[Federal Register Volume 67, Number 93 (Tuesday, May 14, 2002)]
[Proposed Rules]
[Pages 34522-34545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11225]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 67 , No. 93 / Tuesday, May 14, 2002 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH09


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and notice of determinations of whether 
designation of critical habitat is prudent.

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

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

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

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

SUPPLEMENTARY INFORMATION:   

Background

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

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

[[Page 34523]]

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

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

The Northwestern Hawaiian Islands

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

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

[[Page 34524]]

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

Hawaiian Islands National Wildlife Refuge

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

Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve

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

Discussion of the Plant Taxa

Species Endemic to the Northwestern Hawaiian Islands

Amaranthus brownii (no common name)

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

[[Page 34525]]

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

Pritchardia remota (loulu)

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

Schiedea verticillata (no common name)

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

Cenchrus agrimonioides (kamanomano)

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

[[Page 34526]]

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

Mariscus pennatiformis (no common name)

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

Sesbania tomentosa (ohai)

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

Previous Federal Action

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

[[Page 34527]]

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

      Table 2(a).--Summary of Candidacy Status for Six Plant Species From the Northwestern Hawaiian Islands
----------------------------------------------------------------------------------------------------------------
                                                         Federal Register Notice of Review
             Species              ------------------------------------------------------------------------------
                                          1980                1985                1990                1993
----------------------------------------------------------------------------------------------------------------
Amaranthus brownii...............  C1                  C1                  C1
Cenchrus agrimonioides var.        C1*                 C1*                 C1*                 C2*
 laysanensis.
Mariscus pennatiformis...........  C1                  C1
Pritchardia remota...............  C1                  C1                  C1
Schiedea verticillata............  C1                  C1                  C1
Sesbania tomentosa...............  C1*                 C1*                 C1
----------------------------------------------------------------------------------------------------------------
Key:
C1: Taxa for which the Service has on file enough sufficient information on biological vulnerability and
  threat(s) to support proposals to list them as endangered or threatened species.
C1*: Taxa of known vulnerable status in the recent past that may already have become extinct.
C2*: Taxa for which information now in the possession of the Service indicates that proposing to list as
  endangered or threatened is possibly appropriate, but for which sufficient data on biological vulnerability
  and threat are not currently available to support proposed rules. Continued existence of these species is in
  doubt.
 
Federal Register Notices of Review:
1980: 45 FR 82479
1985: 50 FR 39525
1990: 55 FR 6183
1993: 58 FR 51144


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

Critical Habitat

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

[[Page 34528]]

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

Critical Habitat

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

[[Page 34529]]

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

A. Prudency Redeterminations

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

[[Page 34530]]

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

B. Primary Constituent Elements

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

C. Methods

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

[[Page 34531]]

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

Administration

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

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

[[Page 34532]]

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

Nihoa

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

[[Page 34533]]

[GRAPHIC] [TIFF OMITTED] TP14MY02.003

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

[[Page 34534]]

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

[[Page 34535]]

[GRAPHIC] [TIFF OMITTED] TP14MY02.004


[[Page 34536]]



Laysan

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

[[Page 34537]]

[GRAPHIC] [TIFF OMITTED] TP14MY02.005


[[Page 34538]]



Effects of Critical Habitat Designation

Section 7 Consultation

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

Economic and Other Relevant Impacts Analysis

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

[[Page 34539]]

Public Comments Solicited

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

Peer Review

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

Clarity of the Rule

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

Taxonomic Changes

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

Required Determinations

Regulatory Planning and Review

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

[[Page 34540]]

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

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

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

[[Page 34541]]

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

Executive Order 13211

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

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

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

[[Page 34542]]

habitat imposes no obligations on State or local governments.

Takings

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

Federalism

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

Civil Justice Reform

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

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

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

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

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

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


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species
------------------------------------------------------   Historic  range        Family  name         Status      When  listed    Critical      Special
         Scientific name              Common name                                                                                habitat        rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Amaranthus brownii..............  None...............  U.S.A. (HI)........  Amaranthaceae......  E                       587      17.96(a)           NA
 
                   *                  *                  *                  *                  *                  *                  *
Mariscus pennatiformis..........  None...............  U.S.A. (HI)........  Cyperaceae.........  E                       559      17.96(a)           NA
 

[[Page 34543]]

 
                   *                  *                  *                  *                  *                  *                  *
Pritchardia remota..............  Loulu..............  U.S.A. (HI)........  Arecaceae..........  E                       587      17.96(a)           NA
 
                   *                  *                  *                  *                  *                  *                  *
Schiedea verticilla.............  None...............  U.S.A. (HI)........  Caryophyllaceae....  E                       587      17.96(a)           NA
 
                   *                  *                  *                  *                  *                  *                  *
Sesbania tomentosa..............  Ohai...............  U.S.A. (HI)........  Fabaceae...........  E                       559      17.96(a)           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

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


Sec. 17.96  Critical habitat--plants.

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

[[Page 34544]]


    (2) Critical Habitat Nihoa Island--entire island (approximately 69 
ha; 171 ac).
    (i) Nihoa Island is located between 23 deg.3' N. and 23 deg.4' N. 
and between 161 deg.54' W. and 161 deg.56' W.
    (ii) Note: Map 2 follows:
    [GRAPHIC] [TIFF OMITTED] TP14MY02.007
    
    (3) Critical Habitat Necker Island--entire island (approximately 18 
ha; 46 ac).
    (i) Necker Island is located between 23 deg.34' N. and 23 deg.35' 
N. and between 164 deg.41' W. and 164 deg.43' W.
    (ii) Note: Map 3 follows:
    [GRAPHIC] [TIFF OMITTED] TP14MY02.008
    
    (4) Critical Habitat Laysan Island--entire island (approximately 
411 ha; 1,015 ac).
    (i) Laysan Island is located between 25 deg.45' N. and 25 deg.47' 
N. and between 171 deg.43' W. and 171 deg.45' W.
    (ii) Note: Map 4 follows:
    [GRAPHIC] [TIFF OMITTED] TP14MY02.009
    

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

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

[[Page 34545]]

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

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