Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Five Plant Species From the Northwestern Hawaiian Islands, Hawaii

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

[Federal Register: May 22, 2003 (Volume 68, Number 99)]
[Rules and Regulations]
[Page 28053-28075]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my03-17]

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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; Designation of
Critical Habitat for Five Plant Species From the Northwestern Hawaiian
Islands, Hawaii

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat pursuant to the Endangered Species Act of 1973, as
amended (Act), for five of six plant species known historically from
the Northwestern Hawaiian Islands. The five species are Amaranthus
brownii, Mariscus pennatiformis, Pritchardia remota, Schiedea
verticillata, and Sesbania tomentosa. A total of approximately 493
hectares (1,219 acres) of land on Nihoa, Necker, and Laysan Islands
fall within the boundaries of the seven critical habitat units
designated for the five species. This critical habitat designation
requires the Service to consult under section 7 of the Act with regard
to actions carried out, funded, or authorized by a Federal agency.
Section 4 of the Act requires us to consider economic and other
relevant impacts when specifying any particular area as critical
habitat. We solicited data and comments from the public on all aspects
of the proposed rule, including data on economic and other impacts of
the designation.

DATES: This rule becomes effective on June 23, 2003.

ADDRESSES: Comments and materials received, as well as supporting
documentation, used in the preparation of this final rule will be
available for public inspection, by appointment, during normal business
hours at U.S. Fish and Wildlife Service, Pacific Islands Office, 300
Ala Moana Blvd., Room 3-122, P.O. Box 50088, Honolulu, HI 96850-0001.

FOR FURTHER INFORMATION CONTACT: Paul Henson, Field Supervisor, Pacific
Islands Office at the above address (telephone 808/541-3441; facsimile
808/541-3470).

SUPPLEMENTARY INFORMATION:

Background

In the List of Endangered and Threatened Plants (50 CFR 17.12(h)),
there are six plant species that, at the time of listing, were reported
from the Northwestern Hawaiian Islands (NWHI). Amaranthus brownii,
Pritchardia remota, and Schiedea verticillata are endemic to the NWHI,
while Cenchrus agrimonioides, Mariscus pennatiformis, and Sesbania
tomentosa are reported from several other Hawaiian islands in addition
to the NWHI (see Table 1).

Table 1.--Summary of Island Distribution of Six Species From the NWHI
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Island distribution
Species ---------------------------------------------------------------------------------------------------------
Kauai Oahu Molokai Lanai Maui Hawaii NWHI, Kahoolawe, Niihau
--------------------------------------------------------------------------------------------------------------------------------------------------------
Amaranthus brownii (no common name)........... .......... .......... .......... .......... .......... .......... Nihoa (C)
Cenchrus agrimonioides (kamanomano)........... .......... C .......... H C R Kure (H*), Laysan (H), Midway
(H)
Mariscus pennatiformis (no common name)....... H H .......... .......... C R Laysan (C)
Pritchardia remota (loulu).................... .......... .......... .......... .......... .......... .......... Nihoa (C), Laysan(**)
Schiedea verticillata (no common name)........ .......... .......... .......... .......... .......... .......... Nihoa (C)
Sesbania tomentosa (ohai)..................... C C C H C C Niihau (H), Kahoolawe (C),
Necker (C), Nihoa (C)
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Key:
C (Current)--occurrence last observed within the past 30 years.
H (Historical)--occurrence not seen for more than 30 years.
R (Reported)--reported from undocumented observations.
* Cenchrus agrimonioides var. laysanensis was last observed 23 years ago.
** It has been suggested that Pritchardia remota was the species of Pritchardia once extant on Laysan; however, this is not known for certain.
NWHI include Kure Atoll, Midway Atoll, and Laysan, Necker, Nihoa islands.

Although we considered designating critical habitat on the NWHI for
each of the six plant species, for the reasons described below, the
final designation includes critical habitat for five of six plant
species. Species that also occur on other islands may have critical
habitat designated on other islands in previous or subsequent
rulemakings.

The Northwestern Hawaiian Islands

The NWHI are a chain of islands that extend along a linear path for
approximately 1,600 kilometers (km) (1,000 miles (mi)) in a
northwestern direction from Nihoa Island to Kure Atoll and include the
following: Nihoa Island, Necker Island, French Frigate Shoals, Gardner
Pinnacles, Maro Reef, Laysan Island, Lisianski Island, Pearl and Hermes
Atoll, Midway Atoll, and Kure Atoll (Figure 1). They are remnants of
once larger islands that have slowly eroded and subsided and that exist
today as small land masses or coral atolls covering the remnants of
volcanic islands (Department of Geography 1998; Service 1998).

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[GRAPHIC]
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TR22MY03.000

Nihoa rises approximately 274 meters (m) (900 feet (ft)) above sea
level and has an area of approximately 69 hectares (ha) (171 acres
(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 approximately 405 ha (1,002 ac) in size and fringed by a reef. In
the center of the island is a 52 ha (129 ac) hypersaline lagoon.
Lisianski Island is 147 ha (364 ac) in size and bounded to the north by
an extensive reef system. The 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 have been 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 nonnative species problems (Elizabeth
Flint, Service, pers. comm., 2000).
One of the six listed plants was historically known from Kure Atoll
(Cenchrus agrimonioides var. laysanensis), two were known from Laysan
(C. agrimonioides var. laysanensis and Mariscus pennatiformis ssp.
bryanii), one from Midway (C. agrimonioides var. laysanensis), four
from Nihoa (Amaranthus brownii, Pritchardia remota, Schiedea
verticillata, and Sesbania tomentosa), and one from Necker (Sesbania
tomentosa) (see Table 1 above).
Nihoa (209 km (140 mi) from Niihau) and Necker (an additional 290
km (180 mi) northwest of Nihoa) are the islands in the northwestern
group that are closest to the main Hawaiian Islands. Both are small,
residual fragments of volcanoes that formed approximately 7.2 and 10.3
million years ago, respectively (Service 1986). Although both of these
islands were uninhabited at the time of their modern discovery in the
late eighteenth century, there is an extensive heiau (indigenous place
of worship or shrine) complex on Necker, and agricultural terraces and
other Hawaiian archaeological features can be found on Nihoa (Cleghorn
1984; Department of Geography 1998; Service 1986).
In 1892, a guano mining business began operation on Laysan and
flourished until 1904. During this time, rabbits were introduced to
Laysan for a rabbit canning industry, and the rabbits were allowed to
reproduce and roam freely (Morin and Conant 1998; Tomich 1986). This
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 Laysan Island in the early 1920s, although not before the
vegetation had been thoroughly devastated. Since then, the vegetation
of Laysan has recovered to a remarkable degree, although some species,
like the native palms (Pritchardia sp.) (lolou), are no longer
naturally extant on the island (Tomich 1986; E. Flint, pers. comm.,
2000).
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 U.S. 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. In 1942, the United
States 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 (NWR) system, and in 1996, the jurisdiction of
Midway Atoll was transferred from the U.S. Navy to the Department of
the Interior (Service 2000). Despite this evidence of human use, these
islands continue to support an assemblage of endemic plants and animals
not found elsewhere in the archipelago (Department of Geography 1998).

[[Page 28056]]

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 (Service 1998a).

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, and a variety of other marine
organisms, including sea turtles and the critically endangered Hawaiian
monk seal (Monachus schauinslandi), as well as to address the
commercial exploitation of wildlife resources (Executive Order 1019).
Within the refuge's 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 public or
recreational use allowed at HINWR. Access is strictly regulated through
a permit system because of the sensitivity of the organisms on these
islands to human disturbance and the high risk of importation of
nonnative plant and invertebrate species. For those who do access the
refuge, strict quarantine procedures are in effect. 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., 2002).

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. This reserve includes the marine
waters and submerged lands of the NWHI and covers an area approximately
2,222 km (1,200 nautical mi) long and 185 km (100 nautical mi) wide.
The reserve is adjacent to State of Hawaii waters and submerged lands
and the Midway Atoll NWR and includes the HINWR outside of State
waters.

Discussion of Plant Taxa

Species Endemic to the Northwestern Hawaiian Islands

Amaranthus brownii (No Common Name (NCN))
Amaranthus brownii, a member of the amaranth family
(Amaranthaceae), is an herbaceous annual with leafy upright or
ascending stems, 30 to 90 centimeters (cm) (1 to 3 ft) in length. The
slightly hairy, alternate leaves are long, narrow, and more or less
folded in half lengthwise. The species is monoecious, with male and
female flowers being found on the same plant. Amaranthus brownii can be
distinguished from other Hawaiian members of the genus by its spineless
leaf axils (the points between the stem and a leaf branch), linear
leaves, and indehiscent (remaining closed at maturity) fruits (Wagner
et al., 1999).
The growing season for Amaranthus brownii extends from December to
June or July. Conant (1985) reported finding plants in an early
flowering stage in February and collected seed from dead plants during
June. Phenology may vary somewhat from year to year, depending on
rainfall and climatic factors. Pollination vectors, seed dispersal
agents, specific environmental requirements, and limiting factors for
this species are unknown (Service 1998d).
Amaranthus brownii is currently the rarest native plant on 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 groups of
colonies were separated by a distance of 0.4 km (0.25 mi) and contained
a total of approximately 35 plants: one occurrence of about 23 plants
near Miller's Peak and a second occurrence of approximately a dozen
plants in three small groups in Middle Valley. No plants have been seen
at either location since 1983, even though Service staff have surveyed
for the species annually (Service 1998d). None of the surveys conducted
since 1983 have been conducted in the winter months when this annual
species is easiest to find and identify. Access to the island is
particularly limited during the winter due to difficult and dangerous
landing conditions (Cindy Rehkemper, Service, 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
Chenopodium oahuense (aheahea), Eragrostis variabilis (kawelu), Ipomoea
indica (koali awa), Ipomoea pes-caprae ssp. brasiliensis (pohuehue),
Panicum torridum (kakonakona), Scaevola sericea (naupaka), Schiedea
verticillata (NCN), Sicyos pachycarpus (kupala), Sida fallax (ilima),
and Solanum nelsonii (akia) (Hawaii Natural Heritage Program (HINHP)
Database 2000).
The threats to Amaranthus brownii on Nihoa include competition with
the nonnative plant Portulaca oleracea (pigweed), alteration of
substrate, fire, potential introduction of rats and mice, 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 (Service 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
approximately 80 cm (31 in) in diameter and somewhat waxy to pale green
with a few tiny scales on the lower surface. The flowering stalks,
which can be up to 30 cm (12 in) in length, are branched, and the
flowers are arranged spirally along the hairless stalks. Pritchardia
remota is the only species of Pritchardia on Nihoa and can be
distinguished from other species in the genus by its wavy leaves;
short, hairless inflorescences; and small, round fruits (Read and Hodel
1999; 61 FR 43178).
Pritchardia remota is a long-lived perennial, and populations on
Nihoa 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. Pollination vectors, seed dispersal agents,
specific environmental requirements, and limiting factors for this
species are unknown (Service 1998d).
Pritchardia remota occurs on Nihoa at elevations between 15 and 151
m (50 and 500 ft) and may have historically occurred on Laysan Island
as well (Beccari and Rock 1921). Currently, Pritchardia remota is known
from four colonies on Nihoa that are found along 0.2 km (0.1 mi) of the
length of two valleys on opposite sides of the island, approximately
0.6 km (0.4 mi) apart. More than 680 plants, including seedlings, are
found in West Palm Valley and at least 392 plants are found in East
Palm Valley (HINHP Database 2000). A few individuals are also found at
the bases of basalt cliffs on the steep outer slopes of each of the two
valleys

[[Page 28057]]

(HINHP Database 2000). Pritchardia remota is also present in a
shadehouse on Laysan Island as seedlings, from seeds collected at Nihoa
for outplanting on Laysan as part of identified recovery efforts for
this species (Service 1998d).
Pritchardia remota is one of the few Hawaiian members of the genus
that occurs in relatively dry climates like that found on Nihoa. Its
distribution on Nihoa, however, may be related to availability of water
since many individuals are found in valleys and near freshwater seeps
(Service 1998d). In the Pritchardia remota coastal forest community,
this species assumes complete dominance, creating a closed canopy and
understory of thick layers of fallen fronds (Gagne and Cuddihy 1999).
Native plants which occur nearby include Chenopodium oahuense, Sesbania
tomentosa (ohai), Sida fallax, and Solanum nelsonii, (Service 1998d).
The threats to Pritchardia remota on Nihoa include competition with
nonnative plants, potential introduction of rats and mice, possible
herbivory by nonnative insect species, 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 (Service 1998d).
Schiedea verticillata (NCN)
Schiedea verticillata, a member of the pink family
(Caryophyllaceae), is a perennial herbaceous species, which dies back
to an enlarged root during the dry season. Stems, which can reach 0.4
to 0.6 m (1.3 to 2 ft) in length, are both upright or pendant
(drooping). The stalkless leaves are fleshy, broad, and pale green and
are usually arranged in threes. Schiedea verticillata, the only member
of its genus to grow in the NWHI, is distinguished from other species
in the genus by its exceptionally large sepals and (usually) three
leaves per node (Wagner et al., 1999).
Schiedea verticillata is a short-lived perennial. Dr. Steve Weller,
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 among
individuals of any species in the genus (Service 1998d). This species'
reproductive cycle may not be seasonal, since Conant (1985) has found
many life stages simultaneously throughout the year. Her observations
also indicate that individual plants flower, set seed, and disperse
seed in a relatively short period of time. Pollination vectors, seed
dispersal agents, specific environmental requirements, and limiting
factors for this species are unknown (Service 1998d).
All but one of the historic colonies of Schiedea verticillata are
known to be extant on Nihoa. Colony locations and plant numbers appear
to shift, but total numbers islandwide have remained relatively stable
for several years. Seven colonies, containing a total of 497
individuals, were documented between 1980 and 1983 (HINHP Database
2000). In 1992, Service staff counted between 170 and 190 plants in 6
colonies. In 1996, a total of 359 plants, distributed in 10 colonies
primarily on the western half of the island, were identified, with an
occurrence of 13 plants on the east spur of the island near Tunnel
Cave. Two previously unobserved colonies of 2 and 99 plants were
located on the north cliffs above Miller's Valley. Other colonies
included 24 plants at Dog's Head, 37 plants at Devil's Slide, 10 plants
near Miller's Peak, a previously unknown occurrence of 62 plants on the
ridge separating West and West Palm valleys, 80 plants near lower West
Valley, 28 individuals near Pinnacle Peak, and 4 plants northeast of
Pinnacle Peak (Service 1998).
Schiedea verticillata typically grows in rocky scree, soil pockets,
and cracks in coastal cliff faces and in Pritchardia remota coastal
mesic forest at elevations between 30 and 242 m (100 and 800 ft).
Associated native plant taxa include Eragrostis variabilis, Rumex
albescens (huahuako), Tribulus cistoides (nohu), and lichens (HINHP
Database 2000).
The threats to Schiedea verticillata on Nihoa include competition
with nonnative plant species, possible herbivory by nonnative insect
species, potential introduction of rats and mice, 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; Service 1998d).

Multi-Island Species

Cenchrus agrimonioides (kamanomano)

Cenchrus agrimonioides, a short-lived perennial member of the grass
family (Poaceae), has leaf blades that are flat or folded and a
prominent midrib. The species is distinguished from others in the genus
by a cylindrical to lance-shaped bur and the arrangement and position
of the bristles on the bur (O'Connor 1999; Wagner et al., 1999). The
two varieties, C. agrimonioides var. laysanensis and C. agrimonioides
var. agrimonioides, differ from each other in that C. agrimonioides
var. laysanensis has smaller burs, shorter stems, and narrower leaves.
Little is known about the life history of Cenchrus agrimonioides.
It has been observed to produce fruit year round (Service 1999), but
other information about its flowering, pollination vectors, seed
dispersal agents, longevity, specific environmental requirements, and
limiting factors is generally unknown.
Historically, Cenchrus agrimonioides var. agrimonioides was known
from Oahu, Lanai, Maui, and (in an undocumented report) the island of
Hawaii (61 FR 53108; 65 FR 79192). Cenchrus agrimonioides var.
laysanensis was historically known from Laysan and Midway Islands and
Kure Atoll in the NWHI but has not been seen there since about 1980
(HINHP Database 2000; O'Connor 1999). It occurred on coastal sandy
substrate in Scaevola sericea-Eragrostis variabilis scrub at an
elevation of 5 m (16 ft). Morin and Conant (1998) report that C.
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. Cenchrus agrimonioides var.
laysanensis has not been relocated during periodic monitoring on Laysan
for more than 20 years and has not been seen on Midway during recent
surveys in 1995 and 1999. It has not been seen on Kure Atoll for over
20 years, in spite of DOFAW's annual seabird surveys and a botanical
survey conducted there as recently as 2001. In addition, no viable
genetic material of this variety is known to exist. We believe that it
is extremely unlikely that individual plants will be rediscovered on
these three islands and atolls.
Mariscus pennatiformis (NCN)
Mariscus pennatiformis is a member of the sedge family
(Cyperaceae). It is a short-lived perennial with a woody root system
covered with brown scales. The stout, three-angled stems are between
0.4 and 1.2 m (1.3 and 4 ft) tall. This species differs from other
members of the genus by its slightly concave, smooth stems; the length
and number of spikelets (elongated flower-clusters); leaf width; and
the length and diameter of stems. The two subspecies, M. pennatiformis
ssp. bryanii and M. pennatiformis ssp. pennatiformis, are distinguished
by the length and width of the spikelets; shape and length of the
fruit; and color, length, and width of the glumes (scaly floral bracts)
(Koyama 1990).
At the time Mariscus pennatiformis was listed in 1994 (59 FR
94559), we followed the taxonomic treatments in the Manual of the
Flowering Plants of Hawaii (Wagner et al. 1990). Subsequent

[[Page 28058]]

to this, we became aware of a new taxonomic treatment for the species
and plan to publish a notice of taxonomic change to formalize this
change after publication of this final rule.
Individuals of Mariscus pennatiformis on Laysan Island were closely
monitored for 10 years, but the only flowering observed was of one
individual from November to December, coinciding with record high
rainfall (Service 1999). Little else is known about this plant's
flowering cycles, pollination vectors, seed dispersal agents,
longevity, specific environmental requirements, or limiting factors
(Service 1999).
Historically, Mariscus pennatiformis was found on Kauai, Oahu,
Maui, Hawaii, and Laysan Island. Currently, M. pennatiformis ssp.
pennatiformis is found on Maui while M. pennatiformis ssp. bryanii is
known only from Laysan Island. This subspecies, M. pennatiformis ssp.
bryanii, was found until recently on the southeast end of the central
lagoon and the west and northeast sides of Laysan (HINHP Database 2000;
Koyama 1990). Numbers have fluctuated from as many as 200 to only 1
individual over the past 10 years. Currently, a single occurrence of
about 200 individuals of M. pennatiformis ssp. bryanii remains on the
southeast end of the lagoon (Service 1999).
Mariscus pennatiformis ssp. bryanii is found on coastal sandy
substrate at an elevation of 5 m (16 ft). Associated native species
include Cyperus laevigatus (makaloa), Eragrostis variabilis, and
Ipomoea sp. (HINHP Database 2000; Koyama 1990).
The threats to Mariscus pennatiformis ssp. bryanii on the island of
Laysan include seed predation by the endangered Laysan finch (Telespiza
cantans) and burrowing activities of nesting seabirds. The native plant
Ipomoea pes-caprae (beach morning glory) is another possible threat
since it periodically overgrows Mariscus individuals (Service 1999). In
addition, native Sicyos spp. (anunu) vines, Eragrostis variabilis, and
Boerhavia repens (alena) appear to impede natural dispersal of M.
pennatiformis ssp. bryanii into 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 to 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-colored tinged with yellow, orange-red, scarlet, or, rarely,
pure yellow. Sesbania tomentosa is the only endemic Hawaiian species in
the genus, differing from the naturalized Sesbania sesban in flower
color, petal and calyx length, and the number of seeds per pod (Geesink
et al. 1999).
The pollination biology of Sesbania tomentosa has been studied by
Dr. David Hopper as part of his dissertation research conducted at the
University of Hawaii. His 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 colonies 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. Other aspects of this plant's life
history are unknown (Service 1999).
Currently, Sesbania tomentosa occurs on six of the eight main
Hawaiian Islands (Kauai, Oahu, Molokai, Kahoolawe, Maui, and Hawaii)
and on Nihoa and Necker. Although once found on Niihau and Lanai, it is
no longer extant on those islands (Geographic Decision Systems
International (GDSI) 2000; HINHP Database 2000; Service 1999; 54 FR
56333). On Nihoa, this species has been described as relatively common
in some areas, with one population consisting of several thousand
plants. On Necker Island, S. tomentosa is known from the tops of all
hills of the main island. A few individuals are found on the Northwest
Cape as well (Service 1999).
Sesbania tomentosa is found in shallow soil on sandy beaches and
dunes in Chenopodium oahuense coastal dry shrubland or mixed coastal
dry cliffs at elevations up to 84 m (276 ft) (HINHP Database 2000).
Associated plant species include Pritchardia remota, Scaevola sericea,
Sida fallax, and Solanum nelsonii (Geesink et al. 1999; HINHP Database
2000; Service 1999).
The primary threats to Sesbania tomentosa on Nihoa and Necker
include competition with various nonnative plant species, lack of
adequate pollination, potential introduction of rats and mice,
predation by nonnative insects, and fire (Service 1999).

Previous Federal Action

Federal action on these plants began as a result of section 12 of
the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et
seq.), which directed the Secretary of the 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 we gave 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 (40 FR 27823).
General comments received in response to the 1976 proposal were
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). We listed Amaranthus brownii, Cenchrus
agrimonioides, Mariscus pennatiformis, Pritchardia remota, Schiedea
verticillata, and Sesbania tomentosa as endangered between 1994 and
1996. A summary of the listing actions can be found in Table 2, and a
summary of the critical habitat actions can be found in Table 3.

[[Page 28059]]

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

Table 3.--Summary of Critical Habitat Actions, to Date, for Six Plant Species From the Northwestern Hawaiian
Islands
----------------------------------------------------------------------------------------------------------------
Proposed critical habitat Final critical habitat
designations or nondesignations -----------------------------------------
Species ---------------------------------------
Date(s) Federal Register Date(s) Federal Register
----------------------------------------------------------------------------------------------------------------
Amaranthus brownii............. 05/14/02 67 FR 34522 (\1\) This final rule.
Cenchrus agrimonioides......... 12/18/00 65 FR 79192 05/14/03 68 FR 25934.
04/03/02 67 FR 15856
03/04/02 67 FR 9806
Mariscus pennatiformis......... 12/18/00 65 FR 79192 02/27/03 68 FR 9116.
01/28/02 67 FR 3940 05/15/03 68 FR 25934.
04/03/02 67 FR 15856
05/14/02 67 FR 34522
05/28/02 67 FR 15856
05/28/02 67 FR 36968
Pritchardia remota............. 05/14/02 67 FR 34522 (\1\) This final rule.
Schiedea verticillata.......... 05/14/02 67 FR 34522 (\1\) This final rule.
Sesbania tomentosa............. 11/07/00 65 FR 66808 02/27/03 68 FR 9116.
12/18/00 65 FR 79192 03/18/03 68 FR 12982.
12/29/00 65 FR 83158 05/14/03 68 FR 25934.
01/28/02 67 FR 3940 (\1\) This final rule.
04/03/02 67 FR 15856
03/04/02 67 FR 9806
04/05/02 67 FR 16492
05/14/02 67 FR 34522
05/28/02 67 FR 37108
05/28/02 67 FR 36968
----------------------------------------------------------------------------------------------------------------
\1\ See DATES section of this rule.

At the time each of the six plants were listed, we determined that
designation of critical habitat was not prudent because it would not
benefit the plant or would increase the degree of threat to the
species. 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
1283-85).
On August 10, 1998, the court ordered us to publish proposed
critical habitat designations or nondesignations for at least 100
species by November 30, 2000, and to publish proposed designations or
nondesignations for the remaining 145 species by April 30, 2002
(Conservation Council for Hawaii v. Babbitt, 24 F. Supp. 2d 1074 (D.
Haw., 1998)).
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 more
than 100 responses from individuals, nonprofit organizations, county
governments, the State's Division of Forestry and Wildlife (DOFAW), 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 would 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

[[Page 28060]]

would 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.
On November 7, 2000, we published the first of the court-ordered
proposed critical habitat designations or nondesignations for Kauai and
Niihau plants (65 FR 66808). The proposed critical habitat designations
or nondesignations 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 had been sent to the Federal
Register by, or on, November 30, 2000, as required by the court's
order. In those proposals, we proposed that critical habitat was
prudent for three of the NWHI species (Cenchrus agrimonioides, Mariscus
pennatiformis, and Sesbania tomentosa) that are reported from Kauai
and/or Niihau, as well as from Maui and Molokai. Critical habitat was
proposed for Cenchrus agrimonioides and Mariscus pennatiformis on Maui,
and for Sesbania tomentosa on Kauai, Maui, and Molokai.
On October 3, 2001, we submitted a joint stipulation with
Earthjustice to the U.S. District Court requesting extension of the
court order for the final rules to designate critical habitat for
plants from Kauai and Niihau (July 30, 2002), Maui and Kahoolawe
(August 23, 2002), Lanai (September 16, 2002), and Molokai (October 16,
2002), citing the need to revise the proposals to incorporate or
address new information and comments received during the comment
periods. The joint stipulation was approved and ordered by the court on
October 5, 2001.
On January 28, 2002, we published revised proposed critical habitat
designations or nondesignations for plant species from Kauai and Niihau
(67 FR 3940), for plant species from Lanai on March 4, 2002 (67 FR
9806), for plant species from Maui and Kahoolawe on April 3, 2002 (67
FR 15856), and for plant species from Molokai on April 5, 2002 (67 FR
16492); these proposals included critical habitat on one or more
islands for three of the NWHI species: Cenchrus agrimonioides, Mariscus
pennatiformis, and Sesbania tomentosa.
On May 14, 2002, we published the proposed critical habitat
designations or nondesignations for plant species from the NWHI (67 FR
34522), for Hawaii Island plants on May 28, 2002 (67 FR 36968), and for
Oahu plants on May 28, 2002 (67 FR 37108). These proposed rules were
sent to the Federal Register by April 30, 2002, as required by the 1998
court order.
In the May 14, 2002, proposal, critical habitat was proposed for
493 ha (1,219 ac) on Nihoa, Necker, and Laysan Islands. In that
proposed rule, we indicated that critical habitat was prudent, and we
proposed critical habitat, for Amaranthus brownii, Pritchardia remota,
and Schiedea verticillata. We also proposed critical habitat for
Mariscus pennatiformis and Sesbania tomentosa. Critical habitat was not
proposed for Cenchrus agrimonioides in the NWHI because the only
variety of that species that occurs there, C. a var. laysanensis, has
not been seen in the wild for over 20 years and no genetic material of
this variety is known to exist. Publication of the proposed rule opened
a 60-day public comment period.
On July 11, 2002, we submitted joint stipulations with Earthjustice
to the U.S. District Court requesting extension of the court orders for
the final rules to designate critical habitat for plants from Lanai
(December 30, 2002), Kauai and Niihau (January 31, 2003), Molokai
(February 28, 2003), Maui and Kahoolawe (April 18, 2003), the
Northwestern Hawaiian Islands (April 30, 2003), Oahu (April 30, 2003),
and the island of Hawaii (May 30, 2003), citing the need to conduct
additional review of the proposals, address comments received during
the public comment periods, and to conduct a series of public workshops
on the proposals. The joint stipulations were approved and ordered by
the court on July 12, 2002.
On September 12, 2002, we published a notice announcing the
availability of the draft economic analysis on the proposed critical
habitat for NWHI (67 FR 57784). We accepted comments on the draft
analysis until the comment period closed on October 15, 2002.

Summary of Comments and Recommendations

In the proposed rule published on May 14, 2002 (67 FR 34522), we
requested that all interested parties submit written comments on the
proposed designation or nondesignation of critical habitat for six
plant species from the NWHI. We also contacted all appropriate Federal,
State, and local agencies, scientific organizations, and other
interested parties and invited them to comment. No request for a public
hearing was received. We received individually written letters from 13
parties, including 4 of the 13 designated peer reviewers, 2 State
agencies, 2 branches of the military, and 5 private organizations or
individuals. The majority of commenters supported the designation of
critical habitat for the NWHI, and no commenters were expressly opposed
to the designation.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited independent opinions from 13 knowledgeable
individuals with expertise in one or several fields, including
familiarity with the species, the geographic region that the species
occurs in, and knowledge of the principles of island conservation
biology. We received comments from four of these individuals who
generally supported our methods and conclusion and who provided
additional information. Comments received from peer reviewers are
summarized in the following section and were considered in the
development of the final rule.
All comments received were reviewed for substantive issues,
notation of errors, and new information regarding critical habitat for
Amaranthus brownii, Cenchrus agrimonioides, Mariscus pennatiformis,
Pritchardia remota, Schiedea verticillata, and Sesbania tomentosa.
Similar comments received were grouped into four general issues and are
addressed in the following summary.

Issue 1: Biological Justification and Methodology

(1) Comment: One peer reviewer questioned the Service for
considering all three critical habitat units (Nihoa, Necker, and Laysan
Islands) to be critical habitat for Amaranthus brownii, Mariscus
pennatiformis, Pritchardia remota, Schiedea verticillata, and Sesbania
tomentosa as there is no record that any of these species occurred on
all three islands and as at least one species (i.e., Mariscus
pennatiformis ssp. bryanii) is a single-island endemic.
Our Response: All three islands are not considered to be critical
habitat for all five of the species. On Nihoa Island, critical habitat
is designated for Amaranthus brownii, Pritchardia remota, Schiedea
verticillata, and Sesbania tomentosa. On Necker Island, critical
habitat is designated for Sesbania tomentosa, and on Laysan Island
critical habitat is designated for Mariscus pennatiformis and
Pritchardia remota (as a recovery population). The critical habitat
units on each island are designated for species within extant or
historic range or within areas identified in the recovery plans for
conservation of the species.

[[Page 28061]]

Issue 2: Effects of Critical Habitat Designation

(2) Comment: One peer reviewer noted that while the designation of
critical habitat is unlikely to have a major impact on the future of
NWHI plant species, it would increase awareness of the unique
biological attributes of these islands and ultimately increase the
likelihood that these species will persist. Another reviewer supported
the designation of critical habitat stating that such designation would
provide an added, and much needed, layer of protection for plant
habitat insofar as: (1) The Departments of the Interior and Commerce
disagree on the seaward boundaries of the HINWR; (2) the State of
Hawaii has overlapping jurisdiction with the HINWR; (3) a public
process is currently in motion to establish a National Marine Sanctuary
in the NWHI, which could create an increased commercial interest in
eco-tourism in the area; and (4) the native Hawaiian community has
expressed a desire for access to Nihoa and Necker Islands for
ceremonial purposes. A final reviewer stated that, although the
protection afforded by the designation of critical habitat is unclear,
such designation has advocacy value because the courts are more likely
to find violations of the Act for listed species within such habitat.
Our Response: Critical habitat is one of a number of conservation
tools established in the Act.
(3) Comment: One reviewer commented that the Service should
consider unoccupied, historic habitat that falls outside of the HINWR
(i.e., Kure Atoll) for designation as critical habitat as some plant
species may need to be re-introduced into such habitat to avoid
extinction. Another reviewer expressed concern that the Service was
restricting the designation of critical habitat to areas within the
HINWR in order to avoid public controversy.
Our Response: We recognize that the long-term conservation of the
NWHI species is dependent upon the protection of existing populations
and the establishment and protection of additional populations within
the historic range (i.e., unoccupied habitat) of each species or within
areas identified in the recovery plans for conservation of the species.
As such, we examined the current and historically occupied habitat, and
areas identified in the recovery plans for conservation of the species.
For Amaranthus brownii, Pritchardia remota, and Schiedea verticillata,
species known only from the islands within the NWHI, we were able to
locate sites within the HINWR that: (1) Contain the primary constituent
elements that are essential to the conservation of one or more of the
species; (2) are within the historical range or are identified in the
recovery plans for conservation of one or more of the species; and (3)
are sufficient to meet our overall recovery goals for these species.
For Mariscus pennatiformis, the only subspecies known from the NWHI is
M. p. ssp. bryanii. Critical habitat also is designated for this taxon
on Laysan Island. Critical habitat also was designated for M. p. ssp.
pennatiformis on Kauai and Maui (68 FR 9116, 68 FR 25934, May 14, 2003)
and is proposed on Oahu (67 FR 37108). Critical habitat was designated
on Nihoa and Necker for Sesbania tomentosa as well as Kauai, Molokai,
and Maui (68 FR 9116, 68 FR 12982, 68 FR 25934, May 14, 2003) and is
proposed on Oahu and the island of Hawaii (67 FR 37108, 67 FR 36968).
We are not designating critical habitat for Cenchrus agrimonioides
at this time for the following reasons: C. a. var. laysanensis, the
only variety of this species known from the NWHI, 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 nonnative
plant species, and C. a. var. laysanensis has not been seen during
these monitoring efforts. On Midway, C. a. var. laysanensis was not
seen during the most recent botanical surveys of 1995 and 1999.
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.
In addition, no viable genetic material of this variety is known to
exist (see D. Criteria Used to Identify Critical Habitat). The
rediscovery of currently unknown individual plants on these three
islands and atolls is believed to be extremely unlikely.
(4) Comment: The Office of Hawaiian Affairs, a State agency,
commented that critical habitat must allow traditional cultural
gathering rights of Native Hawaiians as reflected in Article XII of the
State constitution and upheld by the Hawaii Supreme Court in the Public
Access Shoreline Hawaii and Ka Pa akai o Ka Aina decisions.
Our Response: We understand and support the cultural significance
of these islands to the Native Hawaiian people, and it is our policy to
permit religious and ceremonial gatherings as long as they do not
result in effects that are deleterious to habitat for listed species or
biota of the islands or that could compromise human safety. Typically,
access to Federal lands that are designated as critical habitat is not
restricted unless access is determined to result in the destruction or
adverse modification of the critical habitat. However, Nihoa, Necker,
and Laysan Islands, and their surrounding reefs, are part of the HINWR,
which we manage in accordance with the National Wildlife Refuge System
Administration Act of 1966. 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 on these islands to
human disturbance and the high risk of importation of nonnative plant
and invertebrate species. 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, and
these persons are required to apply for a Special Use Permit and abide
by the terms and conditions set forth in this permit in order to ensure
that the biological integrity, diversity, and environmental health of
the refuge are maintained for the benefit of present and future
generations of Americans (E. Flint, pers. comm., 2002). Examples of
preventative measures put in place by the Special Use Permit program
include quarantine protocols to prevent introduction of unwanted plants
or insects, and a limitation on the number of people on the island(s)
at any one time. In addition, through the Special Use Permit program,
we are able to protect the cultural artifacts present on these islands.

Issue 3: Species-Specific Biological Comments

(5) Comment: One peer reviewer found it unlikely that the species
of Pritchardia that once occurred on Laysan Island would have been
Pritchardia remota. Species of this genus are single-island endemics,
and no collections of Pritchardia remota are known from Laysan Island.
This reviewer did feel that the introduction of Pritchardia remota to
Laysan Island was ecologically appropriate given that there is suitable
habitat for the species and that the species of Pritchardia that once
occurred on Laysan Island is no longer extant.
Our Response: The now extinct species of Pritchardia that once
occurred on Laysan Island was not clearly identified; however, the idea
that P. remota did occur on Laysan was suggested by Joseph Rock in
1921. We have revised the text in the final rule to

[[Page 28062]]

reflect the uncertainty of the species that was once extant on Laysan.
Pritchardia remota has been recommended as a replacement because it is
believed to be closest to the species of Pritchardia that once was
present on the island. The recovery plan prepared for three plant
species on Nihoa Island, including P. remota, proposes establishing a
population on Laysan Island as part of the recovery process for this
species. HINWR staff are working with staff from our Ecological
Services, Pacific Islands Office, in this effort. At one time, there
were 11 palms outplanted on Laysan from seeds brought directly from
Nihoa Island. These survived until they were flooded by high lake
levels and died. HINWR staff now have approximately 400 seedlings (from
seed gathered at Nihoa Island) in a shade house on Laysan Island. These
will be outplanted to suitable habitat on Laysan (E. Flint, pers.
comm., 2002).
(6) Comment: One peer reviewer commented that it is essential that
surveys for Amaranthus brownii be conducted on Nihoa Island in the
winter to maximize its detection. This reviewer feels that it is
inappropriate to recommend protective measures for a plant whose
population has not been assessed in 20 years.
Our Response: Amaranthus brownii was last seen on Nihoa Island in
1983 as two colonies that totaled 35 plants. We have surveyed Nihoa for
this species for over 20 years. While we agree that the winter months
are the optimal time to survey for this winter annual species, as it is
more easily detected during this period, access to the island during
this season is extremely limited. Landings during the winter months can
be difficult and dangerous due to sea conditions that can change
without warning, stranding visitors on an island with a limited source
of fresh water and no regular food supply. Because Amaranthus brownii
was detected on Nihoa Island in 1983 and habitat conditions are the
same, we consider the species to be extant (as a seedbank) and have
found it appropriate to designate critical habitat for this species on
Nihoa Island.
(7) Comment: One peer reviewer requested that the Service use
Cyperus pennatiformis, the currently accepted name for Mariscus
pennatiformis. Concern was expressed, as the current nomenclature is
what will be used in scientific and grey literature, that there could
be confusion otherwise. The reviewer also noted that Cyperus
pennatiformis ssp. bryanii occurs only on Laysan Island and that C. p.
ssp. pennatiformis occurs on Kauai, Maui, Oahu, and Hawaii. As such, C.
p. ssp. bryanii should be acknowledged as a distinct genetic
population, even if the subspecies are not separately listed under the
Act.
Our Response: We acknowledge that the current accepted nomenclature
for this species has changed since the final rule listing Mariscus
pennatiformis as endangered was published in 1994 (59 FR 94559). At
that time, however, we followed the accepted taxonomic treatment in The
Manual of Flowering Plants of Hawaii (Wagner et al. 1990). In the
revised edition of the manual (Wagner et al. 1999), the species has
been assigned to the genus Cyperus, and its subspecies are now
varieties (Strong & Wagner 1997; Wagner et al. 1999). We plan to
publish a notice revising the name for this species; however, this
could not be accomplished prior to the completion of this final rule.
The discussion of Mariscus pennatiformis in the section on Multi-Island
Species under ``Discussion of Plant Taxa'' states that M. p. ssp.
bryanii occurs only on Laysan Island. Listing as endangered at the
species level provides protection for all varieties and subspecies of
the species. Critical habitat is designated on Laysan Island for M. p.
ssp. bryanii. Critical habitat was designated for M. p. ssp.
pennatiformis on Kauai and Maui (68 FR 9116, 68 FR 25934, May 14, 2003)
and is proposed on Oahu (67 FR 37108).
(8) Comment: One reviewer expressed concern regarding the Service's
decision not to designate critical habitat for Cenchrus agrimonioides
var. laysanensis because the taxon had not been seen in the wild for
over 20 years and no viable genetic material is known to exist. The
reviewer asserts that there have been no comprehensive botanical
surveys of all of the islands where the taxon was known to exist,
citing that the Service had made a similar decision for another plant
species on Kauai, only to have it rediscovered.
Our Response: Critical habitat is not designated for Cenchrus
agrimonioides var. laysanensis, the only variety of this species known
from the NWHI, for the following reasons: C. a. 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 nonnative plant species, and C. a. var. laysanensis has not been
seen during these monitoring efforts. On Midway, C. a. var. laysanensis
was not seen during the most recent botanical surveys of 1995 and 1999.
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.
In addition, no viable genetic material of this variety is known to
exist. The rediscovery of currently unknown individual plants on these
three islands and atolls is believed to be extremely unlikely (see D.
Criteria Used to Identify Critical Habitat).

Issue 4: Nonnative Species

(9) Comment: One peer reviewer commented that the most important
factor in maintaining biota on these remote islands is to have a
vigorous and comprehensive quarantine system and a method to eliminate
and investigate unauthorized landings. Additionally, the reviewer
stressed the crucial nature of both an active and proactive eradication
and management scheme for nonnative species.
Our Response: We have in place quarantine procedures for the HINWR,
which include very strict measures to prevent the introduction of
invasive invertebrate and vertebrate species. On islands where invasive
nonnative species have already been introduced, we are implementing
measures targeted at their eradication. In those areas where such
eradication efforts have not yet been initiated, we are gathering
information on methods by which we can best control and eliminate
invasive taxa. Text was also provided in the ``Discussion of Plant
Taxa'' to make it clear that the presence of rats and mice on Nihoa,
Necker, and Laysan was a potential threat as these nonnative species
are not currently present.

Summary of Changes From the Proposed Rule

Based on a review of public comments received on the critical
habitat proposal, we have included the following several changes in
this final rule:
(1) Based upon more refined GIS analysis, we corrected the total
land area, 498 ha (1,232 ac) proposed as critical habitat for
Pritchardia remota and Mariscus pennatiformis on Laysan Island to 493
ha (1,219 ac) designated as critical habitat for Pritchardia remota and
Mariscus pennatiformis on Laysan Island.
(2) At the time we listed Mariscus pennatiformis (59 FR 94559), we
followed the taxonomic treatment in the widely used and accepted Manual
of the Flowering Plants of Hawaii (Wagner et al., 1990). Since that
time, the species has been assigned to the genus Cyperus

[[Page 28063]]

(Wagner et al., 1999). We plan to publish a notice of name change for
Mariscus pennatiformis subsequent to publishing this final rule.
(3) We revised the text to reflect that the species of Pritchardia
historically extant on Laysan Island is uncertain but that it had been
suggested that the species may have been P. remota (Wagner et al.,
1999). We have also revised the primary constituent elements for P.
remota on Laysan and Nihoa.
(4) We revised the list of excluded, manmade features in the
``Criteria Used to Identify Critical Habitat'' and section 17.99
``Critical Habitat-Plants'' to delete from the final rule reference to
roads, aqueducts, radar, missile launch sites, airports, paved areas,
or rural landscaping because these features either do not exist on
these islands or do not contain primary constituent elements for these
plants on these islands.

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,'' as defined by the Act, 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 critical habitat. In our regulations at 50 CFR
402.02, we define destruction or adverse modification as ``direct or
indirect alteration that appreciably diminishes the value of critical
habitat for both the survival and recovery 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.'' The relationship
between a species' survival and its recovery has been a source of
confusion to some in the past. We believe that a species' ability to
recover depends on its ability to survive into the future when its
recovery can be achieved; thus, the concepts of long-term survival and
recovery are intricately linked. However, in the March 15, 2001,
decision of the United States Court of Appeals for the Fifth Circuit
(Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434)
regarding a not prudent finding, the court found our definition of
destruction or adverse modification as currently contained in 50 CFR
402.02 to be invalid. In response to this decision, we are reviewing
the regulatory definition of adverse modification in relation to the
conservation of the species.
In order to be included in a critical habitat designation, habitat
in areas known to be occupied at the time of listing must contain
physical or biological features essential to the conservation of the
species and which may require special management considerations or
protection. Outside the areas known to have been occupied at the time
of listing, an area must be essential to the conservation of the
species in order to qualify for designation. Thus, 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 4 requires that we designate critical habitat for a
species, to the extent such habitat is determinable, at the time of
listing. When we designate critical habitat at the time of listing or
under short court-ordered deadlines, we may not have sufficient
information to identify all the areas essential for the conservation of
the species. Nevertheless, we are required to designate those areas we
believe to be critical habitat, using the best information available to
us.
Our regulations state that ``The Secretary shall designate as
critical habitat areas outside the geographical area presently occupied
by a species only when a designation limited to its present range would
be inadequate to ensure the conservation of the species' (50 CFR
424.12(e)). Accordingly, when the best available scientific and
commercial data do not indicate that the conservation needs of the
species require designation of critical habitat outside of occupied
areas, we will not designate critical habitat in areas outside the
geographic area occupied by the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that our decisions represent the best scientific and commercial
data available. It requires our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to 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 package for the species. Additional
information may be obtained from recovery plans, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, and biological assessments or
other unpublished materials.
It is important to clearly understand that critical habitat
designations do not signal that habitat outside the designation is
unimportant or may not be required for recovery. Areas outside the
critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1) and
to the regulatory protections afforded by the Act's 7(a)(2) jeopardy
standard and section 9 prohibitions, as determined on the basis of the
best available information at the time of the action. We specifically
anticipate that federally funded or assisted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. 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 efforts if new information available to these
planning efforts calls for a different outcome. 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.

A. Prudency

The designation of critical habitat is not prudent when 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 (50 CFR 424.12(a)(1)).

[[Page 28064]]

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, Service, 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.
Passengers must be dropped off and the boat sent back out to sea, as
there are no mooring docks or beaches. The boat must return later to
pick up the passengers, when conditions allow. Sea conditions are apt
to change without warning, stranding visitors on this inhospitable
island that has no fresh water and no regular food supply (C.
Rehkemper, pers. comm., 2001).
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. Therefore, consistent with applicable regulations (50
CFR 424.12(a)(1)(i)) and the court's discussion of these regulations,
we do not believe that these three species are currently threatened by
taking or other human activity, which would be exacerbated by the
designation of critical habitat.
Therefore, we believe that designation of critical habitat is
prudent for Amaranthus brownii, Pritchardia remota, and Schiedea
verticillata. The reasons why we believe designation of critical
habitat is prudent for Sesbania tomentosa and Mariscus pennatiformis
are contained in the final rules published on January 9, 2003, and
February 27, 2003, respectively (68 FR 1220 and 68 FR 9116). The
reasons why we believe designation of critical habitat is prudent for
Cenchrus agrimonioides are contained in the final rule published on
January 9, 2003 (68 FR 1220). Although critical habitat for Cenchrus
agrimonioides is not being designated on the NWHI (as it has not been
seen there for over 20 years and no viable genetic material exists), we
are designating critical habitat for this species on Maui (68 FR 25934,
May 14, 2003).

B. 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 the physical and biological features that are
essential for the conservation of Amaranthus brownii, Mariscus
pennatiformis, Pritchardia remota, Schiedea verticillata, and Sesbania
tomentosa. Using the best information available, we could not identify
areas in the NWHI that are essential for Cenchrus agrimonioides for the
reasons described in section D. Criteria Used to Identify Critical
Habitat. This information included the known locations and site-
specific species information from the HINHP database and our own rare
plant database; species information from the Center for Plant
Conservation's (CPC) rare plant monitoring database housed at the
University of Hawaii's Lyon Arboretum; islandwide Geographic
Information System (GIS) coverages (e.g., vegetation, soils, annual
rainfall, elevation contours, landownership); the final listing rules
for these species; the May 14, 2002, proposal of critical habitat;
information received during the public comment period; recent
biological surveys and reports; recovery plans for these species;
discussions with botanical experts; and recommendations from the Hawaii
and Pacific Plant Recovery Coordinating Committee (HPPRCC) (see also
the discussion below) (CPC in litt. 1999; GDSI 2000; HINHP Database
2000; HPPRCC 1998; Service 1998d, 1999; 59 FR 56333; 61 FR 43178; 61 FR
53108; 65 FR 83158; 67 FR 16492; 67 FR 34522).
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 Hawaiian plant species. The HPPRCC identified these areas on
most of the islands in the Hawaiian chain, and in 1999, we published
them in our Recovery Plan for the Multi-Island Plants (Service 1999).
The HPPRCC expects that there will be subsequent efforts to further
refine the locations of important habitat areas and that new survey
information or research may also lead to additional refinement of
identifying and mapping of habitat important for the recovery of these
species.
The HPPRCC identified essential habitat areas for all listed,
proposed, and candidate plants and evaluated species of concern to
determine if essential habitat areas would provide for their habitat
needs. However, the HPPRCC's mapping of habitat is distinct from the
regulatory designation of critical habitat as defined by the Act. More
data have 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 to some degree. New
location data for many species have 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 specific listed species at issue. As a result, the
critical habitat designations in this rule include not only some
habitat that was identified as essential in the 1998 recommendations
but also habitat that was not identified as essential in those
recommendations.

C. Primary Constituent Elements

In accordance with section 3(5)(A)(i) 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 (primary constituent elements) that
are essential to the conservation of the species and that may require
special management considerations or protection. These features
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.
Much of what is known about the specific physical and biological
requirements of Amaranthus brownii,

[[Page 28065]]

Mariscus pennatiformis, Pritchardia remota, Schiedea verticillata, and
Sesbania tomentosa is described in the ``Background'' section of this
final rule.
All areas designated as critical habitat are within the historical
range or have been identified in the recovery plans for these species
as sites for conservation of one or more of the five species at issue,
and contain one or more of the physical or biological features (primary
constituent elements) essential for the conservation of the species.
As described in the discussions for each of the five species for
which we are designating critical habitat, we are defining the primary
constituent elements on the basis of the habitat features of the areas
from which the plant species are reported, as described by the type of
plant community (e.g., Pritchardia remota mesic coastal forest),
associated native plant species, locale information (e.g., steep rocky
cliffs, talus slopes, gulches), and elevation. The habitat features
provide the ecological components required by the plant. The type of
plant community and associated native plant species indicate specific
microclimate (localized climatic) conditions, retention and
availability of water in the soil, soil microorganism community, and
nutrient cycling and availability. The locale indicates information on
soil type, elevation, rainfall regime, and temperature. Elevation
indicates information on daily and seasonal temperature and sun
intensity. Therefore, the descriptions of the physical elements of the
locations of each of these species, including habitat type, plant
communities associated with the species, location, and elevation, as
described in the SUPPLEMENTARY INFORMATION: Discussion of Plant Taxa
section above, constitute the primary constituent elements for these
species in the NWHI.

D. Criteria Used To Identify Critical Habitat

The Service considered a number of factors in the selection and
proposal of specific boundaries for critical habitat. For each, the
overall recovery strategy outlined in the recovery plans includes: (1)
Stabilization of existing wild populations, (2) protection and
management of habitat, (3) enhancement of existing small populations
and reestablishment of new populations within historic range or within
areas identified in the recovery plans for conservation of the species,
and (4) research on species biology and ecology (Service 1998d, 1999).
Thus, the long-term recovery of these species is dependent upon the
protection of existing population sites and potentially suitable
unoccupied habitat within their historic range.
The lack of detailed scientific data on the life history of these
plant species makes it impossible for us to develop a robust
quantitative model (e.g., a population viability analysis) to identify
the optimal number, size, and location of critical habitat units needed
to achieve recovery (Beissinger and Westphal 1998; Burgman et al. 2001;
Ginzburg et al. 1990; Karieva and Wennergren 1995; Menges 1990; Murphy
et al. 1990; Taylor 1995). At this time, and consistent with the
listing of these species and their recovery plans, the best available
information leads us to conclude that the current size and distribution
of the extant populations are not sufficient to expect a reasonable
probability of long-term survival and recovery of these plant species.
We used the same information, along with the opinions of scientists
familiar with these species, to identify potentially suitable habitat
within the known historic range of each species.
The recovery goals stated in the recovery plans for these species
include the following: Establishment of 8 to 10 populations with a
minimum of 300 mature, reproducing individuals per population for
Mariscus pennatiformis and Sesbania tomentosa distributed among the
islands of each species known historic range (Service 1999). For
purposes of this discussion, a population, as defined in the recovery
plan for these species, is a unit in which the individuals could be
regularly cross-pollinated and influenced by the same small-scale
events (such as landslides), and which contains a minimum of 300
mature, reproducing individuals for these short-lived perennial species
(Service 1999).
Within the five species at issue, there are three exceptions to
this general recovery goal of 8 to 10 populations for species that are
believed to be very narrowly distributed. The recovery goals for
Amaranthus brownii, Pritchardia remota, and Schiedea verticillata
include one to three additional colonies of each species on an island
other than Nihoa (Service 1998d). In the case of Pritchardia remota,
Laysan Island should be considered, since a palm that may have been
this species formerly occurred there. For Amaranthus brownii and
Schiedea verticillata, Necker Island should be considered since it is
adjacent to Nihoa, has similar habitat, and is protected as a U.S. Fish
and Wildlife Service refuge (Service 1998d). Should establishment of
one to three colonies of any or all of these taxa on an island other
than Nihoa occur, delisting may be considered when they have reached a
minimum of 100 mature individuals per colony for Pritchardia remota, a
minimum of 300 mature individuals per colony for Schiedea verticillata,
and a minimum of 500 mature individuals for Amaranthus brownii. Each
colony should be stable or increasing for a minimum of five consecutive
years. If the establishment of additional colonies on an island other
than Nihoa proves infeasible for these taxa, they may be considered
recovered if five colonies of each species reach the population targets
described above (Service 1998d). The critical habitat designations
reflect these exceptions for these species.
By adopting these specific recovery objectives, the adverse effects
of genetic inbreeding and random environmental events and catastrophes,
such as landslides, hurricanes, or tsunamis, which could destroy a
large percentage of a species at any one time, may be reduced (Menges
1990; Podolsky 2001). These recovery objectives were initially
developed by the HPPRCC and are found in all of the recovery plans for
these species. While they are expected to be further refined as more
information on the population biology of each species becomes
available, the justification for these objectives is found in the
current conservation biology literature addressing the conservation of
rare and endangered plants and animals (Beissinger and Westphal 1998;
Burgman et al. 2001; Falk et al. 1996; Ginzburg et al. 1990; Hendrix
and Kyhl 2000; Karieva and Wennergren 1995; Luijten et al. 2000; Meffe
and Carroll 1996; Menges 1990; Murphy et al. 1990; Podolsky 2001;
Quintana-Ascencio and Menges 1996; Taylor 1995; Tear et al. 1995; Wolf
and Harrison 2001). The overall goal of recovery in the short-term is a
successful population that can carry on basic life history processes,
such as establishment, reproduction, and dispersal, at a level where
the probability of extinction is low. In the long-term, the species and
its populations should be at a reduced risk of extinction and be
adaptable to environmental change through evolution and migration.
Many aspects of species life history are considered to determine
guidelines for species' interim stability and recovery, including
longevity, breeding system, growth form, fecundity, ramet (a plant that
is an independent member of a clone) production, survivorship, seed
longevity, environmental variation, and successional stage of the
habitat. Hawaiian species are generally poorly studied, and the only
one of these characteristics that can be uniformly determined for all
Hawaiian plant

[[Page 28066]]

species is longevity (i.e., long-lived perennial, short-lived
perennial, and annual). In general, long-lived woody perennial species
would be expected to be viable at population levels of 50 to 250
individuals per population, while short-lived perennial species would
be viable at population levels of 1,500 to 2,500 individuals or more
per population. The HPPRCC revised these population numbers for
Hawaiian plant species due to the restricted distribution of suitable
habitat and the likelihood of smaller genetic diversity of several
species that evolved from a single introduction. For recovery of
Hawaiian plants, the HPPRCC recommended a general recovery guideline of
100 mature, reproducing individuals per population for long-lived
perennial species, 300 mature, reproducing individuals per population
for short-lived perennial species, and 500 mature, reproducing
individuals per population for annual species (HPPRCC 1994).
The HPPRCC recommended the conservation and establishment of 8 to
10 populations of multi-island plant species and establishment of
additional colonies on other islands for Nihoa plant species in order
to address the numerous risks to the long-term survival and
conservation of these species. Although absent the detailed information
inherent to population viability analysis models (Burgman et al. 2001),
this approach employs two widely recognized and scientifically accepted
goals for promoting viable populations of listed species: (1) The
creation or maintenance of multiple populations so that a single or
series of catastrophic events cannot destroy the entire listed species
(Luijten et al. 2000; Menges 1990; Quintana-Ascencio and Menges 1996);
and (2) increasing the size of each population in the respective
critical habitat units to a level where the threats of genetic,
demographic, and normal environmental uncertainties are diminished
(Hendrix and Kyhl 2000; Luijten et al. 2000; Meffe and Carroll 1996;
Podolsky 2001; Service 1997; Tear et al. 1995; Wolf and Harrison 2001).
In general, the larger the number of populations (or colonies) and the
larger the size of each population (or colony), the lower the
probability of extinction (Meffe and Carroll 1996; Raup 1991). This
basic conservation principle of redundancy when applied to Hawaiian
plant species reduces the threats represented by a fluctuating
environment and offers the species a greater likelihood of achieving
long-term survival and recovery. Conversely, loss of one or more of the
plant populations (colonies) within any critical habitat unit could
result in an increase in the risk that the entire listed species may
not survive and recover. Similarly, actions that eliminate, or reduce
the function of, a primary constituent element could result in an
increase in the risk of adverse modification of critical habitat.
Due to the reduced size of suitable habitat areas for these
Hawaiian plant species, they are more susceptible to the variations and
weather fluctuations affecting quality and quantity of available
habitat, as well as direct pressure from hundreds of species of
nonnative plants and animals. Establishing and conserving the specific
target number of populations or colonies on one or more islands within
the historic range of the species will provide each species with a
reasonable expectation of persistence and eventual recovery, even with
the high potential that one or more of these populations will be
eliminated by normal or random adverse events, such as the hurricanes
which occurred in 1982 and 1992 on the island of Kauai, fires, and
nonnative plant invasions (HPPRCC 1994; Luijten et al. 2000; Mangel and
Tier 1994; Pimm et al. 1998; Stacey and Taper 1992). Based upon this
information, we conclude that designation of adequate suitable habitat
to meet recovery goals for these five plant species is essential to
give each of the species a reasonable likelihood of long-term survival
and recovery.
All currently or historically occupied sites or sites identified as
conservation areas within the recovery plans for these species,
containing one or more of the primary constituent elements considered
essential to the conservation of the five plant species were examined
to determine if special management considerations or protection are
required. 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 contacted staff of the HINWR to
discuss their current management for these plants on national wildlife
refuge lands.
Pursuant to the definition of critical habitat in section 3 of the
Act, the primary constituent elements as found in any area so
designated must require ``special management considerations or
protections.'' In determining and weighing the relative significance of
the threats that would need to be addressed in management plans or
agreements, we considered the following:

--The factors that led to the listing of the species, as described in
the final rules for listing each of the species. For all or nearly all
endangered plants in the NWHI, the major threats include adverse
impacts due to nonnative plants and invertebrates, seed or fruit
predation by rats and mice, and fire (USFWS 1998d, 1999; 59 FR 56333;
61 FR 43178).
--The recommendations from the HPPRCC in their 1998 report to the
Service (``Habitat Essential to the Recovery of Hawaiian Plants'').
--The management actions needed for assurance of survival and ultimate
recovery of Hawaii's endangered plants. These actions are described in
the Service's recovery plans for these five species (USFWS 1998d, 1999)
and in the 1998 HPPRCC report to the Service (HPPRCC 1998). These
actions include, but are not limited to, the following: (1) Nonnative
plant control; (2) rodent control; (3) invertebrate pest control; (4)
fire control; (5) maintenance of genetic material of the endangered
plants species; (6) propagation, reintroduction, and/or augmentation of
existing populations into areas deemed essential for the recovery of
these species; (7) ongoing management of the wild, outplanted (the
planting of propagated plants (material) into the wild)), and augmented
populations; (8) habitat management and restoration in areas deemed
essential for the recovery of these species; and (9) monitoring of the
wild, outplanted, and augmented populations.

In general, taking all of the above recommended management actions
into account, the following management actions are ranked in order of
importance. It should be noted, however, that, on a case-by-case basis,
some of these actions may rise to a higher level of importance for a
particular species or area, depending on the biological and physical
requirements of the species and the location(s) of the individual
plants: (1) Nonnative plant control; (2) Rodent control; (3)
Invertebrate pest control; (4) Fire control; (5) Maintenance of genetic
material of the endangered plant species; (6) Propagation,
reintroduction, and/or augmentation of existing populations into areas
deemed essential for the recovery of the species; (7) Ongoing
management of the wild, outplanted, and augmented populations; (8)
Maintenance of natural pollinators and pollinating systems, when known;
(9) Habitat management and restoration in areas deemed essential for
the

[[Page 28067]]

recovery of the species; (10) Monitoring of the wild, outplanted, and
augmented populations; (11) Rare plant surveys; and (12) Control of
human activities/access.
All five species of plants are known from Federal lands within the
HINWR. Management of the HINWR has been guided by the 1986 HINWR Master
Plan/Environmental Impact Statement, which places primary emphasis on
protecting and enhancing refuge wildlife resources, particularly
threatened and endangered species (USFWS 1986). This plan does not
specifically document management actions that maintain or enhance
populations of endangered plants or their habitat on the islands of the
HINWR. We are aware that current management actions within HINWR for
these species include monitoring of populations and potential pests,
and control or eradication of some alien plants (E. Flint, pers. comm.,
2000; Morin and Conant 1998; Shultz 2000; USFWS 1998d). However,
funding limitations and the difficulty of travel logistics allow only a
maximum of one short visit per year to Nihoa Island, and less frequent
visits to Necker.
Morin and Conant's draft ``Laysan Island Ecosystem Restoration
Plan'' (1998), a long-term planning document that was developed as an
integrated approach to managing the entire biota of Laysan Island,
outlines conservation management actions for the endangered plant
species on Laysan. These conservation management actions include the
prevention of new plant or animal introductions to the island,
restoration of the Laysan Island ecosystem that was present prior to
major human-caused habitat modification, control/eradication of
nonnative species, reintroduction of native species which are currently
extinct on the island, and establishment of periodic comprehensive
ecosystem monitoring (Morin and Conant 1998). A permanent year-round
camp on Laysan, staffed by paid employees and volunteers, has enabled
some control of nonnative plant species, propagation and outplanting of
native plants for restoration efforts, and periodic monitoring of both
native and nonnative plant species (E. Flint, pers. comm., 2000; Morin
and Conant 1998). In the future, the plan may serve as a guiding
document for endangered plant species management on other NWHI as well.
However, because the plan is not fully funded or implemented yet, and
because is has not yet been adopted for the other islands on which
these plants occur, we know of no areas in the HINWR at this time that
do not require special management or protection for the five species
for which we have designated critical habitat.
In summary, the long-term conservation of Hawaiian plant species
requires the designation of critical habitat units on one or more of
the Hawaiian islands with suitable habitat in accordance with species-
specific recovery goals as outlined in adopted recovery plans. Some of
this designated critical habitat is currently unoccupied by these
species but in order to recover the species, it is essential to
conserve suitable habitat in these unoccupied units. This, in turn,
will allow for the establishment of additional populations through
natural recruitment or managed reintroduction. Establishment of these
additional populations (colonies) will increase the likelihood that the
species will survive and recover in the face of normal and stochastic
events (Mangel and Tier 1994; Pimm et al., 1998; Stacey and Taper
1992).
In this rule, we have defined the primary constituent elements
based on the general habitat features of the areas from which the
plants are reported, such as the type of plant community, the
associated native plant species, the physical location (e.g., steep
rocky cliffs, talus slopes), and elevation. The areas we are
designating as critical habitat provide some or all of the habitat
components essential for the conservation of the five plant species.
Our approach to delineating critical habitat units was applied in
the following manner:
(1) Critical habitat was proposed and will be designated on an
island-by-island basis for ease of understanding for landowners and the
public, for ease of conducting the public hearing process, and for ease
of conducting public outreach. In Hawaii, landowners and the public are
most interested and affected by issues centered on the island on which
they reside.
(2) We focused on designating units representative of the known
current and historical geographic and elevation range of each species;
and
(3) Critical habitat units were designed to allow for expansion of
existing wild populations and reestablishment of wild populations
within the historic range, or within sites identified as conservation
areas in the recovery plans for these species.
For Amaranthus brownii, Mariscus pennatiformis, Prichardia remota,
Schiedea verticillata, and Sesbania tomentosa, currently and
historically occupied habitat was examined in identifying and
designating critical habitat. Critical habitat boundaries were
delineated to include the entire island on which the species are found
or were historically found.
Critical habitat is not designated for Cenchrus agrimonioides in
the NWHI for the following reasons. In the NWHI, this taxon is
historically known from only Laysan and Midway Islands, and Kure Atoll.
It 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 nonnative plant species, and Cenchrus agrimonioides has not
been seen during these monitoring efforts (Morin and Conant 1998). On
Midway, Cenchrus agrimonioides was not seen during the most recent
botanical surveys conducted in 1995 and 1999 (Chris Swenson, Service,
pers. comm., 2002). Cenchrus agrimonioides has not been seen on Kure
Atoll for over 20 years even though 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 the
specific variety that occurs in the NWHI is known to exist. The
rediscovery of currently unknown individual plants on these three
islands and atolls is believed to be extremely unlikely because we
believe this perennial plant would have been seen during these surveys.
Although genetic material of the closely related Cenchrus agrimonioides
var. agrimonioides exists, this variety is known only from mountainous
habitat on Oahu, which is very different from the habitat on the NWHI
where Cenchrus agrimonioides var. laysanensis occurred. We would not
use var. agrimonioides for restoration purposes in the NWHI because
this variety is not known from the NWHI and its preferred habitat is
not available in the NWHI.
Following publication of the proposed critical habitat rules for
the 245 Hawaiian plants (67 FR 3940, 67 FR 9806, 67 FR 15856, 67 FR
16492, 67 FR 34522, 67 FR 36968, 67 FR 37108), some of which were
revised, we reevaluated proposed critical habitat for Mariscus
pennatiformis and Sesbania tomentosa, Statewide, using the recovery
guidelines to determine if we had inadvertently proposed for
designation too much or not enough habitat to meet the essential
recovery goals for these species distributed among the islands of its
known historic range (HINHP Database 2000, 2001; Wagner et al. 1990,
1999). We then further evaluated areas of the proposed critical habitat
for all five species for the existing quality of the primary
constituent elements (i.e., intact native plant communities and

[[Page 28068]]

predominance of associated native plants versus nonnative plants),
potential as a recovery area, and current or expected management of
known threats (e.g., weed control and nonnative insect, slug, and snail
control). Areas that contain high quality primary constituent elements,
are zoned or managed specifically for conservation, and have ongoing or
expected threat abatement actions were considered the most essential
within these areas, and we selected adequate area to meet recovery
goals (e.g., 8 to 10 populations).
Of the proposed critical habitat for Mariscus pennatiformis and
Sesbania tomentosa, areas that did not contain high quality constituent
elements and that may provide habitat for populations above the
recovery goal of 8 to 10 populations were determined not essential for
the conservation of the species and excluded from final designation.
However, all of the proposed critical habitat for Sesbania tomentosa on
Nihoa and Necker and all of the proposed critical habitat on Laysan for
Mariscus pennatiformis was considered essential for conservation of
these species and is designated as critical habitat. For Amaranthus
brownii, Pritchardia remota, and Schiedea verticillata, taxa known only
from the NWHI, we determined that critical habitat on the islands of
Laysan and Nihoa was essential for their conservation because it
contains occupied habitat important for the expansion of current
colonies and the establishment of additional colonies. In addition,
these areas may require special management considerations or protection
in order to address the threats to each species.
Within the critical habitat boundaries, section 7 consultation is
generally necessary, and 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 manmade features and
structures within boundaries of the mapped unit 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.
In summary, the critical habitat areas described below constitute
our best assessment of the physical and biological features needed for
the conservation of Amaranthus brownii, Mariscus pennatiformis,
Pritchardia remota, Schiedea verticillata, and Sesbania tomentosa and
the special management needs of these species, and are based on the
best scientific and commercial information available and described
above. We publish this final rule acknowledging that we have incomplete
information regarding many of the primary biological and physical
requirements for these species. However, both the Act and the relevant
court orders require us to proceed with designation at this time based
on the best information available. As new information accrues, we may
consider reevaluating the boundaries of areas that warrant critical
habitat designation.
The approximate areas of the designated critical habitat by
landownership or jurisdiction are shown in Table 4.

Table 4.--Approximate Critical Habitat Designated Area by Unit and Landownership or Jurisdiction, Northwestern
Hawaiian Islands, Hawaii
----------------------------------------------------------------------------------------------------------------
Unit name State/local Private Federal Total
----------------------------------------------------------------------------------------------------------------
Nihoa 1--Amaranthus brownii..... none............. none............. 69 ha (171 ac).. 69 ha (171 ac)
Nihoa 2--Pritchardia remota..... none............. none............. 69 ha (171 ac).. 69 ha (171 ac)
Nihoa 3--Scheidea verticillata.. none............. none............. 69 ha (171 ac).. 69 ha (171 ac)
Nihoa 4--Sesbania tomentosa..... none............. none............. 69 ha (171 ac).. 69 ha (171 ac)
Necker 1--Sesbania tomentosa.... none............. none............. 19 ha (46 ac)... 19 ha (46 ac)
Laysan 1--Mariscus pennatiformis none............. none............. 405 ha (1,002 405 ha (1,002 ac)
ac).
Laysan 2--Pritchardia remota.... none............. none............. 405 ha (1,002 405 ha (1,002 ac)
ac).
--------------------
Grand Total................. none............. none............. 493 ha (1,219 493 ha (1,219 ac)
ac).
----------------------------------------------------------------------------------------------------------------

Critical habitat includes habitat for these five species on the
islands of Nihoa, Necker, and Laysan. Lands designated as critical
habitat are under Federal ownership and managed by the Department of
the Interior (the Service). The designated lands have been divided into
seven units. A brief description of each unit is presented below.

Descriptions of Critical Habitat Units

Nihoa 1--Amaranthus brownii
This unit is critical habitat for Amaranthus brownii and is 69 ha
(171 ac) on federally owned land. It includes the entire island, which
is part of the HINWR. The unit is currently unoccupied but provides
habitat that is essential to the conservation of up to 500 reproducing
individuals of this annual species endemic to Nihoa. The area
designated as critical habitat is considered to be the most likely to
contain a viable seed bank of Amaranthus brownii. The habitat features
contained in this unit that are essential for this species include, but
are not limited to, shallow soil and rocky outcrops in fully exposed
locations that contain one or more of the following associated native
plant species: Chenopodium oahuense, Eragrostis variabilis, Ipomoea
indica, Ipomoea pes-caprae ssp. brasiliensis, Panicum torridum,
Scaevola sericea, Schiedea verticillata, Sicyos pachycarpus, Sida
fallax, and Solanum nelsonii. This critical habitat unit is essential
to the conservation of the species because it supports habitat for the
re-establishment of populations of this endemic species.
Nihoa 2--Pritchardia remota
This unit is critical habitat for Pritchardia remota and is 69 ha
(171 ac) on federally owned land. It includes the entire island, which
is part of the HINWR. This unit, which contains at least 4 colonies
that consist of at least 1,074 individuals (including seedlings) of P.
remota, provides habitat that is essential to the conservation of 100
mature, reproducing individuals of this long-lived perennial species.
The habitat features contained in this unit that are essential for this
species include, but are not limited to, a coastal forest community
that contains one or more of the following associated native plant
species: Chenopodium oahuense, Sesbania tomentosa, Solanum nelsonii,
and Sida fallax. This unit is essential to the conservation of the
species because

[[Page 28069]]

it supports the only extant wild occurrence of this species and is
geographically separated from the designated critical habitat unit on
Laysan Island to avoid destruction by one naturally occurring
catastrophic event.
Nihoa 3--Schiedea verticillata
This unit is critical habitat for Schiedea verticillata and is 69
ha (171 ac) on federally owned land. It includes the entire island,
which is part of the HINWR. The unit provides habitat that is essential
to the conservation of 300 mature, reproducing individuals of this
short-lived perennial and, based on surveys conducted in 1996,
contained at least 11 colonies and a total of at least 372 individuals.
The habitat features contained in this unit that are essential for this
species include, but are not limited to, rocky scree, soil pockets, and
cracks on coastal cliff faces and in Pritchardia remota coastal mesic
forest that contain one or more of the following associated native
species and lichens: Eragrostis variabilis, Rumex albescens, and
Tribulus cistoides. This critical habitat unit is essential to the
conservation of the species because it supports extant colonies of S.
verticillata and includes habitat that is important to the expansion of
the present population on Nihoa.
Nihoa 4--Sesbania tomentosa
This unit is critical habitat for Sesbania tomentosa and is 69 ha
(171 ac) on federally owned land. It includes the entire island, which
is part of the HINWR. The unit contains habitat essential to the
conservation of 300 mature, reproducing individuals of this short-lived
perennial and contains one island-wide population of at least 1,000
individuals. The habitat features contained in this unit that are
essential for this species include, but are not limited to, shallow
sandy soils on beaches and dunes in Chenopodium oahuense coastal dry
shrubland that contain one or more of the following associated native
plant species: Pritchardia remota, Scaevola sericea, Sida fallax, and
Solanum nelsonii. This critical habitat unit is essential to the
conservation of the species because it supports extant colonies of
Sesbania tomentosa and is also geographically separated from designated
critical habitat on other islands to avoid destruction by one naturally
occurring catastrophic event.
Necker 1--Sesbania tomentosa
This unit is critical habitat for Sesbania tomentosa and is 19 ha
(46 ac) on federally owned land. It includes the entire island, which
is part of the HINWR. The unit contains Annexation and Summit Hills, is
occupied by one population of undetermined size, and provides habitat
that is essential for the conservation of up to one population of 300
mature, reproducing individuals of this short-lived perennial species.
The habitat features contained in this unit that are essential for this
species include, but are not limited to, shallow sandy soils on beaches
and dunes in Chenopodium oahuense coastal dry shrubland that contain
one or more of the following associated native plant species: Sida
fallax, Scaevola sericea, Solanum nelsonii, and Pritchardia remota.
This unit is essential to the conservation of Sesbania tomentosa
because it supports the only extant colony of the species on Necker.
This unit also includes habitat that is important for the expansion of
the present population, which is currently considered not viable. This
unit is located at the westernmost range of this multi-island species
and is geographically separated from designated critical habitat on
other islands to avoid destruction by one naturally occurring
catastrophic event.
Laysan 1--Mariscus pennatiformis
This unit is critical habitat for Mariscus pennatiformis and is
approximately 405 ha (1,002 ac) in size, which includes a 52 ha (129
ac) hypersaline lagoon in its center. It is all on Federal land and is
part of the HINWR. The unit is occupied by one occurrence of
approximately 200 individuals and provides habitat essential to the
conservation of 300 reproducing individuals. The habitat features
contained in this unit that are essential for this species include, but
are not limited to, coastal sandy substrate that contains one or more
of the following associated native plant species: Cyperus laevigatus,
Eragrostis variabilis, and Ipomoea sp. This critical habitat unit is
essential to the conservation of Mariscus pennatiformis ssp. bryanii
because it supports the only extant colony, which is currently
considered not viable. It also contains habitat that is important to
the expansion of this taxon.
Laysan 2--Pritchardia remota
This unit is critical habitat for Pritchardia remota and is
approximately 405 ha (1,002 ac) in size, which includes a 52 ha (129
ac) hypersaline lagoon in its center. It is all on Federal land and is
part of the HINWR. The unit is currently unoccupied but provides
habitat essential to the conservation of 100 reproducing individuals of
this long-lived perennial species. The habitat features contained in
this unit that are essential for this species include, but are not
limited to, the coastal strand community that contains one or more of
the following associated native plant species: Chenopodium oahuense and
Solanum nelsonii.
This unit is currently unoccupied but is essential to the
conservation of Pritchardia remota because it provides habitat for the
establishment of a new colony in order to achieve recovery goals for
the species. This unit is also geographically separated from the
occupied designated critical habitat unit on Nihoa, which serves to
avoid the destruction of both colonies by one naturally occurring
catastrophic event.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Destruction
or adverse modification of critical habitat occurs when a Federal
action directly or indirectly alters critical habitat to the extent
that it appreciably diminishes the value of critical habitat for the
conservation of the species. Individuals, organizations, States, local
governments, and other non-Federal entities are directly affected by
the designation of critical habitat when their actions occur on Federal
lands, require a Federal permit, license, or other authorization, or
involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened, and with respect to its
critical habitat, if any is designated or proposed. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires
Federal agencies (action agency) to confer with us on any action that
is likely to jeopardize the continued existence of a species proposed
for listing or result in destruction or adverse modification of
proposed critical habitat.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that actions
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal action agency must

[[Page 28070]]

enter into consultation with us. Through this consultation, the action
agency would ensure that the permitted actions do not destroy or
adversely modify critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
formal 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 has been retained 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.
If we issue a biological opinion concluding that a 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 the likelihood of resulting in destruction or
adverse modification of critical habitat. Reasonable and prudent
alternatives can vary from slight project modifications to extensive
redesign or relocation of the project. Costs associated with
implementing a reasonable and prudent alternative are similarly
variable.
Activities on Federal lands that may affect critical habitat of
Amaranthus brownii, Mariscus pennatiformis, Pritchardia remota,
Schiedea verticillata, or Sesbania tomentosa will 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 the 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 nonnative species; and taking actions that pose a risk of
fire;
(2) Construction activities by the U.S. Department of the Interior
(the Service);
(3) Research activities funded by the U.S. Department of the
Interior (the 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 the 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
likely constitute adverse modification of critical habitat, contact the
Field Supervisor, Pacific Islands Ecological Services Field 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 Ave., Portland, OR 97232-4181
(telephone 503/231-2063; facsimile 503/231-6243).

Economic Analysis

Exclusions Under Section 4(b)(2)

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 areas from critical habitat when the
exclusion will result in the extinction of the species concerned.

Economic Impacts

Following the publication of the proposed critical habitat
designation on May 14, 2002, a draft economic analysis was conducted to
estimate the potential economic impact of the designation, in
accordance with recent decisions in the N.M. Cattlegrowers Ass'n v.
U.S. Fish and Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001). The draft
analysis was made available for review on September 12, 2002 (67 FR
57784). We accepted comments on the draft analysis until the comment
period closed on October 15, 2002.
No comments addressing the economic analysis were received, and no
information has come to light that might change the conclusions of the
draft economic analysis. Therefore, the draft analyses constitutes the
final economic analysis for this rule. The economic analysis estimates
that, over the next 10 years, the designation may result in potential
economic effects of approximately $30,800, and that economic benefits
from the designation of critical habitat would not be significant. A
more detailed discussion of our economic analysis is contained in the
draft economic analysis and the addendum. Both documents are included
in our administrative record and are available for inspection at the
Pacific Islands Fish and Wildlife Office (see ADDRESSES section). We do
not believe the economic impacts of this designation, which would
result primarily from section 7 consultations on FWS, NMS, and private
research activities, would be significant. Therefore, no critical
habitat units in the proposed rule were excluded or modified due to
economic impacts.
As described above, section 4(b)(2) of the Act also requires us to
consider other relevant impacts, in addition to economic impacts, of
designating critical habitat. No critical habitat units were excluded
or modified due to non-economic impacts.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, the Office of Management
and Budget (OMB) has determined that this critical habitat designation
is not a significant regulatory action. This rule will not have an
annual economic effect of $100 million or more or adversely affect any
economic sector, productivity, competition, jobs, the environment, or
other units of government. This designation will not create
inconsistencies with other agencies' actions or otherwise interfere
with an action taken or planned by another agency. It will not
materially affect entitlements, grants, user fees, loan programs, or
the rights and obligations of their recipients. Finally, this
designation will not raise novel legal or policy issues. Accordingly,
OMB has not reviewed this final critical habitat designation.

[[Page 28071]]

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

Under the Regulatory Flexibility Act (RFA) (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
RFA to require Federal agencies to provide a statement of the factual
basis for certifying that a rule will not have a significant economic
impact on a substantial number of small entities.
SBREFA does not explicitly define either ``substantial number'' or
``significant economic impact.'' Consequently, to assess whether a
``substantial number'' of small entities is affected by this
designation, this analysis considers the relative number of small
entities likely to be impacted in the area. Similarly, this analysis
considers the relative cost of compliance on the revenues/profit
margins of small entities in determining whether or not entities incur
a ``significant economic impact.'' Only small entities that are
expected to be directly affected by the designation are considered in
this portion of the analysis. This approach is consistent with several
judicial opinions related to the scope of the RFA. (Mid-Tex Electric
Co-Op, Inc. v. F.E.R.C. and America Trucking Associations, Inc. v.
EPA.)
In today's rule, we are certifying that the designation of critical
habitat for the five plant species on the NWHI will not have a
significant effect on a substantial number of small entities. The
following discussion explains our rationale.
Federal courts and Congress have indicated that an RFA/SBREFA
analysis is appropriately limited to impacts to entities directly
regulated by the requirements of the regulation (Service 2002). As
such, entities not directly regulated by the critical habitat
designation are not considered in this section of the analysis.
Small entities include small organizations, such as independent
nonprofit 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. The RFA/SBREFA defines ``small organization''
as any not-for-profit enterprise that is independently owned and
operated and is not dominant in its field (5 U.S.C. 601).
For the purposes of the RFA/SBREFA, Federal agencies (e.g., the
Service, U.S. Geological Survey, National Park Service, National
Oceanic and Atmospheric Administration, National Marine Fisheries
Service, and Western Pacific Regional Fisheries Council) are not
considered small governments and thus are not small entities. State
governments are not considered small governmental entities and thus
DLNR is not considered a small entity. The University of Hawaii is a
large State university system, so it is also not a small entity. The
Bishop Museum, which may sponsor research, is not likely to be
considered a small organization because it is the largest museum in the
State and thus is dominant in its field.
Thus, none of the entities potentially impacted by the designation
of critical habitat are likely to be considered a small entity under
the RFA/SBREFA. For these reasons, we are certifying that the
designation of critical habitat for 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. Therefore, a regulatory flexibility analysis
is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

Under the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 801 et seq.), this rule is not a major rule. Our assessment of
the economic effects of this designation are described in the economic
analysis. Based on the effects identified in this analysis, we believe
that this rule will not have an effect on the economy of $100 million
or more, will not cause a major increase in costs or prices for
consumers, and will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. Refer to the economic analysis for a discussion of the
effects of 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. According to OMB, this
rule is not a significant regulatory action under Executive Order
12866, and we do not expect it to significantly affect energy
production supply and distribution facilities because no energy
production, supply, and distribution facilities are included within
designated critical habitat. Further, for the reasons described in the
economic analysis, we do not believe the designation of critical
habitat for the five NWHI plants will affect future energy production.
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) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. All of the
land being designated as critical habitat in this rule is owned by the
Federal government and is managed as a National Wildlife Refuge by the
Service. Small governments will not be affected unless they propose an
action affecting the refuge and 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.
(b) This rule 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. For the reasons described above, the
designation of critical 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

[[Page 28072]]

implications of designating critical habitat for the five species from
the NWHI in a takings implication assessment. The takings implications
assessment concludes that this final rule does not pose significant
takings implications.

Federalism

In accordance with Executive Order 13132, this final 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.
Because all of the designated critical habitat, including the
unoccupied unit, is on Federal land, there should be no impact on State
and local governments and their activities as a result of the
designation of critical habitat in currently unoccupied areas of the
NWHI.

Civil Justice Reform

In accordance with Executive Order 12988, the Department of the
Interior's 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 have designated 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 the five plant species
from the NWHI.

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

This rule does not contain any information collection requirements
that require OMB approval under the Paperwork Reduction Act. 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 that 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. We published a notice outlining our reason for this determination
in the Federal Register on October 25, 1983 (48 FR 49244). This
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 the Department
of the Interior's manual at 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 these five
plant species. Therefore, designation of critical habitat for these
five species does not involve any Tribal lands.

References Cited

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

Authors

The primary authors of this final rule are staff of the Pacific
Islands Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

? Accordingly, we hereby 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. Amend Sec. 17.12(h) by revising the entries for Amaranthus brownii,
Mariscus pennatiformis, Pritchardia remota, Schiedea verticillata, and
Sesbania tomentosa under FLOWERING PLANTS in the List of Endangered and
Threatened Plants to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
------------------------------------------------------ Historic range Family Status When listed Critical habitat Special
Scientific name Common name rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
Amaranthus brownii.............. None............... U.S.A. (HI)........ Amaranthaceae..... E 587 17.99(g).......... NA
Mariscus pentiformis............ None............... U.S.A. (HI)........ Cyperaceae........ E 559 17.99(a)(1), NA
(e)(1), (g).
Pritchardia remota.............. Loulu.............. U.S.A. (HI)........ Arecaceae......... E 587 17.99(g).......... NA
Schiedea verticillata........... None............... U.S.A. (HI)........ Caryophyllaceae... E 587 17.99(g).......... NA
Sesbania tomentosa.............. Ohai............... U.S.A. (HI)........ Fabaceae.......... E 559 17.99(a)(1), (c), NA
(e)(1), (g).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

? 3. Amend Sec. 17.99 as set forth below:
? (1) By revising the section heading to read as follows; and
? (2) By adding new paragraphs (g) and (h) to read as follows:

Sec. 17.99 Critical habitat; plants on the islands of Kauai, Niihau,
and Molokai, HI, and on the Northwestern Hawaiian Islands.

* * * * *
(g) Maps and critical habitat unit descriptions for the
Northwestern Hawaiian Islands. The following paragraphs contain the
legal descriptions of the critical habitat units

[[Page 28073]]

designated for the Northwestern Hawaiian Islands. Existing manmade
features within boundaries of the mapped areas, such as water features,
telecommunications equipment, arboreta and gardens, and heiau
(indigenous places of worship or shrines) and other archaeological
sites do not contain one or more of the primary constituent elements
described for each species in paragraphs (h) of this section and
therefore are not included in the critical habitat designations.
Coordinates are in WGS84 datum. See Map 1 for the the general locations
of the seven critical habitat units designated for the islands of
Laysan, Nihoa, and Necker.
(1) Index map--Map 1--follows:
[GRAPHIC]
[TIFF OMITTED]
TR22MY03.001

(2) Nihoa 1--Amaranthus brownii--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]
TR22MY03.002

(3) Nihoa 2--Pritchardia remota--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 3 follows:
[GRAPHIC]
[TIFF OMITTED]
TR22MY03.003

(4) Nihoa 3--Schiedea verticillata--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 4 follows:
[GRAPHIC]
[TIFF OMITTED]
TR22MY03.004

(5) Nihoa 4--Sesbania tomentosa--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 5 follows:

[[Page 28074]]
[GRAPHIC]
[TIFF OMITTED]
TR22MY03.005

(6) Necker 1--Sesbania tomentosa--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 6 follows:
[GRAPHIC]
[TIFF OMITTED]
TR22MY03.006

[INSERT Map 6](7) Laysan 1--Mariscus pennatiformis--entire island
(approximately 405 ha; 1,219 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 7 follows:
[GRAPHIC]
[TIFF OMITTED]
TR22MY03.007

(8) Laysan 2--Pritchardia remota--entire island (approximately 405
ha; 1,219 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 8 follows:
[GRAPHIC]
[TIFF OMITTED]
TR22MY03.008

(9) Table of protected species within each critical habitat unit
for the Northwestern Hawaiian Islands.

--------------------------------------------------------------------------------------------------------------------------------------------------------
Island Species--Occupied Species--Unoccupied
--------------------------------------------------------------------------------------------------------------------------------------------------------
Laysan............................... Mariscus pennatiformis..................................................... Pritchardia remota
Necker............................... Sesbania tomentosa. ....................................
Nihoa................................ Pritchardia remota, Schiedea verticillata, Sesbania tomentosa.............. Amaranthus brownii
--------------------------------------------------------------------------------------------------------------------------------------------------------

(h) Plants on the Northwestern Hawaiian Islands; Constituent
elements.

Family Amaranthaceae: Amaranthus brownii (NCN)

Nihoa 1--Amaranthus brownii, identified in the legal description in
paragraph (g) of this section, constitutes critical habitat for
Amaranthus brownii. On Nihoa, the currently known primary constituent
elements of critical habitat include, but are not limited to, the
habitat components provided by:
(1) Shallow soil in fully exposed locations on rocky outcrops and
containing one or more of the following associated native plant
species: Chenopodium oahuense, Eragrostis variabilis, Ipomoea indica,
Ipomoea pes-caprae ssp. brasiliensis, Panicum torridum, Scaevola
sericea, Schiedea verticillata, Sicyos pachycarpus, Sida fallax, or
Solanum nelsonii; and (2)

[[Page 28075]]

Elevations between 30 and 242 m (100 and 800 ft).

Family Arecaceae: Pritchardia remota (loulu)

Nihoa 2--Pritchardia remota, and Laysan 2-- Pritchardia remota,
identified in the legal descriptions in paragraph (g) of this section,
consitute critical habitat for Pritchardia remota.
(1) On Nihoa, the currently known primary constituent elements of
critical habitat include, but are not limited to, the habitat
components provided by:
(i) Pritchardia remota coastal forest community and containing one
or more of the following associated native plant species: Chenopodium
oahuense, Sesbania tomentosa, Sida fallax, or Solanum nelsonii; and
(ii) Elevations between sea level and 151 m (500 ft).
(2) On Laysan Island, the currently known primary constituent
elements of critical habitat include, but are not limited to, the
habitat components provided by:
(i) Coastal strand habitat with Chenopodium oahuensee and Solanum
nelsonii; and
(ii) Elevations between sea level to 12 m (0 to 40 ft).

Family Caryophyllaceae: Schiedea verticillata (NCN)

Nihoa 3--Schiedea verticillata, identified in the legal description
in paragraph (g) of this section, constitutes critical habitat for
Schiedea verticillata. On Nihoa, the currently known primary
constituent elements of critical habitat for Schiedea verticillata
include, but are not limited to, the habitat components provided by:
(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: Eragrostis
variabilis, Rumex albescens, Tribulus cistoides, or lichens; and
(2) Elevations between 30 and 242 m (100 and 800 ft).

Family Cyperaceae: Mariscus pennatiformis (NCN)

Laysan 1--Mariscus pennatiformis, identified in the legal
description in paragraph (g) of this section, constitutes critical
habitat for Mariscus pennatiformis. On Laysan Island, the currently
known primary constituent elements of critical habitat for Mariscus
pennatiformis include, but are not limited to, habitat components
provided by:
(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 4--Sesbania tomentosa, and Necker 1--Sesbania tomentosa,
identified in the legal descriptions in paragraph (g) of this section,
constitute critical habitat for Sesbania tomentosa. On Nihoa and
Necker, the currently known primary constituent elements of critical
habitat for Sesbania tomentosa include, but are not limited to, habitat
components provided by:
(1) Shallow soil on sandy beaches and dunes in Chenopodium oahuense
coastal dry shrubland or mixed coastal dry cliffs and containing one or
more of the following associated native plant species: Pritchardia
remota, Scaevola sericea, Sida fallax, or Solanum nelsonii; and
(2) Elevations between sea level and 84 m (0 and 276 ft).

Dated: April 30, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-11157 Filed 5-21-03; 8:45 am]
BILLING CODE 6560-50-P

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Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Five Plant Species From the Northwestern Hawaiian Islands, Hawaii

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