[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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) * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- 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 * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- [[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