Endangered and Threatened Wildlife and Plants; Proposed Determinations of Prudency and Proposed Designations of Critical Habitat for Plant Species From the Northwestern Hawaiian Islands, HI

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: May 14, 2002 (Volume 67, Number 93)]
[Proposed Rules]
[Page 34521-34545]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my02-19]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH09

Endangered and Threatened Wildlife and Plants; Proposed
Determinations of Prudency and Proposed Designations of Critical
Habitat for Plant Species From the Northwestern Hawaiian Islands, HI

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule and notice of determinations of whether
designation of critical habitat is prudent.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose
critical habitat for five (Amaranthus brownii, Mariscus pennatiformis,
Pritchardia remota, Schiedea verticillata, and Sesbania tomentosa) of
the six plant species known historically from the Northwestern Hawaiian
Islands (Nihoa Island, Necker Island, French Frigate Shoals, Gardner
Pinnacles, Maro Reef, Laysan Island, Lisianski Island, Pearl and Hermes
Atoll, Midway Atoll, and Kure Atoll) that are listed under the
Endangered Species Act of 1973, as amended. Critical habitat is not
proposed for Cenchrus agrimonioides var. laysanensis as it has not been
seen in the wild for over twenty years and no viable genetic material
of this variety is known to exist.
We propose critical habitat designations for five species on three
islands (Nihoa, Necker, and Laysan) totaling approximately 498 hectares
(ha) (1,232 acres (ac)). If this proposal is made final, section 7 of
the Act requires Federal agencies to ensure that actions they carry
out, fund, or authorize do not destroy or adversely modify critical
habitat to the extent that the action appreciably diminishes the value
of the critical habitat for the conservation of the species. Section 4
of the Act requires us to consider economic and other relevant impacts
of specifying any particular area as critical habitat.
We solicit data and comments from the public on all aspects of this
proposal, including data on the economic and other impacts of the
proposed designations. We may revise this proposal to incorporate or
address new information received during the comment period.

DATES: We will accept comments until July 15, 2002. Public hearing
requests must be received by June 28, 2002.

ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of the following methods:
(1) You may submit written comments and information to the Field
Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Office, 300
Ala Moana Blvd., P.O. Box 50088, Honolulu, HI 96850-0001.
(2) You may hand-deliver written comments to our Pacific Islands
Office at 300 Ala Moana Blvd., Room 3-122, Honolulu, HI 96850.
You may view comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule by
appointment, during normal business hours at the Pacific Islands
Office.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Field Supervisor, Pacific
Islands Office (see ADDRESSES section) (telephone: 808/541-3441;
facsimile: 808/541-3470).

SUPPLEMENTARY INFORMATION:

Background

In the Lists of Endangered and Threatened Plants (50 CFR 17.12),
there are six plant species that, at the time of listing, were reported
from the Northwestern Hawaiian Islands (Nihoa Island, Necker Island,
French Frigate Shoals, Gardner Pinnacles, Maro Reef, Laysan Island,
Lisianski Island, Pearl and Hermes Atoll, Midway Atoll, and Kure Atoll)
(Table 1). Amaranthus brownii, Cenchrus agrimonioides var. laysanensis,
Mariscus pennatiformis ssp. bryanii, Pritchardia remota, and Schiedea
verticillata are endemic to the Northwestern Hawaiian Islands, while
Sesbania tomentosa is reported from one or more other islands, as well
as the Northwestern Hawaiian Islands.
In previously published proposals we proposed that critical habitat
was prudent for Cenchrus agrimonioides, Mariscus pennatiformis, and
Sesbania tomentosa. No change is made to these prudency determinations
in this proposal and they are hereby incorporated in this proposal (65
FR 66808, 65 FR 79192, 67 FR 3940, 67 FR 9806).
In this proposal, we propose that critical habitat designation is
prudent for Amaranthus brownii, Pritchardia remota, and Schiedea
verticillata for which proposed prudency determinations have not been
made previously, because the potential benefits of designating critical
habitat essential for the conservation of these species outweigh the
risks that may result from human activity because of critical habitat
designation.

Table 1.--Summary of Island Distribution of Six Species From the Northwestern Hawaiian Islands
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Island Distribution
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Species NW Hawaiian Islands,
Kauai Oahu Molokai Lanai Maui Hawaii Kahoolawe, Niihau
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Amaranthus brownii (no common .............. .............. .............. .............. .............. ............. Nihoa (C)
name).
Cenchrus agrimonioides var. .............. .............. .............. .............. .............. ............. Kure (H),
laysanensis (kamanomano). Laysan (H),
Midway ((H)
Mariscus pennatiformis (no H H .............. .............. C R Laysan (C)
common name).
Pritchardia remota (loulu)...... .............. .............. .............. .............. .............. ............. Nihoa (C),
Laysan (R)
Schiedea verticillata (no common .............. .............. .............. .............. .............. ............. Nihoa (C)
name).
Sesbania tomentosa (ohai)....... C C C H C C Niihau (H),
Kahoolawe (C),
Necker (C),
Nihoa (C)
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KEY:
C (Current)--population last observed within the past 30 years.
H (Historical)--population not seen for more than 30 years.

[[Page 34523]]

R (Reported)--reported from undocumented observations.
NW Hawaiian Islands includes Kure Atoll, Midway Atoll, and Laysan, Necker, Nihoa island.

In this proposal, we propose designation of critical habitat for
five (Amaranthus brownii, Mariscus pennatiformis, Pritchardia remota,
Schiedea verticillata, and Sesbania tomentosa) of the six species
reported from the Northwestern Hawaiian Islands. Critical habitat is
not proposed for Cenchrus agrimonioides in the Northwestern Hawaiian
Islands, because C. agrimonioides var. laysanensis has not been seen in
the wild for over twenty years and no viable genetic material of this
variety is known to exist.
Critical habitat is proposed for designation on the islands of
Nihoa, Necker, and Laysan. The land area for these three islands totals
approximately 498 ha (1,232 ac).

The Northwestern Hawaiian Islands

The NWHI are a chain of islands that extend along a linear path
approximately 1,600 kilometers (km) (1,000 miles (mi)) northwest from
Nihoa Island to Kure Atoll (Figure 1). They are remnants of once larger
islands that have slowly eroded and subsided, which today exist as
small land masses or coral atolls that cover the remnants of the
volcanic islands (Department of Geography 1998; U.S. Fish and Wildlife
Service (USFWS) 1998).
[GRAPHIC]
[TIFF OMITTED]
TP14MY02.002

Nihoa rises approximately 274 meters (m) (900 feet (ft)) above sea
level and has an area of approximately 69 ha (171 ac). Its steep
topography and crater shape reveal its volcanic origin. Necker Island,
less than 92 m (300 ft) in elevation and 19 ha (46 ac) in area,
consists of thin-layered weathered lava flows. La Perouse Pinnacles at
French Frigate Shoals and Gardner Pinnacles are the last exposed
volcanic remnants in the archipelago. French Frigate Shoals is a
crescent shaped atoll nearly 29 km (18 mi) across. More than a dozen
small sandy islands dot the fringes of this atoll. Maro Reef is a
largely submerged area marked by breakers and a few pieces of coral
that intermittently protrude above the waterline. Laysan Island is
nearly 5.18 square kilometer (sq km) (2 square miles (sq mi)) in size
and is fringed by a reef. An 81 ha (200 ac) hypersaline lagoon is
located in the center of the island. Lisianski Island is 147 ha (364
ac) in size, but is bounded to the north by an extensive reef system. A
central lagoon once found on this island has filled with sand. Pearl
and Hermes Reef, an inundated atoll, includes nearly 40,469 ha (100,000
ac) of submerged reef and seven small sandy islets totaling less than
34 ha (85 ac). Midway Atoll is approximately 8 km (5 mi) in diameter
and includes three islands: Sand, Eastern, and Spit. Both Sand and
Eastern islands are highly altered by man. Kure Atoll is the
northernmost exposed land in the Hawaiian archipelago. Two islands,
Green and Sand, are found on the southern edge of the atoll and are
included in the Hawaii State Seabird Sanctuary System. Green Island was
altered considerably in the past and today suffers from enormous alien
species problems (Elizabeth Flint, USFWS, pers. comm., 2000; USFWS
1986).
One listed plant species was known from Kure Atoll (Cenchrus
agrimonioides var. laysanensis), three were known from Laysan (Cenchrus
agrimonioides var. laysanensis, Mariscus pennatiformis and Pritchardia
remota), one from Midway (Cenchrus agrimonioides var. laysanensis),
four from Nihoa (Amaranthus brownii, Pritchardia remota, Schiedea
verticillata and Sesbania tomentosa) and one from Necker (Sesbania
tomentosa) (Table 1).
Nihoa (209 km (140 mi) from Niihau) and Necker (an additional 290
km (180 mi) beyond Nihoa) are closest to the main Hawaiian Islands.
Both are small, residual fragments of volcanoes that formed 7.2 and
10.3 million years ago respectively (USFWS 1986). Although both of
these islands were uninhabited at the time of their modern discovery in

[[Page 34524]]

the late eighteenth century, there is an extensive heiau (indigenous
place of worship, shrine) complex on Necker, and agricultural terraces
and other Hawaiian archaeological features can be found on Nihoa
(Cleghorn 1984, Department of Geography 1998, USFWS 1986).
In 1892, a guano mining business began operation on Laysan and
flourished until the last load was shipped in 1904. During this time,
rabbits were introduced to Laysan for a rabbit canning industry, and
allowed to reproduce and roam freely (Morin and Conant 1998, Tomich
1986). This, too, failed as a profitable business and no attempt was
made to control the number of rabbits on the island. The rabbits were
finally eradicated from the island in the early 1920s, though not
before the vegetation had been thoroughly devastated. Since then, the
vegetation of Laysan has recovered to a remarkable degree, though some
species, like the native palms (Pritchardia sp.), are no longer found
on the island (Tomich 1986; E. Flint, pers. comm., 2000).
Kure Atoll was discovered and named in 1827 by the captain of a
Russian vessel. Between 1876 and 1936 Australian Copra & Guano Ltd.
mined guano from Green Island and Sand Island, the two islands that
make up Kure Atoll. Military bases were built on the islands during
World War II and a Loran C station with two 158 m (518 ft) high masts
was operated until 1998. The towers are no longer on the islands. The
airstrip built on Green Island is no longer usable and landing is only
possible by boat (USFWS 1998a).
Midway Atoll was discovered and named Middlebrook Islands in 1859
by Captain Nick Brooks. The atoll was taken into possession by the
United States in 1867 and in 1903 President Theodore Roosevelt placed
the atoll under the control of the Navy. In 1935 Pan American World
Airways set up an airbase for the weekly Trans-Pacific Flying Clipper
Seaplane service. In 1941, the Japanese attacked Midway Atoll on their
return from the attack on Pearl Harbor, but in 1942 the United States
ambushed and defeated the Japanese Fleet north of the atoll, turning
the tide of World War II in the Pacific. In 1988, the atoll was added
to the National Wildlife Refuge system and in 1996 the jurisdiction of
Midway Atoll was transferred from the U.S. Navy to the Department of
Interior (USFWS 2000). Despite this evidence of earlier human use,
these islands continue to support an assemblage of endemic plants and
animals not found elsewhere in the archipelago (Department of Geography
1998).

Hawaiian Islands National Wildlife Refuge

The reefs and islets of the Northwestern Hawaiian chain from Nihoa
Island through Pearl and Hermes Atoll are protected as the Hawaiian
Islands National Wildlife Refuge (HINWR). The HINWR was established in
1909 to protect the large colonies of seabirds, which were being
slaughtered for the millinery trade, as well as a variety of other
marine organisms, including sea turtles and the critically endangered
Hawaiian monk seal (Monachus schauinslandi), and to put a halt to the
unregulated commercial exploitation of wildlife resources (Executive
Order 1019). Within its boundaries are eight islands and atolls: Nihoa,
Necker, French Frigate Shoals, Gardner Pinnacles, Maro Reef, Laysan,
Lisianski, and Pearl and Hermes Atoll. There is no general public or
recreational use allowed at HINWR. Access is strictly regulated through
a permit system because of the sensitivity of the organisms, like the
Hawaiian monk seal, on these islands to human disturbance and the high
risk of importation of alien plant and invertebrate species. In
addition, strict quarantine procedures are in effect for those
accessing the refuge. Other than the refuge staff, only individuals
conducting scientific research or undertaking natural history film
recording have been granted official permission to visit the HINWR (E.
Flint, pers. comm., 2000).

Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve

On December 4, 2000, President Clinton issued an Executive Order
establishing the 33,993,594 ha (84 million ac) Northwestern Hawaiian
Islands Coral Reef Ecosystem Reserve that includes the marine waters
and submerged lands of the NWHI, extending approximately 2,222 km
(1,200 nautical mi) long and 185 km (100 nautical mi) wide. The Reserve
is adjacent to the State of Hawaii waters and submerged lands and the
Midway Atoll National Wildlife Refuge, and includes the HINWR outside
of state waters.

Discussion of the Plant Taxa

Species Endemic to the Northwestern Hawaiian Islands

Amaranthus brownii (no common name)

Amaranthus brownii, a member of the amaranth family
(Amaranthaceae), is an herb with leafy upright or ascending stems, 30
to 90 centimeters (cm) (1 to 3 feet (ft)) long. The slightly hairy,
alternate leaves are long and narrow, 4 to 7 cm (1.6 to 2.8 inches
(in)) long, 1.5 to 4 millimeter (mm) (0.06 to 0.16 in) wide, and more
or less folded in half lengthwise. Flowers are either male or female,
and both sexes are found on the same plant. This species can be
distinguished from other Hawaiian members of the genus by its spineless
leaf axils, its linear leaves, and its fruit which does not split open
when mature (Wagner et al. 1999).
Amaranthus brownii is an herbaceous annual with a growing season
that extends from December to June or July. Conant (1985) reported
finding plants in an early stage of flowering in February and
collecting seed from dead plants during June. Phenology may vary
somewhat from year to year, depending on rainfall and climatic factors.
The means of pollination are unknown (USFWS 1998d).
Amaranthus brownii is the rarest native plant on the island of
Nihoa (Conant 1985). When it was first collected in 1923, it was ``most
common on the ridge leading to Miller's Peak, but abundant also on the
ridges to the east'' (Herbst 1977). In 1983, the two known groupings of
colonies were separated by a distance of 0.4 km (0.25 mi) and contained
approximately 35 plants: 1 colony of about 23 plants near Miller's Peak
and about a dozen plants in 3 small colonies in Middle Valley. No
plants have been seen at either location since 1983, even though
Service staff have surveyed for them annually (USFWS 1998d). In order
to get an accurate population count and collect seeds or cuttings to
establish ex situ populations, it will be necessary to conduct winter
surveys. However, none of the surveys since 1983 have been done during
the winter, when these annuals are easiest to find and identify. Access
to the island is limited particularly during the winter due to
difficult and dangerous landing conditions. Sea conditions are apt to
change without warning, stranding any visitors on this inhospitable
island that has no fresh water and no regular food supply (Cindy
Rehkemper, USFWS, pers. comm., 2001).
Amaranthus brownii typically grows in shallow soil on rocky
outcrops. It is found in fully exposed locations at elevations between
30 and 242 m (100 and 800 ft). Associated native plant taxa include
Schiedea verticillata (no common name (NCN)), Chenopodium oahuense
(aheahea), Ipomoea pes-caprae ssp. brasiliensis (pohuehue), Ipomoea
indica (koali awa), Scaevola sericea (naupaka), Sida fallax (ilima),
Solanum nelsonii (akia), Sicyos

[[Page 34525]]

pachycarpus (kupala), Eragrostis variabilis (kawelu), and Panicum
torridum (kakonakona) (Hawaii Natural Heritage Program (HINHP) Database
2000).
The threats to Amaranthus brownii on Nihoa are competition with the
alien plant Portulaca oleracea (pigweed); changes in the substrate;
fire; introduction of rats; human disturbances; a risk of extinction
from naturally occurring events (such as hurricanes); and reduced
reproductive vigor due to the small number of extant individuals (USFWS
1998d).

Pritchardia remota (loulu)

Pritchardia remota, a member of the palm family (Arecaceae), is a
tree 4 to 5 m (13 to 16 ft) tall with a ringed, wavy trunk about 15 cm
(5.9 in) in diameter. The rather ruffled, fan-shaped leaves are about
80 cm (31 in) in diameter and are somewhat waxy to pale green with a
few tiny scales on the lower surface. The flowering stalks, up to 30 cm
(12 in) long, are branched and have flowers arranged spirally along the
hairless stalks. It is the only species of Pritchardia on the island of
Nihoa and can be distinguished from other species of the genus in
Hawaii by its wavy leaves; its short, hairless inflorescences; and its
small, globose (spherical/round) fruits (Read and Hodel 1999, 61 FR
43178).
Pritchardia remota is a long-lived perennial, and populations have
remained stable for several years. Conant (1985) reported finding
plants with fruit and flowers in the spring and summer. Phenology may
vary somewhat from year to year, depending on rainfall and climatic
factors. The means of pollination are unknown.
Pritchardia remota was historically known from Nihoa and Laysan
islands. Currently, Pritchardia remota is known from four colonies
presently extant along 0.2 km (0.1 mi) of the length of each of two
valleys which are about 0.6 km (0.4 mi) apart on opposite sides of the
island of Nihoa. Including seedlings, more than 680 plants are found in
West Palm Valley and more than 392 plants in East Palm Valley (HINHP
Database 2000). A few trees also grow at the bases of basaltic cliffs
on the steep outer slopes of each of the two valleys (HINHP Database
2000). Plants grow from 15 to 151 m (50 to 500 ft) in elevation.
Pritchardia remota is unusual among Hawaiian members of the genus
in that it occurs in the relatively dry climate found on Nihoa.
However, its distribution on Nihoa may be related to water availability
since many plants are found in valleys and near freshwater seeps by
cliffs (USFWS 1998d). Within the Pritchardia remota coastal forest
community, Pritchardia remota assumes complete dominance with a closed
canopy and thick layers of fallen fronds in the understory (Gagne and
Cuddihy 1999). Native plants growing nearby include Chenopodium
oahuense, Sesbania tomentosa (ohai), Solanum nelsonii, and Sida fallax
(USFWS 1998d).
The threats to Pritchardia remota on the island of Nihoa are
competition with alien plants, seed predation by rodents, possibly
alien insects, fire, human disturbances, a risk of extinction from
naturally occurring events (such as landslides), and reduced
reproductive vigor due to the small number of extant individuals (USFWS
1998d).

Schiedea verticillata (no common name)

Schiedea verticillata, a member of the pink family
(Caryophyllaceae), is a perennial herb which dies back to an enlarged
root during dry seasons. The stems, which can reach 0.4 to 0.6 m (1.3
to 2 ft) in length, are upright or sometimes pendent (drooping). The
stalkless leaves are fleshy, broad, and pale green; usually arranged in
threes; and measure 9 to 15 cm (3.5 to 5.9 in) long and 7 to 9 cm (2.8
to 3.5 in) wide. Flowers are arranged in open, branched clusters,
usually 17 to 25 cm (6.7 to 9.8 in) long. This species, the only member
of its genus to grow in the Northwestern Hawaiian Islands, is
distinguished from other species of the genus by its exceptionally
large sepals and, usually, three leaves per node (Wagner et al. 1999).
Dr. Steve Weller of the University of California at Irvine, found that
Schiedea verticillata produces more seeds and more nectar than any
other species in its genus. It also has the highest degree of genetic
diversity between individuals of any species in the genus (USFWS
1998d).
Schiedea verticillata is a short-lived perennial. Conant's data
(1985) indicated that the reproductive cycle may not be seasonal, since
many life stages were found simultaneously throughout the year. Her
observations also indicate that the individual plants flower, set, and
disperse seed in a relatively short period of time. The means of
pollination are unknown (USFWS 1998d).
All but one historically known colony of Schiedea verticillata are
known to be extant on Nihoa. Colony locations and levels appear to have
shifted somewhat, but total numbers have remained relatively stable for
several years. Seven populations, containing a total of 497,
individuals were counted between 1980 and 1983 (HINHP Database 2000).
In 1992, Service staff counted only 170 to 190 plants in six
populations (USFWS 1998d). However, in 1996, Rowland counted a total of
359 plants in 10 populations (USFWS 1998d). These were distributed
primarily on the western half of the island, although a population of
13 plants was seen on the east spur of the island near Tunnel Cave. Two
previously unobserved populations containing 2 and 99 plants,
respectively, were seen on the north cliffs above Miller's Valley.
Other locations included a population of 24 plants at Dog's Head; 37
plants at Devil's Slide; 10 plants near Miller's Peak; a previously
unknown population of 62 plants on the ridge separating West and West
Palm valleys; 80 plants near lower West valley; 28 individuals near
Pinnacle Peak; and a small colony of 4 plants northeast of Pinnacle
Peak (USFWS 1998d).
Schiedea verticillata typically grows in rocky scree, soil pockets,
and cracks on coastal cliff faces and in Pritchardia remota coastal
mesic forest at elevations between 30 and 242 m (100 and 800 ft).
Associated taxa include Tribulus cistoides (nohu), Eragrostis
variabilis, Rumex albescens (huahuako), and lichens on surrounding rock
(HINHP Database 2000).
The threats to Schiedea verticillata on the island of Nihoa are
competition with alien plant species, possible herbivory by alien
insect species, predation by rodents, human disturbances, a risk of
extinction from naturally occurring events (such as rockslides), and
reduced reproductive vigor due to the small number of individuals
(Conant 1985, USFWS 1998d).
Multi-Island Species

Cenchrus agrimonioides (kamanomano)

Cenchrus agrimonioides, a short-lived perennial member of the grass
family (Poaceae), is a grass with leaf blades which are flat or folded
and have a prominent midrib. The two varieties, Cenchrus agrimonioides
var. laysanensis and Cenchrus agrimonioides var. agrimonioides, differ
from each other in that var. agrimonioides has smaller burs, shorter
stems, and narrower leaves. Cenchrus agrimonioides var. agrimonioides
is known only from the main Hawaiian Islands while Cenchrus
agrimonioides var. laysanensis is known only from (endemic to) the
NWHI. This species is distinguished from others in the genus by the
cylindrical to lance-shaped bur and the arrangement and position of the
bristles (O'Connor 1999).
Little is known about the life history of this plant. Reproductive
cycles,

[[Page 34526]]

longevity, specific environmental requirements, and limiting factors
are generally unknown; however, this species has been observed to
produce fruit year round (USFWS 1999).
Historically, Cenchrus agrimonioides var. agrimonioides was known
from Oahu, Lanai, and the south slope of Haleakala and Ulupalakua on
Maui; there is also an undocumented report from Hawaii Island (61 FR
53108). Currently, Cenchrus agrimonioides var. agrimonioides is known
from Oahu and Maui (65 FR 79192). Historically, Cenchrus agrimonioides
var. laysanensis was known from Laysan, Kure, and Midway in the
Northwestern Hawaiian Islands but has not been seen there since about
1980 (HINHP Database 2000; O'Connor 1999). Morin and Conant (1998)
reported that Cenchrus agrimonioides var. laysanensis disappeared from
Laysan before 1923, from Midway Atoll sometime shortly after 1902, and
was last seen on Green Island, Kure Atoll in about 1980. The last
comprehensive botanical surveys of all of these islands were conducted
in the 1980s. No viable genetic material of this variety is known to
exist. Because this variety has not been seen in the wild for over 20
years and no viable genetic material is known to exist, critical
habitat is not proposed at this time.
Cenchrus agrimonioides var. laysanensis was historically found on
coastal sandy substrate in Scaevola-Eragrostis variabilis scrub at an
elevation of 5 m (16 ft).
This species was threatened by competition with various alien plant
species, seed predation by rats and mice, and, potentially, alien
insects, and fire.

Mariscus pennatiformis (no common name)

Mariscus pennatiformis, a member of the sedge family (Cyperaceae),
is a perennial plant with a woody root system covered with brown
scales. The stout, smooth, three-angled stems are between 0.4 and 1.2 m
(1.3 and 4 ft) long, slightly concave, and 3 to 7 mm (0.1 to 0.3 in) in
diameter in the lower part. The three to five linear, somewhat leathery
leaves are 8 to 17 mm (0.3 to 0.7 in) wide and at least as long as the
stem. This species differs from other members of the genus by its
three-sided, slightly concave, smooth stems; the length and number of
spikelets (elongated flower-clusters); the leaf width; and the length
and diameter of stems. The two subspecies are distinguished primarily
by larger and more numerous spikelets, larger achenes (dry, one-seeded
fruits), and more overlapping and yellower glumes (scaly bracts of
spikelets) in ssp. pennatiformis as compared with ssp. bryanii (Koyama
1999). Mariscus pennatiformis ssp. bryanii is the only subspecies found
in the Northwestern Hawaiian Islands.
Individuals of Mariscus pennatiformis ssp. bryanii on Laysan Island
were closely monitored for 10 years, but flowering was never observed
until the continuous flowering of one individual from November 1994 to
December 1995 (USFWS 1999). This flowering event coincided with record
high rainfall on Laysan (USFWS 1999). Little else is known about the
life history of this plant (USFWS 1999).
Historically, Mariscus pennatiformis was found on Kauai, Oahu, and
Hawaii. Currently, Mariscus pennatiformis ssp. pennatiformis is found
on Maui while Mariscus pennatiformis ssp. bryanii is known only from
Laysan Island. This subspecies was found until recently on the
southeast end of the central lagoon and the west and northeast sides of
the island on sandy substrate at an elevation of 5 m (16 ft) (HINHP
Database 2000, Koyama 1999). The population has fluctuated from as many
as 200 to as few as 1 individual over the past 10 years. Currently, a
single population of about 200 individuals of Mariscus pennatiformis
ssp. bryanii remains on the southeast end of the lagoon (USFWS 1999).
Mariscus pennatiformis ssp. bryanii is found on coastal sandy
substrate at an elevation of 5 m (16 ft). Associated species include
Cyperus laevigatus (makaloa), Eragrostis variabilis, and Ipomoea sp.
(HINHP Database 2000, Koyama 1999).
The threats to Mariscus pennatiformis ssp. bryanii on the island of
Laysan are seed predation by the endangered Laysan finch (Telespiza
cantans) and destruction of the remaining individuals during burrowing
activities of nesting seabirds. The native plant Ipomoea pes-caprae
(beach morning glory), is another possible threat since it periodically
grows over the Mariscus individuals (USFWS 1999). In addition, native
Sicyos spp. vines, Eragrostis variabilis, and Boerhavia repens (alena)
appear to have impeded natural dispersal of Mariscus pennatiformis ssp.
bryanii to other suitable locations (Schultz 2000).

Sesbania tomentosa (ohai)

Sesbania tomentosa, a member of the legume family (Fabaceae), is
typically a sprawling short-lived perennial shrub but may also be a
small tree. Each compound leaf consists of 18 to 38 oblong to elliptic
leaflets that are usually sparsely to densely covered with silky hairs.
The flowers are salmon color tinged with yellow, orange-red, scarlet,
or rarely, pure yellow coloration. Sesbania tomentosa is the only
endemic Hawaiian species in the genus, differing from the naturalized
Sesbania sesban by the color of the flowers, the longer petals and
calyx, and the number of seeds per pod (Geesink et al. 1999).
The pollination biology of Sesbania tomentosa is being studied by
David Hopper, a graduate student in the Department of Zoology at the
University of Hawaii at Manoa. His preliminary findings suggest that
although many insects visit Sesbania flowers, the majority of
successful pollination is accomplished by native bees of the genus
Hylaeus and that populations at Kaena Point on Oahu are probably
pollinator limited. Flowering at Kaena Point is highest during the
winter-spring rains, and gradually declines throughout the rest of the
year (USFWS 1999). Other aspects of this plant's life history are
unknown.
Currently, Sesbania tomentosa occurs on at least six of the eight
main Hawaiian Islands (Kauai, Oahu, Molokai, Kahoolawe, Maui, and
Hawaii) and in the Northwestern Hawaiian Islands (Nihoa and Necker).
Although once found on Niihau and Lanai, it is no longer extant on
these islands (59 FR 56333, Geographic Decision Systems International
(GDSI) 2000, USFWS 1999, HINHP Database 2000). On Nihoa this species
has been described as relatively common in some areas, with one
population consisting of several thousand individual plants known
(USFWS 1999). On Necker Island, Sesbania tomentosa is known to occur
from 45 m (150 ft) elevation to the 84 m (276 ft) summit, growing on
the tops of all hills of the main island. A few individuals are found
on the Northwest Cape, as well (USFWS 1999).
Sesbania tomentosa is found in shallow soil on sandy beaches and
dunes in Chenopodium oahuense coastal dry shrubland (HINHP Database
2000, Geesink et al. 1999). Associated plant species include Sida
fallax, Scaevola sericea, Solanum nelsonii, and Pritchardia remota
(HINHP Database 2000).
The primary threats to Sesbania tomentosa on the islands of Nihoa
and Necker are competition with various alien plant species; lack of
adequate pollination; seed predation by rats and mice and, potentially,
alien insects; and fire (USFWS 1999).

Previous Federal Action

Federal action on these plants began as a result of Section 12 of
the Act, which directed the Secretary of the

[[Page 34527]]

Smithsonian Institution to prepare a report on plants considered to be
endangered, threatened, or extinct in the United States. This report,
designated as House Document No. 94-51, was presented to Congress on
January 9, 1975. In that document Pritchardia remota and Sesbania
tomentosa (as S. hobdyi and S. tomentosa var. tomentosa) were
considered endangered. On July 1, 1975, we published a notice in the
Federal Register (40 FR 27823) of our acceptance of the Smithsonian
report as a petition within the context of Section 4(c)(2) (now Section
4(b)(3)) of the Act, and giving notice of our intention to review the
status of the plant taxa named therein. As a result of that review, on
June 16, 1976, we published a proposed rule in the Federal Register (41
FR 24523) to determine endangered status pursuant to Section 4 of the
Act for approximately 1,700 vascular plant taxa, including Amaranthus
brownii, Cenchrus agrimonioides var. laysanensis, and Sesbania
tomentosa. The list of 1,700 plant taxa was assembled on the basis of
comments and data received by the Smithsonian Institution and the
Service in response to House Document No. 94-51 and the July 1, 1975,
Federal Register publication.
General comments received in response to the 1976 proposal are
summarized in an April 26, 1978, Federal Register publication (43 FR
17909). In 1978, amendments to the Act required that all proposals over
2 years old be withdrawn. A 1-year grace period was given to proposals
already over 2 years old. On December 10, 1979, we published a notice
in the Federal Register (44 FR 70796) withdrawing the portion of the
June 16, 1976, proposal that had not been made final, along with four
other proposals that had expired. The Service published updated notices
of review for plants on December 15, 1980 (45 FR 82479), September 27,
1985 (50 FR 39525), February 21, 1990 (55 FR 6183), and September 30,
1993 (58 FR 51144). A summary of the status categories for Amaranthus
brownii, Cenchrus agrimonioides, Mariscus pennatiformis, Pritchardia
remota, Schiedea verticillata, and Sesbania tomentosa in the 1980 to
1993 notices of review can be found in Table 2(a). We listed these six
species as endangered between 1994 and 1996. A summary of the listing
actions can be found in Table 2(b).

Table 2(a).--Summary of Candidacy Status for Six Plant Species From the Northwestern Hawaiian Islands
----------------------------------------------------------------------------------------------------------------
Federal Register Notice of Review
Species ------------------------------------------------------------------------------
1980 1985 1990 1993
----------------------------------------------------------------------------------------------------------------
Amaranthus brownii............... C1 C1 C1
Cenchrus agrimonioides var. C1* C1* C1* C2*
laysanensis.
Mariscus pennatiformis........... C1 C1
Pritchardia remota............... C1 C1 C1
Schiedea verticillata............ C1 C1 C1
Sesbania tomentosa............... C1* C1* C1
----------------------------------------------------------------------------------------------------------------
Key:
C1: Taxa for which the Service has on file enough sufficient information on biological vulnerability and
threat(s) to support proposals to list them as endangered or threatened species.
C1*: Taxa of known vulnerable status in the recent past that may already have become extinct.
C2*: Taxa for which information now in the possession of the Service indicates that proposing to list as
endangered or threatened is possibly appropriate, but for which sufficient data on biological vulnerability
and threat are not currently available to support proposed rules. Continued existence of these species is in
doubt.

Federal Register Notices of Review:
1980: 45 FR 82479
1985: 50 FR 39525
1990: 55 FR 6183
1993: 58 FR 51144

Table 2(b).--Summary of Listing Actions for Six Plant Species From the Northwestern Hawaiian Islands
----------------------------------------------------------------------------------------------------------------
Proposed Rule Final Rule
Species Federal status ----------------------------------------------------------------
Date Federal Register Date Federal Register
----------------------------------------------------------------------------------------------------------------
Amaranthus brownii............ E 03/24/93 58 FR 15828 08/21/96 61 FR 43178
Cenchrus agrimonioides........ E 10/2/95 60 FR 51417 10/10/96 61 FR 53108
Mariscus pennatiformis........ E 09/14/93 58 FR 48012 11/10/94 59 FR 56333
Pritchardia remota............ E 03/24/93 58 FR 15828 08/21/96 61 FR 43178
Schiedea verticillata......... E 03/24/93 58 FR 15828 08/21/96 61 FR 43178
Sesbania tomentosa............ E 09/14/93 58 FR 48012 11/10/94 59 FR 56333
----------------------------------------------------------------------------------------------------------------
Key: E = Endangered.

Critical Habitat

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state that designation of critical
habitat is not prudent when one or both of the following situations
exist: (1) the species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species. At the time each plant
was listed, we determined that designation of critical habitat was not
prudent because it would not benefit the plant and/or would increase
the degree of threat to the species.

[[Page 34528]]

The not prudent determinations for these species, along with
others, were challenged in Conservation Council for Hawaii v. Babbitt.
2 F. Supp. 2d 1280 (D. Haw. 1998). On March 9, 1998, the United States
District Court for the District of Hawaii directed us to review the
prudency determinations for 245 listed plant species in Hawaii,
including Amaranthus brownii, Cenchrus agrimonioides, Mariscus
pennatiformis, Pritchardia remota, Schiedea verticillata, and Sesbania
tomentosa. Among other things, the Court held that in most cases we did
not sufficiently demonstrate that the species are threatened by human
activity or that such threats would increase with the designation of
critical habitat. The Court also held that we failed to balance any
risks of designating critical habitat against any benefits (id. at
1283-1285).
Regarding our determination that designating critical habitat would
have no additional benefits to the species above and beyond those
already provided through the section 7 consultation requirement of the
Act, the Court ruled that we failed to consider the specific effect of
the consultation requirement on each species (id. at 1286-88). In
addition, the Court stated that we did not consider benefits outside of
the consultation requirements. In the Court's view, these potential
benefits include substantive and procedural protections. The Court held
that, substantively, designation establishes a ``uniform protection
plan'' prior to consultation and indicates where compliance with
section 7 of the Act is required. Procedurally, the Court stated that
the designation of critical habitat educates the public and State and
local governments and affords them an opportunity to participate in the
designation (id. at 1288). The Court also stated that private lands may
not be excluded from critical habitat designation even though section 7
requirements apply only to Federal agencies. In addition to the
potential benefit of informing the public and State and local
governments of the listing and of the areas that are essential to the
species' conservation, the Court found that there may be Federal
activity on the private property in the future, even though no such
activity may be occurring there at the present (id. at 1285-88).
On August 10, 1998, the Court ordered us to publish proposed
critical habitat designations or non-designations for at least 100
species by November 30, 2000, and to publish proposed designations or
non-designations for the remaining 145 species by April 30, 2002 (24 F.
Supp. 2d 1074).
On November 30, 1998, we published a notice in the Federal Register
requesting public comments on our reevaluation of whether designation
of critical habitat is prudent for the 245 Hawaiian plants at issue (63
FR 65805). The comment period closed on March 1, 1999, and was reopened
from March 24, 1999, to May 24, 1999 (64 FR 14209). We received over
100 responses from individuals, non-profit organizations, county
governments, the State of Hawaii's Division of Forestry and Wildlife,
and Federal agencies (U.S. Department of Defense--Army, Navy, Air
Force). Only a few responses offered information on the status of
individual plant species or on current management actions for one or
more of the 245 Hawaiian plants. While some of the respondents
expressed support for the designation of critical habitat for 245
Hawaiian plants, more than 80 percent opposed the designation of
critical habitat for these plants. In general, these respondents
opposed designation because they believed it will cause economic
hardship, chill cooperative projects, polarize relationships with
hunters, or potentially increase trespass or vandalism on private
lands. In addition, commenters also cited a lack of information on the
biological and ecological needs of these plants which, they suggested,
may lead to designation based on guesswork. The respondents who
supported the designation of critical habitat cited that designation
will provide a uniform protection plan for the Hawaiian Islands;
promote funding for management of these plants; educate the public and
State government; and protect partnerships with landowners and build
trust.
To comply with the Court's order, we are publishing seven rules
that will include proposed determinations of whether critical habitat
is prudent, along with proposed designations if appropriate. Each rule,
arranged by island or island group (Kauai and Niihau; Maui and
Kahoolawe; Lanai; Molokai; Northwestern Hawaiian Islands; Hawaii;
Oahu), has or will contain the prudency determination (or incorporate
the prudency determination when it has been published in a prior
proposal) and, when appropriate, proposed designations of critical
habitat for each plant species known to occur from that island or group
of islands. The proposed rules for Kauai and Niihau, Maui and
Kahoolawe, Lanai, and Molokai have already been published. On November
7, 2000, we published the first of the court-ordered prudency
determinations and proposed critical habitat designations for Kauai and
Niihau plants (65 FR 66808). The prudency determinations and proposed
critical habitat designations for Maui and Kahoolawe plants were
published on December 18, 2000 (65 FR 79192), for Lanai plants on
December 27, 2000 (65 FR 82086), and for Molokai plants on December 29,
2000 (65 FR 83158). All of these proposed rules were sent to the
Federal Register by or on November 30, 2000, as required by the Court's
order. Revised proposals for the islands of Kauai and Niihau, Lanai,
Maui and Kahoolawe, and Molokai have also been published, consistent
with a court ordered stipulation dated October 5, 2001, extending the
deadlines for the rulemakings to allow us to prepare revised proposals
taking into account information received during the public comment
periods. In earlier proposals we determined that critical habitat was
prudent for three species (Cenchrus agrimonioides (65 FR 79192),
Mariscus pennatiformis (65 FR 79192), and Sesbania tomentosa (65 FR
66808) that are reported from the Northwestern Hawaiian Islands. This
prudency determination and proposed rule designating critical habitat
for Amaranthus brownii, Cenchrus agrimonioides, Mariscus pennatiformis,
Pritchardia remota, Schiedea verticillata, and Sesbania tomentosa, from
the NWHI responds to the court order in Conservation Council for Hawaii
v. Babbitt.

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures that are necessary to bring an endangered or threatened
species to the point at which listing under the Act is no longer
necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 also requires conferences on
Federal actions that are likely to result in the destruction or adverse
modification of proposed

[[Page 34529]]

critical habitat. Destruction or adverse modification is direct or
indirect alteration that appreciably diminishes the value of critical
habitat for the conservation of a listed species. Such alterations
include, but are not limited to, alterations adversely modifying any of
those physical or biological features that were the basis for
determining the habitat to be critical. Aside from the added protection
that may be provided under section 7, the Act does not provide other
forms of regulatory protection to lands designated as critical habitat.
Because consultation under section 7 of the Act does not apply to
activities on private or other non-Federal lands that do not involve a
Federal nexus, critical habitat designation would not afford any
additional regulatory protections under the Act against such
activities.
Critical habitat also provides non-regulatory benefits to the
species by informing the public and private sectors of areas that are
important for species recovery and where conservation actions would be
most effective. Designation of critical habitat can help focus
conservation activities for a listed species by identifying areas that
contain the physical and biological features that are essential for the
conservation of that species, and can alert the public, as well as
land-managing agencies to the importance of those areas. Critical
habitat also identifies areas that may require special management
considerations or protection, and may help provide protection to areas
where significant threats to the species have been identified to help
to avoid accidental damage to such areas.
In order to be included in a critical habitat designation, the
habitat must first be ``essential to the conservation of the species.''
Critical habitat designations identify, to the extent known using the
best scientific and commercial data available, habitat areas that
provide essential life cycle needs of the species (i.e., areas on which
are found the primary constituent elements, as defined at 50 CFR
424.12(b)). Section 3(5)(C) of the Act states that not all areas that
can be occupied by a species should be designated as critical habitat
unless the Secretary determines that all such areas are essential to
the conservation of the species. Our regulations (50 CFR 424.12(e))
also state that, ``The Secretary shall designate as critical habitat
areas outside the geographic area presently occupied by the species
only when a designation limited to its present range would be
inadequate to ensure the conservation of the species.''
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, and any other relevant impact, of specifying any
particular areas as critical habitat. We may exclude areas from
critical habitat designation when the benefits of exclusion outweigh
the benefits of including the areas within critical habitat, provided
the exclusion will not result in extinction of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published on July 1, 1994 (59 FR 34271), provides criteria,
establishes procedures, and provides guidance to ensure that decisions
made by the Service represent the best scientific and commercial data
available. It requires that our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, use primary and original sources of information as the
basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing rule for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, and biological assessments or
other unpublished materials.
Section 4 requires that we designate critical habitat based on what
we know at the time of the designation. Habitat is often dynamic,
however, and populations may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery. Habitat
areas outside the critical habitat designation will continue to be
subject to conservation actions that may be implemented under section
7(a)(1) of the Act and to the regulatory protections afforded by the
section 7(a)(2) jeopardy standard, and the section 9 take prohibition,
as determined on the basis of the best available information at the
time of the action. It is possible that federally funded or assisted
projects affecting listed species outside their designated critical
habitat areas could jeopardize those species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning and recovery efforts if new
information available to these planning efforts calls for a different
outcome.

A. Prudency Redeterminations

As previously stated, designation of critical habitat is not
prudent when one or both of the following situations exist: (i) the
species is threatened by taking or other human activity, and
identification of critical habitat can be expected to increase the
degree of such threat to the species; or (ii) such designation of
critical habitat would not be beneficial to the species (50 CFR
424.12(a)(1)).
To determine whether critical habitat would be prudent for
Amaranthus brownii, Pritchardia remota, and Schiedea verticillata, we
analyzed the potential threats and benefits for each species in
accordance with the court's order. Due to low numbers of individuals
and populations and their inherent immobility, the three plants may be
vulnerable to unrestricted collection, vandalism, or disturbance,
though this is unlikely given their inaccessibility. Recently we
received information on the commercial trade in palms conducted through
the internet (Grant Canterbury, USFWS, in litt. 2000). Several
nurseries advertise and sell seedlings and young plants, including 13
species of Hawaiian Pritchardia. Seven of these species are federally
protected, including Pritchardia remota. While we have determined that
designation of critical habitat is not prudent for other species of
Pritchardia because the benefits of designating critical habitat do not
outweigh the potential increased threats from vandalism or collection
(65 FR 66808, 65 FR 83158), we do not believe this species is
threatened by these same activities because of its inaccessibility.
Nihoa is more than 273 km (170 mi) from Lihue, Kauai, and more than
1,600 km (1,000 mi) from Midway. It is a part of the HINWR and a permit
is required for access to the island. Access to the island is further
limited due to difficult and dangerous landing conditions. There is
only a 30 percent chance of a safe landing on the rocky coast, needing
a soft bottomed boat (such as a Zodiac), small waves, and good timing.
Passengers must be dropped off and the boat sent back out to sea (there
are no mooring docks or beaches), returning to pick up the passengers,
if conditions allow. Sea conditions are apt to change without warning,
stranding any visitors on this inhospitable island that has no fresh
water and no regular food supply (Cindy Rehkemper, USFWS, pers. comm.,
2001).

[[Page 34530]]

We examined the evidence available for Amaranthus brownii and
Schiedea verticillata and have not, at this time, found specific
evidence of taking, vandalism, collection or trade of these taxa or of
similar species. Consequently, while we remain concerned that these
activities could potentially threaten Amaranthus brownii, Pritchardia
remota, and Schiedea verticillata in the future, consistent with
applicable regulations (50 CFR 424.12(a)(1)(i)) and the Court's
discussion of these regulations, we do not find that these three
species are currently threatened by taking or other human activity,
which threats would be exacerbated by the designation of critical
habitat.
In the absence of finding that critical habitat would increase
threats to a species, if there are any benefits to critical habitat
designation, then a prudent finding is warranted. The potential
benefits include: (1) Triggering section 7 consultation in new areas
where it would not otherwise occur because, for example, it is or has
become unoccupied or the occupancy is in question; (2) focusing
conservation activities on the most essential areas; (3) providing
educational benefits to State or county governments or private
entities; and (4) preventing people from causing inadvertent harm to
the species.
In the case of Amaranthus brownii, Pritchardia remota, and Schiedea
verticillata, there would be some benefits to critical habitat. The
primary regulatory effect of critical habitat is the section 7
requirement that Federal agencies refrain from taking any action that
destroys or adversely affects critical habitat. All of these species
are reported on Federal lands within national wildlife refuges where
most actions would be subject to section 7. Critical habitat
designation for habitat currently occupied by these species would
usually be unlikely to change the section 7 consultation outcome,
because an action that destroys or adversely modifies such critical
habitat would also be likely to result in jeopardy to the species.
However, there also may be some educational or informational benefits
to the designation of critical habitat. Education benefits include the
notification of land managers, and the general public of the importance
of protecting the habitat of these species and dissemination of
information regarding their essential habitat requirements.
Therefore, we propose that designation of critical habitat is
prudent for Amaranthus brownii, Pritchardia remota, and Schiedea
verticillata.

B. Primary Constituent Elements

In accordance with section 4(b)(2) of the Act and regulations at 50
CFR 424.12, in determining which areas to propose as critical habitat,
we are required to base critical habitat determinations on the best
scientific and commercial data available and to consider those physical
and biological features that are essential to the conservation of the
species and that may require special management considerations or
protection. Such requirements include, but are not limited to, space
for individual and population growth, and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing of offspring, germination, or seed dispersal; and, habitats
that are protected from disturbance or are representative of the
historic geographical and ecological distributions of a species.
We are proposing to define the primary constituent elements on the
basis of general habitat features of the areas in which the plant
species are reported from, such as the type of plant community,
associated native plant species, locale information (e.g., steep rocky
cliffs, talus slopes, stream banks), and elevation. These habitat
features provide the ecological components required by the plants. The
type of plant community and associated native plant species provide
information on specific microclimatic conditions, retention and
availability of water in the soil, soil microorganism community, and
nutrient cycling and availability. The locale provides information on
soil type, elevation, rainfall regime, and temperature. Elevation
provides information on daily and seasonal temperature and sun
intensity.
On Nihoa Island, the currently known primary constituent elements
of critical habitat for Amaranthus brownii are habitat components that
provide: (1) Shallow soil in fully exposed locations on rocky outcrops
and containing one or more of the following associated native plant
species: Schiedea verticillata, Chenopodium oahuense, Ipomoea pes-
caprae ssp. brasiliensis, Ipomoea indica, Scaevola sericea, Sida
fallax, Solanum nelsonii, Sicyos pachycarpus, Eragrostis variabilis, or
Panicum torridum; and (2) elevations between 30 and 242 m (100 and 800
ft).
On Laysan and Nihoa islands, the currently known primary
constituent elements of critical habitat for Pritchardia remota are
habitat components that provide: (1) Coastal forest community
containing one or more of the following associated native plant
species: Chenopodium oahuense, Sesbania tomentosa, Solanum nelsonii, or
Sida fallax; and (2) from 15 to 151 m (50 to 500 ft) in elevation.
On Nihoa Island, the currently known primary constituent elements
of critical habitat for Schiedea verticillata are habitat components
that provide: (1) Rocky scree, soil pockets and cracks on coastal cliff
faces and in Pritchardia remota coastal mesic forest and containing one
or more of the following associated native plant species: Tribulus
cistoides, Eragrostis variabilis, Rumex albescens, or lichens; and (2)
elevations between 30 and 242 m (100 and 800 ft).
On Laysan Island, the currently known primary constituent elements
of critical habitat for Mariscus pennatiformis are habitat components
that provide: (1) Coastal sandy substrate containing one or more of the
following associated native plant species: Cyperus laevigatus,
Eragrostis variabilis, or Ipomoea sp.; and (2) elevation of 5 m (16
ft).
On Nihoa and Necker islands, the currently known primary
constituent elements of critical habitat for Sesbania tomentosa are
habitat components that provide: (1) shallow soil on sandy beaches and
dunes in Chenopodium oahuense coastal dry shrubland and containing one
or more of the following associated native plant species: Sida fallax,
Scaevola sericea, Solanum nelsonii, or Pritchardia remota; and (2)
elevations between sea level and 84 m (0 and 276 ft).

C. Methods

As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12) we used the best scientific information available to determine
areas that contain those physical and biological features that are
essential for the conservation of the five plant species. This
information included site-specific species information from the Hawaii
Natural Heritage Program (HINHP) and our rare plant database,
biological surveys and reports, our recovery plans for these five
species, discussions with botanical experts, and recommendations (see
below) from the Hawaii and Pacific Plant Recovery Coordinating
Committee (HPPRCC) (HINHP 2000; HPPRCC 1998; USFWS 1998d, 1999).
In 1994, the HPPRCC initiated an effort to identify and map habitat
it believed to be important for the recovery of 282 endangered and
threatened plant species. The HPPRCC identified these areas on most of
the islands in the Hawaiian chain, and in

[[Page 34531]]

1999 we published them in our Recovery Plan for the Multi-Island Plants
(USFWS 1999). The HPPRCC expects there will be subsequent efforts to
further refine the locations of important habitat areas and that new
survey information or research findings may also lead to additional
refinements (HPPRCC 1998).
Because the HPPRCC identified essential habitat areas for all
listed, proposed, and candidate plant species and evaluated species of
concern to determine if essential habitat areas would provide for their
habitat needs as well, the HPPRCC's mapping of habitat is distinct from
the regulatory designation of critical habitat as defined by the Act.
More data has been collected since the recommendations made by the
HPPRCC in 1998. Much of the area that was identified by the HPPRCC as
inadequately surveyed has now been surveyed in some way. New location
data for many species has been gathered. Also, the HPPRCC identified
areas as essential based on species clusters (areas that included
listed species, as well as candidate species, and species of concern)
while we have only delineated areas that are essential for the
conservation of the five listed species at issue. As a result, the
proposed critical habitat designations in this proposed rule include
habitat that was not identified as essential habitat in the 1998
recommendations.
We considered several criteria in the selection and proposal of
specific boundaries for critical habitat units for these five species.
These criteria, which follow the recommendations in the approved
recovery plans, include expansion of existing wild populations and
reestablishment of wild populations within historic range of each
species (USFWS 1998d, 1999). The long-term probability of the
conservation of these species is dependent upon the protection of
existing population sites and suitable unoccupied habitat within
historic range.
For these five plant species from the Northwestern Hawaiian
Islands, currently and historically occupied habitat was examined.
Critical habitat is not proposed for Cenchrus agrimonioides var.
laysanensis on the Northwestern Hawaiian Islands for the following
reasons. Cenchrus agrimonioides var. laysanensis is historically known
from Laysan, Midway, and Kure Atoll. This plant has not been reported
on Laysan and Midway for over 70 and 100 years, respectively. A
permanent year-round camp on Laysan, staffed by paid employees and
volunteers, conducts periodic monitoring of both native and non-native
plant species, and Cenchrus agrimonioides var. laysanensis has not been
seen during these monitoring efforts (Morin and Conant 1998). On
Midway, Cenchrus agrimonioides var. laysanensis was not seen during the
most recent botanical surveys of 1995 and 1999 (Chris Swenson, USFWS,
pers. comm. 2002). Cenchrus agrimonioides var. laysanensis has not been
seen on Kure Atoll for over 20 years though the State DOFAW conducts
annual seabird surveys and a botanical survey was conducted there as
recently as 2001 (DOFAW, 2001). In addition, no viable genetic material
of this plant is know to exist. The rediscovery of currently unknown
individual plants on these three islands and atolls is believed to be
extremely unlikely. On the other hand, critical habitat is proposed for
Amaranthus brownii, a plant that has not been seen since the early
1980s, on Nihoa because it is believed that there is a strong
likelihood that this Nihoa endemic is still extant on the island. None
of the surveys on Nihoa in the last twenty years have been conducted
during the winter when Amaranthus brownii, an annual, is most easily
located and identified. Winter surveys on the Nihoa have not been
conducted because access to the island is particularly limited during
this season due to difficult and dangerous landing conditions.
Critical habitat boundaries were delineated to include the entire
island on which the species are found or were historically found, for
mapping convenience. Within the critical habitat boundaries, adverse
modification could occur only if the primary constituent elements are
affected. Therefore, not all activities within critical habitat would
trigger an adverse modification conclusion. In addition, existing man-
made features and structures within boundaries of the mapped unit, such
as buildings, roads, aqueducts, telecommunications equipment, radars,
telemetry antennas, missile launch sites, arboreta and gardens, heiau
(indigenous places of worship or shrines), airports, other paved areas,
and other rural residential landscaped areas do not contain one or more
of the primary constituent elements and would be excluded under the
terms of this proposed regulation. Federal actions limited to those
areas would not trigger a section 7 consultation unless they affect the
species or primary constituent elements in adjacent critical habitat.
All currently or historically occupied sites containing one or more
of the primary constituent elements considered essential to the
conservation of the five plant species were examined to determine if
additional special management considerations or protection are required
above those currently provided. We reviewed all available management
information on these plants at these sites including published and
unpublished reports, surveys, and plans; internal letters, memos, trip
reports; and, section 7 consultations. Additionally, we considered
current management for these plants on national wildlife refuge lands.
For the five species for which designation of critical habitat is
prudent, we know of no areas in the HINWR at this time that do not
require special management or protection.

Administration

In summary, the proposed critical habitat areas described below
constitute our best assessment of the physical and biological features
needed for the conservation of the five plant species (Amaranthus
brownii, Mariscus pennatiformis, Pritchardia remota, Schiedea
verticillata, and Sesbania tomentosa) and the special management needs
of the species, and are based on the best scientific and commercial
information available and described above. We put forward this proposal
acknowledging that we may have incomplete information regarding many of
the primary biological and physical requirements for these species.
However, both the Act and the relevant court order require us to
proceed with designation at this time based on the best information
available. As new information accrues, we may reevaluate which areas
warrant critical habitat designation. We anticipate that comments
received through the public review process and from any public
hearings, if requested, will provide us with additional information to
use in our decision making process and in assessing the potential
impacts of designating critical habitat for one or more of these
species.
Proposed critical habitat includes habitat for five species on the
islands of Nihoa, Necker, and Laysan. Lands proposed are under Federal
ownership and managed by the Department of the Interior (the Service).
The entire islands of Nihoa, Necker, and Laysan are proposed as
critical habitat. A brief description of each island is presented
below.
Descriptions of Critical Habitat in the Northwestern Hawaiian Islands

Key for Nihoa, Necker, and Laysan.
? Not all suitable habitat is proposed to be
designated, only those areas essential to the conservation of the
species.

[[Page 34532]]

1. This unit is needed to meet the recovery plan objectives of 8
to 10 viable populations (self perpetuating and sustaining for at
least 5 years) with 100 to 500 mature, reproducing individuals per
species throughout its historical range as specified in the recovery
plans.
2. Island endemic.
3. Multi-island species with current locations on other islands.
4. Multi-island species with no current locations on other
islands.
5. Current locations do not necessarily represent viable
populations with the required number of mature individuals.
6. Several current locations may be affected by one naturally
occurring, catastrophic event.
7. Species with variable habitat requirements, usually over wide
areas. Wide ranging species require more space per individual over
more land area to provide needed primary constituent elements to
maintain healthy population size.
8. Not all currently occupied habitat was determined to be
essential to the recovery of the species.
9. Life history, long-lived perennial-100 mature, reproducing
individuals per population.
10. Life history, short-lived perennial-300 mature, reproducing
individuals per population.
11. Life history, annual-500 mature, reproducing individuals per
population.
12. Narrow endemic, the species probably never naturally
occurred in more than a single or a few populations.
13. Species has extremely restricted, specific habitat
requirements.
14. Hybridization is possible so distinct populations of related
species should not overlap, requiring more land area.

Nihoa

The proposed unit Nihoa provides occupied habitat for three
species: Pritchardia remota, Schiedea verticillata, and Sesbania
tomentosa. It is proposed for designation because it contains the
physical and biological features that are considered essential for
their conservation on Nihoa and provides habitat to support one or more
of the 8 to 10 populations for each species and 100 mature individuals
per population for Pritchardia remota, or 300 mature individuals per
population for Schiedea verticillata, and Sesbania tomentosa throughout
their known historical range considered by the recovery plans to be
necessary for the conservation of each species (see the discussion of
conservation requirements in Section D) (see Table Nihoa below). This
unit also provides unoccupied habitat for one species: Amaranthus
brownii. Designation of this unit is essential to the conservation of
this species because it contains the physical and biological features
that are considered essential for its conservation on Nihoa, and
provides habitat to support one or more additional populations
necessary to meet the recovery objectives for this species of 8 to 10
populations and 500 mature individuals per population for Amaranthus
brownii, throughout its known historical range considered by the
recovery plans to be necessary for the conservation of each species
(see the discussion of conservation requirements in Section D) (see
Table Nihoa below). Amaranthus brownii has not been seen in the wild
since 1983. Service staff have surveyed for this species annually,
though never in the winter season when it is most likely to be seen.
Access to the island is limited, particularly during the winter due to
difficult and dangerous landing conditions. Sea conditions are apt to
change without warning, stranding any visitors on this inhospitable
island that has no fresh water and no regular food supply. There is a
high likelihood that the plants exist but are not detectable during the
dry season and that there is a seed bank present on the island.
Nihoa has an area of approximately 69 ha (171 ac). Nihoa is owned
solely by the Federal government.
BILLING CODE 4310-55-P

[[Page 34533]]

[GRAPHIC]
[TIFF OMITTED]
TP14MY02.003

The proposed unit Necker provides occupied habitat for one species,
Sesbania tomentosa. It is proposed for designation because it contains
the physical and biological features that are considered essential for
its conservation

[[Page 34534]]

on Necker and provides habitat to support one or more of the 8 to10
populations and 300 mature individuals per population for Sesbania
tomentosa, throughout its known historical range considered by the
recovery plan to be necessary for the conservation of this species (see
the discussion of conservation requirements in Section D) (see Table
Necker below).
Necker has an area of approximately 18 ha (46 ac). Necker is owned
solely by the Federal government.

[[Page 34535]]

[GRAPHIC]
[TIFF OMITTED]
TP14MY02.004

[[Page 34536]]

Laysan

The proposed unit Laysan provides occupied habitat for two species:
Mariscus pennatiformis ssp. bryanii and Pritchardia remota. It is
proposed for designation because it contains the physical and
biological features that are considered essential for its conservation
on Laysan and provides habitat to support one or more of the 8 to 10
populations for each species and 100 mature individuals per population
for Pritchardia remota, or 300 mature individuals per population for
Mariscus pennatiformis ssp. bryanii throughout their known historical
range considered by the recovery plan to be necessary for the
conservation of each species (see the discussion of conservation
requirements in Section D) (see Table Laysan below).
Laysan has an area of approximately 411 ha (1,015 ac). Laysan is
owned solely by the Federal government.

[[Page 34537]]

[GRAPHIC]
[TIFF OMITTED]
TP14MY02.005

[[Page 34538]]

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies to ensure that
actions they fund, authorize, or carry out do not jeopardize the
continued existence of a listed species or destroy or adversely modify
its critical habitat. Destruction or adverse modification of critical
habitat occurs when a Federal action directly or indirectly alters
critical habitat to the extent it appreciably diminishes the value of
critical habitat for the conservation of the species. Such alterations
include, but are not limited to, alterations adversely modifying any of
those physical or biological features that were the basis for
determining the habitat to be critical (50 CFR 402.02). Individuals,
organizations, States, local governments, and other non-Federal
entities are affected by the designation of critical habitat only if
their actions occur on Federal lands, require a Federal permit,
license, or other authorization, or involve Federal funding.
Section 7(a) of the Act means that Federal agencies must evaluate
their actions with respect to any proposed or designated critical
habitat. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. If a Federal
action may affect critical habitat, the responsible Federal agency must
enter into consultation with us. If, at the conclusion of consultation,
we issue a biological opinion concluding that the project is likely to
result in the destruction or adverse modification of critical habitat,
we also provide reasonable and prudent alternatives to the project, if
any are identifiable. Reasonable and prudent alternatives are defined
at 50 CFR 402.02 as alternative actions identified during consultation
that can be implemented in a manner consistent with the intended
purpose of the action, that are consistent with the scope of the
Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that the Director
believes would avoid destruction or adverse modification of critical
habitat.
Section 7(a)(4) requires Federal agencies to confer with us on any
action that is likely to result in destruction or adverse modification
of proposed critical habitat. Conference reports provide conservation
recommendations to assist the agency in eliminating conflicts that may
be caused by the proposed action. The conservation recommendations in a
conference report are advisory. We may issue a formal conference report
if requested by a Federal agency. Formal conference reports on proposed
critical habitat contain a biological opinion that is prepared
according to 50 CFR 402.14, as if critical habitat were designated. We
may adopt the formal conference report as a biological opinion when the
critical habitat is designated, if no significant new information or
changes in the action alter the content of the opinion. See 50 CFR
402.10(d).
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions under certain
circumstances, including instances where critical habitat is
subsequently designated and the Federal agency has retained
discretionary involvement or control or is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conferencing with us on actions for which formal
consultation has been completed if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Activities on lands being proposed as critical habitat for these
five species or activities that may indirectly affect such lands and
that are conducted by a Federal agency, funded by a Federal agency or
require a permit from a Federal agency will be subject to the section 7
consultation process. Federal actions not affecting critical habitat
will not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly describe and
evaluate in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may adversely
modify such habitat or that may be affected by such designation. We
note that such activities may also jeopardize the continued existence
of the species. Activities that, when carried out, funded, or
authorized by a Federal agency, may directly or indirectly destroy or
adversely modify critical habitat include, but are not limited to:
(1) Activities that appreciably degrade or destroy habitat defined
in the discussion of primary constituent elements including but not
limited to: clearing or cutting of native live trees and shrubs,
whether by burning or mechanical, chemical, or other means (e.g.,
woodcutting or herbicide application); introducing or enabling the
spread of non-native species; and taking actions that pose a risk of
fire;
(2) Construction activities by the U.S. Department of Interior
(U.S. Fish and Wildlife Service);
(3) Research activities funded by the U.S. Department of Interior
(U.S. Fish and Wildlife Service) or National Oceanic and Atmospheric
Administration (National Marine Sanctuaries Program, National Marine
Fisheries Service); and
(4) Activities not mentioned above funded or authorized by the
Department of Interior (U.S. Geological Survey, National Park Service),
Department of Commerce (National Oceanic and Atmospheric
Administration), Western Pacific Regional Fisheries Council, or any
other Federal agency.
If you have questions regarding whether specific activities will
constitute adverse modification of critical habitat, contact the Field
Supervisor, Pacific Islands Office (see ADDRESSES section). Requests
for copies of the regulations on listed wildlife and plants and
inquiries about prohibitions and permits may be addressed to the U.S.
Fish and Wildlife Service, Division of Endangered Species, 911 N.E.
11th Avenue, Portland, OR 97232 (telephone 503/231-2063; facsimile 503/
231-6243).

Economic and Other Relevant Impacts Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species concerned. We
will conduct an analysis of the economic impacts of designating these
areas as critical habitat prior to a final determination. When
completed, we will announce the availability of the draft economic
analysis with a notice in the Federal Register, and we will open a
public comment period on the draft economic analysis and proposed rule
at that time.
We will utilize the final economic analysis, and take into
consideration all comments, and information regarding economic or other
impacts submitted during the public comment period and any public
hearings, if requested, to make final critical habitat designations. We
may exclude areas from critical habitat upon a determination that the
benefits of such exclusions outweigh the benefits of specifying such
areas as part of critical habitat; however, we cannot exclude areas
from critical habitat when such exclusion will result in the extinction
of the species.

[[Page 34539]]

Public Comments Solicited

It is our intent that any final action resulting from this proposal
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule.
We invite comments from the public that provide information on
whether lands within proposed critical habitat are currently being
managed to address conservation needs of these listed plants. As stated
earlier in this proposed rule, if we receive information that any of
the areas proposed as critical habitat are adequately managed, we may
delete such areas from the final rule, because they would not meet the
definition in section 3(5)(A)(i) of the Act.
We are soliciting comments in this proposed rule on whether current
land management plans or practices applied within the areas proposed as
critical habitat adequately address the threats to these listed
species.
In addition, we are seeking comments on the following:
(1) The reasons why critical habitat for any of these species is
prudent or not prudent as provided by section 4 of the Act and 50 CFR
424.12(a)(1), including whether the benefits of designation would
outweigh any threats to these species due to designation;
(2) The reasons why any particular area should or should not be
designated as critical habitat for any of these species, as critical
habitat is defined by section 3 of the Act (16 U.S.C. 1532 (5));
(3) Specific information on the amount and distribution of habitat
for Amaranthus brownii, Cenchrus agrimonioides, Mariscus pennatiformis,
Pritchardia remota, Schiedea verticillata, and Sesbania tomentosa; and
what habitat is essential to the conservation of the species and why;
(4) Land use practices and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(5) Any economic or other impacts resulting from the proposed
designations of critical habitat, including any impacts on small
entities or families; and
(6) Economic and other potential values associated with designating
critical habitat for the above plant species such as those derived from
non-consumptive uses (e.g., hiking, camping, and birding).
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES).
Our practice is to make comments, including names and home addresses of
respondents, available for public review during regular business hours.
Individual respondents may request that we withhold their home address,
which we will honor to the extent allowable by law. There also may be
circumstances in which we would withhold a respondent's identity, as
allowable by law. If you wish us to withhold your name and/or address,
you must state this request prominently at the beginning of your
comment. However, we will not consider anonymous comments. To the
extent consistent with applicable law, we will make all submissions
from organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety. Comments
and materials received will be available for public inspection, by
appointment, during normal business hours at our Pacific Islands
Office.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we will seek the expert opinions of at least three appropriate
and independent specialists regarding this proposed rule. The purpose
of such review is to ensure listing and critical habitat decisions are
based on scientifically sound data, assumptions, and analyses. We will
send copies of this proposed rule to these peer reviewers immediately
following publication in the Federal Register. We will invite the peer
reviewers to comment, during the public comment period, on the specific
assumptions and conclusions regarding the proposed designations of
critical habitat.
We will consider all comments and data received during the 60-day
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical language or jargon that interferes with the clarity? (3) Does
the format of the proposed rule (grouping and order of sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the proposed rule in the ``Supplementary Information''
section of the preamble helpful in understanding the document? (5) What
else could we do to make the proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
notice easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW, Washington,
DC 20240.

Taxonomic Changes

At the time we listed Mariscus pennatiformis we followed the
taxonomic treatments in Wagner et al. (1990), the widely used and
accepted Manual of the Flowering Plants of Hawaii. Subsequent to the
final listing we became aware of new taxonomic treatments for this
species. Due to the court-ordered deadlines we are required to publish
this proposal to designate critical habitat on the Northwestern
Hawaiian Islands before we can prepare and publish a notice of
taxonomic changes for this species. We plan to publish a taxonomic
change notice for this species after we have published the final
critical habitat designations on the Northwestern Hawaiian Islands. At
that time we will evaluate the critical habitat designations on the
Northwestern Hawaiian Islands for this species in light of any changes
that may result from taxonomic changes in each species current and
historical range and primary constituent elements.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a
significant rule and was reviewed by the Office of Management and
Budget (OMB) in accordance with the four criteria discussed below. We
are preparing a draft analysis of this proposed action, which will be
available for public comment, to determine the economic consequences of
designating the specific areas as critical habitat. The availability of
the draft economic analysis will be announced in the Federal Register
so that it is available for public review and comments.
a. While we will prepare an economic analysis to assist us in
considering whether areas should be excluded pursuant to section 4 of
the Act, we do not believe this rule will have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or

[[Page 34540]]

safety, or state or local governments or communities. Therefore, we do
not believe a cost benefit and economic analysis pursuant to Executive
Order 12866 is required.
Under the Act, critical habitat may not be adversely modified by a
Federal agency action; critical habitat does not impose any
restrictions on non-Federal persons unless they are conducting
activities funded or otherwise sponsored, authorized, or permitted by a
Federal agency.
Section 7 requires Federal agencies to ensure that they do not
jeopardize the continued existence of these species. Based upon our
experience with these species and their needs, we conclude that most
Federal or Federally-authorized actions that could potentially cause an
adverse modification of the proposed critical habitat would currently
be considered as ``jeopardy'' under the Act in areas occupied by the
species. Designation of critical habitat in areas that are not known to
be occupied by any of these five species also is highly unlikely to
have a significant economic affect because all of the lands proposed as
critical habitat are federally owned and managed as part of the
Service's national wildlife refuge system. Economic uses on a national
wildlife refuge are limited by the National Wildlife Refuge System
Administration Act, 16 U.S.C. 668dd, to activities that are compatible
with the purposes of the refuge. We are not aware of any commercial
activities occurring on the refuge. Taken with the remove location and
inaccessibility of these islands, we believe there will be a few
economic impacts resulting from this designation. In addition, each of
the 3 units contains occupied habitat for one or more species.
b. We do not believe this rule would create inconsistencies with
other agencies' actions. As discussed above, Federal agencies have been
required to ensure that their actions not jeopardize the continued
existence of Amaranthus brownii, Mariscus pennatiformis, Pritchardia
remota, Schiedea verticillata, and Sesbania tomentosa since their
listing between 1994 and 1996. For the reasons discussed above, the
prohibition against adverse modification of critical habitat would not
be expected to impose any significant additional restrictions to those
that currently exist in the proposed critical habitat on currently
occupied lands. However, we will evaluate any impact of designating
areas where section 7 consultations would not have occurred but for the
critical habitat designation through our economic analysis.
c. We do not believe this proposed rule, if made final, would
materially affect entitlements, grants, user fees, loan programs, or
the rights and obligations of their recipients. Federal agencies are
currently required to ensure that their activities do not jeopardize
the continued existence of a listed species, and, as discussed above,
we do not anticipate that the adverse modification prohibition,
resulting from critical habitat designation, will have any significant
incremental effects in areas of occupied habitat. However, in those
limited cases where activities occur on designated critical habitat
where one or more of these five plant species are not found at the time
of the action, section 7 consultation may be necessary for actions
funded, authorized, or carried out by Federal agencies. Designation of
critical habitat in areas that are not known to be occupied by any of
these five species will also not likely result in a significant
increased regulatory burden because the Service already reviews
proposed projects on refuge lands to ensure compatibility with refuge
purposes. We will evaluate any additional impacts as part of an
economic analysis.
d. OMB has determined that this rule may raise novel legal or
policy issues, and as a result, this rule has undergone OMB review.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Act (SBREFA) of
1996), whenever an agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act (RFA) to require Federal agencies to provide a
statement of the factual basis for certifying that rule will not have a
significant economic effect on a substantial number of small entities.
SBREFA also amended the RFA to require a certification statement. In
today's rule, we are certifying that the rule will not have a
significant effect on a substantial number of small entities. The
following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent non-profit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule as
well as the types of project modifications that may result. In general,
the term significant economic impact is meant to apply to a typical
small business firm's business operations.
To determine if the rule would affect a substantial number of small
entities, we consider the number of small entities affected within
particular types of economic activities (e.g., housing development,
grazing, oil and gas production, timber harvesting, etc.). We apply the
``substantial number'' test individually to each industry to determine
if certification is appropriate. In estimating the numbers of small
entities potentially affected, we also consider whether their
activities have any Federal involvement; some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies; non-Federal activities are
not affected by the designation. In areas where the species is present,
Federal agencies are already required to consult with us under section
7 of the Act on activities that they fund, permit, or implement that
may affect Amaranthus brownii, Mariscus pennatiformis, Pritchardia
remota, Schiedea verticillata, and Sesbania tomentosa. If these
critical habitat designations are finalized, Federal agencies must also
consult with us if their activities may affect designated critical
habitat. However, in areas where the species is present, we do not
believe this will result in any

[[Page 34541]]

additional regulatory burden on Federal agencies or their applicants
because consultation would already be required due to the presence of
the listed species, and the duty to avoid adverse modification of
critical habitat would not trigger additional regulatory impacts beyond
the duty to avoid jeopardizing the species.
Even if the duty to avoid adverse modification does not trigger
additional regulatory impacts in areas where the species is present,
designation of critical habitat could result in an additional economic
burden on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities. However, since these five
plant species were listed (between 1994 and 1996), there have been no
formal or informal consultations conducted involving these five plant
species in NWHI. The NWR system is not a small entity. Therefore, the
requirement to reinitiate consultations for ongoing projects will not
affect a substantial number of small entities on any of the
Northwestern Hawaiian Islands.
In areas where the species is clearly not present, designation of
critical habitat could trigger additional review of Federal activities
under section 7 of the Act, that would otherwise not be required.
However, only one of the three units (Nihoa) being proposed for
designation includes habitat for a species that is not verified to
occur there (Amaranthus brownii), and three of the species are known to
occur there. In addition, while activities within the HINWR may occur
within the proposed critical habitat areas for these five plants and
therefore have Federal involvement, most of the activities involve
natural resources management that is beneficial to the six plants, and
therefore would require only informal consultation or reinitiation of
already completed consultations for on-going projects. As mentioned
above, we have not conducted formal or informal consultations under
section 7 involving any of the species. As result, we can not easily
identify future consultations that may be due to the listings of the
species or the increment of additional consultations that may be
required by this critical habitat designation. Therefore, for the
purposes of this review and certification under the Regulatory
Flexibility Act, we are assuming that any future consultations in the
area proposed as critical habitat will be due to the critical habitat
designations.
In the NWHI, all of the designations are on Federal land. All of
the land within the critical habitat units will have limited
suitability for development, land uses, and activities because of
remote locations and lack of access. Also, all of this land is within a
National Wildlife Refuge (NWR) where Federal laws and/or policies
severely limit development and most activities. We are not aware of any
commercial activities occurring on these islands. Therefore, we
conclude that the proposed rule would not affect a substantial number
of small entities.
Even where the requirements of section 7 might apply due to
critical habitat designation, based on our experience with section 7
consultations for all listed species, virtually all projects-including
those that, in their initial proposed form, would result in jeopardy or
adverse modification determinations under section 7 consultations-can
be implemented successfully with, at most, the adoption of reasonable
and prudent alternatives. These measures must be economically feasible
and within the scope of authority of the Federal agency involved in the
consultation.
As required under section 4(b)(2) of the Act, we will conduct an
analysis of the potential economic impacts of this proposed critical
habitat designation, and will make that analysis available for public
review and comment before finalizing these designations. In the absence
of this economic analysis, we believe that the designations would have
modest economic impacts because all of the land within the critical
habitat units has limited suitability for development, land uses, and
activities because of remote locations and lack of access. In addition,
these lands are within a National Wildlife Refuge where Federal laws
and/or policies severely limit development and activities. The proposed
critical habitat designations are expected to cause little or no
increase in the number of section 7 consultations; few, if any,
increases in costs associated with consultations; and few, if any
delays in, or modifications to planned projects, land uses and
activities.
In summary, we have considered whether this proposed rule would
result in a significant economic effect on a substantial number of
small entitites. It would not affect a substantial number of small
entities. None of the lands proposed as critical habitat are on state
or private lands. All of the land proposed as critical habitat are
Federal lands within the National Wildlife Refuge system. The most
likely future section 7 consultation resulting from this rule would be
for intra-Service consultations on natural resource management
activities, species-specific surveys and research projects. These
consultations would not likely affect a substantial number of small
entities because the managing agency, the Service, is not a small
entity. Therefore we are certifying that the proposed designation of
critical habitat for the following species: Amaranthus brownii,
Mariscus pennatiformis, Pritchardia remota, Schiedea verticillata, and
Sesbania tomentosa will not have a significant economic impact on a
substantial number of small entities, and an initial regulatory
flexibility analysis is not required. However, should the economic
analysis of this rule indicate otherwise, or should landownership
change in the NWHI, we will revisit this determination.

Executive Order 13211

On May 18, 2001, the President issued Executive Order 13211, on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Although this rule is
a significant regulatory action under Executive Order 12866, it is not
expected to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
a. We believe this rule, as proposed, will not ``significantly or
uniquely'' affect small governments. A Small Government Agency Plan is
not required. Small governments will not be affected unless they
propose an action requiring Federal funds, permits or other
authorizations. Any such activities will require that the Federal
agency ensure that the action will not adversely modify or destroy
designated critical habitat. However, as discussed above, these actions
are currently subject to equivalent restrictions through the listing
protections of the species, and no further restrictions are anticipated
to result from critical habitat designation of occupied areas. In our
economic analysis, we will evaluate any impact of designating areas
where section 7 consultations would not have occurred but for the
critical habitat designation.
b. This rule, as proposed, will not produce a Federal mandate on
State or local governments or the private sector of $100 million or
greater in any year, that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. The designation of
critical

[[Page 34542]]

habitat imposes no obligations on State or local governments.

Takings

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the five species on three islands or
atolls (Nihoa, Necker, and Laysan) within the Northwestern Hawaiian
Islands. The takings implications assessment concludes that this
proposed rule does not pose significant takings implications. Once the
economic analysis is completed for this proposed rule, we will review
and revise this preliminary assessment as warranted.

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of Interior policy, we requested
information from appropriate State agencies in Hawaii. The designation
of critical habitat in areas currently occupied by these species
imposes no additional restrictions to those currently in place and,
therefore, has little incremental impact on State and local governments
and their activities. The designations may have some benefit to these
governments in that the areas essential to the conservation of these
species are more clearly defined, and the primary constituent elements
of the habitat necessary to the survival of the species are
specifically identified. While this definition and identification does
not alter where and what federally sponsored activities may occur, it
may assist these local governments in long range planning rather than
waiting for case-by-case section 7 consultations to occur.

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and does meet the requirements of sections 3(a) and
3(b)(2) of the Order. We are proposing to designate critical habitat in
accordance with the provisions of the Endangered Species Act. The rule
uses standard property descriptions and identifies the primary
constituent elements within the designated areas to assist the public
in understanding the habitat needs of Amaranthus brownii, Mariscus
pennatiformis, Pritchardia remota, Schiedea verticillata, and Sesbania
tomentosa.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any information collection requirements
for which Office of Management and Budget (OMB) approval under the
Paperwork Reduction Act is required. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a valid OMB control number.

National Environmental Policy Act

We have determined we do not need to prepare an Environmental
Assessment and/or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969 in connection with
regulations adopted pursuant to section 4(a) of the Endangered Species
Act, as amended. We published a notice outlining our reason for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This proposed determination does not constitute a major Federal
action significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 and 512 DM 2, we
readily acknowledge our responsibility to communicate meaningfully with
recognized Federal Tribes on a government-to-government basis. We have
determined that there are no Tribal lands essential for the
conservation of Amaranthus brownii, Mariscus pennatiformis, Pritchardia
remota, Schiedea verticillata, and Sesbania tomentosa because Tribal
lands do not occur on the three islands or atolls (Nihoa, Necker, and
Laysan) within the Northwestern Hawaiian Islands. Therefore,
designation of critical habitat for these five species has not been
proposed on Tribal lands.

References Cited

A complete list of all references cited in this proposed rule is
available upon request from the Pacific Islands Office (see ADDRESSES
section).

Authors

The primary authors of this notice are Christa Russell, Michelle
Stephens, Marigold Zoll, and Gregory Koob (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. In Sec. 17.12(h) revise the entries for Amaranthus brownii,
Mariscus pennatiformis, Pritchardia remota, Schiedea verticillata, and
Sesbania tomentosa under ``FLOWERING PLANTS'' to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

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

* * * * * * *
Amaranthus brownii.............. None............... U.S.A. (HI)........ Amaranthaceae...... E 587 17.96(a) NA

* * * * * * *
Mariscus pennatiformis.......... None............... U.S.A. (HI)........ Cyperaceae......... E 559 17.96(a) NA

[[Page 34543]]

* * * * * * *
Pritchardia remota.............. Loulu.............. U.S.A. (HI)........ Arecaceae.......... E 587 17.96(a) NA

* * * * * * *
Schiedea verticilla............. None............... U.S.A. (HI)........ Caryophyllaceae.... E 587 17.96(a) NA

* * * * * * *
Sesbania tomentosa.............. Ohai............... U.S.A. (HI)........ Fabaceae........... E 559 17.96(a) NA

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Section 17.96, as proposed to be amended at 65 FR 66865
(November 7, 2000), 65 FR 79192 (December 18, 2000), 65 FR 82086
(December 27, 2000), 65 FR 83193 (December 29, 2000), 67 FR 4072
(January 28, 2002), 67 FR 9806 (March 4, 2002), 67 FR 15856 (April 3,
2002), and 67 FR 16492 (April 5, 2002) is proposed to be further
amended as follows:
a. Add paragraph (a)(1)(i)(G) (paragraph (a)(1)(i) introductory
text is republished); and
b. Amend paragraph (a)(1)(ii)(A) by adding the entries set forth
below.

Sec. 17.96 Critical habitat--plants.

(a) * * *
(1) * * *
(i) Maps and critical habitat unit descriptions. The following
sections contain the legal descriptions of the critical habitat units
designated for each of the Hawaiian Islands. Existing manmade features
and structures within the boundaries of the mapped unit, such as
buildings, roads, aqueducts, railroads, telecommunications equipment,
telemetry antennas, radars, missile launch sites, arboreta and gardens,
heiau (indigenous places of worship or shrines), airports, other paved
areas, lawns, and other rural residential landscaped areas do not
contain one or more of the primary constituent elements described for
each species in paragraphs (a)(1)(ii)(A) and (a)(1)(ii)(B) of this
section and are not included in the critical habitat designation.
* * * * *
(G) Northwestern Hawaiian Islands. Critical habitat areas are
described below. Coordinates are in WGS84 datum. The following map
shows the general locations of the five critical habitat units
designated for the islands of Laysan, Nihoa, and Necker.
(1) Note: Map 1--Index map follows:
[GRAPHIC]
[TIFF OMITTED]
TP14MY02.006

[[Page 34544]]

(2) Critical Habitat Nihoa Island--entire island (approximately 69
ha; 171 ac).
(i) Nihoa Island is located between 23 deg.3' N. and 23 deg.4' N.
and between 161 deg.54' W. and 161 deg.56' W.
(ii) Note: Map 2 follows:
[GRAPHIC]
[TIFF OMITTED]
TP14MY02.007

(3) Critical Habitat Necker Island--entire island (approximately 18
ha; 46 ac).
(i) Necker Island is located between 23 deg.34' N. and 23 deg.35'
N. and between 164 deg.41' W. and 164 deg.43' W.
(ii) Note: Map 3 follows:
[GRAPHIC]
[TIFF OMITTED]
TP14MY02.008

(4) Critical Habitat Laysan Island--entire island (approximately
411 ha; 1,015 ac).
(i) Laysan Island is located between 25 deg.45' N. and 25 deg.47'
N. and between 171 deg.43' W. and 171 deg.45' W.
(ii) Note: Map 4 follows:
[GRAPHIC]
[TIFF OMITTED]
TP14MY02.009

Table (a)(1)(i)(G).--Protected Species in the Northwestern Hawaiian
Islands (NWHI)
------------------------------------------------------------------------
Island Species
------------------------------------------------------------------------
Laysan....................... Mariscus pennatiformis, Pritchardia
remota.
------------------------------------------------------------------------
Necker....................... Sesbania tomentosa.
------------------------------------------------------------------------
Nihoa........................ Amaranthus brownii, Pritchardia remota,
Schiedea verticillata, Sesbania
tomentosa.
------------------------------------------------------------------------

(ii) Hawaiian plants--constituent elements.
(A) Flowering plants.
Family Amaranthaceae: Amaranthus brownii (no common name).
Nihoa Island. Nihoa Island, identified in the legal descriptions in
paragraph (a)(1)(i)(G) of this section constitutes critical habitat for
Amaranthus brownii. On this island the currently known primary
constituent elements of critical habitat for Amaranthus brownii are
habitat components that provide:
(1) Shallow soil in fully exposed locations on rocky outcrops and
containing one or more of the following associated native plant
species: Schiedea verticillata, Chenopodium oahuense, Ipomoea pes-
caprae ssp. brasiliensis, Ipomoea indica, Scaevola sericea, Sida
fallax, Solanum nelsonii, Sicyos pachycarpus, Eragrostis variabilis, or
Panicum torridum; and
(2) Elevations between 30 and 242 m (100 and 800 ft).
Family Arecaceae: Pritchardia remota (loulu).
Laysan and Nihoa Islands. Laysan and Nihoa islands, identified in
the legal descriptions in paragraph (a)(1)(i)(G) of this section
constitutes critical habitat for Pritchardia remota. On these islands
the currently known primary constituent elements of critical habitat
for Pritchardia remota are habitat components that provide:
(1) Pritchardia remota coastal forest community containing one or
more of the following associated native plant species: Chenopodium
oahuense, Sesbania tomentosa, Solanum nelsonii, or Sida fallax; and
(2) From 15 to 151 m (50 to 500 ft) in elevation.
Family Caryophyllaceae: Schiedea verticillata (no common name).
Nihoa Island. Nihoa Island, identified in the legal descriptions in
paragraph (a)(1)(i)(G) of this section constitutes critical habitat for
Schiedea verticillata. On this island the currently known primary
constituent elements of critical habitat for Schiedea verticillata are
habitat components that provide:
(1) Rocky scree, soil pockets and cracks on coastal cliff faces and
in Pritchardia remota coastal mesic forest and containing one or more
of the following associated native plant species: Tribulus cistoides,
Eragrostis

[[Page 34545]]

variabilis, Rumex albescens, or lichens; and
(2) Elevations between 30 and 242 m (100 and 800 ft).
Family Cyperaceae: Mariscus pennatiformis (no common name).
Laysan Island. Laysan Island, identified in the legal description
in paragraph (a)(1)(i)(G) of this section constitutes critical habitat
for Mariscus pennatiformis. On this island the currently known primary
constituent elements of critical habitat for Mariscus pennatiformis are
habitat components that provide:
(1) Coastal sandy substrate containing one or more of the following
associated native plant species: Cyperus laevigatus, Eragrostis
variabilis, or Ipomoea sp.; and
(2) Elevation of 5 m (16 ft).
Family Fabaceae: Sesbania tomentosa (ohai).
Nihoa and Necker Islands. Nihoa and Necker islands, identified in
the legal descriptions in paragraph (a)(1)(i)(G) of this section
constitute critical habitat for Sesbania tomentosa. On these islands,
the currently known primary constituent elements of critical habitat
for Sesbania tomentosa are habitat components that provide:
(1) Shallow soil on sandy beaches and dunes in Chenopodium oahuense
coastal dry shrubland and containing one or more of the following
associated native plant species: Sida fallax, Scaevola sericea, Solanum
nelsonii, or Pritchardia remota; and
(2) Elevations between sea level and 84 m (0 and 276 ft).

Dated: April 30, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-11225 Filed 5-13-02; 8:45 am]
BILLING CODE 4310-55-P

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