic disturbances, and the 34 individuals of Nesogenes rotensis are condition (Taisacan 2002). relatively new presence of invasive known. A single adverse environmental C. Disease and predation. To date, no species threaten the continued existence event or lack or decline of successful specific diseases have been identified of Nesogenes rotensis and Osmoxylon reproduction in Nesogenes rotensis or for these species. Individuals of mariannense. Within the past decade, Osmoxylon mariannense could lead to Osmoxylon mariannense have suffered frequent typhoons have made landfall the extinction of these two species. defoliation by an unknown agent (E. on Rota, severely affecting the islands. Nesogenes rotensis is found in the Taisacan, pers. comm. 1997). Most recently, super typhoon Pongsona coastal zone where a single disturbance Invertebrate pests, rats, or disease are affected the Mariana Islands, from could destroy a suspected to have caused the defoliation particularly Guam and Rota, with winds significant percentage of the individuals due to the poor health of the leaves, the of up to 184 mph. While Nesogenes or the entire population. In addition, the lack of seedlings or juveniles of rotensis and Osmoxylon mariannense continuing adverse impacts of trampling Osmoxylon mariannense, and the death are expected to have adapted to high of Nesogenes rotensis by people and/or of several previously mapped older winds, typhoons, and storm surge, their expansion of facilities at Pona Point individual plants (D. Grout, pers. comm. distribution and numbers have been could also destroy a significant 1997). reduced significantly due to human percentage of the individuals or the Feral ungulates threaten seedlings of activities and this makes the remaining entire population resulting in the Osmoxylon mariannense (G. Wiles, in individuals particularly susceptible to extinction of this species. litt. 1998; D. Janeke, pers. comm. 2003; extirpation or extinction from a natural We have carefully assessed the best L. Williams, pers. comm. 2004). disaster. Destruction of the sabana forest scientific and commercial information Cooperative efforts between the Service canopy by typhoons has adversely available on the past, present, and and the Rota DFW have resulted in the affected Osmoxylon mariannense by future threats facing these species in construction of fenced exclosures altering sub-canopy vegetation determining the actions to take in this around several individuals of conditions over the long-term by rule. Based on this evaluation, the Osmoxylon mariannense. The majority opening up and drying out older, closed appropriate action is to list Nesogenes of individuals of Osmoxylon forest habitat (E. Taisacan, pers. comm. rotensis and Osmoxylon mariannense as mariannense are not currently protected 1998; L. Williams, pers. comm. 2004). endangered. Nesogenes rotensis is by fencing and are vulnerable to The single population of Nesogenes endemic to the island of Rota and has browsing or trampling by feral rotensis is extremely vulnerable to one population with fewer than 34 ungulates. typhoons, storm surge, and high surf individuals. Osmoxylon mariannense is D. The inadequacy of existing because its open scrubland habitat is endemic to the island of Rota and has regulatory mechanisms. Osmoxylon eight occurrences, with only one living mariannense is on the list of protected located in a coastal area. Osmoxylon mariannense is threatened by tree in each. These two species are species for the government of the CNMI threatened by one or more of the but there are no specific prohibitions competition from one or more invasive, non-native plant species including following: habitat degradation or regarding collection or possession of destruction by feral ungulates; Momordica charantia, Mikania protected plant species or requirement competition for space, light, water, and scandens, and Passiflora suberosa. In for the analysis of potential adverse nutrients with invasive non-native plant opened forest areas, various effects associated with proposed species; road construction and opportunistic, weedy vines such as projects. Nesogenes rotensis is not maintenance activities; trampling by Momordica charantia, Momordica included on this list of protected species humans (Nesogenes rotensis); scandens, and Passiflora suberosa cover in the CNMI. development; limited reproductive the ground (Fosberg 1960; G. Hughes, At the time of publication of the vigor; vandalism; natural disasters or pers. comm. 1998) and may alter proposed rule, an island-wide multiple random environmental events; and conditions necessary for seed species habitat conservation plan for potentially disease or predation by Rota was envisioned by the CNMI germination and seedling growth insects, mice, or rats. Because these government and local Rota residents. provided in closed-canopy, high-stature species are in danger of extinction This plan was to be prepared with forests covered with mosses and various throughout all or a significant portion of technical assistance from the Service. epiphytic species. Casuarina their ranges, they fit the definition of The preparation of this plan has since equisetifolia is becoming established in endangered as defined in the Act. been abandoned by the CNMI the coastal scrubland habitat at Pona government in lieu of the development Point Fishing Cliff and will likely Critical Habitat of a project-specific habitat conservation spread and change the coastal scrubland Section 4(a)(3) of the Act, as plan to address impacts to a single into a forest habitat with no understory amended, and implementing regulations species, the Mariana crow (Corvus due to restriction of available sunlight, (50 CFR 424.12) require that, to the kubaryi) (Arlene Pangelinan, Service, restriction of available nutrients, and maximum extent prudent and pers. comm. 2003). possibly release of a chemical agent that determinable, the Secretary designate E. Other natural or manmade factors prevents other plants from growing critical habitat at the time the species is affecting its continued existence. The beneath it and, thereby, adversely determined to be endangered or combination of storm disturbance and affecting the single remaining threatened. Our implementing resultant competition from invasive, population of Nesogenes rotensis (Smith regulations (50 CFR 424.12(a)) state that non-native plant species adversely 1985; L. Williams, pers. comm. 2004). critical habitat is not determinable if affects the condition of habitat occupied Small population size and limited information sufficient to perform the by Osmoxylon mariannense (L. distribution make these species required analyses of impacts of the Williams, pers. comm. 2004). Rota has particularly vulnerable to extinction designation is lacking, or if the a long history of disturbances by from reduced reproductive vigor or biological needs of the species are not

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sufficiently well known to permit soon as a species is listed, and later, For additional information on identification of an area as suitable preparation of draft and final recovery available conservation measures, refer to habitat. plans, and revision of the plan as Summary of Factors Affecting the We find that designation of critical significant new information becomes Species, B. habitat for Nesogenes rotensis and available. The recovery outline—the Please let us know if you are Osmoxylon mariannense, is not first step in recovery planning—guides interested in participating in recovery determinable at this time because we are the immediate implementation of urgent efforts for Nesogenes rotensis and unable to identify the physical and recovery actions, and describes the Osmoxylon mariannense (see FOR biological features essential to the process to be used to develop a recovery FURTHER INFORMATION CONTACT section). conservation of these two species and plan. The recovery plan identifies site- Additionally, we invite you to submit we are unable to identify whether specific management actions that will any further information on these species specific unoccupied areas are essential achieve recovery of the species, whenever it becomes available or other for their conservation. When a ‘‘not measurable criteria that determine when information you may have for species’ determinable’’ finding is made, we a species may be downlisted or delisted, recovery planning purposes (see FOR must, within one year of the publication and methods for monitoring recovery FURTHER INFORMATION CONTACT section). date of the final listing rule, designate progress. Recovery teams, consisting of Section 7(a) of the Act, as amended, critical habitat, unless the designation is species experts, Federal and State requires Federal agencies to evaluate found to be not prudent. agencies, non-government their actions with respect to any species We will continue to protect these two organizations, and stakeholders, are that is proposed or listed as endangered species and their habitat through the often established to develop recovery or threatened, and with respect to its recovery process and section 7 plans. When completed, a copy of the critical habitat if any is being consultations to assist Federal agencies recovery outline, draft recovery plan, or designated. Regulations implementing in avoiding jeopardizing these species. final recovery plan will be available this interagency cooperation provision of the Act are codified at 50 CFR part Available Conservation Measures from our Web site (http:// 402. Section 7(a)(2) of the Act requires Conservation measures provided to endangered.fws.gov) or, if unavailable or FOR Federal agencies to ensure that activities species listed as endangered or inaccessible, from our office (see FURTHER INFORMATION CONTACT section). they authorize, fund, or carry out are not threatened under the Act include likely to jeopardize the continued Implementation of recovery actions recognition, development of recovery existence of the species or destroy or generally requires the participation of a plans, requirements for Federal adversely modify its critical habitat if broad range of partners, including other protection, and prohibitions against any has been designated. If a Federal Federal agencies, States, non- certain activities. Recognition through action may affect a listed species or its listing results in public awareness and governmental organizations, businesses, critical habitat, the responsible Federal encourages conservation actions by and private landowners. Examples of agency must enter into formal Federal, State, Tribal, and local recovery actions include habitat consultation with us. agencies, non-governmental restoration (e.g., restoration of Federal agency actions that may conservation organizations, and private vegetation), research, captive require consultation for Nesogenes individuals. The Act provides for propagation and reintroduction, and rotensis and Osmoxylon mariannense possible land acquisition and outreach and education. The recovery of include, but are not limited to: Army cooperation with the States and requires many listed species cannot be Corps of Engineers projects, such as the that recovery actions be carried out for accomplished solely on Federal lands. construction of roads, firebreaks, and listed species. Recovery planning and To achieve the recovery of these species bridges; various U.S. armed forces implementation, the protection required requires cooperative conservation efforts activities on the northern Mariana by Federal agencies and the prohibitions on private lands as many occur Islands, such as combat and mobility against certain activities involving listed primarily or solely on private lands. training, and construction; Natural species are discussed, in part, below. The funding for recovery actions can Resources Conservation Service The primary purpose of the Act is the come from a variety of sources, projects; Federal Emergency conservation of endangered and including Federal budgets, State Management Agency activities; and U.S. threatened species and the ecosystems programs, and cost share grants for non- Department of Housing and Urban upon which they depend. The ultimate Federal landowners, the academic Development projects. Federal actions goal of such conservation efforts is the community, and non-governmental not affecting the two species, as well as recovery of these listed species, so that organizations. Additionally, pursuant to actions on non-Federal lands that are they no longer need the protective section 6 of the Act, we would be able not federally funded or permitted, measures of the Act. Subsection 4(f) of to grant funds to the CNMI for would not require section 7 the Act requires the Service to develop management actions that promote the consultation. and implement plans for the protection and recovery of these two The Act and its implementing conservation of endangered and plant species. Information on the regulations set forth a series of general threatened species (‘‘recovery plans’’). Service’s grant programs that are prohibitions and exceptions that apply The recovery process involves halting or available to aid species recovery can be to all endangered plants. All reversing the species’ decline by found on our Web site at: http:// prohibitions of section 9(a)(2) of the Act addressing the threats to its survival. endangered.fws.gov/grants/index.html. implemented at 50 CFR 17.61 for The goal of this process is to restore In the event that our internet connection endangered plants would apply. These listed species to a point where they are is inaccessible, please check prohibitions, in part, make it illegal for secure, self-sustaining, and functioning www.grants.gov or check with our grants any person subject to the jurisdiction of components of their ecosystems, thus contact at U.S. Fish and Wildlife the United States to import or export, allowing delisting. Service, Ecological Services, 911 NE transport in interstate or foreign Recovery planning, the foundation for 11th Avenue, Portland, OR 97232–4181 commerce in the course of a commercial species recovery, includes the (telephone 503/231–2063; FAX 503/ activity, sell or offer for sale these two development of a recovery outline as 231–6243). species in interstate or foreign

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commerce, or to remove the species and selling or shipping specimens in and Budget (OMB) under the Paperwork from areas under Federal jurisdiction. In interstate or foreign commerce in the Reduction Act (44 U.S.C. 3501 et seq.). addition, for plants listed as course of commercial activity. This rule will not impose record endangered, the Act prohibits the We will review other activities not keeping or reporting requirements on malicious damage or destruction in identified above on a case-by-case basis State or local governments, individuals, areas under Federal jurisdiction and the to determine whether they may be likely businesses, or organizations. An agency removal, cutting, digging up, damaging, to result in a violation of section 9 of the may not conduct or sponsor, and a or destroying of such endangered plants Act. We do not consider these lists to be person is not required to respond to, a in knowing violation of any State, exhaustive and provide them as collection of information unless it Commonwealth, or Territory law or information to the public. You should displays a currently valid OMB control regulation, or in the course of any direct questions regarding whether number. The existing OMB control violation of State, Commonwealth, or specific activities would constitute a number is 1018–0094 and expires July Territory criminal trespass law. Certain violation of section 9 to the Field 31, 2004. exceptions to the prohibitions apply to Supervisor of the Pacific Islands Fish References Cited any employee or agent of the Service, and Wildlife Office (see FOR FURTHER any other Federal land management INFORMATION CONTACT section). A complete list of all references cited agency, or a State conservation agency You may request copies of the in this rulemaking is available upon (50 CFR 17.61(c)(2)–(4)). regulations regarding listed plants and request from the Pacific Islands Fish The Act and 50 CFR 17.62 and 17.63 address questions about prohibitions and Wildlife Office (See FOR FURTHER also provide for the issuance of permits and permits to the U.S. Fish and INFORMATION CONTACT section.) to carry out otherwise prohibited Wildlife Service, Ecological Services, activities involving endangered plant Permits Branch, 911 NE 11th Avenue, Author species under certain circumstances. Portland OR 97232–4181 (telephone The primary authors of this final rule Such permits are available for scientific 503/231–2063; FAX 503/231–6243). are the staff of the Fish and Wildlife purposes, to enhance the propagation or National Environmental Policy Act Service (see FOR FURTHER INFORMATION survival of the species. We anticipate CONTACT section). that the only permits that would be We have determined that sought or issued would be in association environmental assessments and List of Subjects in 50 CFR Part 17 with recovery efforts as these two environmental impact statements, as Endangered and threatened species, species are not common in cultivation defined in the National Environmental Exports, Imports, Reporting and record- or the wild. Policy Act of 1969, need not be keeping requirements, Transportation. It is our policy, published in the prepared in connection with regulations Federal Register on July 1, 1994 (59 FR adopted pursuant to section 4(a) of the Regulation Promulgation 34272), to identify, to the maximum Act. We published a notice outlining I extent practicable at the time a species our reasons for this determination in the Accordingly, we amend part 17, is listed, those activities that are likely Federal Register on October 25, 1983 subchapter B of chapter I, title 50 of the to constitute a violation of section 9 of (48 FR 49244). Code of Federal Regulations, as set forth the Act. The intent of this policy is to below: increase public awareness of the effects Civil Justice Reform PART 17—[AMENDED] of the listing on proposed and ongoing In accordance with Executive Order activities within a species’ range. 12988, the Department of the Interior’s I 1. The authority citation for part 17 We believe the following activities Office of the Solicitor has determined continues to read as follows: could potentially result in a violation of that this rule does not unduly burden section 9; however, possible violations the judicial system and does meet the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. are not limited to these actions alone: 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– requirements of sections 3(a) and 3(b)(2) 625, 100 Stat. 3500; unless otherwise noted. collection (including scientific of the Order. We have listed Nesogenes collection absent authorization by the rotensis and Osmoxylon mariannense as I 2. Section 17.12(h) is amended by Service), damage, or destruction of endangered species in accordance with adding the following, in alphabetical Nesogenes rotensis or Osmoxylon the provisions of the Endangered order under FLOWERING PLANTS, to mariannense on non-Federal lands if Species Act. the List of Endangered and Threatened conducted in knowing violation of Plants: CNMI law or regulations, including Paperwork Reduction Act CNMI criminal trespass law. In This rule does not contain any new § 17.12 Endangered and threatened plants. addition, possible violations include collections of information that require * * * * * importing or exporting these species, approval by the Office of Management (h) * * *

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

FLOWERING PLANTS

******* Nesogenes rotensis ..... None ...... Western Pacific Verbenaceae—Ver- E 742 NA NA Ocean—U.S.A. bena family. (Commonwealth of the Northern Mar- iana Islands).

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

******* Osmoxylon None ...... Western Pacific —Ginseng E 742 NA NA mariannense. Ocean—U.S.A. family. (Commonwealth of the Northern Mar- iana Islands).

*******

Dated: April 1, 2004. Marshall Jones, Deputy Director, Fish and Wildlife Service. [FR Doc. 04–7934 Filed 4–7–04; 8:45 am] BILLING CODE 4310–55–P

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