[Federal Register Volume 61, Number 198 (Thursday, October 10, 1996)]
[Rules and Regulations]
[Pages 53124-53130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25555]


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DEPARTMENT OF THE INTERIOR
50 CFR Part 17

RIN 1018--AC56


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Plant Delissea undulata (No Common Name)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines 
endangered species status pursuant to the Endangered Species Act of 
1973, as amended (Act), for the plant Delissea undulata (No Common 
Name). This species is known in the wild from only a single individual, 
located on the island of Hawaii. The greatest immediate threats to the 
survival of this species are habitat degradation and predation by 
domestic and feral mammals, fire, and competition with alien plants. 
The small population size of one individual with its limited gene pool 
also comprises a serious threat to this species. This rule implements 
the protection provisions provided by the Act for this species.

EFFECTIVE DATE: November 12, 1996.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the Pacific 
Islands Ecoregion Office, U.S. Fish and Wildlife Service, 300 Ala Moana 
Boulevard, Room 6307, P.O. Box 50167, Honolulu, Hawaii 96850.

FOR FURTHER INFORMATION CONTACT: Marie M. Bruegmann, at the above 
address or telephone 808-541-3441.

SUPPLEMENTARY INFORMATION:

Background

    Delissea undulata was first described by Charles Gaudichaud-Beaupre 
from specimens he collected in the Hawaiian Islands (``Isles 
Sandwich'') in 1819 (St. John 1959). He chose the specific epithet to 
refer to the undulating margins of the leaves. F.E. Wimmer named a 
specimen J.F. Rock collected in 1911 from Kanahaha, Kona, as Cyanea 
argutidenta, which H. St. John later moved to the genus Delissea (St. 
John 1959, Wimmer 1943). St. John also named a specimen collected in 
1968 from the southern Kona District as D. konaensis (St. John 1986). 
The current treatment of the family (Lammers 1988, 1990) considers all 
of the above species to be synonymous with D. undulata. Lammers 
recognizes three subspecies of D. undulata--subsp. niihauensis, subsp. 
kauaiensis, and subsp. undulata (Lammers 1988, 1990).
    Delissea undulata of the bellflower family (Campanulaceae) is a 
palm-like tree with unbranched woody stems 2 to 10 meters (m) (6 to 30 
feet (ft)) tall. The leaves are long and narrow or elliptic with long 
petioles and undulate or flat, toothed margins, about 5 to 21 
centimeters (cm) (2 to 8 inches (in)) long and 3 to 10 cm (1 to 4 in) 
wide. The 5 to 15 flowering stalks each bear 5 to 20 greenish-white, 
slightly down-curved flowers 1.6 to 2.5 cm (0.6 to 1.0 in) long with 
one or two small knobs on the upper surfaces. The fruits are ovoid to 
globose purple berries 0.6 to 1.2 cm (0.2 to 0.4 in) long. The three 
subspecies of D. undulata can be distinguished from each other by leaf 
shape and leaf margin characteristics--subsp. kauaiensis has ovate 
leaves with flat, sharply toothed margins; subsp. niihauensis has 
leaves with heart-shaped bases and shallow roundly toothed margins; and 
subsp. undulata has narrower, lance-shaped leaves with undulating 
margins and spreading, pointed teeth (Lammers 1988, 1990). The species 
D. undulata is distinguished from closely related species in this genus 
by its broader leaf bases, larger flowers, and larger berries (Lammers 
1990).
    Historically, Delissea undulata is known from Niihau, Kauai, Maui, 
and Hawaii. Subspecies kauaiensis was collected west of the Hanapepe 
River on the island of Kauai by A.A. Heller in 1895 and has not been 
relocated (Hawaii Heritage Program (HHP) 1991a, Heller 1897, Lammers 
1988). Subspecies niihauensis was collected twice in the 1800's on the 
island of Niihau and has not been located since (HHP 1991b, Hillebrand 
1888, St. John 1959). Both of these subspecies are considered extinct 
(HHP 1991a, 1991b; Lammers 1990). Delissea undulata subsp. undulata was 
reported from four valleys of southwestern Maui in the 1800's, and from 
the Kona region of the island of Hawaii (HHP 1991c1 to 1991c9). This

[[Page 53125]]

subspecies was observed in 1971 at Puu Lehua and was subsequently 
thought to be extinct (HHP 1991c6, Lammers 1990). However, one 
individual plant was discovered on April 24, 1992, at Puu Waawaa, at a 
previously unreported location on Hualalai on the island of Hawaii. 
This site is owned by the State and leased to a private individual for 
ranching (Jon Giffin, Hawaii Department of Land and Natural Resources 
(Hawaii DLNR), in litt. 1993). Harold L. Lyon Arboretum of the 
University of Hawaii at Manoa is propagating seeds collected from the 
one remaining individual as part of an ex situ conservation program. 
The Arboretum has sent approximately 50 individual plants propagated 
from seed to the State's Hawaii forestry district for experimental 
outplanting in the Puu Waawaa area. Several outplanted individuals have 
produced seed after only two years, although no seedlings have been 
produced by these outplanted individuals (Charles H. Lamoureux, Harold 
L. Lyon Arboretum at University of Hawaii, pers. comm. 1993; J. Giffin, 
pers. comms. 1993, 1994).
    Delissea undulata grows primarily in dry and mesic forests at about 
1,000 to 1,750 m (3,300 to 5,700 ft) elevation (Lammers 1990; J. 
Giffin, in litt. 1993). The substrate is a thin organic soil layer over 
`a`a or pahoehoe lava (Department of Geography 1983). The only known 
wild individual grows on the brink of a collapsed lava tube at 1,070 m 
(3,520 ft) elevation. The vegetation is open Sophora chrysophylla 
(mamane)-Metrosideros polymorpha (`ohi`a) forest with such associated 
species as Santalum ellipticum (`iliahi) and Acacia koa (koa). The 
endangered species Nothocestrum breviflorum (`aiea) also is found in 
the area of the one remaining wild individual of D. undulata. 
Introduced plants in the area include Pennisetum clandestinum (kikuyu 
grass), Passiflora mollissima (banana poka), and Senecio mikanioides 
(German ivy) (J. Giffin, in litt. 1993).
    The greatest immediate threats to the survival of Delissea undulata 
are damage from domestic and feral herbivores and competition with 
alien plants. Fire, whether started naturally or by arson, poses a 
serious threat to the population. Slug damage has been observed on 
outplanted individuals of this species, and slugs may eat the fruits 
before germination can occur. The one individual known from the wild 
with its limited gene pool also comprises a serious threat to this 
species (M. Bruegmann, in litt. 1994; J. Giffin, in litt. 1993). The 
long-term viability or survivorship of the approximately 50 outplanted 
individuals is not known.

Previous Federal Action

    Federal action on this species began as a result of section 12 of 
the Endangered Species 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. This report, 
designated as House Document No. 94-51, was presented to Congress on 
January 9, 1975. On July 1, 1975, the Service published a notice in the 
Federal Register (40 FR 27823) accepting the report as a petition 
within the context of section 4(c)(2) (now section 4(b)(3)(A)) of the 
Act, and giving notice of its intention to review the status of the 
plant taxa named therein. In this and subsequent notices, Delissea 
undulata var. undulata was included as extinct, and D. undulata var. 
argutidenta was included as endangered. As a result of this review, on 
June 16, 1976, the Service published a proposed rule in the Federal 
Register (41 FR 24523) to determine approximately 1,700 vascular plant 
species, including D. undulata, endangered pursuant to section 4 of the 
Act. 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) of the withdrawal of that 
portion of the June 16, 1976, proposal that had not been made final, 
including D. undulata, along with four other proposals that had 
expired.
    The Service published an updated Notice of Review for plants on 
December 15, 1980 (45 FR 82480), including Delissea undulata as a 
category 1 candidate, meaning that the Service had substantial 
information indicating that a listing proposal was appropriate. In the 
updated Notice of Review for plants on September 27, 1985 (50 FR 
39525), and February 21, 1990 (55 FR 6183), D. undulata was included as 
a Category 1* candidate, meaning that the Service had substantial 
information indicating that this taxon was vulnerable in the recent 
past but that it may already have become extinct.
    Section 4(b)(3)(B) of the Act, requires the Secretary to make 
findings on certain pending petitions within 12 months of their 
receipt. Section 2(b)(1) of the 1982 amendments further requires that 
all petitions pending on October 13, 1982, be treated as having been 
newly submitted on that date. The latter was the case for Delissea 
undulata because the Service had accepted the 1975 Smithsonian report 
as a petition. On October 13, 1983, the Service found that the listing 
of the species 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 petition to be reconsidered 
periodically, 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, 
1991, and 1992. The proposed rule published on June 27, 1994 (59 FR 
32946), to list D. undulata as an endangered species constituted the 
final 1-year finding that was required for this species.
    Based on comments received in response to the proposal (see 
Comments and Recommendations, below), the Service now determines 
Delissea undulata to be endangered with the publication of this final 
rule.

Summary of Comments and Recommendations

    In the June 27, 1994, 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 on August 26, 1994, but was reopened 
until November 29, 1994 to ensure that all parties had adequate time to 
provide comments on the proposed rule. 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 the ``Hawaii 
Tribune-Herald'' on November 7, 1994.
    Comments were received from two parties. Both parties supported the 
listing of the Delissea undulata as an endangered species. One of the 
parties also requested the designation of critical habitat for this 
species, to force State action to protect the species, and also to 
allow for citizen action if necessary. However, the designation of 
critical habitat is not necessary for citizen suits under Section 
11(g)(1) of the Act, which states that any person may commence a civil 
suit on his own behalf to enjoin any person in violation of the Act. 
Furthermore, it is unclear how designation of critical habitat under 
the Federal Endangered Species Act would prompt any more State action 
than simply listing the plant. The protections afforded a species by 
designating critical habitat are limited and apply only in the context 
of section 7 of the Act, which affects only Federal agency actions.

[[Page 53126]]

    Pursuant to the Service's policy on peer review (59 FR 34270), the 
Service also solicited the expert opinions of four appropriate and 
independent specialists regarding pertinent scientific or commercial 
data and assumptions relating to the taxonomy, population models, and 
biological and ecological information for Delissea undulata. No 
responses from these peer reviewers were received.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that Delissea undulata should be 
classified as an endangered species. Procedures found at section 
4(a)(1) of the Act and regulations implementing the listing provisions 
of the Act (50 CFR part 424) were followed. A species may be determined 
to be an endangered or threatened species due to one or more of the 
five factors described in section 4(a)(1). These factors and their 
application to Delissea undulata Gaud. (No Common Name) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The habitat of Delissea undulata 
has undergone extreme alteration because of past and present land 
management practices, including deliberate and accidental alien mammal 
and plant introductions and agricultural development. Natural 
disturbances such as the collapse of lava tubes also destroy habitat 
and can have a significant effect on small populations of plants. 
Competition with alien plants as well as destruction of individuals and 
modification of habitat by introduced animals are the primary threats 
facing this species.
    Beginning with Captain James Cook in 1792, early European explorers 
introduced livestock, which became feral, increased in number and 
range, and caused significant changes to the natural environment of 
Hawaii. The 1848 provision for land sales to individuals allowed large-
scale agricultural and ranching ventures to begin. Land was cleared for 
these enterprises to such a great extent that climatic conditions began 
to change and the amount and distribution of rainfall were altered 
(Wenkam 1969).
    Past and present impacts of introduced alien animals are the 
primary factor in altering and degrading vegetation and habitats on the 
island of Hawaii as well as on Kauai and Maui, where populations of 
Delissea undulata previously existed. Feral ungulates trample and eat 
native vegetation and disturb open areas. This causes erosion and 
allows the invasion of alien plant species (Cuddihy and Stone 1990, 
Wagner et al. 1990). Delissea undulata is threatened by habitat 
degradation resulting from introduced ungulates (e.g., cattle, goats, 
sheep, and pigs). Habitat degradation by these ungulates threatens the 
only known wild plant, any potential natural germination of seedlings, 
as well as potential suitable habitat occurring throughout the historic 
range of the species.
    Cattle (Bos taurus), native to Europe, northern Africa, and 
southwestern Asia, were introduced to the Hawaiian Islands in 1793. 
Large feral herds developed as a result of restrictions on killing 
cattle decreed by King Kamehameha I. Large ranches in the tens of 
thousands of acres were created on Maui and Hawaii. Much of the land 
used in these private enterprises was leased from the State or was 
privately owned. Feral cattle formerly existed on Maui and damaged the 
forests there. Feral cattle are presently found on the island of 
Hawaii, and ranching is still a major commercial activity there. Cattle 
eat native vegetation, trample roots and seedlings, cause erosion, 
create disturbed areas into which alien plants invade, and spread seeds 
of alien plants in their feces and on their bodies. The forest becomes 
degraded to grassland pasture in areas grazed by cattle, and plant 
cover is reduced for many years following removal of cattle from an 
area. Several alien grasses and legumes purposely introduced for cattle 
forage have become noxious weeds (Cuddihy and Stone 1990, Tomich 1986). 
Cattle have altered and degraded the vegetation of much of Hawaii, 
including the areas where Delissea undulata formerly grew, and where it 
is still known to exist (Tomich 1986; J. Giffin, in litt. 1993). 
Hunting of feral cattle is no longer allowed in Hawaii (Hawaii DLNR 
1985).
    Goats (Capra hircus), native to the Middle East and India, were 
successfully introduced to the Hawaiian Islands in 1792, and currently 
there are populations on Kauai, Oahu, Molokai, Maui, and Hawaii. On 
Kauai, feral goats have been present in drier, more rugged areas since 
1820; they still occur in Waimea Canyon. On Hawaii, goats damage low 
elevation dry forests, montane parklands, subalpine woodlands, and 
alpine grasslands. Goats are managed in Hawaii as a game animal, but 
many herds populate inaccessible areas where hunting has little effect 
on their numbers. Goat hunting is allowed year-round or during certain 
months, depending on the area (Hawaii DLNR n.d., 1985). Goats browse on 
introduced grasses and native plants, especially in drier and more open 
ecosystems. They also trample roots and seedlings, cause erosion, and 
promote the invasion of alien plants. They are able to forage in 
extremely rugged terrain and have a high reproductive capacity (Cuddihy 
and Stone 1990, Culliney 1988, Tomich 1986). Delissea undulata 
currently is threatened by goats that use the area where the single 
known wild individual exists (J. Giffin, in litt. 1993).
    Sheep (Ovis aries) became firmly established on the island of 
Hawaii (Tomich 1986) following their introduction almost 200 years ago 
(Cuddihy and Stone 1990). Like feral goats, sheep roam the upper 
elevation dry forests, including Puu Waawaa, causing damage similar to 
that of goats (Stone 1985). Sheep have decimated vast areas of native 
forest and shrubland on Hawaii. Sheep threaten the habitat of Delissea 
undulata (Cuddihy and Stone 1990; J. Giffin, in litt. 1993) as well as 
the one remaining wild plant.
    Pigs (Sus scrofa) are originally native to Europe, northern Africa, 
Asia Minor, and Asia. European pigs, introduced to Hawaii by Captain 
James Cook in 1778, became feral and invaded forested areas, especially 
wet and mesic forests and dry areas at high elevations. They currently 
are present on Kauai, Oahu, Molokai, Maui, and Hawaii and inhabit rain 
forests and grasslands. Pig hunting is allowed on all islands either 
year-round or during certain months, depending on the area (Hawaii DLNR 
n.d., 1985). While rooting in the ground in search of the invertebrates 
and plant material they eat, feral pigs disturb and destroy vegetative 
cover, trample plants and seedlings, and threaten forest regeneration 
by damaging seeds and seedlings. They disturb soil substrates and cause 
erosion, especially on slopes. Alien plant seeds are dispersed in their 
hooves and coats as well as through their feces, and the disturbed soil 
is fertilized by their feces, helping alien plants to establish 
(Cuddihy and Stone 1990, Smith 1985, Stone 1985, Tomich 1986, Wagner et 
al. 1990). Feral pigs pose a threat to Delissea undulata and its 
habitat (J. Giffin, in litt. 1993).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Unrestricted collecting for scientific or 
horticultural purposes and excessive visits by individuals interested 
in seeing rare plants could result from increased publicity. This is a 
potential threat to Delissea undulata, which was once thought to be 
extinct and is represented now by only one known wild plant. The long-
term viability or survivorship of the

[[Page 53127]]

approximately 50 outplanted individuals propagated from seed is not 
known. The species is of some horticultural and ornamental interest. 
Taking and vandalism are potential threats that could result from 
increased specific publicity.
    C. Disease or predation. Cattle, goats, pigs, and sheep have been 
reported in the area where Delissea undulata is known to occur. As this 
taxon is not known to be unpalatable to these ungulates, predation is a 
probable threat where these animals have been reported. The lack of 
seedlings and the occurrence of the only known individual in an area 
less accessible to ungulates seem to indicate the effect that browsing 
mammals, especially cattle, have had in restricting the distribution of 
this plant. Though not legally obligated to protect the species prior 
to this listing, the State fenced the one wild individual to protect it 
from damage by ungulates (J. Giffin, in litt. 1993). See Factor D.
    Of the four species of rodents which have been introduced to the 
Hawaiian Islands, the species with the greatest impact on the native 
flora and fauna is probably the roof or black rat (Rattus rattus), 
which now occurs on all the main Hawaiian Islands around human 
habitations, in cultivated fields, and in dry to wet forests. Roof 
rats, and to a lesser extent house mouse (Mus musculus), Polynesian rat 
(R. exulans), and Norway rat (R. norvegicus), eat the fruits of some 
native plants, especially those with large, fleshy fruits. Many native 
Hawaiian plants produce their fruit over an extended period of time, 
and this produces a prolonged food supply that supports rodent 
populations. It is probable that rats damage the fleshy fruit of 
Delissea undulata. Introduced game birds also may eat the fruits (J. 
Giffin, in litt. 1993).
    Little is known about the predation of rare Hawaiian plants by 
slugs. Predation by slugs on plant parts of Delissea undulata has been 
observed by field botanists (M. Bruegmann, in litt. 1994). The effect 
of slugs on the decline of this and related species is unclear, 
although slugs may pose a threat to this species, because they feed on 
the stems and may eat the fruit before germination can occur, reducing 
the vigor of the plants and limiting the number of seeds for 
germination. While seeds produced on the wild plant and outplanted 
individuals are viable, no germination has been observed in the wild 
(M. Bruegmann, in litt. 1994, J. Giffin, pers. comm. 1994).
    D. The inadequacy of existing regulatory mechanisms. The only known 
wild Delissea undulata occurs on State land within the State's 
conservation district. Conservation district lands (HRS, sect. 205-4) 
are regarded, among other purposes, as necessary for the protection of 
endemic biological resources and the maintenance or enhancement of the 
conservation of natural resources. Activities permitted in the 
conservation district are chosen by considering how best to make 
multiple use of the land (HRS, sect. 205-2). Some uses, such as 
maintaining animals for hunting, are based on policy decisions, while 
others, such as preservation of endangered species, are mandated by 
both Federal and State laws. Requests for amendments to district 
boundaries or variances within existing classifications can be made by 
government agencies and private landowners (HRS, sect. 205-4). Before 
decisions on these requests are made, the impact of the proposed 
reclassification on ``preservation or maintenance of important natural 
systems or habitat'' (HRS, sects. 205-4, 205-17), as well as the 
maintenance of natural resources, is required to be taken into account 
(HRS, sects. 205-2, 205-4). For any proposed land use change that would 
occur on county or State land, that would be funded in part or whole by 
county or State funds, or that would occur within land classified as a 
conservation district, an environmental assessment is required to 
determine whether or not the environment will be significantly affected 
(HRS, chapt. 343). If it is found that an action will have a 
significant effect, preparation of a full Environmental Impact 
Statement under State law is required. Hawaii environmental policy and, 
thus, approval of land use, is required by law to safeguard ``* * * the 
State's unique natural environmental characteristics * * *'' (HRS, 
sect. 344-3(1)) and includes guidelines to ``protect endangered species 
of individual plants and animals * * *'' (HRS, sect. 344-4(3)(A)). 
Despite provisions for conserving endemic resources, individual rare 
species may be overlooked during consideration of other land use 
priorities.
    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)). Therefore, Federal listing 
automatically invokes listing under Hawaii State law. State law 
prohibits cutting, collecting, uprooting, destroying, injuring, or 
possessing any listed species of plant on State or private land, or 
attempting to engage in any such conduct. The State law encourages 
conservation of such species by State agencies and triggers other State 
regulations to protect the species (HRS, sect. 195AD-4 and 5).
    E. Other natural or manmade factors affecting its continued 
existence. The fact that there is only one remaining wild individual of 
Delissea undulata increases the potential for extinction from random 
events. While seeds produced on the wild plant and outplanted 
individuals are viable, no germination has been observed in the wild 
(M. Bruegmann, in litt. 1994, J. Giffin, pers. comm. 1994). The limited 
gene pool may depress reproductive vigor, or a single human-caused or 
natural environmental disturbance could destroy the only known extant 
individual. This constitutes a major threat to D. undulata.
    Natural changes to habitat and substrate can result in the death of 
individual plants as well as the destruction of their habitat. This 
especially affects the continued existence of taxa or populations with 
limited numbers or narrow ranges and is often exacerbated by human 
disturbance and land use practices (see Factor A). Additional collapse 
of the lava tube where the only known wild individual of Delissea 
undulata occurs is a potential threat to this species (J. Giffin, in 
litt. 1993).
    Three species of introduced plants threaten Delissea undulata. The 
historic native flora of Hawaii consisted of about 1,000 species, 89 
percent of which were endemic. Of the total native and naturalized 
Hawaiian flora of 1,817 species, 47 percent were introduced from other 
parts of the world and nearly 100 species have become pests (Smith 
1985, Wagner et al. 1990). Naturalized, introduced species degrade the 
Hawaiian landscape and compete with native plants for space, light, 
water, and nutrients (Cuddihy and Stone 1990). Some of these species 
were brought to Hawaii by various groups of people, including the 
Polynesian immigrants, for food or cultural reasons. Plantation owners, 
alarmed at the reduction of water resources for their crops caused by 
the destruction of native forest cover by grazing feral animals, 
supported the introduction of alien tree species for reforestation. 
Ranchers intentionally introduced pasture grasses and other species for 
agriculture, and sometimes inadvertently introduced weed seeds as well. 
Other plants were brought to Hawaii for their potential horticultural 
value (Cuddihy and Stone 1990, Wenkam 1969).

[[Page 53128]]

    Passiflora mollissima (banana poka), a woody vine, poses a serious 
problem to mesic forests, in which Delissea undulata primarily grows, 
on Kauai and Hawaii by covering trees, reducing the amount of light 
that reaches trees as well as understory, and causing damage and death 
to trees by the weight of the vines. Animals, especially feral pigs, 
eat the fruit and distribute the seeds (Cuddihy and Stone 1990, Escobar 
1990). P. mollissima is a threat to D. undulata and its habitat (J. 
Giffin, in litt. 1993).
    Senecio mikanioides (German ivy) is another vine that poses a 
serious threat to mesic and dry forests on Hawaii. It is becoming 
established on Maui as well. Senecio mikanioides may be capable of 
establishing itself over vast areas of the island of Hawaii, including 
most of Hualalai. The vine covers the forest canopy, which can result 
in structural damage and the reduction of available light. Senecio 
mikanioides also can form a significant ground cover in native forests 
of the southern Kona region of Hawaii where it may limit native plant 
reproduction (Cuddihy and Stone 1990). Senecio mikanioides threatens 
Delissea undulata and its habitat (J. Giffin, in litt. 1993).
    Pennisetum clandestinum (Kikuyu grass), an aggressive, fire 
adapted, perennial grass introduced to Hawaii as a pasture grass, 
withstands trampling and grazing and has naturalized on four Hawaiian 
Islands in dry to mesic forest. It produces thick mats which choke out 
other plants and prevent their seedlings from becoming established. It 
has been declared a noxious weed by the U.S. Department of Agriculture 
(7 CFR 360) (O'Connor 1990, Smith 1985).
    Because Hawaiian plants were subjected to fire during their 
evolution only in areas of volcanic activity and from occasional 
lightning strikes, they are not adapted to recurring fire regimes and 
do not recover quickly following a fire. Fires may result from natural 
causes, or they may be accidentally or purposely set by people. 
Vegetation on the slopes of Hualalai is particularly vulnerable to fire 
due to the extensive invasion of P. clandestinum. Alien plants are 
often better adapted to fire than native plant species, and some fire-
adapted grasses have become widespread in Hawaii. Native shrubland can 
thus be converted to land dominated by alien grasses. The presence of 
such species in Hawaiian ecosystems greatly increases the intensity, 
extent, and frequency of fire, especially during drier months or 
drought. Many fire-adapted alien species can quickly reestablish in 
burned areas, resulting in a reduction in the amount of native 
vegetation after each fire. Fire can destroy dormant seeds as well as 
mature plants and seedlings, even in steep or inaccessible areas 
(Cuddihy and Stone 1990). The only known wild individual of Delissea 
undulata occurs in an area heavily grazed by cattle, and is offered 
some protection from fires since the cattle reduce the fuel load of P. 
clandestinum. However, fire remains a potentially serious threat to the 
only known wild individual of D. undulata, its potential regeneration, 
and other suitable habitat (J. Giffin, in litt. 1993).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by Delissea undulata in determining to make this 
rule final. Based on this evaluation, this rulemaking will list D. 
undulata as endangered. Only one wild individual of this species is 
known to exist, and it is threatened by habitat degradation by feral 
ungulates and alien plants, fire, and lack of legal protection. The 
seeds produced on the wild plant and the outplanted individuals are 
viable but no germination has been observed in the wild. Small 
population size makes this species particularly vulnerable to reduced 
reproductive vigor and/or extinction from stochastic events. Because 
this species is in danger of extinction throughout all of its range, it 
fits the definition of endangered as defined in the Act.

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 
consideration or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary should designate critical habitat at 
the time a species is determined to be endangered or threatened. The 
Service finds that designation of critical habitat is not prudent for 
Delissea undulata. Service regulations (50 CFR 424.12(a)(1)) state that 
designation of critical habitat is not prudent when one or both of the 
following situations exist--(1) The species is threatened by taking or 
other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    Such a determination would provide no additional protection to  
Delissea undulata and could increase the degree of threat to the 
species. The extant population is on State land; State government 
agencies can be alerted to the presence of the plant without the 
publication of critical habitat descriptions and maps. The publication 
of such descriptions and maps would potentially increase the degree of 
threats from taking or vandalism because a live specimen of D. undulata 
would be of interest to curiosity seekers or collectors of rare plants. 
Although taking by humans is not currently a primary threat, listing D. 
undulata is likely to substantially increase interest in the plant, 
thus increasing the threat from human disturbance. All involved parties 
and landowners have been notified of the importance of protecting this 
species' habitat. In addition, protection of the species' habitat will 
be addressed through the recovery planning process. Furthermore, the 
limited protections added by designating critical habitat are provided 
by section 7 of the Act, which applies only to actions by Federal 
agencies. There are no known Federal activities within the currently 
known habitat of this species. Therefore, the Service finds that 
designation of critical habitat for this species is not prudent at this 
time, because such designation would increase the degree of threat from 
vandalism, collecting, or other human activities and because it is 
unlikely to aid in the conservation of this species.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. Recognition through listing can result in 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. Harold L. Lyon Arboretum of the 
University of Hawaii at Manoa is propagating seeds collected from the 
one remaining individual as part of an ex situ conservation program. 
The Arboretum has over 400 seedlings growing as part

[[Page 53129]]

of this conservation program, and has sent approximately 50 individuals 
to the State's Hawaii forestry district for experimental outplanting in 
the Puu Waawaa area. Several outplanted individuals have produced seed 
after only two years, although no seedlings have been produced by these 
outplanted individuals (Charles H. Lamoureux, Harold L. Lyon Arboretum 
at University of Hawaii, pers. comm. 1993; J. Giffin, pers. comms. 
1993, 1994). The Act provides for possible land acquisition and 
cooperation with State agencies and requires that recovery actions be 
carried out for all listed species. Since Delissea undulata is known to 
occur on State land, cooperation between Federal and State agencies is 
necessary to provide for its conservation. The protection required of 
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 species that is proposed or 
listed as endangered or threatened. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing. If a species is listed 
subsequently, section 7(a)(2) requires Federal agencies to insure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species. If a Federal action 
may affect a listed species, the responsible Federal agency must enter 
into formal consultation with the Service. No Federal involvement is 
known or anticipated that would affect Delissea undulata, as the only 
known site is on State owned land.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61, would apply to Delissea undulata. These prohibitions, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to import or export, transport in interstate or foreign 
commerce in the course of a commercial activity, sell or offer for sale 
in interstate or foreign commerce, or remove and reduce an endangered 
plant species to possession from areas under Federal jurisdiction. In 
addition, for plants listed as endangered, the Act prohibits the 
malicious damage or destruction on areas under Federal jurisdiction and 
the removal, cutting, digging up, or damaging or destroying of such 
plants in knowing violation of any State law or regulation, including 
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 plants under certain 
circumstances. Such permits are available for scientific purposes and 
to enhance the propagation and survival of the species. It is 
anticipated that few 50 CFR 17.63 permits relating to economic hardship 
would ever be sought or issued because the species is uncommon in 
cultivation and is very rare in the wild.
    It is the policy of the Service (59 FR 34272) to identify to the 
maximum extent practicable at the time a species is listed those 
activities that would or would not constitute a violation of section 9 
of the Act. Such information is intended to clarify the potential 
impacts of a species' listing on proposed and ongoing activities within 
the species' range. The only known wild individual of Delissea undulata 
occurs on State land. Collection, damage, or destruction of this 
species on State land would constitute a violation of section 9 if 
conducted in knowing violation of Hawaii State law or regulations or in 
violation of a State criminal trespass law (see Hawaii State Law 
section below). Damage or destruction of the last known individual of 
this species via vandalism, arson fire, domestic cattle, feral 
ungulates, or as a result of the deliberate introduction of plant 
predators or pathogens that attack this species could be considered 
such a violation.
    Requests for copies of the regulations regarding 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 NE 11th Avenue, Portland, Oregon 97232-4181, telephone 
(503) 231-6131.

Hawaii State Law

    Federal listing will automatically invoke listing under the State's 
endangered species legislation. 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)). 
Therefore, Federal listing will accord the species listed status under 
Hawaii State Law. State law prohibits cutting, collecting, uprooting, 
destroying, injuring, or possessing any listed species of plant on 
State or private land, or attempting to engage in any such conduct. The 
State law encourages conservation of such species by State agencies and 
triggers other State regulations to protect the species (HRS, sect. 
195D-4 and 5).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, 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 Endangered Species 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).

Required Determinations

    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements. This rulemaking was not subject to review by the Office 
of Management and Budget under Executive Order 12866.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Ecoregion Manager, Pacific Islands 
Ecoregion Office (see ADDRESSES section).

Author

    The primary author of this final rule is Marie M. Bruegmann of the 
Pacific Islands Ecoregion 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, 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. Amend section 17.12(h) by adding the following, in alphabetical 
order under FLOWERING PLANTS, to the List of Endangered and Threatened 
Plants to read as follows:

[[Page 53130]]

Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        SPECIES                                                                                                                         
-------------------------------------------------------       Historic range                 Family             Status      When     Critical   Special 
        Scientific name               Common name                                                                          listed    habitat     rules  
--------------------------------------------------------------------------------------------------------------------------------------------------------
       FLOWERING PLANTS                                                                                                                                 
                                      *              *              *              *              *              *              *                       
Delissea undulata.............  None..................  U.S.A. (HI)..............  Campanulaceae............         E        593         NA         NA 
                                      *              *              *              *              *              *              *                       
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: September 19, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-25555 Filed 10-9-96; 8:45 am]
BILLING CODE 4310-55-P