[Federal Register Volume 61, Number 153 (Wednesday, August 7, 1996)]
[Rules and Regulations]
[Pages 41020-41024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19963]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB88


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Hawaiian Plant Pritchardia aylmer-robinsonii (wahane)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for the plant Pritchardia aylmer-robinsonii (wahane). 
The species is endemic to the island of Niihau, Hawaiian Islands. The 
species and its habitat have been affected and are currently threatened 
by cattle, pigs, and sheep. Due to the small number of existing 
individuals and their very narrow distribution, this species is subject 
to reduced reproductive vigor and/or an increased likelihood of 
extinction from naturally occurring events. This final rule implements 
the Federal protection provisions provided by the Act.

EFFECTIVE DATE: This rule takes effect on September 6, 1996.

ADDRESSES: The complete file for this final rule is available for 
public inspection, by appointment, during normal business hours, at the 
U.S. Fish and Wildlife Service, Pacific Islands Ecoregion, 300 Ala 
Moana Boulevard, Room 3108, P.O. Box 50088, Honolulu, Hawaii 96850.

FOR FURTHER INFORMATION CONTACT: Robert P. Smith, Pacific Islands 
Ecoregion Manager, at the above address (808/541-2749).

SUPPLEMENTARY INFORMATION:

Background

    In 1947, on one of his botanical collecting trips to Niihau, Harold 
St. John discovered a new species of the only genus of palms native to 
the Hawaiian Islands. He named it Pritchardia aylmer-robinsonii in 
honor of Aylmer F. Robinson, a member of the family that owns the 
island and a person who provided St. John with much information 
regarding the island's plants (St. John 1959).
    Historically, Pritchardia aylmer-robinsonii was found at three 
sites in the eastern and central portions of the island of Niihau. 
Trees were found on Kaali Cliff and in Mokouia and Haao Valleys at 
elevations between 70 and 270 meters (m) (230 and 890 feet (ft)) 
(Hawaii Heritage Program (HHP) 1991a to 1991d). The most recent 
observations indicate two plants still remain on Kaali Cliff (Read and 
Hodel 1990). Originally a component of the Coastal Dry Forest, this 
species now occurs only in a rugged and steep area where it receives 
some protection from grazing animals. The substrate in the seepage area 
is rocky talus. Prosopis pallida (kiawe), an introduced tree, is one of 
the palm's few associated plant taxa. Other native plants that have 
been found in the area include Brighamia insignis ('olulu), Cyperus 
trachysanthos (pu'uka'a), Lipochaeta lobata var. lobata (nehe), and 
Lobelia niihauensis (HHP 1991e; St. John 1959; Keith Woolliams, Waimea 
Arboretum and Botanical Garden, pers. comm. 1980). Pritchardia aylmer-
robinsonii of the palm family (Arecaceae) is a fan-leaved tree about 7 
to 15 m (23 to 50 ft) tall with a trunk approximately 20 to 30 
centimeters (cm) (8 to 12 inches (in.)) in diameter. The upper and 
lower leaf surfaces are green and hairless, and leaf segments are 
rather thin and drooping. The lower surfaces of the petiole and the 
leaf ribs are covered with dense, tan wool. The branched, hairless 
flower clusters are located among the leaves and are no longer than the 
petioles. Each flower is comprised of a cup-shaped, three-lobed calyx; 
three petals; six stamens; and a three-lobed stigma. The spherical, 
hard, black fruit is 1.8 to 2 cm (0.7 to 0.8 in.) in diameter. This 
species is distinguished from others of the genus by the thin leaf 
texture and drooping leaf segments; the tan woolly hairs on the 
underside of the petiole and the leaf blade base; the stout hairless 
flower clusters that do not extend beyond the fan-shaped leaves; and 
the smaller spherical fruit (Read and Hodel 1990).
    Hawaiian land practices prior to European contact probably 
destroyed most of the forest on Niihau. Grazing animals were introduced 
to the island beginning in the 1700s. Cattle (Bos taurus), goats (Capra 
hircus), sheep (Ovis aries), and pigs (Sus scrofa) have decreased 
available habitat for Pritchardia aylmer-robinsonii as well as directly 
damaging trees, seedlings, and/or seeds. The entire island is now 
classified an Agricultural District, and it is managed as a cattle and 
sheep ranch. Although approximately 200 immature individuals have been 
cultivated on Niihau and Kauai, extinction from naturally occurring 
events and/or reduced reproductive vigor due to the small number of 
reproductive plants are major threats. Because palms take many years to 
mature, it is not known whether the immature plants now in cultivation 
are capable of reproducing and sustaining a viable population.
    Roof rats (Rattus rattus) are a potential threat to this species 
since they eat the seeds of some palms of this genus and are found on 
Niihau (Beccari and Rock 1921; Cuddihy and Stone 1990; Department of 
Geography 1983; St. John 1959; Tomich 1986; Wagner et al. 1985; John 
Fay, U.S. Fish and Wildlife Service, pers. comm. 1992).

Previous Federal Action

    Federal action on these plants began as a result of section 12 of 
the Endangered Species Act (Act) of 1973, as amended (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 aylmer-robinsonii was considered to be 
endangered. On July 1, 1975, the Service published a notice in the 
Federal Register (40 FR 27823) of its acceptance of the Smithsonian 
report as a petition within the context of section 4(c)(2) (now section 
4(b)(3)) of the Act, and giving notice of its intention to review the 
status of the plant taxa named

[[Page 41021]]

therein. As a result of that review, the Service published a proposed 
rule on June 16, 1976, 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 Pritchardia aylmer-
robinsonii. The list of 1,700 plant taxa was assembled on the basis of 
comments and data received by the Smithsonian Institution and the 
Service in response to House Document No. 94-51 and the July 1, 1975, 
Federal Register publication. General comments received in response to 
the 1976 proposal are summarized in an April 26, 1978, Federal Register 
publication (43 FR 17909). In 1978, amendments to the Act required that 
all proposals over 2 years old be withdrawn. A 1-year grace period was 
given to proposals already over 2 years old. On December 10, 1979, the 
Service 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), and February 21, 
1990 (55 FR 6183). In these notices, Pritchardia aylmer-robinsonii was 
treated as a candidate for Federal listing.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
findings on petitions that present substantial information indicating 
that the petitioned action may be warranted within 12 months of their 
receipt. Section 2(b)(1) of the 1982 amendments further requires all 
petitions pending on October 13, 1982, be treated as having been newly 
submitted on that date. On October 13, 1983, the Service found that the 
petitioned listing of Pritchardia aylmer-robinsonii was warranted but 
precluded by other pending listing actions, in accordance with section 
4(b)(3)(B)(iii) of the Act; notification of this finding was published 
on January 20, 1984 (49 FR 2485). Such a finding requires the Service 
to consider the petition as having been resubmitted, pursuant to 
section 4(b)(3)(C)(i) of the Act. The finding was reviewed in October 
of 1984, 1985, 1986, 1987, 1988, 1989, 1990, and 1991. Publication of 
the proposed rule constituted the final 1-year finding for this 
species.
    On December 17, 1992, the Service published a proposal in the 
Federal Register (57 FR 59970) to list the plant Pritchardia aylmer-
robinsonii as endangered. This proposal was based primarily on 
information supplied by the Hawaii Heritage Program and observations by 
botanists and naturalists. The Service determines Pritchardia aylmer-
robinsonii to be endangered with the publication of this rule.
    The processing of this final listing rule conforms with the 
Service's final listing priority guidance published in the Federal 
Register on May 16, 1996 (61 FR 24722). The guidance clarifies the 
order in which the Service will process rulemakings following two 
related events: 1) the lifting, on April 26, 1996, of the moratorium on 
final listings imposed on April 10, 1995 (Public Law 104-6), and 2) the 
restoration of significant funding for listing through passage of the 
omnibus budget reconciliation law on April 26, 1996, following severe 
funding constraints imposed by a number of continuing resolutions 
between November 1995 and April 1996. The guidance calls for giving 
highest priority to handling emergency situations (Tier 1) and second 
highest priority (Tier 2) to resolving the listing status of the 
outstanding proposed listings. This final rule falls under Tier 2. At 
this time there are no pending Tier 1 actions.

Summary of Comments and Recommendations

    In the December 17, 1992, proposed rule and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might contribute to the development of a 
final rule. The public comment period ended February 16, 1993. 
Appropriate State agencies, county governments, Federal agencies, 
scientific organizations, and other interested parties were contacted 
and requested to comment. A newspaper notice inviting public comment 
was published in Kauai's ``The Garden Island'' on December 28, 1992. 
Two letters of comment, including one from an organization and one from 
an individual, were received and are discussed below.
    One respondent supported the listing of Pritchardia aylmer-
robinsonii and one opposed the listing. One issue was raised in the 
opposing respondent's letter. This issue and the Service's response is 
discussed below.
    Issue: Listing of this species will give Federal and State 
governments authority to interfere with private landowners and to seize 
private lands.
    Response: Section 9 of the Act contains the prohibitions and, in 
general, prohibits the sale of an endangered plant species in 
interstate or foreign commerce, or importing or exporting such a plant 
species. With regard to prohibitions applicable to private lands, 
section 9 prohibits individuals on private lands from removing or 
damaging an endangered plant species in knowing violation of State law. 
Section 10 of the Act outlines some exceptions to these prohibitions. 
In addition, while the Act authorizes land acquisition from a willing 
seller as a tool to help protect and recover a listed species in some 
cases, it does not provide for ``seizure'' of private lands. If 
additional measures are needed to protect the species, such as 
propagation of the species on Federal land, the Service will work 
cooperatively with the landowner. Federally listed species are also 
accorded listed status under Hawaii State law. In general, Hawaii law 
prohibits the taking of listed species within that State and encourages 
conservation measures by State agencies. For more information on 
applicable provisions of State law, contact the Hawaii Department of 
Land and Natural Resources.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that Pritchardia aylmer-
robinsonii should be classified as an endangered species. Procedures 
found at section 4(a)(1) of the Act and regulations (50 CFR part 424) 
promulgated to implement the listing provisions of the Act were 
followed. A species may be determined to be an endangered species due 
to one or more of the five factors described in section 4(a)(1). These 
factors and their application to Pritchardia aylmer-robinsonii St. John 
(wahane) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The habitat of Pritchardia aylmer-
robinsonii has undergone extreme alteration because of past and present 
land management practices, including agricultural use and introductions 
of alien animals. The Hawaiians made extensive agricultural use of 
Niihau before European contact. Modification of habitat by introduced 
animals, currently cattle, pigs, and sheep and formerly goats, is one 
of the major threats facing Pritchardia aylmer-robinsonii.
    Cattle (Bos taurus) were introduced to the Hawaiian Islands in 
1793. Feral cattle formerly occurred on Niihau and caused much damage 
on the island. Goats (Capra hircus) were successfully introduced to the 
Hawaiian Islands in 1792. All feral goats were removed from Niihau in 
about 1910, but they had already caused considerable damage to the dry 
and mesic forests. Sheep (Ovis

[[Page 41022]]

aries) were also introduced to Niihau, where they have and continue to 
damage the native vegetation and substrate. Pigs (Sus scrofa) were 
introduced to the Hawaiian Islands by the Polynesian immigrants and 
later from European ships. Pigs presently on Niihau cause damage to the 
substrate and plants and eat the seeds of Pritchardia aylmer-robinsonii 
(Cuddihy and Stone 1990; Stone 1985; Tomich 1986; Wagner et al. 1985; 
J. Fay, pers. comm. 1992).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Because the natural population is on a privately 
owned island with limited public access, activities such as 
unrestricted collecting for scientific or horticultural purposes and 
excessive visits by individuals interested in seeing rare plants are 
unlikely to occur.
    C. Disease or predation. Niihau is used as a cattle and sheep ranch 
with animals ranging in many areas of the island. Predation is a 
probable threat since Pritchardia aylmer-robinsonii is not known to be 
unpalatable to these ungulates. St. John noted damage to one tree 
believed to have been caused by an animal (1959). The current 
occurrence of plants only in a rocky area inaccessible to ungulates 
indicates the effect that browsing mammals have had in restricting the 
distribution of the species.
    Roof and black rats (Rattus rattus), which occur on Niihau, have 
been reported to damage the fruit of other species of Pritchardia and, 
thus, pose a potential threat to Pritchardia aylmer-robinsonii (Beccari 
and Rock 1921).
    D. The inadequacy of existing regulatory mechanisms. The known 
natural habitat of this species is located exclusively on privately 
owned land. There is currently no existing regulatory mechanism or 
other authority to prevent further decline of this species on private 
land. Hawaii's Endangered Species Act states, ``Any species of aquatic 
life, wildlife, or land plant that has been determined to be an 
endangered species pursuant to the [Federal] Endangered Species Act 
shall be deemed to be an endangered species under the provisions of 
this chapter* * *'' (HRS, sect. 195D-4(a)). Federal listing 
automatically triggers listing under Hawaii State law, which prohibits 
taking of endangered plants in the State and encourages conservation by 
State agencies (HRS, sect. 195D-4).
    State laws relating to the conservation of biological resources 
allow for the acquisition of land as well as the development and 
implementation of programs concerning the conservation of biological 
resources (HRS, sect. 195D-5(a)). The State may enter into agreements 
with Federal agencies to administer and manage any area required for 
the conservation, management, enhancement, or protection of endangered 
species (HRS, sect. 195D-5(c)). Funds for these activities can be made 
available under section 6 of the Federal Act (State Cooperative 
Agreements). The Hawaii Department of Land and Natural Resources is 
mandated to initiate changes in conservation district boundaries to 
include ``the habitat of rare native species of flora and fauna within 
the conservation district'' (HRS, sect. 195D-205-4). Currently, the 
entire island of Niihau is within the Agricultural District. Listing of 
this species will activate the protection available under the State Act 
and other laws. The Federal Act offers additional protection to this 
species because it is a violation of the Act for any person to remove, 
cut, dig up, damage, or destroy any such plant in an area not under 
Federal jurisdiction in knowing violation of State law or regulation or 
in the course of any violation of a State criminal trespass law.
    E. Other natural or manmade factors affecting its continued 
existence. The small number of individuals of Pritchardia aylmer-
robinsonii increases the potential for extinction from naturally 
occurring events. A single human-caused or natural environmental 
disturbance could destroy the only two naturally occurring individuals 
as well as a significant portion of the cultivated plants on Niihau and 
Kauai. In addition, the limited gene pool may depress reproductive 
vigor.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this species in this final rule. Based on this 
evaluation, this rulemaking will list Pritchardia aylmer-robinsonii as 
endangered. This species numbers only two naturally occurring 
individuals in one population. Approximately 200 immature individuals 
have been cultivated on Niihau and Kauai. The species is threatened by 
habitat degradation, lack of legal protection, and/or predation by 
cattle, pigs, and sheep. Small population size and limited distribution 
make this species particularly vulnerable to reduced reproductive vigor 
and/or extinction from naturally occurring events. Because this species 
is in danger of extinction throughout all or a significant portion of 
its range, it fits the definition of endangered as defined in the Act.
    Critical habitat is not being designated for Pritchardia aylmer-
robinsonii for reasons discussed in the ``Critical Habitat'' section of 
this final rule.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, requires that, to the 
maximum extent prudent and determinable, the Secretary designate 
critical habitat at the time a species is listed as endangered or 
threatened. The Service finds that designation of critical habitat is 
not presently prudent for Pritchardia aylmer-robinsonii. The Service's 
regulations (50 CFR 424.12(a)(1)) state that designation of critical 
habitat is not prudent when one or both of the following situations 
exist: (1) the species is imperiled by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of such threat to the species; or (2) such designation of 
critical habitat would not be beneficial to the species.
    In the case of the Pritchardia aylmer-robinsonii, the second 
criterion is met. All individuals of Pritchardia aylmer-robinsonii are 
found on private lands where Federal involvement in land-use activities 
does not generally occur. Critical habitat has legal significance to 
actions authorized, funded, or carried out by Federal agencies under 
section 7 of the Act. Since section 7 would not apply to wholly private 
activities, critical habitat designation would not appreciably benefit 
the species in this case.

Available Conservation Measures

    Conservation measures provided to species listed as endangered 
under the Act include recognition, recovery actions, requirements for 
Federal protection, and prohibitions against certain activities. 
Recognition through listing can encourage conservation actions by 
Federal, State, and private agencies, groups, and individuals. The Act 
provides for possible land acquisition and cooperation with the State 
and requires that recovery plans be developed for listed species. The 
requirements for Federal agencies and the prohibitions against certain 
activities involving listed plants are discussed, in part, below.
    Section 7 of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any taxon that is proposed or 
listed as endangered and with respect to its critical habitat, if any 
is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. When 
a species is listed, section 7(a)(2) of the

[[Page 41023]]

Act requires Federal agencies to insure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of such a species or to destroy or adversely modify its critical 
habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency must enter into 
consultation with the Service. No Federal activities are known to occur 
within the habitat of Pritchardia aylmer-robinsonii.
    The Act and its implementing regulations found at 50 CFR 17.61, 
17.62, and 17.63 for endangered plant species, set forth a series of 
general prohibitions and exceptions that apply to all endangered plant 
species. With respect to Pritchardia aylmer-robinsonii, all 
prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 
17.61, apply. These prohibitions, in part, make it illegal for any 
person subject to the jurisdiction of the United States to import or 
export any endangered plant species; transport such species in 
interstate or foreign commerce in the course of a commercial activity; 
sell or offer for sale such species in interstate or foreign commerce; 
remove and reduce to possession an endangered plant species from areas 
under Federal jurisdiction; maliciously damage or destroy any such 
species on any area under Federal jurisdiction; or remove, cut, dig up, 
damage, or destroy any such species on any other area in knowing 
violation of any State law or regulation or in the course of any 
violation of a State criminal trespass law. Certain exceptions apply to 
agents of the Service and State conservation agencies. The Act and 50 
CFR 17.62 and 17.63 also provide for the issuance of permits to carry 
out otherwise prohibited activities involving endangered plant species 
under certain circumstances.
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable those activities that would or would not constitute a 
violation of section 9 of the Act at the time of listing. The intent of 
this policy is to increase public awareness of the effect of listing on 
proposed or ongoing activities. Pritchardia aylmer-robinsonii exists as 
two individuals in one population on privately owned land. Since there 
is no Federal ownership, and the species is not in commercial trade, 
the only potential section 9 involvement would relate to removing or 
damaging the plant in knowing violation of State law. Hawaii's 
Endangered Species Act states, ``Any species of aquatic life, wildlife, 
or land plant that has been determined to be an endangered species 
pursuant to the [Federal] Endangered Species Act shall be deemed to be 
an endangered species under the provisions of this chapter * * *'' 
(HRS, sect. 195D-4(a)). Federal listing automatically triggers listing 
under Hawaii State law, which prohibits taking of endangered plants in 
the State and encourages conservation by State agencies (HRS, sect. 
195D-4). The Service is not aware of any other activities being 
conducted that will be affected by this listing and result in a 
violation of section 9. Questions regarding whether specific activities 
will constitute a violation of section 9 should be directed to the 
Ecoregion Manager of the Service's Pacific Islands Office (see 
ADDRESSES section). Requests for copies of the regulations concerning 
listed plants and inquiries regarding prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Ecological Services, 
Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon, 
97232-4181 (telephone 503/231-2063; Facsimile 503/231-6243).

National Environmental Policy Act

    The Service has determined that an Environmental Assessment or 
Environmental Impact Statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to Section 4(a) of the Act 
of 1973, as amended. A notice outlining the Service's reasons for this 
determination was published in the Federal Register on October 25, 1983 
(48 FR 49244).

References Cited

    A complete list of all references cited herein is available upon 
request from the Pacific Islands Ecoregion (see ADDRESSES section).

Authors

    The authors of this final rule are Marie M. Bruegmann and Zella E. 
Ellshoff, Pacific Islands Ecoregion, (see ADDRESSES section) (808/541-
2749).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, is amended 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. Section 17.12(h) is amended by adding the following, in 
alphabetical order under flowering plants, to the List of Endangered 
and Threatened Plants, to read as follows:


Sec. 17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

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                        Species                                                                                                                         
--------------------------------------------------------    Historic range            Family             Status      When listed    Critical    Special 
         Scientific name                Common name                                                                                 habitat      rules  
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants:                                                                                                                                       
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
    Pritchardia aylmer-robinsonii  Wahane..............  U.S.A. (HI).........  Arecaceae...........  E                       586           NA         NA
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
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[[Page 41024]]


    Dated: July 19, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-19963 Filed 8-6-96; 8:45 am]
BILLING CODE 4310-55-P