[Federal Register Volume 68, Number 6 (Thursday, January 9, 2003)]
[Rules and Regulations]
[Pages 1220-1274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-130]



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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; Final Designation of 
Critical Habitat for Three Plant Species From the Island of Lanai, 
Hawaii; Final Rule

  Federal Register / Vol. 68 , No. 6 / Thursday, January 9, 2003 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH10


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat for Three Plant Species From the Island of Lanai, 
Hawaii

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat pursuant to the Endangered Species Act of 1973, as 
amended (Act), for three of the 37 species known historically from the 
Hawaiian island of Lanai. The three species are Bidens micrantha ssp. 
kalealaha, Portulaca sclerocarpa, and Tetramolopium remyi. A total of 
approximately 320 hectares (789 acres) of land on Lanai fall within the 
boundaries of the six critical habitat units designated for the three 
species. This critical habitat designation provides additional 
protection under section 7 of the Act with regard to actions carried 
out, funded, or authorized by a Federal agency. Section 4 of the Act 
requires us to consider economic and other relevant impacts when 
specifying any particular area as critical habitat. We solicited data 
and comments from the public on all aspects of the proposed rule, 
including data on economic and other impacts of the designation.

DATES: This rule becomes effective on February 10, 2003.

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

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

SUPPLEMENTARY INFORMATION:

Background

    In the Lists of Endangered and Threatened Plants (50 CFR 17.12), 
there are 37 plant species that, at the time of listing, were reported 
from the island of Lanai (Table 1). Seven of these species are endemic 
to the island of Lanai, while 30 species are reported from one or more 
other islands, as well as Lanai. Each of the 37 species is described in 
more detail below in the section, ``Discussion of Plant Taxa.'' 
Although we considered designating critical habitat on Lanai for each 
of the 37 plant species, for the reasons described below, the final 
designation includes critical habitat for only 3 of 37 plant species. 
Species that also occur on other islands may have critical habitat 
designated on other islands in subsequent rulemakings.

                                            Table 1.--Summary of Island Distribution of 37 Species From Lanai
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Island distribution
               Species               -------------------------------------------------------------------------------------------------------------------
                                          Kauai         Oahu         Molokai        Lanai         Maui         Hawaii      N.W. Isles, Kahoolawe, Niihau
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abutilon eremitopetalum (NCN).......  ............  ............  ............             C
Adenophorus periens (pendant kihi                C            H              C            R             R              C
 fern).
Bidens micrantha ssp. kalealaha       ............  ............  ............             C             C
 (kookoolau).
Bonamia menziesii (NCN).............             C             C            H              C             C             C
Brighamia rockii (pua ala)..........  ............  ............             C            H             H
Cenchrus agrimonioides (kamanomano,   ............             C  ............            H              C            R   NW Isles (H)
 sandbur, agrimony).
Centaurium sebaeoides (awiwi).......             C             C             C             C             C
Clermontia oblongifolia ssp.          ............  ............  ............             C             C
 mauiensis (oha wai).
Ctenitis squamigera (pauoa).........            H              C             C             C             C            H
Cyanea grimesiana ssp. grimesiana     ............             C             C             C             C
 (haha).
Cyanea lobata (haha)................  ............  ............  ............            H              C  ............  ..............................
Cyanea macrostegia ssp. gibsonii      ............  ............  ............             C
 (NCN).
Cyperus trachysanthos (puukaa)......             C             C            H             H   ............  ............  Ni (C)
Cyrtandra munroi (haiwale)..........  ............  ............  ............             C             C
Diellia erecta (NCN)................             C             C             C            H              C             C
Diplazium molokaiense (NCN).........            H             H             H             H              C
Gahnia lanaiensis (NCN).............  ............  ............  ............             C
Hedyotis mannii (pilo)..............  ............  ............             C             C             C
Hedyotis schlechtendahliana var.      ............  ............  ............             C
 remyi (kopa).
Hesperomannia arborescens (NCN).....  ............             C             C            H              C
Hibiscus brackenridgei (mao hau                 H              C            H              C             C             C  Ka (R)
 hele).
Isodendrion pyrifolium (wahine noho   ............            H             H             H             H              C  Ni (H)
 kula).
Labordia tinifolia var. lanaiensis    ............  ............  ............             C
 (kamakahala).
Mariscus fauriei (NCN)..............  ............  ............             C            H   ............             C
Melicope munroi (alani).............  ............  ............            H              C

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Neraudia sericea (NCN)..............  ............  ............             C            H              C  ............  Ka (H)
Phyllostegia glabra var. lanaiensis   ............  ............  ............            H
 (NCN).
Portulaca sclerocarpa (poe).........  ............  ............  ............             C  ............             C
Sesbania tomentosa (ohai)...........             C             C             C            H              C             C  Ni (H), Ka (C), NW Isles (C)
Silene lanceolata (NCN).............            H              C             C            H   ............             C
Solanum incompletum (popolo ku mai).            H   ............            H             H             H              C
Spermolepis hawaiiensis (NCN).......             C             C             C             C             C             C
Tetramolopium lepidotum ssp.          ............             C  ............            H
 lepidotum (NCN).
Tetramolopium remyi (NCN)...........  ............  ............  ............             C            H
Vigna o-wahuensis (NCN).............  ............            H              C             C             C             C  Ni (H), Ka (C)
Viola lanaiensis (NCN)..............  ............  ............  ............             C
Zanthoxylum hawaiiense (ae).........             C  ............             C            H              C             C
--------------------------------------------------------------------------------------------------------------------------------------------------------
Key
C (Current)--occurrence last observed within the past 30 years.
H (Historical)--occurrence not seen for more than 30 years.
R (Reported)--reported from undocumented observations.
* NCN--No Common Name.

The Island of Lanai

    Lanai is a small island totaling about 360 square kilometers (sq 
km) (139 sq miles (mi) in area. Hidden from the trade winds in the lee 
or rain shadow of the more massive West Maui Mountains, Lanai was 
formed from a single shield volcano built by eruptions at its summit 
and along three rift zones. The principal rift zone runs in a 
northwesterly direction and forms a broad ridge whose highest point, 
Lanaihale, has an elevation of 1,027 meters (m) (3,370 feet (ft)). The 
entire ridge is commonly called Lanaihale, after its highest point. 
Annual rainfall on the summit of Lanaihale is 760 to 1,015 millimeters 
(mm) (30 to 40 inches (in)), but is considerably less, 250 to 500 mm 
(10 to 20 in), over much of the rest of the island (Department of 
Geography 1998).
    Geologically, Lanai is part of the four-island complex comprising 
Maui, Molokai, Lanai, and Kahoolawe, known collectively as Maui Nui 
(Greater Maui). During the last Ice Age about 12,000 years ago, when 
sea levels were about 160 m (525 ft) below their present level, these 
four islands were connected by a broad lowland plain. This land bridge 
allowed the movement and interaction of each island's flora and fauna 
and contributed to the present close relationships of their biota 
(Department of Geography 1998).
    Changes in Lanai's ecosystem began with the arrival of the first 
Polynesians about 1,500 years ago. In the 1800s, goats (Capra hircus), 
pigs (Sus scrofa), and sheep (Ovis aries) were first introduced to the 
island. Native vegetation was soon decimated by these nonnative 
ungulates, and erosion from wind and rain caused further damage to the 
native forests. Formal ranching was begun in 1902, and by 1910, the 
Territorial forester helped to revegetate the island. By 1911, a ranch 
manager from New Zealand, George Munro, instituted forest management 
practices to recover the native forests and bird species which included 
fencing and eradication of sheep and goats from the mountains. Mouflon 
sheep (Ovis musimon) and axis deer (Axis axis) were introduced to Lanai 
in 1954 and 1920 respectively, leading to renewed impacts on the native 
vegetation. By the 1920s, Castle and Cooke had acquired more than 98 
percent of the island and established a 6,500 ha (16,000 ac) pineapple 
plantation surrounding its company town, Lanai City. In the early 
1990s, the pineapple plantation closed, and two luxury hotels were 
developed by the private landowner, sustaining the island's economy 
today (Hobdy 1993).
    There are no military installations on the island of Lanai.

Discussion of Plant Taxa

Species Endemic to Lanai
Abutilon eremitopetalum (NCN)
    Abutilon eremitopetalum is a long-lived shrub in the mallow family 
(Malvaceae) with grayish-green, densely hairy, and heart-shaped leaves. 
It is the only Abutilon species on Lanai whose flowers have green 
petals hidden within the calyx (the outside leaf-like part of the 
flower) (Bates 1999).
    Abutilon eremitopetalum is known to flower during February. Little 
else is known about the life history of this species. Its flowering 
cycles, pollination vectors, seed dispersal agents, longevity, specific 
environmental requirements, and limiting factors are unknown (Service 
1995).
    Historically, Abutilon eremitopetalum was found in small, widely 
scattered colonies in the ahupuaa (geographical areas) of Kalulu, 
Mahana, Maunalei, Mamaki, and Paawili on the northern, northeastern, 
and eastern parts of Lanai. Currently, about seven individuals are 
known from a single occurrence on privately owned land in Kahea Gulch 
on the northeastern part of the island (Caum 1933; Geographic Decision 
Systems International (GDSI) 2000; Hawaii Natural Heritage Program 
(HINHP) Database 2000; Service 1995).
    Abutilon eremitopetalum is found in lowland dry forest at 
elevations between 108 and 660 m (354 and 2,165 ft), on a moderately 
steep north-facing slope on red sandy soil and rock, usually near gulch 
bottoms. Erythrina sandwicensis (wiliwili) and Diospyros sandwicensis 
(lama) are the dominant trees in open forest of the area. Other 
associated native species include Dodonaea viscosa (aalii), Nesoluma 
polynesicum (keahi), Psydrax odorata (alahee), Rauvolfia sandwicensis 
(hao), Sida fallax (ilima), or Wikstroemia sp. (akia) (HINHP Database 
2000; Service 1995).
    The threats to Abutilon eremitopetalum are habitat degradation

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and competition by encroaching nonnative plant species such as Lantana 
camara (lantana), Leucaena leucocephala (koa haole), and Pluchea 
carolinensis (sourbush); browsing by axis deer; soil erosion caused by 
feral ungulate grazing on grasses and forbs; and the small number of 
extant individuals, as the limited gene pool may depress reproductive 
vigor, or a single natural or man-caused environmental disturbance 
could destroy the only known existing occurrence. Fire is another 
potential threat because the area is dry much of the year (HINHP 
Database 2000; Service 1995; 56 FR 47686).
Cyanea macrostegia ssp. gibsonii (NCN)
    Cyanea macrostegia ssp. gibsonii, a long-lived perennial and a 
member of the bellflower family (Campanulaceae), is a palm-like tree 1 
to 7 m (3 to 23 ft) tall with elliptic or oblong leaves that have fine 
hairs covering the lower surface. The following combination of 
characters separates this species from the other members of the genus 
on Lanai: calyx lobes are oblong, narrowly oblong, or ovate in shape, 
and the calyx and corolla (petals of a flower) are both more than 5 mm 
(0.2 in) wide (Lammers 1999; 56 FR 47686).
    Limited observations suggest Cyanea macrostegia ssp. gibsonii 
flowers during the month of July. Pollination vectors, seed dispersal 
agents, longevity of plants and seeds, specific environmental 
requirements, and other limiting factors are unknown (Service 1995).
    Cyanea macrostegia ssp. gibsonii has been documented from the 
summit of Lanaihale and the upper parts of Mahana, Kaiholena, and 
Maunalei Valleys of Lanai. There are currently only two occurrences 
containing 74 individuals. One occurrence is located north of Lanaihale 
and the second occurrence is north of Puu Aalii (puu = summit or hill) 
on privately owned land (GDSI 2000; HINHP Database 2000; Lammers 1999; 
56 FR 47686).
    The habitat of Cyanea macrostegia ssp. gibsonii is lowland wet 
Metrosideros polymorpha (ohia) forest or Diplopterygium pinnatum (uluhe 
lau nui)-M. polymorpha shrubland between elevations of 738 and 1,032 m 
(2,421 and 3,385 ft). It has been observed to grow on flat to moderate 
or steep slopes, usually on lower gulch slopes or gulch bottoms, often 
at edges of streambanks, probably due to vulnerability to ungulate 
damage at more accessible locations. Associated vegetation includes 
Antidesma platyphyllum (hame), Broussaisia arguta (kanawao), 
Cheirodendron trigynum (olapa), Clermontia sp. (oha wai), Cyrtandra sp. 
(haiwale), Dicranopteris linearis (uluhe), Dubautia sp. (naenae), 
Freycinetia arborea (ieie), Hedyotis sp. (NCN), Ilex anomala (kawau), 
Labordia sp. (kamakahala), Melicope sp. (alani), Perrottetia 
sandwicensis (olomea), Pipturus albidus (mamaki), Pneumatopteris 
sandwicensis (NCN), Psychotria sp. (kopiko), Sadleria sp. (amau), or 
Scaevola chamissoniana (naupaka kuahiwi) (HINHP Database 2000; Service 
1995; Joel Lau, HINHP, pers. comm., 2001).
    The threats to Cyanea macrostegia ssp. gibsonii are browsing by 
axis deer; competition with the nonnative plant Hedychium gardnerianum 
(kahili ginger); and the small number of extant individuals, as the 
limited gene pool may depress reproductive vigor, or any natural or 
man-caused environmental disturbance could destroy the existing 
occurrences (HINHP Database 2000; Service 1995; 56 FR 47686).
Gahnia lanaiensis (NCN)
    Gahnia lanaiensis, a short-lived perennial and a member of the 
sedge family (Cyperaceae), is a tall (1.5 to 3 m (5 to 10 ft)), tufted, 
grass-like plant. This sedge may be distinguished from grasses and 
other genera of sedges on Lanai by its spirally arranged flowers, its 
solid stems, and its numerous, three-ranked leaves. Gahnia lanaiensis 
differs from the other members of the genus on the island by its 
achenes (seed-like fruits), which are 3.6 to 4.6 mm (0.14 to 0.18 in) 
long and purplish-black when mature (Koyama 1999).
    July has been described as the ``end of the flowering season'' for 
Gahnia lanaiensis. Plants of this species have been observed with fruit 
in October. Pollination vectors, seed dispersal agents, longevity of 
plants and seeds, specific environmental requirements, and other 
limiting factors are unknown (Degener et al., 1964; 56 FR 47686).
    Gahnia lanaiensis is known from one occurrence containing 47 
individuals on privately owned land along the summit of Lanaihale in 
the Haalelepaakai area and on the eastern edge of Hauola Gulch. The 
occurrence is found between 915 and 1,030 m (3,000 and 3,380 ft) in 
elevation. This distribution encompasses the entire known historic 
range of the species (GDSI 2000; HINHP Database 2000).
    The habitat of Gahnia lanaiensis is lowland wet forest (shrubby 
rainforest to open scrubby fog belt or degraded lowland mesic forest), 
wet Diplopterygium pinnatum-Dicranopteris linearis-Metrosideros 
polymorpha shrubland, or wet M. polymorpha-Dicranopteris linearis 
shrubland at elevations between 737 and 1,032 m (2,417 and 3,385 ft). 
It occurs on flat to gentle ridgecrest topography in moist to wet clay 
or other soil substrate in open areas or in moderate shade. Associated 
species include native mat ferns, Coprosma sp. (pilo), Doodia sp. 
(okupukupu laulii), Hedyotis terminalis (manono), Ilex anomala, 
Leptecophylla tameiameiae (pukiawe), Lycopodium sp. (wawaeiole), 
Sadleria spp. (amau), Scaevola sp. (naupaka), or Sphenomeris chinensis 
(palaa) (Service 1995).
    The primary threats to this species are the small number of plants 
and their restricted distribution, which increase the potential for 
extinction from naturally occurring events. In addition, Gahnia 
lanaiensis is threatened by habitat destruction resulting from the 
planned development of the island, and competition with Leptospermum 
scoparium (manuka), a weedy tree introduced from New Zealand, which is 
spreading along Lanaihale, but has not yet reached the area where 
Gahnia is found (HINHP Database 2000; Service 1995).
Hedyotis schlechtendahliana var. remyi (kopa)
    Hedyotis schlechtendahliana var. remyi, a short-lived perennial and 
a member of the coffee family (Rubiaceae), is a few-branched subshrub 
from 0.6 to 6 m (2 to 10 ft) long, with weakly erect or climbing stems 
that may be somewhat square, smooth, and glaucous (with a fine waxy 
coating that imparts a whitish or bluish hue to the stem). The species 
is distinguished from others in the genus by the distance between 
leaves and the length of the sprawling or climbing stems, and the 
variety remyi is distinguished from H. schlechtendahliana var. 
schlechtendahliana by the leaf shape, presence of narrow flowering 
stalks, and flower color (Wagner et al., 1999).
    Pollination vectors, seed dispersal agents, longevity of plants and 
seeds, specific environmental requirements, and other limiting factors 
are unknown for Hedyotis schlechtendahliana var. remyi (Service 2001).
    Historically, Hedyotis schlechtendahliana var. remyi was known from 
five locations on the northwestern portion of Lanaihale. Currently, 
this species is known from eight individuals in two occurrences on 
privately owned land on Kaiholeha-Hulupoe Ridge, Kapohaku drainage, and 
Waiapaa drainage on Lanaihale (GDSI 2000; HINHP Database 2000; 64 FR 
48307).
    Hedyotis schlechtendahliana var. remyi typically grows on or near 
ridge crests in mesic windswept shrubland

[[Page 1223]]

with a mixture of dominant plant species that may include Metrosideros 
polymorpha, Dicranopteris linearis, or Leptecophylla tameiameiae at 
elevations between 558 and 1,032 m (1,830 and 3,385 ft). Associated 
plant species include Dodonaea viscosa, Dubautia spp., Myrsine sp. 
(kolea), Sadleria spp., or Sphenomeris chinensis (HINHP Database 2000; 
64 FR 48307).
    The primary threats to Hedyotis schlechtendahliana var. remyi are 
habitat degradation and destruction by axis deer; competition with 
nonnative plant species, such as Leptospermum scoparium, Myrica faya 
(firetree), Psidium cattleianum (strawberry guava), or Schinus 
terebinthifolius (Christmasberry); and random environmental events or 
reduced reproductive vigor due to the small number of remaining 
individuals and occurrences (HINHP Database 2000; 64 FR 48307).
Labordia tinifolia var. lanaiensis (kamakahala)
    Labordia tinifolia var. lanaiensis, a short-lived perennial in the 
logan family (Loganiaceae), is an erect shrub or small tree 1.2 to 15 m 
(4 to 49 ft) tall. The stems branch regularly into two forks of nearly 
equal size. This subspecies differs from the other species in this 
endemic Hawaiian genus by having larger capsules (a dry, generally many 
seeded fruit) and smaller corollas (petals, whorl of flower parts) 
(Wagner et al., 1999).
    Little is known about the life history of Labordia tinifolia var. 
lanaiensis. Its flowering cycles, pollination vectors, seed dispersal 
agents, longevity, specific environmental requirements, and limiting 
factors are unknown (Service 2001).
    Labordia tinifolia var. lanaiensis was historically known from the 
entire length of the summit ridge of Lanaihale. Currently, L. tinifolia 
var. lanaiensis is known from only one occurrence on privately owned 
land at the southeastern end of the summit ridge of Lanaihale. This 
occurrence totals 3 to 8 scattered individuals (GDSI 2000; HINHP 
Database 2000; Service 2001).
    The typical habitat of Labordia tinifolia var. lanaiensis is gulch 
slopes in lowland mesic forest. Associated native species include 
Alyxia oliviformis (maile), Bobea elatior (ahakea launui), Clermontia 
spp., Coprosma spp., Cyrtandra grayana (haiwale), Dicranopteris 
linearis, Diospyros sandwicensis, Diplopterygium pinnatum, Freycinetia 
arborea, Hedyotis acuminata (au), Melicope spp., Myrsine lessertiana 
(kolea), Perrottetia sandwicensis, Pipturus albidus, Pittosporum 
confertiflorum (hoawa), Pleomele fernaldii (hala pepe), Pouteria 
sandwicensis (alaa), Psychotria spp., Sadleria cyatheoides (amau), 
Scaevola chamissoniana, or Xylosma hawaiiense (maua) at elevations 
between 550 and 1,013 m (1,804 and 3,323 ft) (HINHP Database 2000; 
Service 2001; 64 FR 48307).
    Labordia tinifolia var. lanaiensis is threatened by axis deer and 
several nonnative plant species. The species is also threatened by 
random environmental factors or reduced reproductive vigor because of 
the small population (Service 2001; 64 FR 48307).
Phyllostegia glabra var. lanaiensis (NCN)
    Phyllostegia glabra var. lanaiensis is a robust, erect to decumbent 
(reclining, with the end ascending), glabrous, short-lived perennial 
herb in the mint family (Lamiaceae). Its leaves are thin and narrow, 
often red-tinged or with red veins, and toothed at the edges. The 
flowers are white, occasionally tinged with purple, and are variable in 
size, about 1 to 2.5 centimeters (cm) (0.4 to 1.0 in) long. This 
variety is very similar to Phyllostegia glabra var. glabra; it may be 
difficult to differentiate between the two species without flowers 
(Wagner et al., 1999).
    Little is known about the life history of Phyllostegia glabra var. 
lanaiensis. Its flowering cycles, pollination vectors, seed dispersal 
agents, longevity, specific environmental requirements, and limiting 
factors are unknown (Service 1995).
    Phyllostegia glabra var. lanaiensis is known from only two 
collections from Lanai (one near Kaiholena) and was last collected in 
1914 (two fertile specimens). A report of this plant from the early 
1980s probably was erroneous and should be referred to as Phyllostegia 
glabra var. glabra (Robert Hobdy, Hawaii Division of Forestry and 
Wildlife (DOFAW), pers. comm., 1992; Service 1995).
    Nothing is known of the preferred habitat of or native plant 
species associated with Phyllostegia glabra var. lanaiensis on the 
island of Lanai (Service 1995).
    Nothing is known of the threats to Phyllostegia glabra var. 
lanaiensis on the island of Lanai (Service 1995).
Viola lanaiensis (NCN)
    Viola lanaiensis, a short-lived perennial of the violet family 
(Violaceae), is a small, erect, unbranched or little-branched subshrub. 
The leaves, which are clustered toward the upper part of the stem, are 
lance-shaped with a pair of narrow, membranous stipules (leaf-like 
appendages arising from the base of a leaf) below each leaf axis. The 
flowers are small and white with purple-tinged or purple veins, and 
occur singly or up to four per upper leaf axil. The fruit is a capsule, 
about 1.0 to 1.3 cm (0.4 to 0.5 in) long. It is the only member of the 
genus on Lanai (Wagner et al., 1999).
    Little is known about the life history of Viola lanaiensis. Its 
flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 1995).
    Viola lanaiensis was known historically from scattered sites on the 
summit, ridges, and upper slopes of Lanaihale (from near the head of 
Kaiolena and Hookio Gulches to the vicinity of Haalelepaakai, a 
distance of about 4 km (2.5 mi)), at elevations of approximately 850 to 
975 m (2,790 to 3,200 ft). An occurrence of V. lanaiensis was known in 
the late 1970s along the summit road near the head of Waialala Gulch 
where an occurrence of approximately 20 individuals flourished. That 
occurrence has since disappeared due to habitat disturbance. Two 
occurrences are currently known from privately owned land on southern 
Lanai: In Kunoa Gulch, between Kunoa and Waialala Gulches; and in the 
upper end of the northernmost drainage of Awehi Gulch, in Hauola Gulch 
and along Hauola Trail. It is estimated that the occurrences total less 
than 80 plants (GDSI 2000; HINHP Database 2000).
    The habitat of Viola lanaiensis is Metrosideros polymorpha-
Dicranopteris linearis lowland wet forest or lowland mesic shrubland. 
The species has been observed on moderate to steep slopes from lower 
gulches to ridgetops, at elevations between 639 and 1,032 m (2,096 and 
3,385 ft), with a soil and decomposed rock substrate in open to shaded 
areas. It was once observed growing from crevices in drier soil on a 
mostly open rock area near a recent landslide. Associated vegetation 
includes ferns and short windswept shrubs or other diverse mesic 
community members, such as Antidesma spp. (hame), Carex sp. (NCN), 
Coprosma spp., Freycinetia arborea, Hedyotis centranthoides (NCN), 
Hedyotis terminalis, Ilex anomala, Leptecophylla tameiameiae, Myrsine 
spp., Nestegis sandwicensis (olopua), Psychotria spp., Scaevola 
chamissoniana, or Xylosma sp. (Service 1995; 56 FR 47686).
    The main threats to Viola lanaiensis include browsing and habitat 
disturbance by axis deer; encroaching

[[Page 1224]]

nonnative plant species, such as Leptospermum sp. (NCN); depressed 
reproductive vigor due to a limited local gene pool; the probable loss 
of appropriate pollinators; and predation by slugs (Midax gigetes) 
(Service 1995; 56 FR 47686).
Multi-Island Species
Adenophorus periens (pendent kihi fern)
    Adenophorus periens, a member of the grammitis family 
(Grammitidaceae), is a small, pendant, epiphytic (not rooted on the 
ground), and short-lived perennial fern. This species differs from 
other species in this endemic Hawaiian genus by having hairs along the 
pinna (leaflet) margins, pinnae at right angles to the midrib axis, 
placement of the sori on the pinnae, and by the degree of dissection of 
each pinna (Linney 1989).
    Little is known about the life history of Adenophorus periens, 
which seems to grow only in closed canopy dense forest with high 
humidity. Its breeding system is unknown, but outbreeding is very 
likely to be the predominant mode of reproduction. Spores (minute, 
reproductive dispersal unit of ferns and fern allies) may be dispersed 
by wind, water, or perhaps on the feet of birds or insects. Adenophorus 
periens spores lack a thick resistant coat, which may indicate their 
longevity is brief, probably measured in days at most. Additional 
information on reproductive cycles, longevity, specific environmental 
requirements, and limiting factors is not known (Linney 1989; Service 
1999).
    Historically, Adenophorus periens was known from Kauai, Oahu, and 
the island of Hawaii, with undocumented reports from Lanai and Maui. 
Currently, it is known from several locations on Kauai, Molokai, and 
Hawaii. On Lanai, it was last seen in the 1860s (GDSI 2000; HINHP 
Database 2000; Service 1999; 59 FR 56333).
    This epiphytic species, usually growing on Metrosideros polymorpha 
trunks, is found in riparian banks of stream systems in well-developed, 
closed canopy that provides deep shade or high humidity in M. 
polymorpha-Dicranopteris linearis-Diplopterygium pinnatum wet forests, 
open M. polymorpha montane wet forest, or M. polymorpha-D. linearis 
lowland wet forest at elevations between 763 and 1,032 m (2,503 and 
3,385 ft). Associated native plant species include Broussaisia arguta, 
Cheirodendron trigynum, Clermontia spp., Freycinetia arborea, Hedyotis 
terminalis, Machaerina angustifolia (uki), Melicope spp., Psychotria 
spp., Sadleria spp., or Syzygium sandwicensis (ohia ha) (Linney 1989; 
Service 1999; 59 FR 56333; Kenneth Wood, National Tropical Botanical 
Garden, pers. comm., 2001).
    Nothing is known of the threats to Adenophorus periens on the 
island of Lanai because the species was last seen there in the 1860s.
Bidens micrantha ssp. kalealaha (kookoolau)
    Bidens micrantha ssp. kalealaha, a short-lived member of the aster 
family (Asteraceae), is an erect perennial herb. This subspecies can be 
distinguished from other subspecies by the shape of the seeds, the 
density of the flower clusters, the numbers of ray and disk florets per 
head, differences in leaf surfaces, and other characteristics (Ganders 
and Nagata 1999; 57 FR 20772).
    Bidens micrantha is known to hybridize with other native Bidens, 
such as B. mauiensis and B. menziesii, and possibly B. conjuncta. 
Little else is known about the life history of B. micrantha ssp. 
kalealaha. Flowering cycles, pollination vectors, seed dispersal 
agents, longevity, and specific environmental requirements are unknown 
(Ganders and Nagata 1999; Service 1997; 57 FR 20772).
    Historically, Bidens micrantha ssp. kalealaha was known from Lanai 
and Maui. Currently, this species remains on East Maui and there is one 
Lanai occurrence in the Waiapaa Gulch area on privately owned land 
(Ganders and Nagata 1999; GDSI 2000; HINHP Database 2000; Service 1997; 
57 FR 20772; HINHP Database 2000; R. Hobdy, pers. comm., 2002).
    The habitat of Bidens micrantha ssp. kalealaha is gulch slopes in 
dry Dodonaea viscosa shrubland at elevations between 409 and 771 m 
(1,342 and 2,529 ft) (J. Lau, pers. comm., 2001).
    The threats to this species on Lanai include habitat destruction by 
axis deer and mouflon sheep; competition from a variety of nonnative 
plant species; depressed reproductive vigor due to a limited local gene 
pool; and fire (Service 1997; 57 FR 20772).
Bonamia menziesii (NCN)
    Bonamia menziesii, a short-lived perennial and a member of the 
morning-glory family (Convolvulaceae), is a vine with twining branches 
that are fuzzy when young. This species is the only member of the genus 
that is endemic to the Hawaiian Islands and differs from other genera 
in the family by its two styles (narrowed top of ovary), longer stems 
and petioles (a stalk that supports a leaf), and rounder leaves (Austin 
1999).
    Little is known about the life history of Bonamia menziesii. Its 
flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 1999).
    Historically, Bonamia menziesii was known from Kauai, Oahu, 
Molokai, West Maui, and Hawaii. Currently, this species is known from 
Kauai, Oahu, Maui, Hawaii, and Lanai. On Lanai, the three occurrences, 
containing a total of 14 individual plants, are found on privately 
owned land in the Ahakea and Kanepuu Units of Kanepuu Preserve, and on 
Puhielelu Ridge (GDSI 2000; HINHP Database 2000).
    Bonamia menziesii is found in dry Nestegis sandwicensis-Diospyros 
sandwicensis forest and dry Dodonaea viscosa shrubland at elevations 
between 315 and 885 m (1,033 and 2,903 ft). Associated species include 
Bobea sp. (ahakea), Dianella sandwicensis (uki uki), Diospyros 
sandwicensis, Erythrina sandwicensis, Hedyotis terminalis, Melicope 
sp., Metrosideros polymorpha, Myoporum sandwicense (naio), Nesoluma 
polynesicum, Nestegis sandwicensis (olopua), Pisonia sp. (papala 
kepau), Pittosporum sp. (hoawa), Pouteria sandwicensis, Psydrax 
odorata, or Rauvolfia sandwicensis (HINHP Database 2000; 59 FR 56333).
    The primary threats to this species on Lanai are habitat 
degradation and possible predation by mouflon sheep and axis deer; 
depressed reproductive vigor due to a limited local gene pool; 
competition with a variety of nonnative plant species, such as Lantana 
camara, Leucaena leucocephala or Schinus terebinthifolius; and a 
nonnative beetle (Physomerus grossipes) (Service 1999; 59 FR 56333).
Brighamia rockii (pua ala)
    Brighamia rockii, a long-lived perennial member of the bellflower 
family (Campanulaceae), grows as an unbranched stem-succulent with a 
thickened stem that tapers from the base. This species is a member of a 
unique endemic Hawaiian genus with only one other species, found on 
Kauai, from which it differs by the color of its petals, its longer 
calyx (fused sepals) lobes, and its shorter flower stalks (Lammers 
1999).
    Observations of Brighamia rockii have provided the following 
information: The reproductive system is protandrous, meaning male 
flower parts are produced before female parts, in this case, separated 
by several days; only five

[[Page 1225]]

percent of the flowers produce pollen; very few fruits are produced per 
inflorescence; there are 20 to 60 seeds per capsule; and plants in 
cultivation have been known to flower at nine months of age. This 
species was observed in flower during August. Little else is known 
about the life history of Brighamia rockii. Flowering cycles, 
pollination vectors, seed dispersal agents, longevity, specific 
environmental requirements, and limiting factors are unknown (HINHP 
Database 2000; Service 1996b; 57 FR 46325).
    Historically, Brighamia rockii ranged along the northern coast of 
East Molokai from Kalaupapa to Halawa, may possibly have grown on Maui, 
and was last seen on Lanai in 1911. Currently, it is extant only on 
Molokai (HINHP Database 2000; Lammers 1999; Service 1996b; 57 FR 46325; 
K. Wood, in litt. 2000).
    On Lanai, Brighamia rockii occurred on sparsely vegetated ledges of 
steep, rocky, dry cliffs, at elevations between 119 and 756 m (390 and 
2,480 ft) with native grasses, sedges, herbs and shrubs (Service 1996b; 
57 FR 46325; J. Lau, pers. comm., 2001).
    Threats to Brighamia rockii on the island of Lanai included habitat 
destruction from axis deer and mouflon sheep, competition with 
nonnative plants, and depressed reproductive vigor due to a limited 
local gene pool (Service 1996b).
Cenchrus agrimonioides (kamanomano (= sandbur, agrimony))
    Cenchrus agrimonioides is a short-lived perennial member of the 
grass family (Poaceae) with leaf blades that are flat or folded and 
have a prominent midrib. There are two varieties, Cenchrus 
agrimonioides var. laysanensis and Cenchrus agrimonioides var. 
agrimonioides. They differ from each other in that var. agrimonioides 
has smaller burs, shorter stems, and narrower leaves. 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 Cenchrus agrimonioides. 
Flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown. This species has been observed to produce fruit year-round 
(Service 1999; 61 FR 53108).
    Historically, Cenchrus agrimonioides var. agrimonioides was known 
from Oahu, Lanai, Maui, and an undocumented report from the Island of 
Hawaii. Historically, C. agrimonioides var. laysanensis was known from 
Laysan, Kure, and Midway, all within what is now the Northwestern 
Hawaiian Islands National Wildlife Refuge. This variety was never known 
from the island of Lanai. Currently, Cenchrus agrimonioides var. 
agrimonioides is known from Oahu and Maui. On Lanai it was last seen in 
1915 (HINHP Database 2000; Service 1999; 61 FR 53108).
    Cenchrus agrimonioides var. agrimonioides was found on slopes in 
mesic Metrosideros polymorpha forest or shrubland at elevations between 
583 and 878 m (1,912 and 2,880 ft) (HINHP Database 2000; Service 1999; 
61 FR 53108; R. Hobdy, pers. comm., 2001).
    The major threats to Cenchrus agrimonioides var. agrimonioides on 
Lanai included competition with nonnative plant species; browsing and 
habitat degradation by axis deer, mouflon sheep, and cattle (Bos 
taurus); and depressed reproductive vigor due to a limited local gene 
pool (Service 1999; 61 FR 53108).
Centaurium sebaeoides (awiwi)
    Centaurium sebaeoides, a member of the gentian family 
(Gentianaceae), is an annual herb with fleshy leaves and stalkless 
flowers. This species is distinguished from Centaurium erythraea, which 
is naturalized in Hawaii, by its fleshy leaves and the unbranched 
arrangement of the flower cluster (Wagner et al., 1999).
    Centaurium sebaeoides has been observed flowering in April. 
Flowering may be induced by heavy rainfall. Occurrences are found in 
dry areas, and plants are more likely to be found following heavy 
rains. Little else is known about the life history of Centaurium 
sebaeoides. Its flowering cycles, pollination vectors, seed dispersal 
agents, longevity, specific environmental requirements, and limiting 
factors are unknown (Service 1999).
    Centaurium sebaeoides was historically and is currently known from 
Kauai, Oahu, Molokai, Lanai, and Maui. On Lanai, there is one 
occurrence containing between 20 and 30 individual plants in Maunalei 
Valley on privately owned land (HINHP Database 2000).
    This species is found on dry ledges at elevations between 39 and 
331 m (128 and 1,086 ft). Associated species include Hibiscus 
brackenridgei (HINHP Database 2000).
    The major threats to this species on Lanai are competition from 
nonnative plant species, grazing and habitat destruction caused by axis 
deer and mouflon sheep, depressed reproductive vigor, and natural or 
human-caused environmental disturbance that could easily be 
catastrophic to the only known population due to the small number of 
remaining individuals and the limited and scattered distribution of the 
species (HINHP Database 2000; Service 1999; R. Hobdy in litt. 2002).
Clermontia oblongifolia ssp. mauiensis (oha wai)
    Clermontia oblongifolia ssp. mauiensis, a short-lived perennial and 
a member of the bellflower family (Campanulaceae), is a shrub or tree 
with oblong to lance-shaped leaves with petioles. Clermontia 
oblongifolia is distinguished from other members of the genus by its 
calyx and corolla, which are similar in color and are each fused into a 
curved tube that falls off as the flower ages. Clermontia oblongifolia 
ssp. mauiensis is reported from Maui and Lanai, while the other two 
subspecies of this species are only known from Oahu and Molokai 
(Lammers 1988, 1999; 57 FR 20772).
    Clermontia oblongifolia ssp. mauiensis is known to flower from 
November to July. Little else is known about the life history of C. 
oblongifolia ssp. mauiensis. Its flowering cycles, pollination vectors, 
seed dispersal agents, longevity, specific environmental requirements, 
and limiting factors are unknown (Rock 1919; Service 1997).
    Clermontia oblongifolia ssp. mauiensis was historically and is 
currently known from Lanai and Maui. On Lanai, an unknown number of 
individuals has been reported from Kaiholena Gulch on privately owned 
land (HINHP Database 2000; Lammers 1999; 57 FR 20772).
    This plant typically grows in gulch bottoms in mesic forests at 
elevations between 700 and 1,032 m (2,296 and 3,385 ft) (HINHP Database 
2000).
    The threats to this species on Lanai are its vulnerability to 
extinction from a single natural or human-caused environmental 
disturbance; depressed reproductive vigor; and habitat degradation by 
axis deer and mouflon sheep (Service 1997; 57 FR 20772).
Ctenitis squamigera (pauoa)
    Ctenitis squamigera is a short-lived perennial fern and a member of 
the spleenwort family (Aspleniaceae). It has a rhizome (horizontal 
stem), creeping above the ground and densely covered with scales 
similar to those on the lower part of the leaf stalk. It can be readily 
distinguished from other Hawaiian species of Ctenitis by the dense 
covering

[[Page 1226]]

of tan-colored scales on its frond (Wagner and Wagner 1992).
    Little is known about the life history of Ctenitis squamigera. Its 
reproduction cycles, dispersal agents, longevity, specific 
environmental requirements, and limiting factors are unknown (Service 
1998a).
    Historically, Ctenitis squamigera was recorded from Kauai, Oahu, 
Molokai, Maui, Lanai, and the island of Hawaii. Currently, it is found 
on Oahu, Molokai, Maui, and Lanai. On Lanai, there are two occurrences 
totaling 42 individual plants on privately owned land in the Waiapaa-
Kapohaku area on the leeward (southwestern) side of the island, and in 
the Lopa and Waiopa Gulches on the windward (northeastern) side (GDSI 
2000; HINHP Database 2000; 59 FR 49025).
    This species is found in the forest understory at elevations 
between 640 and 944 m (2,099 and 3,096 ft) in diverse mesic forest and 
scrubby mixed mesic forest. Associated native plant species include 
Alyxia oliviformis, Antidesma spp., Blechnum occidentale (NCN), 
Boehmeria grandis (akolea), Carex meyenii (NCN), Coprosma spp., 
Cyrtandra spp., Doodia spp., Freycinetia arborea, Melicope spp., 
Metrosideros polymorpha, Microlepia sp. (NCN), Myrsine spp., 
Nephrolepis sp. (kupukupu), Nestegis sandwicensis, Peperomia sp. (ala 
ala wai nui), Perrottetia sandwicensis, Pipturus albidus, Pittosporum 
spp., Pneumatopteris sandwicensis, Psychotria spp., Sadleria spp., 
Selaginella sp. (lepelepe a moa), Syzygium sandwicensis, Wikstroemia 
spp., or Xylosma sp. (HINHP Database 2000; 59 FR 49025).
    The primary threats to this species on Lanai are habitat 
degradation by axis deer and mouflon sheep; competition with nonnative 
plant species, especially Psidium cattleianum and Schinus 
terebinthifolius; fire; decreased reproductive vigor; and extinction 
from naturally occurring events due to the small number of existing 
populations and individuals (Culliney 1988; HINHP Database 2000; 
Service 1998a; 59 FR 49025).
Cyanea grimesiana ssp. grimesiana (haha)
    Cyanea grimesiana ssp. grimesiana, a short-lived perennial and a 
member of the bellflower family (Campanulaceae), is a shrub with 
pinnately divided leaves. This species is distinguished from others in 
this endemic Hawaiian genus by the pinnately lobed leaf margins and the 
width of the leaf blades. This subspecies is distinguished from the 
other two subspecies by the shape and size of the calyx lobes, which 
overlap at the base (Lammers 1999).
    On Molokai, flowering plants have been reported in July and August. 
Little else is known about the life history of Cyanea grimesiana ssp. 
grimesiana. Its flowering cycles, pollination vectors, seed dispersal 
agents, longevity, specific environmental requirements, and limiting 
factors are unknown (Service 1999).
    Cyanea grimesiana ssp. grimesiana was historically and is currently 
known from Oahu, Molokai, Lanai, and Maui. Currently on Lanai there are 
two occurrences with at least three individuals on privately owned land 
in Kaiholena Gulch and Waiakeakua Gulch (HINHP Database 2000; Service 
1999; 61 FR 53108;).
    This species is typically found in mesic forest, often dominated by 
Metrosideros polymorpha or Metrosideros polymorpha and Acacia koa 
(koa), or on rocky or steep slopes of streambanks, at elevations 
between 667 and 1,032 m (2,188 and 3,385 ft). Associated native species 
include Antidesma spp., Bobea spp., Myrsine spp., Nestegis 
sandwicensis, Psychotria spp., or Xylosma sp. (Service 1999; 61 FR 
53108).
    The threats to this species on Lanai are habitat degradation and/or 
destruction caused by axis deer and mouflon sheep; competition with 
various nonnative plants; random naturally occurring events causing 
extinction due to the small number of existing individuals; fire; 
landslides; and predation by rats (Rattus rattus) and various species 
of slugs (Service 1999; 59 FR 53108).
Cyanea lobata (haha)
    Cyanea lobata, a short-lived member of the bellflower family 
(Campanulaceae), is a sparingly branched perennial shrub with smooth to 
somewhat rough stems and oblong, irregularly lobed leaves. This species 
is distinguished from other species of Cyanea by the size of the flower 
and the irregularly lobed leaves with petioles (Lammers 1990).
    Cyanea lobata is known to flower from August to February, even in 
individuals as small as 50 cm (20 in) in height. Little else is known 
about the life history of Cyanea lobata. Flowering cycles, pollination 
vectors, seed dispersal agents, longevity, specific environmental 
requirements, and limiting factors are unknown (Degener 1936; Rock 
1919; Service 1997; 57 FR 20772).
    Historically, Cyanea lobata was known from Lanai and West Maui. It 
was last seen on Lanai in 1934 (GDSI 2000; HINHP Database 2000; Service 
1997; 57 FR 20772).
    This species occurs in gulches in mesic to wet forest and shrubland 
at elevations between 664 and 1,032 m (2,178 and 3,385 ft) and 
containing one or more of the following associated native plant 
species: Antidesma spp., Athyrium spp. (akolea); Cyrtandra spp., 
Freycinetia arborea, Metrosideros polymorpha, Morinda trimera (noni 
kuahiwi), Peperomia spp., Pipturus albidus, Pleomele fernaldii 
(halapepe), Psychotria spp., Touchardia latifolia (olona), or Xylosma 
spp. (HINHP Database 2000; Service 1997; 57 FR 20772; J. Lau, pers. 
comm., 2001; and R. Hobdy, pers. comm., 2001).
    The threats to this species on Lanai included habitat degradation 
by axis deer and mouflon sheep (Service 1997; 57 FR 20772).
Cyperus trachysanthos (puukaa)
    Cyperus trachysanthos, a member of the sedge family (Cyperaceae), 
is a short-lived perennial grass-like plant with a short rhizome. The 
stems are densely tufted, obtusely triangular in cross-section, tall, 
sticky, and leafy at the base. This species is distinguished from 
others in the genus by the short rhizome, the leaf sheath with 
partitions at the nodes, the shape of the glumes (floral bracts), and 
the length of the stems (Koyama 1999).
    Little is known about the life history of Cyperus trachysanthos. 
Its flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 1999).
    Historically, Cyperus trachysanthos was known on Niihau and Kauai, 
and from scattered locations on Oahu, Molokai, and Lanai. Currently it 
is found on Kauai, Niihau and Oahu. It was last observed on Lanai in 
1919 (GDSI 2000; HINHP Database 2000).
    Cyperus trachysanthos is usually found in seasonally wet sites (mud 
flats, wet clay soil, or wet cliff seeps) on seepy flats or talus 
slopes in Heteropogon contortus (pili) grassland at elevations between 
0 and 46 m (0 and 151 ft). Hibiscus tiliaceus (hau) is often found in 
association with this species (Koyama 1999; 61 FR 53108; J. Lau and K. 
Wood, pers. comms., 2001).
    On Lanai, the threats to this species included the loss of wetlands 
and habitat degradation by axis deer and mouflon sheep (Service 1999; 
61 FR 53108; R. Hobdy in litt. 2002).
Cyrtandra munroi (haiwale)
    Cyrtandra munroi is a short-lived perennial and a member of the 
African

[[Page 1227]]

violet family (Gesneriaceae). It is a shrub with opposite, elliptic to 
almost circular leaves that are sparsely to moderately hairy on the 
upper surface and covered with velvety, rust-colored hairs underneath. 
This species is distinguished from other species of the genus by the 
broad opposite leaves, the length of the flower cluster stalks, the 
size of the flowers, and the amount of hair on various parts of the 
plant (Wagner et al., 1999).
    The reproductive biology of some species of Cyrtandra has been 
studied, but not C. munroi specifically. The studies of other members 
of the genus suggest that a specific pollinator may be necessary for 
successful pollination. Seed dispersal may be via birds, which eat the 
fruits. Flowering time, longevity of plants and seeds, specific 
environmental requirements, and other limiting factors are unknown 
(Service 1995).
    Cyrtandra munroi was historically and is currently known from Lanai 
and Maui. Currently on Lanai there are a total of two occurrences 
containing 17 individuals on privately owned land in the Kapohaku-
Waiapaa area, and in the gulch between Kunoa and Waialala gulches (GDSI 
2000; HINHP Database 2000).
    The habitat of this species is diverse mesic forest, wet 
Metrosideros polymorpha forest, and mixed mesic M. polymorpha forest, 
typically on rich, moderately steep gulch slopes at elevations between 
667 and 1,032 m (2,188 and 3,385 ft). It occurs on soil and rock 
substrates on slopes from watercourses in gulch bottoms and up the 
sides of gulch slopes to near ridgetops. Associated native species 
include Alyxia oliviformis, Bobea elatior, Clermontia spp., Coprosma 
spp., Cyrtandra grayana, Dicranopteris linearis, Diospyros 
sandwicensis, Diplopterygium pinnatum, Freycinetia arborea, Hedyotis 
acuminata (au), Melicope spp., Myrsine lessertiana, Perrottetia 
sandwicensis, Pipturus albidus, Pittosporum confertiflorum, Pleomele 
fernaldii, Pouteria sandwicensis, Psychotria spp., Sadleria 
cyatheoides, Scaevola chamissoniana, or Xylosma hawaiiense (HINHP 
Database 2000; Service 1995).
    The threats to this species on Lanai are browsing and habitat 
disturbance by axis deer; competition with the nonnative plant species 
Leptospermum scoparium, Melinis minutiflora (molasses grass), Myrica 
faya, Paspalum conjugatum (Hilo grass), Pluchea carolinensis, Psidium 
cattleianum, or Rubus rosifolius (thimbleberry); depressed reproductive 
vigor; and loss of appropriate pollinators (Service 1995; 57 FR 20772).
Diellia erecta (NCN)
    Diellia erecta, a short-lived perennial fern in the spleenwort 
family (Aspleniaceae), grows in tufts of three to nine lance-shaped 
fronds emerging from a rhizome covered with brown to dark gray scales. 
This species differs from other members of the genus in having large 
brown or dark gray scales, fused or separate sori along both margins, 
shiny black midribs that have a hardened surface, and veins that do not 
usually encircle the sori (Degener and Greenwell 1950; Wagner 1952).
    Little is known about the life history of Diellia erecta. Its 
reproduction cycles, dispersal agents, longevity, specific 
environmental requirements, and limiting factors are unknown (Service 
1999).
    Historically, Diellia erecta was known on Kauai, Oahu, Molokai, 
Lanai, Maui, and the island of Hawaii. Currently, it is known from 
Oahu, Molokai, Maui, and the island of Hawaii and was recently 
rediscovered on Kauai. On Lanai it was last seen in 1929 (HINHP 
Database 2000; Service 1999).
    This species is found in brown granular soil with leaf litter and 
occasional terrestrial moss on north-facing slopes in deep shade and on 
steep slopes or gulch bottoms in Pisonia spp. forest at elevations 
between 651 and 955 m (2,135 and 3,132 ft). Associated native plant 
species include native grasses or ferns (HINHP Database 2000; Service 
1999; J. Lau and K. Wood, pers. comms., 2001).
    The major threats to Diellia erecta on Lanai included habitat 
degradation by axis deer and mouflon sheep, and competition with 
nonnative plant species (Service 1999; 59 FR 56333).
Diplazium molokaiense (NCN)
    Diplazium molokaiense, a short-lived perennial fern and a member of 
the spleenwort family (Aspleniaceae), has a short prostrate rhizome and 
green or straw-colored leaf stalks with thin-textured fronds. This 
species can be distinguished from other species of Diplazium in the 
Hawaiian Islands by a combination of characteristics, including 
venation pattern, the length and arrangement of the sori, frond shape, 
and the degree of dissection of the frond (Wagner and Wagner 1992).
    Little is known about the life history of Diplazium molokaiense. 
Its reproduction cycles, dispersal agents, longevity, specific 
environmental requirements, and limiting factors are unknown (Service 
1998a).
    Historically, Diplazium molokaiense was found on Kauai, Oahu, 
Molokai, Lanai, and Maui. Currently, this species is known only from 
Maui. It was last seen on Lanai in 1914 (HINHP Database 2000).
    This species occurs in shady, damp places in wet forests at 
elevations between 737 and 1,032 m (2,417 and 3,385 ft) (HINHP Database 
2000; Service 1998a; J. Lau, pers. comm., 2001).
    The primary threats to Diplazium molokaiense on Lanai included 
habitat degradation by axis deer and mouflon sheep, and competition 
with nonnative plant species (HINHP Database 2000; Service 1998a; 59 FR 
49025).
Hedyotis mannii (pilo)
    Hedyotis mannii is a short-lived perennial and a member of the 
coffee family (Rubiaceae). It has smooth, usually erect stems 30 to 60 
cm (1 to 2 ft) long, which are woody at the base and four-angled or -
winged. It is distinguished from other species by its growth habit, its 
quadrangular or winged stems, the shape, size, and texture of its 
leaves, and its dry capsule, which opens when mature (Wagner et al., 
1999).
    Little is known about the life history of this plant. Reproductive 
cycles, longevity, specific environmental requirements, and limiting 
factors are unknown (Service 1996b).
    Hedyotis mannii was once widely scattered on Lanai, West Maui, and 
Molokai. After a hiatus of 50 years, this species was rediscovered in 
1987 by Steve Perlman on Molokai. In addition, an occurrence was 
discovered on Maui and two occurrences, now numbering between 35 and 40 
individual plants, were discovered on Lanai in 1991 on privately owned 
land in Maunalei and Hauola gulches (GDSI 2000; HINHP Database 2000; 
Service 1996b).
    Hedyotis mannii typically grows on dark, narrow, rocky gulch walls 
and on steep streambanks in wet forests between 711 and 1,032 m (2,332 
and 3,385 ft) in elevation. Associated plant species include Carex 
meyenii, Dryopteris sandwicensis, Freycinetia arborea, Sadleria spp., 
or Scaevola chamissoniana (HINHP Database 2000; Service 1996b; J. Lau, 
pers. comm., 2001).
    The primary threats to Hedyotis mannii are the limited number of 
individuals which makes it extremely vulnerable to extinction from 
random environmental events; habitat degradation caused by axis deer 
and mouflon sheep; and nonnative plants, such as Melinis minutiflora, 
Psidium cattleianum, and Rubus rosifolius (57 FR 46325).

[[Page 1228]]

Hesperomannia arborescens (NCN)
    Hesperomannia arborescens, a long-lived perennial of the aster 
family (Asteraceae), is a small shrubby tree that usually stands 1.5 to 
5 m (5 to 16 ft) tall. This member of an endemic Hawaiian genus differs 
from other Hesperomannia species in having the following combination of 
characteristics: Erect to ascending flower heads, thick flower head 
stalks, and usually hairless and relatively narrow leaves (Wagner et 
al., 1999).
    This species has been observed in flower from April through June 
and in fruit during March and June. Little else is known about the life 
history of Hesperomannia arborescens. Flowering cycles, pollination 
vectors, seed dispersal agents, longevity, specific environmental 
requirements, and limiting factors are unknown (Service 1998b; 59 FR 
14482).
    Hesperomannia arborescens was formerly known from Oahu, Molokai, 
and Lanai. This species is now known from Oahu, Molokai, and Maui. It 
was last seen on Lanai in 1940 (GDSI 2000; HINHP Database 2000; Service 
1998b; 59 FR 14482).
    Hesperomannia arborescens is found on slopes or ridges in lowland 
mesic or wet forest at elevations between 737 and 1,032 m (2,417 and 
3,385 ft) and containing one or more of the following associated native 
plant species: Antidesma spp., Bobea spp., Cheirodendron spp. (olapa), 
Cibotium spp. (hapuu), Clermontia spp., Coprosma spp., Dicranopteris 
linearis, Freycinetia arborea, Isachne distichophylla (ohe), Machaerina 
spp. (uki), Melicope spp., Metrosideros polymorpha, Myrsine 
sandwicensis (kolea), Pipturus albidus, Psychotria spp., Sadleria spp. 
(HINHP Database 2000; Service 1998b; 59 FR 14482; R. Hobdy, pers. 
comm., 2001).
    The major threats to Hesperomannia arborescens on Lanai included 
habitat degradation by axis deer and mouflon sheep, and competition 
with nonnative plant species (HINHP Database 2000; Service 1998b; 59 FR 
14482).
Hibiscus brackenridgei (mao hau hele)
    Hibiscus brackenridgei, a short-lived perennial and a member of the 
mallow family (Malvaceae), is a sprawling to erect shrub or small tree. 
This species differs from other members of the genus in having the 
following combination of characteristics: Yellow petals, a calyx 
consisting of triangular lobes with raised veins and a single midrib, 
bracts attached below the calyx, and thin stipules (leaf bracts) that 
fall off, leaving an elliptical scar.
    Two subspecies are currently recognized, Hibiscus brackenridgei 
ssp. brackenridgei and H. brackenridgei ssp. mokuleianus (Bates 1999).
    Hibiscus brackenridgei is known to flower continuously from early 
February through late May, and intermittently at other times of year. 
Intermittent flowering may possibly be related to day length. Little 
else is known about the life history of this plant. Pollination 
biology, longevity, specific environmental requirements, and limiting 
factors are unknown (Service 1999).
    Historically, Hibiscus brackenridgei was known from the islands of 
Kauai, Oahu, Lanai, Maui, Molokai, and the island of Hawaii. Hibiscus 
brackenridgei was collected from an undocumented site on Kahoolawe, 
though the subspecies has never been determined. Currently, H. 
brackenridgei ssp. mokuleianus is only known from Oahu. Hibiscus 
brackenridgei ssp. brackenridgei is currently known from Lanai, Maui, 
and the island of Hawaii. On Lanai, there are two occurrences 
containing an unknown number of individuals on privately owned land; 
one occurrence is known from Keamuku Road, one from a fenced area on 
the dry plains of Kaena Point. Outplanted individuals that were 
initially planted in Kanepuu Preserve now appear to be reproducing 
naturally (GDSI 2000; HINHP Database 2000; Service 1999; Wesley Wong, 
Jr., in litt. 1998).
    Hibiscus brackenridgei ssp. brackenridgei occurs in lowland dry to 
mesic forest and shrubland between 0 and 645 m (0 and 2,116 ft) in 
elevation. Associated plant species include Dodonaea viscosa, Isachne 
distichophylla, Psydrax odorata, or Sida fallax (HINHP Database 2000; 
Service 1999).
    The primary threats to Hibiscus brackenridgei ssp. brackenridgei on 
Lanai are habitat degradation; possible predation by axis deer, mouflon 
sheep, and rats; competition with nonnative plant species; fire; and 
susceptibility to extinction caused by naturally occurring events or 
reduced reproductive vigor (Service 1999; 59 FR 56333; R. Hobdy in 
litt. 2002).
Isodendrion pyrifolium (wahine noho kula)
    Isodendrion pyrifolium, a short-lived perennial of the violet 
family (Violaceae), is a small, branched shrub with elliptic to lance-
shaped leaf blades. The papery-textured blade has moderately hairy 
veins. Below the petiole are oval, hairy stipules. The fruit is a 
three-lobed, oval capsule. Isodendrion pyrifolium is distinguished from 
other species in the genus by its smaller, green-yellow flowers, and 
hairy stipules and leaf veins (Wagner et al., 1999).
    During periods of drought, this species will drop all but the 
newest leaves. After sufficient rains, the plants produce flowers with 
seeds ripening one to two months later. Little else is known about the 
life history of Isodendrion pyrifolium. Flowering cycles, pollination 
vectors, seed dispersal agents, longevity, specific environmental 
requirements, and limiting factors are unknown (Service 1996a; 59 FR 
10305).
    Isodendrion pyrifolium was historically found on six of the 
Hawaiian Islands: Niihau, Oahu, Molokai, Lanai, Maui, and the island of 
Hawaii. Currently it is found only on the island of Hawaii. It was last 
seen on Lanai in 1870 (GDSI 2000; HINHP Database 2000; Service 1996a; 
59 FR 10305).
    On Lanai, Isodendrion pyrifolium occurred in dry shrubland at 
elevations between 132 and 574 m (433 and 1,883 ft) with one or more of 
the following associated native plant species: Dodonaea viscosa, 
Heteropogon contortus, Lipochaeta or Melanthera spp. (nehe), or 
Wikstroemia oahuensis (akia) (Service 1996a; 59 FR 10305; J. Lau and R. 
Hobdy, pers. comms., 2001).
    Nothing is known of the threats to Isodendrion pyrifolium on the 
island of Lanai because the species was last seen there in 1870.
Mariscus fauriei (NCN)
    Mariscus fauriei, a member of the sedge family (Cyperaceae), is a 
short-lived perennial plant with somewhat enlarged underground stems 
and three-angled, single or grouped aerial stems 10 to 50 cm (4 to 20 
in) tall. This species differs from others in the genus in Hawaii by 
its smaller size and its more narrow, flattened, and more spreading 
spikelets (flower clusters) (Koyama 1990; 59 FR 10305).
    Little is known about the life history of Mariscus fauriei. Its 
flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (USFWS 1996a).
    Historically, Mariscus fauriei was found on Molokai, Lanai, and the 
island of Hawaii. It currently occurs on Molokai and the island of 
Hawaii. It was last seen on Lanai in 1929 (GDSI 2000; HINHP Database 
2000; Service 1996a; 59 FR 10305).
    Nothing is known of the preferred habitat of or native plant 
species

[[Page 1229]]

associated with Mariscus fauriei on the island of Lanai (Service 
1996a).
    Nothing is known of the threats to Mariscus fauriei on the island 
of Lanai (Service 1996a).
Melicope munroi (alani)
    Melicope munroi, a long-lived perennial of the rue (citrus) family 
(Rutaceae), is a sprawling shrub up to 3 m (10 ft) tall. The new growth 
of this species has minute hairs. This species differs from other 
Hawaiian members of the genus in the shape of the leaf and the length 
of the inflorescence (flower cluster) stalk (Stone et al., 1999).
    Little is known about the life history of Melicope munroi. Its 
flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 2001).
    Historically, this species was known from the Lanaihale summit 
ridge of Lanai and above Kamalo on Molokai. Currently, Melicope munroi 
is known only from the Lanaihale summit ridge on Lanai. There are two 
occurrences totaling an estimated 35 individual plants on privately 
owned land on the Lanaihale summit, head of Hauola gulch, Waialala 
gulch, and the ridge of Waialala gulch (GDSI 2000; HINHP Database 2000; 
Service 2001; 64 FR 48307).
    Melicope munroi is typically found on slopes in lowland wet 
shrublands, at elevations of 701 and 1,032 m (2,299 and 3,385 ft). 
Associated native plant species include Broussaisia arguta, 
Cheirodendron trigynum, Coprosma spp., Dicranopteris linearis, 
Diplopterygium pinnatum, Machaerina angustifolia, other Melicope spp., 
or Metrosideros polymorpha (HINHP Database 2000; Service 2001).
    The major threats to Melicope munroi on Lanai are trampling, 
browsing, and habitat degradation by axis deer and competition with the 
nonnative plant species Leptospermum scoparium and Psidium cattleianum. 
In addition, the limited number of individuals in the two remaining 
occurrences makes it extremely vulnerable to extinction from random 
environmental events (HINHP Database 2000; Service 2001; 64 FR 48307).
Neraudia sericea (NCN)
    Neraudia sericea, a short-lived perennial member of the nettle 
family (Urticaceae), is a 3 to 5 m (10 to 16 ft) tall shrub with 
densely hairy branches. The lower leaf surface is densely covered with 
irregularly curved, silky gray to white hairs along the veins. Neraudia 
sericea differs from the other four species of this endemic Hawaiian 
genus by the density, length, color, and posture of the hairs on the 
lower leaf surface and by its mostly entire leaf margins (Wagner et 
al., 1999).
    Little is known about the life history of Neraudia sericea. 
Flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 1999; 59 FR 56333).
    Neraudia sericea was historically found on Molokai, Lanai, Maui, 
and Kahoolawe. Currently, this species is extant on Molokai and Maui. 
It was last seen on Lanai in 1913 (GDSI 2000; HINHP Database 2000; 
Service 1999; 59 FR 56333).
    Neraudia sericea generally occurs in gulch slopes or gulch bottoms 
in dry-mesic or mesic forest at elevations between 693 and 869 m (2,273 
and 2,850 ft). Associated native species include Diospyros 
sandwicensis, Dodonaea viscosa, Metrosideros polymorpha, or Nestegis 
sandwicensis (HINHP Database 2000; 59 FR 56333; J. Lau, pers. comm., 
2001).
    The primary threats to Neraudia sericea on Lanai included habitat 
degradation by pigs (Sus scrofa), and goats (currently axis deer and 
mouflon sheep), and competition with nonnative plant species (Service 
1999; 59 FR 56333).
Portulaca sclerocarpa (poe)
    Portulaca sclerocarpa of the purslane family (Portulacaceae) is a 
short-lived perennial herb with a tuberous taproot and has stems up to 
about 20 cm (8 in) long. The succulent, grayish-green leaves are almost 
circular in cross-section. The petals are white, pink, or pink with a 
white base. The hardened capsules open very late or not at all, and 
contain dark reddish-brown seeds. This species differs from other 
native and naturalized species of the genus in Hawaii by its woody 
taproot, its narrow leaves, and the colors of its petals and seeds. Its 
closest relative, P. villosa, differs mainly in its thinner-walled, 
opening capsule (Wagner et al., 1999).
    This species has been observed in flower during March, June, and 
December. The presence of juveniles indicated that pollination and 
germination were occurring. Pollination vectors, seed dispersal agents, 
longevity of plants and seeds, specific environmental requirements, and 
other limiting factors are unknown (Service 1996a).
    Portulaca sclerocarpa was historically and is currently found on 
the island of Hawaii, and on an islet (Poopoo Islet) off the south 
coast of the island of Lanai. The Lanai occurrence on privately owned 
land contains about 10 plants. Poopoo Islet is a small rocky outcrop, 1 
ha (2.4 ac) in area and approximately 200 m (600 ft) from the south 
shoreline, and is considered part of the island of Lanai (GDSI 2000; 
HINHP Database 2000; Service 1996a).
    This species grows on exposed ledges in thin soil in coastal 
communities at elevations between 0 and 82 m (0 and 269 ft) (HINHP 
Database 2000; Wagner et al., 1999).
    The major threats to Portulaca sclerocarpa on Lanai are herbivory 
by the larvae of a nonnative sphinx moth (Hyles lineata); competition 
from nonnative plants; and fire (Service 1996a; 59 FR 10305; Frank 
Howarth, Bishop Museum, in litt. 2000).
Sesbania tomentosa (ohai)
    Sesbania tomentosa, a member of the pea 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, which are usually sparsely to densely covered with silky 
hairs. The flowers are a salmon color tinged with yellow, orange-red, 
scarlet or, rarely, pure yellow. Sesbania tomentosa is the only endemic 
Hawaiian species in the genus, differing from the naturalized S. 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 has been studied by 
David Hopper, University of Hawaii. His findings suggest that although 
many insects visit Sesbania flowers, the majority of successful 
pollination is accomplished by native bees of the genus Hylaeus, and 
that occurrences at Kaena Point on Oahu are probably pollinator-
limited. Flowering at Kaena Point is highest during the winter-spring 
rains, and gradually declines throughout the rest of the year. Other 
aspects of this plant's life history are unknown (Service 1999).
    Currently, Sesbania tomentosa occurs on six of the eight main 
Hawaiian Islands (Kauai, Oahu, Molokai, Kahoolawe, Maui, and Hawaii) 
and on two islands in the Northwestern Hawaiian Islands (Nihoa and 
Necker). Although once found on Niihau and Lanai, it is no longer 
extant on those islands. It was last seen on Lanai in 1957 (GDSI 2000; 
HINHP Database 2000; 59 FR 56333).
    Sesbania tomentosa is found on sandy beaches, dunes, or pond 
margins at elevations between 44 and 221 m (144 and 725 ft). It 
commonly occurs in coastal dry shrublands or mixed coastal

[[Page 1230]]

dry cliffs with the associated native plant species Chamaesyce 
celastroides (akoko), Cuscuta sandwichiana (kaunaoa), Dodonaea viscosa, 
Heteropogon contortus, Myoporum sandwicense, Nama sandwicensis 
(hinahina kahakai), Scaevola sericea (naupaka kahakai), Sida fallax, 
Sporobolus virginicus (akiaki), Vitex rotundifolia (kolokolo kahakai), 
or Waltheria indica (uhaloa) (HINHP Database 2000; Service 1999; K. 
Wood, pers. comm., 2001).
    The primary threats to Sesbania tomentosa on Lanai included habitat 
degradation caused by competition with various nonnative plant species; 
lack of adequate pollination; seed predation by rats, mice (Mus 
musculus) and, potentially, nonnative insects; and fire (Service 1999; 
59 FR 56333).
Silene lanceolata (NCN)
    Silene lanceolata, a member of the pink family (Caryophyllaceae), 
is an upright, short-lived perennial plant with stems 15 to 51 cm (6 to 
20 in) long, which are woody at the base. The flowers are white with 
deeply lobed, clawed petals. This species is distinguished from S. 
alexandri by its smaller flowers and capsules and its stamens, which 
are shorter than the sepals (Wagner et al., 1999).
    Little is known about the life history of Silene lanceolata. Its 
flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 1996b; 57 FR 46325).
    The historical range of Silene lanceolata includes five Hawaiian 
Islands: Kauai, Oahu, Molokai, Lanai, and Hawaii. Silene lanceolata is 
presently extant on the islands of Molokai, Oahu, and Hawaii. It was 
last observed on Lanai in 1930 (GDSI 2000; Service 1996b; 57 FR 46325).
    Nothing is known of the preferred habitat of or native plant 
species associated with Silene lanceolata on the island of Lanai 
(Service 1996b).
    Nothing is known of the threats to Silene lanceolata on the island 
of Lanai (Service 1996b).
Solanum incompletum (popolo ku mai)
    Solanum incompletum, a short-lived perennial member of the 
nightshade family (Solanaceae), is a woody shrub. Its stems and lower 
leaf surfaces are covered with prominent reddish prickles or sometimes 
with yellow fuzzy hairs on young plant parts and lower leaf surfaces. 
This species differs from other native members of the genus by being 
generally prickly and having loosely clustered white flowers, curved 
anthers about 2 mm (0.08 in) long, and berries 1 to 2 cm (0.4 to 0.8 
in) in diameter (Symon 1999).
    Little is known about the life history of Solanum incompletum. Its 
flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 1999; 59 FR 56333).
    Historically, Solanum incompletum was known on Lanai, Maui, and the 
island of Hawaii. According to David Symon (1999), the known 
distribution of Solanum incompletum also extended to the islands of 
Kauai and Molokai. Currently, Solanum incompletum is only known from 
the island of Hawaii. It was last seen on Lanai in 1925 (HINHP Database 
2000; Service 1999).
    On Lanai, Solanum incompletum occurred on broad, gently sloping 
ridges in dry, Dodonaea viscosa shrubland, at elevations between 151 
and 372 m (495 and 1,220 ft) with one or more of the following 
associated native plant species: Heteropogon contortus, Lipochaeta or 
Melanthera spp., or Wikstroemia oahuensis (Service 1999; J. Lau, pers 
comm., 2001).
    On Lanai, the threats to Solanum incompletum included habitat 
destruction by goats and pigs (more recently axis deer) and competition 
with various nonnative plants (Service 1999).
Spermolepis hawaiiensis (NCN)
    Spermolepis hawaiiensis, a member of the parsley family (Apiaceae), 
is a slender annual herb with few branches. Its leaves are dissected 
into narrow, lance-shaped divisions. Spermolepis hawaiiensis is the 
only member of the genus native to Hawaii. It is distinguished from 
other native members of the family by being a non-succulent annual with 
an umbrella-shaped inflorescence (Constance and Affolter 1999).
    Little is known about the life history of Spermolepis hawaiiensis. 
Reproductive cycles, longevity, specific environmental requirements, 
and limiting factors are unknown (Service 1999).
    Historically, Spermolepis hawaiiensis was known from Kauai, Oahu, 
Lanai, and the island of Hawaii. Based on recent collections, it is now 
known to be extant on those four islands, Molokai, and Maui. On Lanai, 
this species is known from three occurrences of 570 to 620 individuals 
on privately owned land in the southern edge of Kapoho Gulch, Kamiki 
Ridge, and approximately 274 m (900 ft) downslope of Puu Manu (HINHP 
Database 2000; Service 1999; 59 FR 56333; R. Hobdy, pers. comm., 2000).
    Spermolepis hawaiiensis is known from gulch slopes and ridge tops 
in dry forests dominated by Diospyros sandwicensis or shrublands 
dominated by Dodonaea viscosa at elevations between 402 and 711 m 
(1,319 and 2,332 ft). Associated native plant species include Nesoluma 
polynesicum, Nestegis sandwicensis, Psydrax odorata, or Rauvolfia 
sandwicensis (HINHP Database 2000; Service 1999; R. Hobdy, pers. comm., 
2000; J. Lau, pers. comm., 2001).
    The primary threats to Spermolepis hawaiiensis on Lanai are habitat 
degradation by axis deer, competition with various nonnative plants, 
such as Lantana camara; and erosion, landslides, and rockslides due to 
natural weathering, which result in the death of individual plants as 
well as habitat destruction (Service 1999; 59 FR 56333; R. Hobdy, pers. 
comm., 2000).
Tetramolopium lepidotum ssp. lepidotum (NCN)
    Tetramolopium lepidotum ssp. lepidotum, a member of the aster 
family (Asteraceae), is an erect shrub 12 to 36 cm (4.7 to 14 in) tall, 
branching near the ends of the stems. The leaves are lance-shaped and 
wider at the leaf tip. This species can be distinguished from the other 
extant species on Oahu by its hermaphroditic disk flowers and its 
inflorescence of six to 12 heads (Lowrey 1999).
    Tetramolopium lepidotum ssp. lepidotum is a short-lived perennial 
that has been observed producing flowers and fruit from April through 
July. No further information is available on reproductive cycles, 
longevity, specific environmental requirements, or limiting factors 
(Service 1998b; 56 FR 55770).
    Historically, Tetramolopium lepidotum ssp. lepidotum was known from 
Oahu and Lanai. It currently occurs only on Oahu. It was last seen on 
Lanai in 1928 (Environmental Division of the Army Database 2001; GDSI 
2000; HINHP Database 2000; Service 1998b; 56 FR 55770).
    Nothing is known of the preferred habitat of or native plant 
species associated with Tetramolopium lepidotum ssp. lepidotum on the 
island of Lanai (Service 1998b).
    Nothing is known of the threats to Tetramolopium lepidotum ssp. 
lepidotum on the island of Lanai (Service 1998b).
Tetramolopium remyi (NCN)
    Tetramolopium remyi, a short-lived perennial member of the 
sunflower family (Asteraceae), is a many branched, decumbent or 
occasionally erect shrub up to about 38 cm (15 in) tall. The

[[Page 1231]]

stems, leaves, flower bracts, and fruit are covered with sticky hairs. 
Tetramolopium remyi has the largest flower heads in the genus. Two 
other species of the genus are known historically from Lanai, but both 
have purplish rather than yellow disk florets and from four to 60 
rather than one flower head per branch (Lowrey 1999).
    Tetramolopium remyi flowers between April and January. Field 
observations suggest that the population size of the species can be 
profoundly affected by variability in annual precipitation. The adult 
plants may succumb to prolonged drought, but apparently there is a 
seedbank in the soil that can replenish the population during favorable 
conditions. Such seed banks are of great importance for arid-dwelling 
plants to allow populations to persist through adverse conditions. 
Success in greenhouse cultivation of these plants with much higher 
water availability implies that, although these plants are drought-
tolerant, perhaps the dry conditions in which they currently exist are 
not optimum. Individual plants are probably not long-lived. Pollination 
is hypothesized to be by butterflies, bees, or flies. Seed dispersal 
agents, environmental requirements, and other limiting factors are 
unknown (Lowrey 1986; Service 1995).
    Historically, the species was known from Maui and Lanai. Currently, 
Tetramolopium remyi is known only from one occurrence on Lanai on 
privately owned land near Awehi Road, with a total of approximately 150 
plants (GDSI 2000; HINHP Database 2000).
    Tetramolopium remyi is found in red, sandy, loam soil in dry 
Dodonaea viscosa-Heteropogon contortus communities at elevations 
between 65 and 485 m (213 and 1,591 ft). Commonly associated native 
species include Bidens mauiensis (kookoolau), Melanthera lavarum 
(nehe), Waltheria indica, or Wikstroemia oahuensis (HINHP Database 
2000).
    Browsing by axis deer and mouflon sheep and competition from 
nonnative species, primarily Andropogon virginicus (broomsedge) and 
Panicum maximum (guinea grass), are the main threats to the species on 
Lanai. Fire is also a potential threat (Service 1995; 56 FR 47686).
Vigna o-wahuensis (NCN)
    Vigna o-wahuensis, a member of the legume family (Fabaceae), is a 
slender, twining, short-lived perennial herb with fuzzy stems. Each 
leaf is made up of three leaflets, which vary in shape from round to 
linear. This species differs from others in the genus by its thin 
yellowish petals, sparsely hairy calyx, and thin pods, which may or may 
not be slightly inflated (Geesink et al., 1999).
    Little is known about the life history of Vigna o-wahuensis. Its 
flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 1999).
    Historically, Vigna o-wahuensis was known from Niihau, Oahu, and 
Maui. Based on recent collections, Vigna o-wahuensis is now known to be 
extant on the islands of Molokai, Maui, Lanai, Kahoolawe, and Hawaii. 
On Lanai, one occurrence with at least one individual is known from 
Kanepuu on privately owned land (GDSI 2000; HINHP Database 2000; 
Service 1999; J. Lau, in litt. 2000).
    On Lanai, Vigna o-wahuensis is found in Nestegis sandwicensis or 
Diospyros sandwicensis dry forest at elevations between 98 and 622 m 
(321 and 2,040 ft) (HINHP Database 2000; 59 FR 56333; J. Lau, pers. 
comm., 2001).
    Threats to Vigna o-wahuensis on Lanai include habitat degradation 
by mouflon sheep and axis deer; competition with various nonnative 
plant species; fire; and random naturally occurring events causing 
extinction and or reduced reproductive vigor of the only remaining 
individual on Lanai (Service 1999).
Zanthoxylum hawaiiense (ae)
    Zanthoxylum hawaiiense is a medium-sized tree in the rue (citrus) 
family (Rutaceae) with pale to dark gray bark, and lemon-scented 
leaves, composed of three small leaflets. A long-lived perennial tree, 
Z. hawaiiense is distinguished from other Hawaiian members of the genus 
by several characteristics: Three leaflets all of similar size, one 
joint on the lateral leaf stalk, and sickle-shaped fruits with a 
rounded tip (Stone et al., 1999).
    Little is known about the life history of Zanthoxylum hawaiiense. 
Its flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, and limiting factors 
are unknown (Service 1996a).
    Historically, Zanthoxylum hawaiiense was known from five islands: 
Kauai, Molokai, Lanai, Maui, and the island of Hawaii. Currently, 
Zanthoxylum hawaiiense is found on Kauai, Molokai, Maui, and the island 
of Hawaii. It was last seen on Lanai in 1947 (GDSI 2000; HINHP Database 
2000).
    Nothing is known of the preferred habitat of or native plant 
species associated with Zanthoxylum hawaiiense on the island of Lanai 
(Service 1996a).
    Nothing is known of the threats to Zanthoxylum hawaiiense on the 
island of Lanai (Service 1996a).
    A summary of occurrences and landownership for the 37 plant species 
reported from the island of Lanai is given in Table 2.

    Table 2.--Summary of Existing Occurrences on Lanai, and Landownership for 37 Species Reported From Lanai
----------------------------------------------------------------------------------------------------------------
                                                              Number of                Landownership
                          Species                              current   ---------------------------------------
                                                             occurrences    Federal       State        Private
----------------------------------------------------------------------------------------------------------------
Abutilon eremitopetalum....................................            1  ...........  ...........            X
Adenophorus periens........................................            0  ...........  ...........  ............
Bidens micrantha...........................................            1  ...........  ...........            X
Bonamia menziesii..........................................            3  ...........  ...........            X
Brighamia rockii...........................................            0  ...........  ...........  ............
Cenchrus agrimonioides.....................................            0  ...........  ...........  ............
Centaurium sebaeoides......................................            1  ...........  ...........            X
Clermontia oblongifolia ssp.  mauiensis....................            1  ...........  ...........            X
Ctenitis squamigera........................................            2  ...........  ...........            X
Cyanea grimesiana ssp. grimesiana..........................            2  ...........  ...........            X
Cyanea lobata..............................................            0  ...........  ...........  ............
Cyanea macrostegia ssp. gibsonii...........................            2  ...........  ...........            X
Cyperus trachysanthos......................................            0  ...........  ...........  ............
Cyrtandra munroi...........................................            2  ...........  ...........            X

[[Page 1232]]

 
Diellia erecta.............................................            0  ...........  ...........  ............
Diplazium molokaiense......................................            0  ...........  ...........  ............
Gahnia lanaiensis..........................................            1  ...........  ...........            X
Hedyotis mannii............................................            2  ...........  ...........            X
Hedyotis schlechtendahliana var. remyi.....................            2  ...........  ...........            X
Hesperomannia arborescens..................................            0  ...........  ...........  ............
Hibiscus brackenridgei.....................................            3  ...........  ...........            X
Isodendrion pyrifolium.....................................            0  ...........  ...........  ............
Labordia tinifolia var. lanaiensis.........................            1  ...........  ...........            X
Mariscus fauriei...........................................            0  ...........  ...........  ............
Melicope munroi............................................            2  ...........  ...........            X
Neraudia sericea...........................................            0  ...........  ...........  ............
Phyllostegia glabra var. lanaiensis........................            0  ...........  ...........  ............
Portulaca sclerocarpa......................................            1  ...........  ...........            X
Sesbania tomentosa.........................................            0  ...........  ...........  ............
Silene lanceolata..........................................            0  ...........  ...........  ............
Solanum incompletum........................................            0  ...........  ...........  ............
Spermolepis hawaiiensis....................................            3  ...........  ...........            X
Tetramolopium lepidotum ssp. lepidotum.....................            0  ...........  ...........  ............
Tetramolopium remyi........................................            1  ...........  ...........            X
Vigna o-wahuensis..........................................            1  ...........  ...........            X
Viola lanaiensis...........................................            2  ...........  ...........            X
Zanthoxylum hawaiiense.....................................            0  ...........  ...........  ............
----------------------------------------------------------------------------------------------------------------

Previous Federal Action

    Federal action on these plants began as a result of section 12 of 
the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), which directed the Secretary of the Smithsonian Institution to 
prepare a report on plants considered to be endangered, threatened, or 
extinct in the United States. This report, designated as House Document 
No. 94-51, was presented to Congress on January 9, 1975. In that 
document, Bonamia menziesii, Brighamia rockii, Cyanea lobata (as C. 
baldwinii), Gahnia lanaiensis, Hedyotis mannii (as H. thyrsoidea var. 
thyrsoidea), Hesperomannia arborescens (as H. arborescens var. bushiana 
and var. swezeyi), Hibiscus brackenridgei (as H. brackenridgei var. 
brackenridgei, var. mokuleianus, and var. ``from Hawaii''), Neraudia 
sericea (as N. kahoolawensis), Portulaca sclerocarpa, Sesbania 
tomentosa (as S. hobdyi and S. tomentosa var. tomentosa), Silene 
lanceolata, Solanum incompletum (as S. haleakalense and S. incompletum 
var. glabratum, var. incompletum, and var. mauiensis), Tetramolopium 
lepidotum ssp. lepidotum, Vigna o-wahuensis (as V. sandwicensis var. 
heterophylla and var. sandwicensis), Viola lanaiensis, and Zanthoxylum 
hawaiiense (as Z. hawaiiense var. citiodora) were considered 
endangered; Cyrtandra munroi, Diellia erecta, Labordia tinifolia var. 
lanaiensis, and Zanthoxylum hawaiiense (as Z. hawaiiense var. 
hawaiiense and var. velutinosum) were considered threatened; and 
Abutilon eremitopetalum, Bidens micrantha ssp. kalealaha (as B. distans 
and B. micrantha ssp. kalealaha), Ctenitis squamigera, Cyanea 
macrostegia ssp. gibsonii, Diplazium molokaiense, Isodendrion 
pyrifolium, Melicope munroi (as Pelea munroi), Phyllostegia glabra var. 
lanaiensis, and Tetramolopium remyi were considered to be extinct. 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 
gave notice of our intention to review the status of the plant taxa 
named therein. As a result of that review, on June 16, 1976, we 
published a proposed rule in the Federal Register (41 FR 24523) to 
determine endangered status pursuant to section 4 of the Act for 
approximately 1,700 vascular plant taxa, including all of the above 
taxa except Cyrtandra munroi, Labordia tinifolia var. lanaiensis, and 
Melicope munroi. The list of 1,700 plant taxa was assembled on the 
basis of comments and data received by the Smithsonian Institution and 
the Service in response to House Document No. 94-51 and the July 1, 
1975, Federal Register publication (40 FR 27823).
    General comments received in response to the 1976 proposal were 
summarized in an April 26, 1978, Federal Register publication (43 FR 
17909). In 1978, amendments to the Act required that all proposals over 
2 years old be withdrawn. A 1-year grace period was given to proposals 
already over 2 years old. On December 10, 1979, we published a notice 
in the Federal Register (44 FR 70796) withdrawing the portion of the 
June 16, 1976, proposal that had not been made final, along with four 
other proposals that had expired. We 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), September 30, 1993 
(58 FR 51144), and February 28, 1996 (61 FR 7596). We listed the 37 
species as endangered between 1991 and 1999. A summary of the listing 
actions can be found in Table 3(a).

[[Page 1233]]



                                         Table 3(a).--Summary of Listing Actions for 37 Plant Species From Lanai
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Proposed rule                        Final rule                 Proposed designation or non-
                                   Federal   ----------------------------------------------------------------------    designation of critical habitat
            Species                status                                                                          -------------------------------------
                                                  Date       Federal Register        Date       Federal Register           Date         Federal Register
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abutilon eremitopetalum.......  E                09/17/90  55 FR 38236              09/20/91  56 FR 47686           12/27/00.........  65 FR 82086
Adenophorus periens...........  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           11/07/00, 12/29/   65 FR 66808,
                                                                                                                     00.               65 FR 83158
Bidens micrantha ssp.           E                05/24/91  56 FR 23842              05/15/92  57 FR 20772           12/18/00.........  65 FR 79192
 kalealaha.
Bonamia menziesii.............  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           11/7/00, 12/18/    65 FR 66808,
                                                                                                                     00, 12/27/00, 01/ 65 FR 79192,
                                                                                                                     28/02.            65 FR 82086,
                                                                                                                                       67 FR 3940
Brighamia rockii..............  E                09/20/91  56 FR 47718              10/08/92  57 FR 46325           12/29/00.........  65 FR 83158
Cenchrus agrimonioides........  E                10/02/95  60 FR 51417              10/10/96  61 FR 53108           12/18/00.........  65 FR 79192
Centaurium sebaeoides.........  E                09/28/90  55 FR 39664              10/29/91  56 FR 55770           11/07/00, 12/18/   65 FR 66808,
                                                                                                                     00, 12/27/00, 12/ 65 FR 79192,
                                                                                                                     29/00, 01/28/02.  65 FR 82086,
                                                                                                                                       65 FR 83158,
                                                                                                                                       67 FR 3940
Clermontia oblongifolia ssp.    E                05/24/91  56 FR 23842              05/15/92  57 FR 20772           12/18/00, 12/27/   65 FR 79192,
 mauiensis.                                                                                                          00.               65 FR 82086
Ctenitis squamigera...........  E                06/24/93  58 FR 34231              09/09/94  59 FR 49025           12/18/00, 12/27/   65 FR 79192,
                                                                                                                     00, 12/29/00.     65 FR 82086,
                                                                                                                                       65 FR 83158
Cyanea grimesiana ssp.          E                10/02/95  60 FR 51417              10/10/96  61 FR 53108           12/18/00, 12/27/   65 FR 79192,
 grimesiana.                                                                                                         00, 12/29/00.     65 FR 82086,
                                                                                                                                       65 FR 83158
Cyanea lobata.................  E                05/24/91  56 FR 23842              05/15/92  57 FR 20772           12/18/00.........  65 FR 79192
Cyanea macrostegia ssp.         E                09/17/90  55 FR 38236              09/20/91  56 FR 47686           12/27/00.........  65 FR 82086
 gibsonii.
Cyperus trachysanthos.........  E                10/02/95  60 FR 51417              10/10/96  61 FR 53108           11/07/00, 01/28/   65 FR 66808,
                                                                                                                     02.               67 FR 3940
Cyrtandra munroi..............  E                05/24/91  56 FR 23842              05/15/92  57 FR 20772           12/18/00, 12/27/   65 FR 79192,
                                                                                                                     00.               65 FR 82086
Diellia erecta................  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           11/07/00, 12/18/   65 FR 66808,
                                                                                                                     00, 12/29/00, 01/ 65 FR 79192,
                                                                                                                     28/02.            65 FR 83158,
                                                                                                                                       67 FR 3940
Diplazium molokaiense.........  E                06/24/93  58 FR 34231              09/09/94  59 FR 49025           12/18/00.........  65 FR 79192
Gahnia lanaiensis.............  E                09/17/90  55 FR 38236              09/20/91  56 FR 47686           12/27/00.........  65 FR 82086
Hedyotis mannii...............  E                09/20/91  56 FR 47718              10/08/92  57 FR 46325           12/18/00, 12/27/   65 FR 79192,
                                                                                                                     00, 12/29/00.     65 FR 82086,
                                                                                                                                       65 FR 83158
Hedyotis schlechtendahliana     E                05/15/97  62 FR 26757              09/03/99  64 FR 48307           12/27/00.........  65 FR 82086
 var. remyi.
Hesperomannia arborescens.....  E                10/14/92  57 FR 47028              03/28/94  59 FR 14482           12/18/00, 12/29/   65 FR 79192,
                                                                                                                     00.               65 FR 83158
Hibiscus brackenridgei........  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           12/18/00.........  65 FR 79192
Isodendrion pyrifolium........  E                12/17/92  57 FR 59951              03/04/94  59 FR 10305           01/28/02.........  67 FR 3940
Labordia tinifolia var.         E                05/15/97  62 FR 26757              09/03/99  64 FR 48307           12/27/00.........  65 FR 82086
 lanaiensis.
Mariscus fauriei..............  E                12/17/92  57 FR 59951              03/04/94  59 FR 10305           12/29/00.........  65 FR 83158
Melicope munroi...............  E                05/15/97  62 FR 26757              09/03/99  64 FR 48307           12/27/00.........  65 FR 82086
Neraudia sericea..............  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           12/18/00, 12/29/   65 FR 79192,
                                                                                                                     00.               65 FR 83158
Phyllostegia glabra var.        E                09/17/90  55 FR 38236              09/20/91  56 FR 47686           12/29/00.........  65 FR 83158
 lanaiensis.
Portulaca sclerocarpa.........  E                12/17/92  57 FR 59951              03/04/94  59 FR 10305           12/27/00.........  65 FR 82086
Sesbania tomentosa............  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           11/07/00, 12/18/   65 FR 66808,
                                                                                                                     00, 12/29/00, 01/ 65 FR 79192,
                                                                                                                     28/02.            65 FR 83158,
                                                                                                                                       67 FR 3940
Silene lanceolata.............  E                09/20/91  56 FR 47718              10/08/92  57 FR 46325           12/29/00.........  65 FR 83158
Solanum incompletum...........  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           01/28/02.........  67 FR 3940

[[Page 1234]]

 
Spermolepis hawaiiensis.......  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           11/07/00, 12/18/   65 FR 66808,
                                                                                                                     00, 12/27/00, 12/ 65 FR 79192,
                                                                                                                     29/00, 01/28/02.  65 FR 82086,
                                                                                                                                       65 FR 83158,
                                                                                                                                       67 FR 3940
Tetramolopium lepidotum ssp.    E                09/28/90  55 FR 39664              10/29/91  56 FR 55770
 lepidotum.
Tetramolopium remyi...........  E                09/17/90  55 FR 38236              09/20/91  56 FR 47686           12/27/00.........  65 FR 82086
Vigna o-wahuensis.............  E                09/14/93  58 FR 48012              11/10/94  59 FR 56333           12/18/00, 12/29/   65 FR 79192,
                                                                                                                     00.               65 FR 83158
Viola lanaiensis..............  E                09/17/90  55 FR 38236              09/20/91  56 FR 47686           12/27/00.........  65 FR 82086
Zanthoxylum hawaiiense........  E                12/17/92  57 FR 59951              03/04/94  59 FR 10305           11/07/00, 12/18/   65 FR 66808,
                                                                                                                     00, 12/29/00, 01/ 65 FR 79192,
                                                                                                                     28/02.            65 FR 83158,
                                                                                                                                       67 FR 3940
--------------------------------------------------------------------------------------------------------------------------------------------------------
Key: E= Endangered.

    At the time each plant was listed, we found that designation of 
critical habitat was prudent for three of these plants (Hedyotis 
schlechtendahliana var. remyi, Labordia tinifolia var. lanaiensis, and 
Melicope munroi) and not prudent for the other 34 plants because it 
would not benefit the plant or would increase the degree of threat to 
the species. The not prudent findings for these species, along with 
others, were challenged in Conservation Council for Hawaii v. Babbitt, 
2F. 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 findings for 245 listed plant species in Hawaii, including 34 
of the 37 species reported from Lanai. Among other things, the court 
held that in most cases we did not sufficiently demonstrate that the 
species are threatened by human activity or that such threats would 
increase with the designation of critical habitat. The court also held 
that we failed to balance any risks of designating critical habitat 
against any benefits (id. at 1283-85).
    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, 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, 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 
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 
(Conservation Council for Hawaii v. Babbitt, 24 F. Supp. 2d 1074 (D. 
Haw. 1998)).
    At the time we listed Hedyotis schlechtendahliana var. remyi, 
Labordia tinifolia var. lanaiensis, and Melicope munroi (64 FR 48307), 
we found that designation of critical habitat was prudent and stated 
that we would develop critical habitat designations for these three 
taxa, along with seven others, by the time we completed designations 
for the other 245 Hawaiian plant species. This timetable was challenged 
in Conservation Council for Hawaii v. Babbitt, Civ. No. 99-00283 HG (D. 
Haw. Aug. 19, 1999, Feb. 16, 2000, and March 28, 2000). The court 
agreed, however, that it was reasonable for us to integrate these ten 
Maui Nui (Maui, Lanai, Molokai, and Kahoolawe) plant taxa into the 
schedule established for designating critical habitat for the other 245 
Hawaiian plants, and ordered us to publish proposed critical habitat 
designations for the ten Maui Nui species with the first 100 plants 
from the group of 245 by November 30, 2000, and to publish final 
critical habitat designations by November 30, 2001.
    On November 30, 1998, we published a notice in the Federal Register 
requesting public comments on our reevaluation of whether designation 
of critical habitat is prudent for the 245 Hawaiian plants at issue (63 
FR 65805). The comment period closed on March 1, 1999, and was reopened 
from March 24, 1999, to May 24, 1999 (64 FR 14209). We received more 
than 100 responses from individuals, non-profit organizations, the 
State Division of Forestry and Wildlife (DOFAW), county governments, 
and Federal agencies (U.S. Department of Defense--Army, Navy, Air 
Force). Only a few responses offered information on the status of 
individual plant species or on current management actions for one or 
more of the 245 Hawaiian plants. While some of the respondents 
expressed support for the designation of critical habitat for 245 
Hawaiian plants, more than 80 percent opposed the designation of 
critical habitat for these plants. In general, these respondents 
opposed designation because they believed it would cause economic 
hardship, discourage cooperative projects, polarize

[[Page 1235]]

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 would provide a uniform protection plan for the 
Hawaiian Islands, promote funding for management of these plants, 
educate the public and State government, and protect partnerships with 
landowners and build trust.
    In early February 2000, we hand-delivered a letter to 
representatives of the private landowner on Lanai requesting any 
information considered germane to the management of any of the 37 
plants on the island, and containing a copy of the November 30, 1998, 
Federal Register notice, a map showing the general locations of the 
plants on Lanai, and a handout containing general information on 
critical habitat. On April 4, 2000, we met with representatives of the 
landowner to discuss their current land management activities. In 
addition, we met with Maui County DOFAW staff and discussed their 
management activities on Lanai.
    On December 27, 2000, we published the third of the court-ordered 
proposed critical habitat designations or non-designations for 18 Lanai 
plants (65 FR 82086). The prudency determinations and proposed critical 
habitat designations for Kauai and Niihau plants were published on 
November 7, 2000 (65 FR 66808), for Maui and Kahoolawe plants on 
December 18, 2000 (65 FR 79192), 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 
orders.
    In those proposals, we proposed that critical habitat was prudent 
for 33 species (Abutilon eremitopetalum, Adenophorus periens, Bidens 
micrantha ssp. kalealaha, Bonamia menziesii, Brighamia rockii, Cenchrus 
agrimonioides, Centaurium sebaeoides, Clermontia oblongifolia ssp. 
mauiensis, Ctenitis squamigera, Cyanea grimesiana ssp. grimesiana, 
Cyanea lobata, Cyanea macrostegia ssp. gibsonii, Cyperus trachysanthos, 
Cyrtandra munroi, Diellia erecta, Diplazium molokaiense, Gahnia 
lanaiensis, Hedyotis mannii, Hedyotis schlechtendahliana var. remyi, 
Hesperomannia arborescens, Hibiscus brackenridgei, Labordia tinifolia 
var. lanaiensis, Mariscus fauriei, Melicope munroi, Neraudia sericea, 
Portulaca sclerocarpa, Sesbania tomentosa, Silene lanceolata, 
Spermolepis hawaiiensis, Tetramolopium remyi, Vigna o-wahuensis, Viola 
lanaiensis, and Zanthoxylum hawaiiense) that are reported from Lanai as 
well as on Kauai, Niihau, Maui, Kahoolawe, and Molokai. We proposed 
that critical habitat was not prudent for one species, Phyllostegia 
glabra var. lanaiensis, because it had not been seen recently in the 
wild, and no genetic material of this species is known to exist.
    On December 27, 2000, we proposed designation of critical habitat 
on approximately 1,953 ha (4,826 ac) of land on the island of Lanai. 
The publication of the proposed rule opened a 60-day public comment 
period, which closed on February 26, 2001. On February 22, 2001, we 
published a notice (66 FR 11133) announcing the reopening of the 
comment period until April 2, 2001, on the proposal to designate 
critical habitat for plants from Lanai and a notice of a public 
hearing. On March 22, 2001, we held a public hearing at the Lanai 
Public Library Meeting Room, Lanai. On April 6, 2001, we published a 
notice (66 FR 18223) announcing corrections to the proposed rule. These 
corrections included changes to the map of general locations of units 
and new Universal Tranverse Mercator (UTM) coordinates and increased 
the total proposed critical habitat to 2,034 ha (5,027 ac).
    On October 3, 2001, we submitted a joint stipulation with 
Earthjustice (representing the plaintiffs in Hawaii Conservation 
Council v. Babbitt) requesting extension of the court order for the 
final rules to designate critical habitat for plants from Kauai and 
Niihau (July 30, 2002), Maui and Kahoolawe (August 23, 2002), Lanai 
(September 16, 2002), and Molokai (October 16, 2002), citing the need 
to revise the proposals to incorporate or address new information and 
comments received during the comment periods. The joint stipulation was 
approved and ordered by the court on October 5, 2001. On January 28, 
2002, in the Kauai revised proposal, we proposed that designation of 
critical habitat was prudent for Isodendrion pyrifolium and Solanum 
incompletum, two species reported from Lanai as well as Kauai, Maui, 
and Molokai.
    On March 4, 2002, we published a revised proposed rule for the 37 
plant species from Lanai (67 FR 9806). Critical habitat for 32 
(Abutilon eremitopetalum, Adenophorus periens, Bidens micrantha ssp. 
kalealaha, Bonamia menziesii, Brighamia rockii, Cenchrus agrimonioides, 
Centaurium sebaeoides, Clermontia oblongifolia ssp. mauiensis, Ctenitis 
squamigera, Cyanea grimesiana ssp. grimesiana, Cyanea lobata, Cyanea 
macrostegia ssp. gibsonii, Cyperus trachysanthos, Cyrtandra munroi, 
Diellia erecta, Diplazium molokaiense, Gahnia lanaiensis, Hedyotis 
mannii, Hedyotis schlechtendahliana var. remyi, Hesperomannia 
arborescens, Hibiscus brackenridgei, Labordia tinifolia var. 
lanaiensis, Mariscus fauriei, Melicope munroi, Neraudia sericea, 
Portulaca sclerocarpa, Sesbania tomentosa, Silene lanceolata, 
Spermolepis hawaiiensis, Tetramolopium remyi, Vigna o-wahuensis, and 
Viola lanaiensis) of the 37 plant species from the island of Lanai was 
proposed on approximately 7,853 ha (19,504 ac) of land (67 FR 9806). 
Critical habitat was not proposed for Mariscus fauriei, Phyllostegia 
glabra var. lanaiensis, Silene lanceolata, Tetramolopium lepidotum ssp. 
lepidotum, and Zanthoxylum hawaiiense on the island of Lanai because 
these plants no longer occur on Lanai and we were unable to determine 
habitat which is essential to their conservation on this island.
    The publication of the revised proposed rule opened a 60-day public 
comment period, which closed on May 3, 2002. On July 15, 2002, we 
published a notice (67 FR 46450) announcing the reopening of the 
comment period until August 30, 2002, and a notice of a public hearing. 
On July 16, 2002, we published a notice announcing the availability of 
the draft economic analysis on the proposed critical habitat (67 FR 
46626). On July 22, 2002, we held a public information meeting at the 
Lanai Senior Center, Lanai. On August 1, 2002, we held a public hearing 
at the Lanai Public Library Meeting Room, Lanai. On July 11, 2002, we 
submitted joint stipulations with Earthjustice requesting extension of 
the court orders for the final rules to designate critical habitat for 
plants from Lanai (December 30, 2002), Kauai and Niihau (January 31, 
2003), Molokai (February 28, 2003), Maui and Kahoolawe (April 18, 
2003), Oahu (April 30, 2003), the Northwestern Hawaiian Islands (April 
30, 2003), and the island of Hawaii (May 30, 2003), citing the need to 
conduct additional review of the proposals, address comments received 
during the public comment periods, and to conduct a series of public 
workshops on the proposals. The joint stipulations were approved and 
ordered by the court on July 12, 2002. On November 15, 2002, we 
published in the Federal Register (67 FR 69176) a notice reopening the 
public comment period for the proposed rule.

[[Page 1236]]

Summary of Comments and Recommendations

    In the proposed rule published on March 4, 2002 (67 FR 9806), we 
requested that all interested parties submit written comments on the 
proposal. We also contacted all appropriate Federal, State, and local 
agencies, scientific organizations, and other interested parties and 
invited them to comment. We received one request for a public hearing. 
We announced the date and time of the public hearing in letters to all 
interested parties, appropriate State and Federal agencies, county 
governments, and elected officials, and in notices published in the 
Honolulu Advertiser and the Maui News on March 19, 2002. A transcript 
of the hearing held in Lanai City, Lanai on August 1, 2002, is 
available for inspection (see ADDRESSES section).
    We received individually written letters from 19 parties, including 
three designated peer reviewers, four State agencies, and 12 
individuals, and testimony from three individuals at the August 1, 
2002, public hearing. Approximately 275 additional letters were 
submitted as part of a mailing campaign. Of the 22 parties who did not 
respond as part of the mailing campaign, five supported the proposed 
designation, eight were opposed, and nine expressed neither support nor 
opposition. The eight commenters who opposed the proposal specifically 
opposed designation of critical habitat on lands they own or manage, 
and requested that these areas be excluded from critical habitat 
designation.
    We reviewed all comments received for substantive issues and new 
information regarding critical habitat for Abutilon eremitopetalum, 
Adenophorus periens, Bidens micrantha ssp. kalealaha, Bonamia 
menziesii, Brighamia rockii, Cenchrus agrimonioides, Centaurium 
sebaeoides, Clermontia oblongifolia ssp. mauiensis, Ctenitis 
squamigera, Cyanea grimesiana ssp. grimesiana, Cyanea lobata, Cyanea 
macrostegia ssp. gibsonii, Cyperus trachysanthos, Cyrtandra munroi, 
Diellia erecta, Diplazium molokaiense, Gahnia lanaiensis, Hedyotis 
mannii, Hedyotis schlechtendahliana var. remyi, Hesperomannia 
arborescens, Hibiscus brackenridgei, Isodendrion pyrifolium, Labordia 
tinifolia var. lanaiensis, Mariscus fauriei, Melicope munroi, Neraudia 
sericea, Phyllostegia glabra var. lanaiensis, Portulaca sclerocarpa, 
Sesbania tomentosa, Silene lanceolata, Solanum incompletum, Spermolepis 
hawaiiensis, Tetramolopium lepidotum ssp. lepidotum, Tetramolopium 
remyi, Vigna o-wahuensis, Viola lanaiensis, and Zanthoxylum hawaiiense. 
Similar comments were grouped into general issues and are addressed in 
the following summary.

Issue 1: Biological Justification and Methodology

    (1) Comment: One reviewer questioned whether loss of wetlands is a 
threat to Cyperus trachysanthos because wetlands are not known to exist 
on Lanai.
    Our Response: Because Cyperus trachysanthos requires seasonally wet 
soils, we feel that the lack of such soils on Lanai does constitute a 
threat to the species. However, based on information received during 
the public comment period, we have revised the proposed critical 
habitat for C. trachysanthos. We are no longer proposing critical 
habitat for this species on Lanai because of the absence of wetland 
habitat. Furthermore, we were able to locate sites on other islands 
that: (1) Contain the primary constituent elements that are essential 
to the conservation of the species, (2) are within historical range, 
and (3) accommodate our recovery goals of 8-10 populations.
    (2) Comment: One reviewer stated that deer and mouflon sheep are 
threats to Centaurium sebaeoides, Cyperus trachysanthos, and Sesbania 
tomentosa, and that mouflon sheep, not goats and pigs, are a threat to 
Hibiscus brackenridgei.
    Our Response: Goats and pigs were replaced with mouflon sheep and 
axis deer as current threats throughout the ``Discussion of plant 
taxa'' section. Goats and pigs are no longer present on Lanai and were 
mistakenly included as current threats.
    (3) Comment: One peer reviewer suggested that high nutrient runoff 
from a nearby golf course be included as a threat to Unit G.
    Our Response: Unit G has been modified to exclude inland areas that 
do not contain the primary constituent elements for Portulaca 
sclerocarpa. Critical habitat is now proposed only for the cliff faces 
along the shore. These areas are not at risk of nutrient runoff from 
the nearby golf course.
    (4) Comment: Several commenters expressed concern that Phyllostegia 
glabra var. lanaiensis be assumed extinct, as it is common for Hawaiian 
plant species that have not been seen for decades to be rediscovered. 
The recent rediscoveries of Asplenium fragile var. insulare on Maui and 
of Phyllostegia waimeae on Kauai are cases in point. Critical habitat 
should be designated for this species.
    Our Response: We continue to believe that it would not be prudent 
to designate critical habitat for Phyllostegia glabra var. lanaiensis, 
a species known only from Kaiholena on Lanai. The species has not been 
seen on Lanai for over 80 years. This species was last observed on 
Lanai at Kaiholena in 1914. A report of this plant from the early 1980s 
was probably erroneous and should be referred to as P. glabra var. 
glabra (R. Hobdy, pers. comm., 1992). In addition, this species is not 
known to be in storage or under propagation. Given these circumstances, 
we have determined that designation of critical habitat for P. glabra 
var. lanaiensis is not prudent because such designation would not be 
beneficial to the species. If this species is rediscovered, we may 
reconsider designating critical habitat for this species as new 
information becomes available (see 16 U.S.C. 1532(5)(B); 50 CFR 
424.13(f)).
    (5) Comment: The Service should not designate critical habitat for 
Adenophorus periens, which was last seen on Lanai in the 1860s, because 
nothing is known about its threats. The Service must prove that the 
designated areas for critical habitat are essential to the conservation 
of A. periens before designating critical habitat.
    Our Response: The Service believes that designation of critical 
habitat for Adenophorus periens is prudent because information about 
the habitat requirements of A. periens exists in the historical 
literature and, unlike the case of Phyllostegia glabra, individuals of 
this species are currently in cultivation, allowing populations to be 
restored. According to recovery goals, reestablishment of wild 
populations within historical range is essential to the recovery of 
this species (USFWS 1999). However, the Service excluded proposed unit 
Lanai D, proposed in part as critical habitat for A. periens because we 
believe the benefits of exclusion outweigh the benefits of inclusion. 
The landowner has entered into a voluntary memorandum of agreement with 
the Service to manage the lands in proposed Unit D, as well as adjacent 
lands, for the conservation benefit of the 28 listed species for which 
it was proposed as critical habitat. We believe the benefits of these 
management actions would not occur if critical habitat is designated, 
are greater than the benefits of including the area as critical 
habitat. See Exclusions Under Section 4(b)(2) for a more detailed 
discussion of the exclusions. Critical habitat for A. periens has been 
proposed within historical range on Kauai, Molokai, Hawaii, and Oahu.
    (6) Comment: One peer reviewer suggested that a recommendation to

[[Page 1237]]

discontinue federally supported hunting programs and remove nonnative 
animals, particularly axis deer, be incorporated into the proposal.
    Our Response: The Service recognizes that populations of many game 
mammal species affect the distribution and abundance of many listed 
endangered plant and animal species to varying degrees, either directly 
or indirectly. We also recognize that game mammal hunting is a highly 
valued activity to a portion of the present-day Hawaiian culture. We 
recognize hunting as an important tool to manage wild populations of 
game and support hunting as a recreational activity and the maintenance 
of game mammal hunting programs within the state of Hawaii. However, 
Federal and state law dictate that hunting programs must be designed 
and executed in a way that is compatible with endangered species 
conservation. Game mammal hunting programs must not only prevent 
extinction, but allow for the recovery of federally listed endangered 
and threatened species.
    Under the Endangered Species Act, a critical habitat designation 
establishes a geographic area that is important for the conservation of 
a threatened or endangered species and may require special management 
considerations. However, a designation does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve, or other special 
conservation area. It does not allow government or public access to 
private lands and will not result in closure of the area to all access 
or use. A critical habitat designation does not constitute a land 
management plan. Rather, it triggers the requirement that Federal 
agencies must consult with the Service on activities they take or fund 
that might affect critical habitat.
    (7) Comment: Critical habitat designation should consider the 
following: (1) The importance of designating the best remaining 
elements of ecosystems for multi-species recovery, (2) the practicality 
of managing and protecting scattered units without apparent physical 
boundaries, and (3) the importance of public/private partnerships for 
species recovery.
    Our Response: We agree that all these factors are important for the 
conservation of listed species. We have sought to designate only areas 
that are essential for the conservation of the species, and which 
contain primary constituent elements within the best remaining 
habitats. We also agree that public/private partnerships are often 
essential for species recovery. As an example, the Service is excluding 
proposed unit Lanai D, an area proposed as critical habitat for 28 
species, because the landowner has entered into a voluntary memorandum 
of agreement with the Service to manage the lands for the conservation 
benefit of 28 listed species. We believe there is a higher likelihood 
of beneficial conservation activities occurring on Lanai without 
designated critical habitat than there would be with designated 
critical habitat in this location. See Exclusions Under Section 4(b)(2) 
for a more detailed discussion of the excluded areas.
    (8) Comment: One peer reviewer commented that the requirement that 
1,000 m separate populations is adequate for small-scale disturbance 
events, but is inadequate for large-scale disturbances. However, the 
use of multiple populations with a 1,000-m separation is a good balance 
between protecting against catastrophes and avoiding isolation of 
populations. Another peer reviewer commented that although a 1,000-m 
separation seems a bit arbitrary, it is workable. A third peer reviewer 
disagreed with the identification of populations as discrete units due 
to the lack of barriers to breeding on Lanai.
    Our Response: We acknowledge the difficulty in identifying a 
discrete, quantitative distance between populations, but in the absence 
of more specific information indicating the appropriate distance to 
assure limited cross-pollination, we believe that a distance of 1,000 m 
(3,281 ft) is scientifically reasonable based on our review of current 
literature (Barret and Kohn 1991; Fenster and Dudash 1994; Havens 1998; 
Schierup and Christiansen 1996).
    (9a) Comment: Two peer reviewers commented that the multi-
population approach is essential to the successful recovery of Hawaiian 
species, but that 8 to10 populations may be too low a goal in some 
cases. Eight to 10 populations should be considered the low end of what 
is needed for recovery; species that characteristically have numerous 
populations containing small numbers of individuals require special 
consideration. (9b) Comment: Another peer reviewer suggested that 8 to 
10 populations on each island would be most appropriate for multi-
island species.
    Our Response: The Service acknowledges that, in general, 
identification of more than 8 to 10 areas for recovery would improve 
the likelihood of recovery. However, absent any quantitative scientific 
modeling for the species, the service concludes that 8 to 10 
populations is a goal that has a reasonable likelihood of meeting 
recovery goals.
    (10) Comment: It is difficult to comment in an informed manner on 
critical habitat for species occurring on more than one island because 
the proposed rule did not provide information on critical habitat 
proposed on other islands for multi-island species.
    Our Response: For this reason, the Service gave notice on August 
20, 2002, reopening simultaneous comment periods for the proposed 
designations and non-designations of critical habitat for plant species 
on the islands of Kauai, Niihau, Molokai, Maui, Kahoolawe, and the 
northwestern Hawaiian Islands until September 30, 2002, and for plant 
species on the islands of Hawaii, and Oahu until November 30, 2002. The 
new comment periods allowed all the interested parties to review all 
the proposals together and submit written comments. The comment period 
for the proposed designations and non-designations of critical habitat 
for plant species on Lanai opened on August 15, 2002, and closed on 
August 30, 2002, overlapping with the reopened comment periods for 
Kauai, Niihau, Molokai, Maui, Kahoolawe, the northwestern Hawaiian 
Islands, Hawaii and Oahu.
    (11a) Comment: Two peer reviewers stated that degraded habitat 
should only be excluded from critical habitat if it lacks the potential 
to become appropriate habitat in the future or if enough less degraded 
areas exist to make retention of degraded areas unnecessary. (11b) 
Comment: A third peer reviewer feels that degraded sites should still 
be included as critical habitat, at the very least as buffer zones and 
ideally as areas for expansion. (11c) Comment: Two peer reviewers 
commented that excluding degraded areas from critical habitat tends to 
encourage landowners to let areas decline to the point where they will 
not be selected as critical habitat.
    Our Response: The Service agrees that ``degraded'' areas may be 
necessary for recovery of the species. We have included areas that are 
``degraded'' only if such areas contain the primary constituent 
elements for the species; we considered if they are able to eventually 
regain those missing primary constituent elements if properly managed 
for restoration and no other suitable habitat for the species is 
available. We revised proposed critical habitat for many species in the 
proposed rule because we were able to reach our recovery goal of 8 to 
10 populations for a species in intact areas within its

[[Page 1238]]

historical range that contain the primary constituent elements.
    (12) Comment: One commenter was concerned about the designation of 
units containing ``a badly degraded habitat.'' The reviewer criticizes 
designation of such areas because it is not economically efficient to 
control threats such as feral ungulates, weeds, and fire. Such 
designation will create a regulatory burden and restrict future 
management options for landowners and the State. Another suggested that 
some species may be endangered because they exist in marginal habitat 
and that designating more marginal habitat will not improve a species' 
chance of survival.
    Our Response: We agree that it is in a species' best interest to 
designate critical habitat in the least degraded areas containing 
primary constituent elements within historical range. However, in order 
to reach our recovery goal of 8 to 10 populations for a species within 
historical range it was sometimes necessary to include ``degraded'' 
areas when other less degraded areas were not available for the 
species.
    (13a) Comment: One peer reviewer stated that it is unlikely that 
enough land has been identified for the long-term conservation of 
multiple populations; however, given the need to compromise, the 
proposed units are reasonable. Peer reviewers stated that the areas 
seem suitable in size and are ecologically appropriate, provided: (1) 
They are protected from their primary threats, (2) excluded lands are 
properly managed and of large enough size to be ecologically 
sustainable, (3) proposed units E1-3 are consolidated into a single 
unit and proposed unit D is retained as an entire unit, or the Service 
can explain why fragmentation and edge-effects are not threats to the 
species and why there is adequate mid-elevation habitat available in 
other areas for target species. (13b) Comment: Critical habitat for 
Hibiscus brackenridgei, Tetramolopium remyi, and Sesbania tomentosa 
should be larger due to their formerly extensive range. (13c) Comment: 
One peer reviewer stated that removal of significant portions of any of 
the critical habitat units in the proposed rule is likely to prevent 
the recovery of, or lead to the extinction of, listed species.
    Our Response: We did not include additional lands in proposed 
critical habitat because, at the time of the proposal and revised 
proposal, we concluded that those lands were not essential for the 
conservation of the 37 Lanai plant species, based on available 
information concerning status of the species in specific areas and 
level of habitat degradation. In this final rule, several units and 
parts of units proposed as critical habitat have been excluded because 
they are not essential for the conservation of the species or because 
there are alternatives to a critical habitat designation. We determined 
them to be non-essential due to their lacking primary constituent 
elements, or having primary constituent elements but there are other 
places for these species that have more primary constituent elements, 
are less degraded, are already undergoing restoration, or are within a 
partnership, Natural Area Reserve, TNCH preserve, or on a refuge. A 
sufficient number (as defined in our recovery plans) of other, more 
appropriate areas are being designated or proposed as critical habitat 
within historical range on other islands. In other cases, the Service 
decided that the benefits of excluding critical habitat outweighed the 
benefits of including critical habitat. See the descriptions of 
exclusion of critical habitat under Exclusions Under Section 4(b)(2), 
below.
    (14) Comment: One peer reviewer noted that one of the keys to a 
plant's survival is having the appropriate microclimate, which is 
created by other plant species in a large enough aggregation to alter 
the environment. Because of the strong, harsh winds on Lanai, it is 
essential that critical habitat units, such as proposed units A, B, and 
C, are large enough to provide habitat for a complete plant community 
that can provide shelter from the winds.
    Our Response: We agree and have sought to designate critical 
habitat units that are large enough to accommodate the needs of the 
species within those units. However, based on information received 
during the public comment period, we have revised the proposed critical 
habitat units and have excluded proposed units A, B, and C because they 
are not essential for the conservation of Hibiscus brackenridgei, 
Cyperus trachysanthos, Tetramolopium remyi, and Sesbania tomentosa. 
Although they possess some of the primary constituent elements for 
these species, their habitat is largely degraded. We were able to 
identify an adequate number of sites within the historical range 
containing more appropriate and less degraded habitat, and/or that are 
already slated for conservation management and restoration.
    (15a) Comment: Several commenters, including one peer reviewer, 
felt that the proposed rule was improved by incorporating clear 
methodology to designate appropriate unoccupied habitat for plant 
recovery. (15b) Comment: The Service should not designate unoccupied 
habitat. One commenter stated that the Service is acting outside its 
authority in designating unoccupied habitat because almost any area in 
Hawaii is capable of supporting one or more protected species, and the 
entire State would have to be designated if unoccupied habitat is 
included. (15c) Comment: Unoccupied habitat outside of the Conservation 
District should not be designated because it is degraded.
    Our Response: Our recovery plans for these species identify the 
need to expand existing populations and reestablish wild populations 
within the historical range. Because of the very limited current range 
of these species, designating only occupied areas would not meet the 
conservation requirements of the species. Occupied areas, as well as 
the similar habitat around them within the designated units of critical 
habitat that may be occupied in the future, provide the essential life-
cycle needs of the species and provide some or all of the habitat 
components essential for the conservation (primary constituent 
elements) of these species. We have revised the December 27, 2000, 
proposal to designate critical habitat for 18 species from Lanai to 
incorporate new information and/or address comments and new information 
received during the comment periods, including information on areas of 
potentially suitable unoccupied habitat for some of these species. 
Expansion of some of these species to areas that were likely to have 
been historically occupied is essential to the conservation of the 
species.
    When designating unoccupied habitat for these species, we first 
evaluated lands that are suitable for each species. Of this suitable 
habitat, we determined what areas are essential for the conservation of 
each species using the guidelines outlined in the recovery plans (i.e., 
areas that contain one or more of the primary constituent elements, are 
either in good condition for recovery efforts or could be made good 
through appropriate management actions), and would provide space needed 
by the species to reach our recovery goals of 8 to 10 populations with 
a minimum of 100 mature reproducing individuals per population for 
long-lived perennials, 300 mature reproducing individuals per 
populations for short-lived perennials, and 500 mature reproducing 
individuals per population for annuals.
    We disagree that all areas outside the Conservation District are 
degraded and inappropriate for these species. Areas that contain one or 
more of the primary constituent elements, are either in good

[[Page 1239]]

condition for recovery efforts or could be made good through 
appropriate management actions, and would provide space needed by the 
species to reach our recovery goals of 8 to 10 populations with a 
minimum number of mature reproducing individuals as specified above, 
were determined to be essential for the conservation of each species, 
regardless of land-use zoning.
    (16a) Comment: One peer reviewer praised the Service for its 
logical and reasonable methodology and for using the best available 
science, including information such as elevation range, vegetation 
type, associated species, physical location and community type for 
determining critical habitat on Lanai. Another reviewer expressed 
appreciation for the extensive work and review of Lanai data by the 
Service.
    (16b) Comment: Other reviewers felt that the Service did not 
adequately consider recovery science and management in its proposed 
critical habitat designations and did not have adequate information 
relating to each species' primary constituent elements.
    Our Response: When developing the proposed rule to designate 
critical habitat for 32 plants from Lanai, we used the best scientific 
and commercial data available at the time, including but not limited 
to, information from the known locations, site-specific species 
information from the HINHP database and our own rare plant database; 
species information from the Center for Plant Conservation's (CPC) rare 
plant monitoring database; the final listing rules for these species; 
information received during the public comment periods and the 
informational meetings and public hearings held on Lanai on July 22, 
2002, and August 1, 2002; recent biological surveys and reports; our 
recovery plans for these species; GIS information (e.g., vegetation, 
soils, annual rainfall, elevation contours, landownership); information 
received in response to outreach materials and requests for species and 
management information we sent to all landowners, land managers, and 
interested parties on the island of Lanai; discussions with botanical 
experts; and recommendations from the Hawaii Pacific Plant Recovery 
Coordinating Committee (CPC, in litt. 1999, HINHP database 2000; HPPRCC 
1998; Service 1994, 1995, 1996, 1997, 1998a, 1998c, 1999).
    In accordance with our policy on peer review published on July 1, 
1994 (59 FR 34270), we solicited the expert opinions of appropriate and 
independent specialists regarding the proposed rule. The purpose of 
this peer review was to ensure that our designation methodology of 
critical habitat of Lanai plants was based on scientifically sound 
data, assumptions, and analysis. The comments of all of the peer 
reviewers were taken into consideration in the development of this 
final designation. We are required under a court-approved settlement 
agreement to finalize this designation by December 30, 2002. If 
provided with new information, we may revise the critical habitat 
designation in the future.
    (17) Comment: One commenter asked why other federally listed plants 
on Lanai and historically listed plants were not included in the 
critical habitat proposal. A peer reviewer asked why critical habitat 
was not proposed for Gardenia mannii when it appears that the proposed 
critical habitat may provide adequate habitat for the recovery of that 
species.
    Our Response: The proposed rule to designate critical habitat for 
32 species found on Lanai was prepared in response to a lawsuit (see 
``Previous Federal Action'' section above). Species listed prior to 
1991, such as Gardenia mannii, were not covered by this lawsuit and 
thus not addressed in the proposed rule. Additionally, certain species 
were not included in the proposed rule because historical records were 
incomplete and biological experts were unable to provide information 
about their habitat requirements. These species are: Mariscus fauriei, 
Silene lanceolata, Tetramolopium lepidotum ssp. lepidotum, and 
Zanthoxylum hawaiiense.
    (18) Comment: One commenter stated that critical habitat for 
Tetramolopium lepidotum ssp. lepidotum should be included in the final 
rule, if such habitat is present on Lanai.
    Our Response: Historical records are incomplete and biological 
experts were unable to provide information about the habitat 
requirements of Tetramolopium lepidotum ssp. lepidotum on Lanai. 
Tetramolopium lepidotum ssp. lepidotum is currently found on Oahu and 
we have proposed critical habitat for this species on that island.

Issue 2: Effects of Designation

    (19) Comment: One landowner commented that critical habitat should 
be consistent with current and ongoing conservation efforts in priority 
areas so that resources are not directed elsewhere in an uncoordinated 
manner. This reviewer stated that the Service and landowner should work 
together to develop an approach that is more likely to lead to species 
recovery, rather than a passive designation lacking management.
    Our Response: We agree and recognize that the ultimate purpose of 
critical habitat is to contribute to the conservation of listed 
species, a purpose that can be best reached by cooperation between the 
Service and the community. As an example, the Service excluded proposed 
unit D, proposed for 28 species, from critical habitat designation 
because we believe the benefits of exclusion outweigh the benefits of 
inclusion. The landowner entered into a voluntary memorandum of 
agreement with the Service to manage the lands in proposed unit Lanai 
D, as well as adjacent lands, for the conservation benefit of the 28 
listed species for which it was proposed as critical habitat. We 
believe the benefits of these management actions, which would not occur 
if critical habitat is designated, are greater than the benefits of 
including the area as critical habitat. See Exclusions Under Section 
4(b)(2) for a more detailed discussion of the exclusions.
    (20) Comment: One reviewer commented that the designation of 
critical habitat alone will not prevent the loss of remaining natural 
habitats and that funds would be better spent on natural resource 
management activities. Another reviewer stated that if management is 
not realistic, it makes little sense to designate critical habitat.
    Our Response: Critical habitat designation is one of a number of 
conservation tools established in the Act that can play an important 
role in the recovery of a species. For a Federal action to adversely 
modify critical habitat, the action would have to adversely affect the 
critical habitat's constituent elements or their management in a manner 
likely to appreciably diminish or preclude the conservation of the 
species. Designation of critical habitat is a way to guide Federal 
agencies in evaluating their actions, in consultation with the Service, 
such that their actions do not hamper conservation of listed species. 
There also are educational or informational benefits to the designation 
of critical habitat. Educational benefits include the notification of 
landowners, land managers, and the general public about the importance 
of protecting the habitat of these species and dissemination of 
information regarding their essential habitat requirements.
    (21) Comment: One peer reviewer noted that it appears that there is 
an assumption that ``natural'' areas in the recent past were not 
impacted by humans. It is unlikely that there was any place in the 
major Hawaiian Islands that was not at least nominally altered by 
Hawaiians. There should therefore be a slated role for the Hawaiian

[[Page 1240]]

community in the proposed conservation zones.
    Our Response: We agree that Hawaiians may have impacted natural 
areas prior to European settlement. Further, we believe that native 
Hawaiians can play an important role in species recovery. We do not 
anticipate that the critical habitat designation will affect their role 
in species recovery efforts, and we believe it is likely to be 
compatible with many of the land management goals of native Hawaiians.
    (22) Comment: Critical habitat must accommodate the traditional 
cultural gathering rights of native Hawaiians as reflected in Article 
XII of the State constitution and upheld by the Hawaii Supreme Court in 
the Public Access Shoreline Hawaii and Ka Paakai o Ka Aina decisions.
    Our Response: Critical habitat designation does not affect 
activities, including human access, on State or private lands unless 
some kind of Federal permit, license, or funding is involved and the 
activities may affect the species. It imposes no regulatory 
prohibitions on state or other non-Federal lands, nor does it impose 
any restrictions on State or non-Federal activities that are not funded 
or authorized by any Federal agencies. Access to Federal lands that are 
designated as critical habitat is not restricted unless access is 
determined to result in the destruction or adverse modification of the 
critical habitat. If we determine that access will result in adverse 
modification of the critical habitat, we will suggest reasonable or 
prudent alternatives that allow the proposed activities to proceed. 
Activities of the State or private landowner or individual, such as 
farming, grazing, logging, and gathering generally are not affected by 
a critical habitat designation, even if the property is within the 
geographical boundaries of the critical habitat, unless there is 
Federal nexus to the activity. A critical habitat designation has no 
regulatory effect on access to State or private lands. Recreational, 
commercial, and subsistence activities, including hunting, on non-
Federal lands are not regulated by this critical habitat designation, 
and may be impacted only where there is Federal involvement in the 
action and the action is likely to destroy or adversely modify critical 
habitat.
    (23) Comment: One native Hawaiian commenter stated that the 
critical habitat proposal is crucial in guardianship and preservation 
of not only native plants, but the native species that thrive in such 
protected habitat.
    Our Response: We agree that conservation of native plants is 
consistent with the land management goals of many native Hawaiians. 
Though not intended to replace on the ground management, we agree that 
critical habitat designation plays a role in the protection of native 
species. Designation of critical habitat is a way to guide Federal 
agencies in evaluating their actions, in consultation with the Service, 
such that their actions do not hamper conservation of listed species. 
There also are educational or informational benefits to the designation 
of critical habitat. Education benefits include the notification of 
landowners, 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.

Issue 3: Site-Specific Biological Comments

    (24) Comment: The exclusion of Kanepuu Preserve needs to be 
reassessed because the string of small preserves may not be adequate to 
provide for the long-term maintenance of habitat. Critical habitat may 
need to be established around these preserves in order to sustain 
native plant communities. One peer reviewer was concerned that, given 
the exclusion of Kanepuu Preserve, Bonamia menziesii may not have 
enough suitable lowland dry forest designated as critical habitat.
    Our Response: We reassessed the exclusion of Kanepuu Preserve and 
determined that it should be excluded because, in addition to having 
ongoing management, it is not essential for the conservation of Bonamia 
menziesii or Hibiscus brackenridgei. We were able to locate sites on 
other islands for those two species that: (1) Contain at least one of 
the primary constituent elements that are essential to the conservation 
of the species, (2) are within historical range, and (3) accommodate 
our recovery goals of 8-10 populations.
    (25a) Comment: One peer reviewer noted that as long as the units 
are protected from major threats, adequate, although not ideal, habitat 
is designated within proposed unit A for species recovery. (25b) 
Comment: Other commenters recommended removing unit A from the proposed 
designation, citing the following reasons: (1) Hibiscus brackenridgei 
is represented by only one individual in the unit, the unit has a small 
amount of suitable soil, it has habitat proposed in unit D, habitats 
exist on other islands, and the species has been extensively cultivated 
ex situ; (2) the physical attributes of Kaena Iki have changed 
substantially over time, the ground water spring dried up and 
seasonally wet soil habitat is no longer present, making it unsuitable 
habitat for Cyperus trachysanthos; (3) the historical location for C. 
trachysanthos is somewhat ambiguous because ``Kaena'' is also the name 
of a locality 2.5 miles to the east-northeast outside proposed unit A; 
and (4) the former population of C. trachysanthos within proposed unit 
A was likely very small and may be considered an unusual occurrence. 
(25c) Comment: Another reviewer suggested reducing the size of proposed 
unit A to less than 275 acres in the upper portion of the site near the 
existing populations of H. brackenridgei. The unit should be designed 
to accommodate just one of the 8 to 10 populations needed statewide.
    Our Response: Unit A was proposed as critical habitat for two 
species, Cyperus trachysanthos and Hibiscus brackenridgei. We excluded 
the proposed critical habitat for C. trachysanthos from the final rule 
because this area no longer contains the suitable habitat of seasonally 
wet soils. The water source has permanently dried up due to alterations 
in the watershed properties of the island. Also, this area is not 
essential for the conservation of C. trachysanthos, a multi-island 
species, because were able to locate sites on other islands that: (1) 
Contain at least one of the primary constituent elements that are 
essential to the conservation of the species, (2) are within historical 
range, and (3) accommodate our recovery goals of 8 to 10 populations.
    Based on information received during the public comment period, we 
have also excluded unit A as critical habitat for H. brackenridgei, a 
multi-island species. We determined that this area is not essential for 
the conservation of the species because there are at least eight other 
places for this species that have more primary constituent elements, 
are less degraded, are already undergoing restoration, or are within a 
partnership, Natural Area Reserve, TNCH preserves, or on a refuge. More 
appropriate areas on other islands, within historical range, and that 
provide habitat for 10 populations, are proposed as critical habitat 
for H. brackenridgei.
    (26a) Comment: One peer reviewer noted that, as long as the units 
are protected from major threats, adequate, though not ideal, habitat 
is designated within proposed unit B for species recovery. (26b) 
Comment: Proposed unit B should not be removed from critical habitat 
designation because recent surveys found no individuals of 
Tetramolopium remyi present in fenced areas, despite favorable 
environmental conditions. (26c) Comment: Proposed unit B should be 
reduced to less than

[[Page 1241]]

235 acres in the upper portion of the site near the existing 
population. Proposed unit D provides better habitat for many 
populations of T. remyi and recovery is much more likely in this unit.
    Our Response: Unit B was proposed as critical habitat for 
Tetramolopium remyi. Modifications were made to this unit to exclude 
areas not essential to the conservation of this species. The area is 
highly degraded and is in a game management area where one of the 
threats (axis deer) is being managed for hunting purposes by the State. 
The remaining area designated as critical habitat for the multi-island 
species T. remyi provides habitat within its historical range for one 
population of the 8 to 10 outlined in the recovery plan for this 
species. The designated area is situated around the recently extirpated 
known individuals, contains at least one of the primary constituent 
elements, and most likely contains a viable seed bank due to the recent 
existence of mature, seed-bearing individuals of this species in the 
area. This unit was renamed Lanai 1--Tetramolopium remyi.
    (27) Comment: Two commenters suggested that proposed unit C be 
removed from critical habitat designation for Sesbania tomentosa, 
citing the following reasons: (1) The species does not currently occur 
on Lanai; (2) natural recruitment from inter-island dispersal is 
unlikely; (3) it is not economically efficient to manage the threats in 
these areas; (4) the historical Lanai population may have been 
genetically distinct and propagules are not available from the 
historical population; and (5) suitable unoccupied habitat exists in 
proposed unit D.
    Our Response: Unit C was proposed as critical habitat for the 
multi-island species Sesbania tomentosa. We have excluded this unit 
from critical habitat because it is not essential for the conservation 
of the species because there are at least eight other places for this 
species that have more primary constituent elements or are less 
degraded, are already undergoing restoration, or are within a 
partnership, Natural Area Reserve, TNCH preserve, or on a refuge. More 
appropriate areas on other islands, within the historical range, and 
that provide habitat for 10 populations, are proposed as critical 
habitat for S. tomentosa.
    (28a) Comment: Commenters, including peer reviewers, supported the 
designation of critical habitat in proposed unit D because: (1) This 
area contains the best remaining habitat on Lanai, (2) supports high 
rare species diversity, and (3) has existing programs for native 
species management at Lanaihale. (28b) Comment: One reviewer commented 
that the extension of critical habitat for Centaurium sebaeoides into 
the Lanai Cooperative Game Management Area is reasonable because the 
habitat in this area is similar to the species' current habitat on 
Lanai. (28c) Comment: Two peer reviewers questioned the removal of the 
middle portion of proposed unit D, especially when edge effects should 
be minimized. (28d) Comment: Proposed unit D should be divided into 
three subunits (D-1, D-2, and D-3) in order to make the unit manageable 
in a practical sense. (27e) Comment: D-1 (Lanaihale area) should be 
removed from critical habitat designation because it is already being 
managed in a cooperative agreement between the Service and Castle and 
Cooke Resorts, LLC.
    Our Response: Lanai D was proposed as critical habitat for 28 
species: Abutilon eremitopetalum, Adenophorus periens, Bonamia 
menziesii, Brighamia rockii, Centaurium sebaeoides, Cenchrus 
agrimonioides, Clermontia oblongifolia ssp. mauiensis, Ctenitis 
squamigera, Cyanea grimesiana ssp. grimesiana, Cyanea lobata, Cyanea 
macrostegia ssp. gibsonii, Cyrtandra munroi, Diellia erecta, Diplazium 
molokaiensis, Gahnia lanaiensis, Hedyotis mannii, Hedyotis 
schlechtendahliana var. remyi, Hesperomannia arborescens, Hibiscus 
brackenridgei, Isodendrion pyrifolium, Labordia tinifolia var. 
lanaiensis, Melicope munroi, Neraudia sericea, Solanum incompletum, 
Spermolepis hawaiiense, Tetramolopium remyi, Vigna o-wahuensis and 
Viola lanaiensis.
    Based on additional information and discussions with the landowner, 
the Service has decided not to designate critical habitat for these 
species on Lanai. The unit was excluded from critical habitat under 
section 4(b)(2) of the Act because the landowner entered into a 
voluntary memorandum of agreement with the Service to manage the lands 
in proposed unit Lanai D, as well as adjacent lands, for the 
conservation benefit of the 28 listed species for which it was proposed 
as critical habitat. We believe the benefits of these management 
actions, which would not occur if critical habitat is designated, are 
greater than the benefits of including the area as critical habitat. 
See Exclusions Under Section 4(b)(2) for a more detailed discussion of 
the exclusions.
    (29a) Comment: All commenters agreed that at least portions of 
proposed units E1-3 are appropriate for critical habitat designation 
due to the likely presence of many species within the unit. (29b) 
Comment: One peer reviewer argued for consolidation of proposed units 
E1-E3 in order to reduce edge effect and fragmentation, and remove 
barriers to gene flow. (29c) Comment: Only the upper portions of 
proposed units E should be included as critical habitat for Bidens 
micrantha because the remainder of proposed unit E is not essential to 
the conservation of the species.
    Our Response: We acknowledge the potential negative impacts of edge 
effects on the habitat for Bidens micrantha. However, this species' 
primary constituent elements are found only within ridge habitat and 
the three proposed E units are actually three ridges. Consolidating the 
units would add the gulch areas between the ridges that lack the 
primary constituent elements for B. micrantha.
    No changes were made to these proposed units and they are 
designated as critical habitat for Bidens micrantha ssp. kalealaha. 
They have been renamed units Lanai 2--Bidens micrantha ssp. kalealaha--
North, Lanai 3--Bidens micrantha ssp. kalealaha--Middle, and Lanai 4--
Bidens micrantha ssp. kalealaha--South.
    (30) Comment: Two reviewers suggested removing proposed unit F as 
critical habitat for Hibiscus brackenridgei due to its degraded 
habitat, marginal soil and rainfall, and physical characteristics that 
are different from those at currently extant populations. One reviewer 
believed that designation of such sites is not economically efficient 
and would create a regulatory burden and restrict future management 
options for landowners and the State.
    Our Response: This unit was proposed as critical habitat for the 
multi-island species Hibiscus brackenridgei. Based on information 
received during the public comment period, we have revised the proposed 
critical habitat for this species. We have excluded proposed unit F 
because it does not contain the primary constituent elements essential 
for the conservation of this species. An adequate amount of critical 
habitat for Hibiscus brackenridgei is proposed within historical range 
on other islands.
    (31) Comment: One peer reviewer expressed concern that proposed 
unit G is downslope from a golf course and the high nutrient runoff 
from the golf course may encourage nonnative plants and threaten the 
survival of native species within the proposed unit. Three commenters 
suggested removing proposed unit G as critical habitat for Portulaca 
sclerocarpa because: (1) The species does not occur at this site 
currently, (2) historical records of its

[[Page 1242]]

occurrence at this site are lacking, (3) since the species is confined 
to vertical cliffs, habitat above the cliff is inappropriate, (4) few 
available niches exist for this species along the cliffs, (5) the 
species was likely always rare in this area, and (6) the cliffs are 
already protected under applicable shoreline setback laws.
    Our Response: Lanai G was proposed as critical habitat for the 
multi-island species Portulaca sclerocarpa. Modifications were made to 
this unit to exclude inland areas that do not contain the primary 
constituent elements. Although there are no historical records for this 
species on the main island of Lanai, we believe the species did 
historically occur there as plants continue to survive just off shore 
on Poopoo Islet. Poopoo Islet is a small rocky outcrop approximately 
200 m (600 ft) from the south shoreline. It is likely that the species 
disappeared from the main island Lanai as a result of the threats there 
prior to adequate surveys being conducted. Further, the areas 
designated as critical habitat on Lanai proper contain one or more of 
the primary constituent elements and provide additional area for one of 
the 8 to 10 populations needed for the recovery of this species as 
outlined in the recovery plan. Critical habitat designated for P. 
sclerocarpa includes only cliff faces along the shore. While it is true 
the cliffs are already protected under applicable State shoreline 
setback laws, the specific habitat features for this species are not 
directly protected by those laws. Actions taken adjacent to the cliffs, 
which may not be affected by State laws, could appreciable alter the 
ability of the habitat to support a population of this species. This 
unit was renamed Lanai 5--Portulaca sclerocarpa--Coast.
    (32) Comment: Commenters supported the designation of critical 
habitat for Portulaca sclerocarpa at proposed unit H. One commenter 
noted that although surveys found no evidence of the species in 
proposed unit H, the islets' cliff faces remain appropriate for a 
species that was likely naturally rare due to the area's few suitable 
niches.
    Our Response: We agree this species is rare, but this unit 
continues to support the one extant colony of this species on Lanai. No 
changes were made to this unit and it is designated as critical habitat 
for Portulaca sclerocarpa. It has been renamed Lanai 6--Portulaca 
sclerocarpa--Isle.

Issue 4: Mapping

    (33) Comment: The Service should define affected property lines in 
a manner that allows for the descriptions to be used in real property 
conveyance documents in the State of Hawaii.
    Our Response: The maps in the Federal Register are meant to provide 
the general location and shape of critical habitat. The legal 
descriptions are readily plotted and transferable to a variety of 
mapping formats and were made available electronically upon request for 
use with GIS programs. At the public hearing, the maps were expanded to 
wall-size to assist the public in better understanding the proposal. 
These larger scale maps were also provided to individuals upon request. 
Furthermore, we provided direct assistance in response to written or 
telephone questions with regard to mapping and landownership within the 
proposed designation.
    (34) Comment: The final proposal should map or identify how many 
populations are being accommodated in each unit and the acreage 
allotted for each population.
    Our Response: The final rule identifies the number of populations 
accommodated in each unit. We do not have the scientific information to 
precisely identify how many acres each population requires. We did, 
however, ensure that each population is separated by 1,000 meters or by 
some distinct geologic feature.

Issue 5: Economic Issues

    (35) Comment: The Draft Economic Analysis (DEA) fails to consider 
economic impacts of listing and critical habitat that result through 
interaction with State law, specifically Hawaii's Endangered Species 
Act. The commenter suggested that New Mexico Cattlegrowers Association 
v. U.S. Fish and Wildlife Service requires consideration of the impact 
of listing as well as the impact of designating an area as critical 
habitat. Instead, the analysis is expressly limited to the impact of 
Federal agency consultation under the jeopardy standard. However, since 
Federal listing triggers listing under State law, the Service must 
consider the impact of take prohibitions under State law (and 
consequently Federal law, which prohibits destruction of plants in 
knowing violation of State law).
    Our Response: Possible costs resulting from interplay of the 
Federal Endangered Species Act and Hawaii State law are discussed in 
the economic analysis under indirect costs (e.g., possible conservation 
management mandate for the private landowner and reduction in game 
mammal populations). The economic analysis considers the economic 
impacts of section 7 consultations related to critical habitat even if 
they are attributable co-extensively to the listed status of the 
species. In addition, the economic analysis examines any indirect costs 
of critical habitat designation, such as where critical habitat 
triggers the applicability of a State or local statute. However, where 
it is the listing of a species that prompts action at the State or 
local level (e.g., further regulating the take of federally listed 
species), the impacts are not attributable to critical habitat 
designation and are not appropriately considered in the economic 
analysis of critical habitat designation. Take prohibitions under 
Hawaii law are tied to the Federal listing of the species and do not 
co-extensively occur because of critical habitat designations. However, 
our analysis did consider the other ways in which the Federal 
Endangered Species Act and Hawaii State law may interplay.
    (36) Comment: Two commenters stated that the DEA fails to consider 
economic impacts of critical habitat that result through interaction 
with Hawaii's Land Use Law. Critical habitat could result in changes to 
zoning under State law. HRS Sec.  205-2(e) states that Conservation 
Districts shall include areas necessary for conserving endangered 
species. HRS 195D-5.1 states that DLNR shall initiate amendments in 
order to include the habitat of rare species. Even if DLNR does not 
act, the Land Use Commission may initiate such changes, or they may be 
forced by citizen lawsuits. Areas for endangered species are placed in 
the protected subzone with the most severe restrictions. While existing 
uses can be grandfathered in, downzoning will prevent landowners from 
being able to shift uses in the future, will reduce market value, and 
make the land unmortgageable.
    Our Response: As indicated in the final addendum to the DEA 
(Addendum), about 362.4 ac of agricultural lands and 8 ac of rural 
lands are included in the final designation. No agricultural or 
ranching activities take place on these agricultural lands. Assuming a 
worst-case scenario, one which is not envisioned, reduction in land 
values due to redistricting land from the Agricultural or Rural 
District to Conservation District could range from $50,736 to $163,080 
($140 to $450 per acre) for agricultural lands and $1.3 million to $2.7 
million ($160,000 to $334,000 per acre) for rural lands. Under this 
scenario, even if a landowner has no plans to sell the land, the loss 
in land value could reduce potential mortgage financing. However, the 
likelihood of redistricting is not certain and could be small. The 
State's history

[[Page 1243]]

supports the unlikelihood of rezoning or redistricting land based on 
evaluations of biological value.
    (37) Comment: The DEA fails to consider economic impacts of 
critical habitat that result through interaction with State law, 
specifically Hawaii's Environmental Impact Statement Law. HRS 343-5 
applies to any use of conservation land, and a full Environmental 
Impact Statement is required if any of the significance criteria listed 
in HAR 11-200-12 apply. One of these criteria is that an action is 
significant if it ``substantially affects a rare, threatened or 
endangered species or its habitat.'' This will result in costly 
procedural requirements and delays. However, the DEA does not 
acknowledge that any impact on endangered species habitat will be 
deemed to be ``significant.'' Multiple commenters stated that the DEA 
fails to evaluate the practical effect critical habitat designation 
will have on development. Special Management Area permits administered 
by Maui County as required by Hawaii's Coastal Zone Management Act, 
will be harder to get, will result in delays, will cause a decline in 
property values and may make land impossible to develop.
    Our Response: Adverse impacts on development, including delays for 
additional studies and agency reviews, increased costs for 
environmental studies, increased risk of project denials, increased 
risk of costly mitigation measures, and increased risk of litigation 
over approvals, are not expected since no known development plans exist 
for the areas proposed for designation, as modified. Furthermore, the 
following factors make future development projects within critical 
habitat highly unlikely: (1) As modified, approximately 53 percent of 
the critical habitat is in the Conservation District where development 
is severely limited; (2) approximately 46 percent of the critical 
habitat is in the Agricultural District, but because the land includes 
gulches, it does not host any ranching or agricultural activities; (3) 
less than one percent of the proposed designation encompasses land in 
the Rural District with no known development plans; and (4) as 
modified, the cliffs along the southern shore are the only critical 
habitat area that is in the Special Management Area. (The percentages 
given here are different from those in the addendum because of the 
Service's decision to exclude Lanai Unit D (see Exclusions Under 
Section 4(b)(2))
    (38) Comment: The DEA fails to consider economic impacts of 
critical habitat that result through interaction with State law, 
specifically the State Water Code. HRS 174C-2 states that ``adequate 
provision shall be made for protection of fish and wildlife''. HRS 
174C-71 instructs the Commission of Water Resource Management to 
establish an instream use protection program to protect fish and 
wildlife. Since landowners may depend on water pumped from other 
watersheds, these effects can be far-reaching. It is impossible to tell 
from the descriptions in the proposal whether any water diversions will 
have to be reduced as a result of listing and critical habitat 
designation. The Service has an obligation to thoroughly investigate 
this issue and refrain from designating critical habitat until it has 
determined whether its actions will affect water use and balance this 
against any benefit to the species.
    Our Response: No costs are expected to occur from such impacts, 
because none of the listed plants are stream-dependent for their 
survival and therefore critical habitat designation would not cause a 
reduction in existing water diversions.
    (39) Comment: One commenter stated that the cost of potential 
citizen lawsuits preventing certain activities or requiring some sort 
of management in critical habitat was not discussed in the DEA. Another 
commenter stated that critical habitat designation will bring 
unnecessary and costly litigation. One commenter stated that proposed 
critical habitat could entail considerable cost to both the State and 
private landowners. One commenter stated that critical habitat 
designation could indirectly result in limitations or special 
management requirements (such as fencing or control of invasive 
species) being established on private lands. The DEA estimates that the 
Palila court decision may be interpreted to mandate private 
conservation and could cost Lanai landowners up to $800,000 per year, 
or $8 million over ten years. However, Table VI-3 of the Addendum 
dismisses these costs as minor and does not add them to the total cost 
estimate. These costs should be considered.
    Our Response: The Act does not obligate landowners to manage their 
land to protect critical habitat, nor would landowners and managers be 
obligated under the Act to participate in projects to recover a species 
for which critical habitat has been designated. However, the DEA does 
discuss the potential mandate for conservation management pursuant to 
litigation and the resulting costs for the proposed designation on 
Lanai. Specifically, adverse impacts on development, including delays 
for additional studies and agency reviews, increased costs for 
environmental studies, increased risk of project denials, increased 
risk of costly mitigation measures, and increased risk of litigation 
over approvals, are not expected since there are no known development 
plans within the areas proposed for designation, as modified. 
Furthermore, the following factors make future development projects 
within critical habitat highly unlikely: (1) As modified, approximately 
53 percent of the proposed critical habitat is in the Conservation 
District where development is already limited; (2) approximately 46 
percent of the critical habitat is in the Agricultural District, but 
because the land includes gulches, it does not host any ranching or 
agricultural activities; (3) less than one percent of the designation 
encompasses land in the Rural District with no known development plans; 
and (4) as modified, the cliffs along the southern shore are the only 
critical habitat area that is in the Special Management Area.
    Thus, while it is conceivable that there may initially be an 
increase in subsequent lawsuits related to the critical habitat 
designation, it is not possible to predict their number, degree of 
complexity, or any other associated effect on project delays due to 
scant historical evidence regarding the Lanai plants.
    (40) Comment: One commenter stated that the DEA lacks a thorough 
benefits analysis. It does not include the benefits of watershed 
protection and improvement, protection of other stream and riparian 
biota, and the value of the plants as an indicator of ecological 
health. Other commenters stated that the DEA ignored the benefit of 
keeping other native species off the endangered species list, of 
maintaining water quality and quantity, of promoting ground water 
recharge, and of preventing siltation of the marine environment, thus 
protecting coral reefs. Another commenter noted that additional 
benefits of critical habitat include combating global warming, 
providing recreational opportunities, attracting ecotourism, and 
preserving Hawaii's natural heritage. The Service must use the tools 
available, such as a study by the University of Hawaii (UH) Secretariat 
for Conservation Biology that estimated the value of ecosystem service, 
to determine the benefits of critical habitat. Another commenter stated 
that the DEA overestimates economic benefits and many of the alleged 
benefits are entirely speculative, unquantifiable or lack any 
commercial value.
    Our Response: The DEA discussed these potential benefits. However, 
the DEA also indicated that these benefits

[[Page 1244]]

are not quantified due to lack of information available on: (1) 
Quantified data on the value of the Lanai species; and (2) quantified 
data on the change in the quality of the ecosystem and the species as a 
result of the designation. Although the UH study does value ecosystem 
services, it has limited applicability for valuing the benefits of the 
critical habitat designation for the plants for a number of reasons. 
First, the UH study had a different purpose, which was to estimate the 
total value of environmental benefits provided by the entire Koolau 
Mountains on the island of Oahu. Consistent with its purpose, the UH 
study provides no estimates of the changes in environmental conditions 
resulting from changes in land and stream management due to critical 
habitat designation. Furthermore, many of the assumptions and much of 
the analysis in the UH study are not transferable to the economic 
analysis for the critical habitat of the Lanai plants. For example, the 
value of water recharge in the UH study reflects projected water supply 
and demand conditions on Oahu, an island three times the size of Lanai, 
but with a population of more than 360 times that of Lanai. Also, the 
UH benefit analysis of reducing soil runoff is unique to three valleys 
that drain through partially channelized streams in urban areas into 
the manmade Ala Wai Canal. Since this canal was designed with 
inadequate flushing from stream or ocean currents, it functions as an 
unintended settling basin, so must be dredged periodically. In 
addition, the recreational and ecotourism values provided in the UH 
study apply to areas that are accessible to most hikers, which is not 
the case with most of the Lanai critical habitat. Most of the critical 
habitat units designated on Lanai are either in mountainous areas with 
steep slopes and difficult access or on coastal cliffs.
    (41) Comment: Existence values should be quantified. Studies 
referenced in the DEA analysis contain information about how much 
people would be willing to pay to save various species. Even assuming 
plants are noncharismatic and therefore would justify lower values, 
there would still be a value of $6 per household per year. If the study 
is able to take values for a day of hunting from the State of Idaho and 
apply them to Hawaii, it should be equally able to take values from 
studies which have looked at other species to get some sense of what 
people would pay to make sure these species recover and do not go 
extinct.
    Our Response: As discussed in the Addendum, when primary research 
is not feasible, economists frequently rely on the method of benefits 
transfer. Benefits transfer involves the application of results of 
existing valuation studies to a new policy question. Two core 
principals of defensible benefits transfer are: (1) The use of studies 
that apply acceptable techniques to generate welfare values, and (2) 
similarity between the good being valued in the literature and the good 
being valued in the policy context to which the transfer is being made 
(i.e., the protection afforded the Lanai plants by critical habitat). 
As noted above, no known studies exist with quantified data on the 
value of plants or the change in the quality of the ecosystem and the 
species as a result of the designation. Therefore, applying results of 
existing valuation studies on non-plants to Lanai plant critical 
habitat is not feasible.
    (42) Comment: The conclusion under E.O. 12866 that the rule will 
not have an annual economic effect of $100 million or more, or 
adversely affect in a material way any sector of the economy or State 
or local governments or communities, is flawed because it does not 
consider the major adverse impacts from secondary effects.
    Our Response: For the reasons explained in the DEA, this rule is 
not expected to have an annual economic effect of $100 million or more. 
Both the DEA and the Addendum provide analysis of the indirect costs 
associated with designation of critical habitat for the Lanai plants in 
terms of land management, loss in property values and investigative 
costs. These indirect costs are considered and those costs that can be 
quantitatively estimated are addressed in the DEA and Addendum. Some 
potential costs are not estimated because the likelihood of actually 
incurring the cost is considered to be extremely remote.
    (43) Comment: The designation of critical habitat will have direct 
and substantial impacts on private property because large areas will be 
unavailable for productive use and land values will be substantially 
diminished. The Service must take these into account and weigh them 
against the speculative protections that would accrue from designation. 
The DEA correctly recognizes that perceptions and uncertainty of the 
economic impact of critical habitat designation can cause temporary 
reductions in land value as long as those perceptions persist and until 
information is distributed. These impacts, however, need to be 
analyzed. The DEA should examine true appraised values, rather than 
relying on ``GIS analysis of land value,'' which is not explained, with 
and without critical habitat designation and as it may be perceived by 
buyers and lenders. In addition to the reduction in land value itself, 
the DEA should investigate whether these losses in property value may 
be long-term, because the consequences of critical habitat are yet to 
be determined and will likely be the subject of extensive and costly 
litigation that will take years to resolve. The DEA should also 
recognize that land use values may be used as collateral for loans 
supporting commercial operations and assess the potential impact 
critical habitat designations may have on these transactions.
    Our Response: The DEA did indeed estimate land values associated 
with the different land use districts using GIS analysis. This 
technique assesses large parcels as a group, rather than as specific 
parcels, due to lack of obtaining information on land values for 
specific locations. However, during the comment period, Castle and 
Cooke Resorts, LLC, provided location-specific land value information 
for the areas in the proposed units. Therefore, the Addendum relied on 
those figures to recalculate the decrease in property value in the 
worst-case scenario. According to Castle and Cooke Resorts, LLC, the 
agricultural lands included in the designation should be valued at $390 
to over $1,000 per acre; rural lands at $160,000 to over $335,000 per 
acre; and conservation lands at $250 to over $550 per acre (based on an 
appraisal of similar lands). Based on these figures, the decrease in 
property value of agricultural lands could range from $50,811 to 
$163,323 million [(($390-$250)x362.94), (($1,000-$550)x362.94)]. The 
decrease in value for rural lands may range from $1.2 million to $2.7 
million [(($160,000-250)x8), (($335,000-550)x8)]. As noted above, this 
scenario is not expected to occur, and ensuring that clear and correct 
information is available to all potential buyers will further reduce 
the potential for such a scenario.
    (44) Comment: It is not adequate to state, without any analysis, 
that any reduction in property value to agricultural lands proposed in 
units E and F is expected to be small because many of the lands are 
categorized as open space by the county to limit development. 
Agricultural lands such as those on Lanai have been appraised from $390 
to $1,000 an acre. The DEA should examine the effects by using 
appraised values before and after critical habitat designation. The DEA 
also states that rural land on Lanai is valued at approximately $44,000 
per acre, even though nearby house lots in the Manele

[[Page 1245]]

Project district range up to $15 million. If the entire Manele Project 
district is not excluded in the final rule, the DEA will have failed to 
analyze one of the most substantial impacts of critical habitat on 
Lanai. Even if excluded, proposed unit G includes approximately 110 ac 
of rural lands, and the DEA has undervalued these lands greatly. The 
undeveloped rural land in proposed unit G is adjacent to already 
developed infrastructure in the Manele Project district.
    Our Response: The Service has removed proposed unit F and modified 
proposed unit G to exclude all but the cliffs in this final 
designation. As modified, about 8 ac of rural lands remain in the 
designation. However, no known plans exist for development on this 
rural land and the cliff areas are likely unable to be developed. As 
noted above, using figures provided by Castle and Cooke Resorts, LLC, 
the Addendum estimated that the decrease in value for those rural lands 
may range from $1.2 million to $2.7 million.
    (45) Comment: The DEA underestimates the economic costs because 
they are limited to what is likely to occur within ten years even 
though critical habitat designation is permanent and not automatically 
revised if there is new evidence of the benefits of non-designation, or 
if the species is delisted.
    Our Response: As indicated by the DEA, the landowner does not have 
specific development plans for the proposed designated areas for the 
next ten years. As such, no maps, permit applications, or other 
documents are available to serve as the basis for an estimate of 
possible impact of the designation.
    A listed species is delisted when it is recovered or has gone 
extinct. Recovery is defined as no longer needing the protections 
provided by the Act, including critical habitat. Thus, when a species 
is delisted, critical habitat for that species would no longer be in 
effect.
    (46) Comment: The DEA grossly generalizes that all land in the 
Conservation District is ``not suitable for development due to poor 
access and terrain.'' This statement is not true for all or even most 
of such lands. The DEA should have a unit-by unit review of the actual 
lands designated to determine whether this is the case.
    Our Response: In the final designation, only about 373 ac of 
proposed unit B (now Lanai 1--Tetramolopium remyi) and the cliffs of 
proposed unit G (now Lanai 5--Portulaca sclerocarpa-Coast) are lands in 
the Conservation District. Lanai 1--Tetramolopium remyi is in the State 
hunting unit on the mountain flanks. Lanai 5--Portulaca sclerocarpa-
Coast is limited to the steep cliffs of southern coast, only accessible 
by a guided tour on a rocky trail. Therefore, we believe the lands in 
the Conservation District that are included in this final designation 
are in fact unsuitable for development. Other lands in the Conservation 
District that were included in the proposed designation have not been 
included in this final critical habitat designation.
    (47) Comment: The economic analysis is wrong in identifying the 
impacts on State and county development approvals as major. The 
analysis completely fails to take into account the benefits of having 
this information and enabling State and county agencies to make better 
land use decisions. This benefit should be quantified and discussed in 
the analysis.
    Our Response: The DEA concluded that the possible quarry site for 
proposed unit F may undergo more stringent State and county development 
approval because of the designation and, therefore, may result in major 
impacts. However, such impacts are no longer expected since we have 
removed proposed unit F from this final designation for scientific 
reasons. In addition, State and county agencies may gain better 
knowledge of land resources because of the critical habitat 
designation. However, the extent to which this may help their land-use 
decisions is unknown. For example, State and county agencies may need 
to spend less time surveying lands for natural resources, but it is not 
feasible to estimate to what extent the designation would reduce the 
number of hours or the amount of effort involved in determining the 
sensitivity of an area. Furthermore, it is also impossible to determine 
how much of the benefit is attributable to the designation alone.
    (48) Comment: Proposed critical habitat units A, B, C, F and a 
small portion of D are in the Lanai Cooperative Game Management Area 
lease. One commenter stated that critical habitat management and game 
management activities are not compatible. As a result, the commenter 
indicated that the worst-case scenario would be for the public hunting 
program to be eliminated entirely, which would have an economic impact 
on Lanai, and that this was not reflected in the DEA. Alternatively, 
another commenter stated that the Service should not base its economic 
analysis on unlikely worst-case scenarios, but, rather, on likely 
scenarios. For example, this commenter indicated that the requirement 
to fence all of the critical habitat areas within hunting management 
areas is the worst case. Further it was noted, that the more likely 
situation would be that the State would forego Federal funding for game 
mammal programs on Lanai and use State funds, in which case fencing 
would not be required. Therefore, the commenter indicated that at most, 
the cost would be those portions of the program that the State would 
not receive because of critical habitat. The commenter further 
questioned how much of this to attribute to critical habitat, because 
history shows us that the State has already foregone some funds due to 
listing, not critical habitat. Lastly, the commenter noted that there 
also may be some ecosystem benefits to the State from fencing that are 
not reflected in the analysis.
    Our Response: Although DLNR does discuss the possibility of 
shutting down the State hunting program on Lanai in its comment to the 
proposed rule, the agency also states that avoiding a Federal nexus is 
the likely alternative. The DEA recognizes that DLNR is likely to avoid 
a Federal nexus by finding alternative non-Federal funds to manage 
State hunting units on Lanai. Therefore, in a conservative estimate of 
possible impacts to game management activities on Lanai, the DEA 
considered the worst-case scenario to be the building an exclosure 
fence around the proposed critical habitat that overlaps with State 
hunting units. It is important to note, however, that the Service has 
removed and modified some of these units in this final rule. As such, 
the Addendum has revisited the impacts on game management discussed in 
the DEA and revised the estimated costs according to the modification.
    (49) Comment: Given the size of the designated areas, the vagueness 
of the regulatory exclusion, and the real costs of obtaining 
development approvals, the estimate of 15 to 24 hours is too low.
    Our Response: To address these concerns, the Addendum revisited the 
hours estimates presented in the DEA. The DEA indicated that the 
landowner may want to learn how the designation may affect: (1) The use 
of his land (either through restrictions or new obligations) and (2) 
the value of his land. Since commenters did not provide an estimate of 
time or cost incurred in order to investigate the implications of 
critical habitat, the Addendum conservatively doubled the hours spent 
by the landowner and/or his attorneys or professional staff on 
investigating the issues. As described in the Addendum, using these new 
assumptions, the analysis estimated that total section 7

[[Page 1246]]

costs range from $4,900 to $11,500, all of which are attributable to 
critical habitat.
    (50) Comment: Designation will have a huge impact on a new quarry 
site, the probable source for rock for improvements to the breakwater 
at Kaumalapau Harbor by the Corps, which will in turn have a material 
adverse impact on planned development of essential improvements to the 
harbor. The Service cannot assume that the section 7 costs would be 
minor because stone could be obtained from another location within the 
quarry. Private actions in critical habitat within the Conservation 
District, such as construction of a new quarry in proposed unit F, 
could require a full EIS at an additional cost.
    Our Response: Such impacts are not expected since the Service has 
removed proposed unit F completely from this final rule.
    (51) Comment: Designation will create uncertainties which will 
deter investment and potential agricultural and irrigation water 
resource development.
    Our Response: As noted above, no agricultural or ranching 
activities take place within the designated critical habitat. 
Furthermore, potential agricultural or ranching activities on these 
agricultural lands in the future are also unlikely due to their remote 
location (mostly on gulch lands) and rugged terrain. Therefore, such 
impacts are not expected to occur as a result of the designation.
    (52) Comment: The DEA must take into account the unique local 
circumstances of land ownership and limited economic base of Lanai, 
which are especially susceptible to detrimental impacts of regulations.
    Our Response: The DEA examined potential impacts on small entities 
(small businesses, small organizations, and small governmental 
jurisdictions) under the Regulatory Flexibility Act (RFA) as amended by 
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996. The DEA concluded that a significant economic impact on a 
substantial number of small entities would not result from the proposed 
critical habitat designation. However, the DEA also concluded that 
small businesses on Lanai that cater to hunters could be indirectly 
affected by the designation in the unlikely event that DLNR builds 
exclosure fences around the designated critical habitat. As stated 
above, this final rule designates fewer areas within State hunting 
areas than did the proposed rule.

Issue 6: Policy and Regulations

    (53) Comment: One commentor stated the proposal fails to properly 
consider the importance of cooperation and goodwill between the Service 
and private landowners, and the impact critical habitat designations 
will have in discouraging voluntary partnerships on private lands.
    Our Response: The Service recognizes the importance of landowner 
cooperation for recovery of listed species. This is especially true for 
the island of Lanai which is under private ownership. We also recognize 
that critical habitat designations may have a negative impact on 
voluntary partnerships with private landowners. Conservation of the 
Lanai plant species requires control of threats from alien species and 
fire, and translocation of species that have been extirpated from the 
wild. Castle and Cooke Resorts, LLC, owner of the lands proposed as 
critical habitat, has cooperated with the Service, the State of Hawaii, 
and other organizations to implement voluntary conservation activities 
on their lands that have resulted in tangible conservation benefits to 
the species. In addition, Castle and Cooke Resorts, LLC has agreed to 
expand the existing conservation measures to address the threats to all 
of the species in proposed unit Lanai D. They also indicated that 
including the area in a critical habitat designation would have a 
negative impact on their existing and future voluntary conservation 
efforts on Lanai. After weighing the benefits of including unit Lanai D 
as critical habitat with the benefits of excluding it, we concluded 
that the designation of critical habitat would have a net negative 
conservation effect on the recovery and conservation of the species 
included in the unit, and thus excluded unit Lanai D from the final 
designation of critical habitat.
    (54) Comment: The Service did not adequately address the takings of 
private property as a result of designating critical habitat for 
endangered plants on Lanai. If the critical habitat proposal would 
require reducing water diversions from any stream, the Service should 
investigate whether that would take anyone's vested water rights. In 
addition, if the proposed designation of critical habitat precipitates 
conversion of agricultural lands to conservation land that has no 
economically beneficial use, then the Federal and State governments 
will have taken private property.
    Our Response: We have assessed the takings implications of this 
rule in accordance with Executive Order 12630 and have concluded that 
this rule does not pose significant takings implications. Because no 
critical habitat unit boundaries are located in existing diversions, no 
requirements to reduce out-of-stream water use will arise as a result 
of this rule. Furthermore, none of the plants are stream-dependent for 
their survival and therefore would not cause a reduction in water 
diversion. According to the State, land classification would not be 
changed based on the designation of critical habitat alone, and private 
lands are rarely changed to conservation. In addition, although the 366 
acres within unit Lanai E is zoned for agriculture, the land within 
this unit is on and/or near mountain flanks lined with gulches, and 
neither farming nor ranching takes place in the unit.
    (55) Comment: Prudency cannot be determined without an analysis of 
the economic impacts of critical habitat. The prudency of critical 
habitat designation is a final conclusion based on weighing all 
relevant factors, including economic factors. While the Service 
promised to complete its economic impact analysis before it promulgates 
its final determination of critical habitat, it risks putting the 
decision before the analysis. The prior determination that critical 
habitat is prudent and is therefore required, is treated as a given, 
even though it ignored economic factors.
    Our Response: First, the Service did not make a final conclusion 
regarding prudency in the proposed rule; in fact, the proposed rule 
specifically requested public comment on the reasons why habitat is 
prudent or not prudent. Second, the commenter is conflating the two 
steps of the process. As defined by regulation, prudency looks at 
whether critical habitat would harm or benefit the species. See 50 CFR 
424.12(a)(1). If critical habitat is prudent, we look at all of the 
impacts of designating specific areas as critical habitat to see if the 
benefits of designation outweigh the benefits of excluding an area from 
critical habitat. Third, this does not mean we ignored the requirement 
to consider economic and other impacts of critical habitat designation. 
To the contrary, a draft economic analysis was prepared, comments were 
solicited, and an addendum was completed. Furthermore, we have excluded 
a significant portion of the proposed designation based on negative 
impacts to important private conservation efforts.
    (56) Comment: While the Service has stated that critical habitat 
affects only activities that require Federal permits or funding, and 
does not require landowners to carry out special

[[Page 1247]]

management or restrict use of their land, this fails to address the 
breadth of federal activities that affect private property in Hawaii 
and the extent to which private landowners are required to obtain 
Federal approval before they can use their property. These requirements 
extend to all State agencies using Federal funds in connection with a 
proposed action and community actions for which Federal approval or 
review is necessary. The requirements also extend to loan and grant 
programs such as National Resources Conservation Service loans and 
grants. In addition, the Service has taken the position in other States 
that it has a right to intervene in local land use proceedings if they 
affect endangered species on private property, as evidenced by the 
Service petition to the local zoning board in Arizona to postpone 
approval of a rezoning petition pending a survey to determine the 
extent to which an endangered plant was present on the property even 
though no Federal approval was being sought.
    Our Response: Private landowners are not required to obtain Federal 
approval before using their property. When State or private landowners 
seek a Federal permit or Federal funding, the Federal agency must 
consult with the Service on actions that may affect listed species or 
designated critical habitat. The draft Economic Analysis identifies the 
potential Federal actions that may result in consultations on listed 
plants and critical habitat on Lanai over the next ten years. Finally, 
the Service has never intervened in local land use proceedings in the 
State of Hawaii and does not anticipate doing so in the future.
    (57) Comment: One commenter said that the Service failed to give 
the public adequate opportunity to comment on the memorandum of 
agreement (MOA) draft being used to possibly form the basis of a 
decision to exclude proposed unit Lanai D from the final critical 
habitat.
    Our Response: The Service posted a notice of availability of the 
draft MOA in the Federal Register on November 15, 2002. Letters were 
sent to interested parties that same day, notifying the recipients of 
the availability of the draft MOA at the Honolulu office of the 
Service. Electronic versions of the draft agreement were also available 
upon request. The comment period was opened for 10 days to allow the 
public to make comments.
    (58) Comment: One commenter said that the draft MOA made available 
for comment is non-binding and only in draft form with vague terms. He 
said the draft does not make clear what the species in question would 
receive in lieu of critical habitat protection. He also said that the 
draft MOA does not require any real financial commitments on the part 
of Castle and Cooke Resorts, LLC, relying, instead on in-kind 
contributions, nor would any new funds be committed to conservation 
efforts during the first nine years of the agreement.
    Our Response: Much planning is necessary to execute successful 
plant restoration efforts of the type and scale covered by the draft 
MOA. The area covered by the draft MOA is a large, rugged terrain 
covering thousands of acres where no one has worked before. The 
development of precise propagation and planting plans will require 
site-specific and species-specific evaluations and require consultation 
and additional input of expert biologists. Some efforts will also 
likely involve experimentation, for example investigating plant 
survival in certain areas, the feasibility of providing water to a 
particular site, or a test of deer hunting methods in different 
terrains. It is difficult to set specific numeric targets of plants 
propagated and reintroduced without first conducting the necessary 
evaluation of specific landscape conditions and logistical constraints 
and opportunities. More precise goal-setting is appropriate after these 
more basic planning activities are completed. The draft MOA references 
the Service's recovery plans and the actions called for therein; these 
plans will provide the basic guidance for these draft MOA future 
actions, with adaptive management. The draft MOA makes it clear that 
the company will be implementing conservation actions that benefit all 
these listed species, e.g. putting up exclosure fences around more than 
just the proposed plant critical habitat area, they will be removing 
ungulates, and they will be planting native plants (including listed 
species). It is impossible to provide precise figures on these actions 
at this point. But given the past positive record of action by the 
company in fulfilling voluntary agreements, we believe it is reasonable 
to expect these overall commitments will be met.
    In reference to the funding portion of the draft MOA, it is a 
longstanding policy of the Service to accept and encourage in-kind 
contributions for our cost-share partnership programs. These type of 
contributions provide local, on-the-ground expertise; they encourage 
greater local ``ownership'' in a successful outcome; and many partners 
often provide greater in-kind services than for which they receive 
credit. The commenter is correct that there are no explicit guarantees 
regarding exactly how much the company would spend over the life of 
this agreement, but this is a voluntary agreement based on good faith, 
past performance, and a reasonable expectation of future performance.
    Preserving Castle and Cooke Resorts, LLC's current commitment to 
voluntary conservation is one of our fundamental goals in the critical 
habitat exclusion. Regardless of any additional commitments from the 
company, this accomplishment alone establishes an important benefit of 
approval of the draft MOA and excluding proposed Lanai Unit D, when 
compared with a critical habitat designation. In our opinion, loss of 
these existing voluntary commitments, which is made more likely by a 
critical habitat designation, would have a much greater negative impact 
on these plants than would the proposed critical habitat exclusion. 
These plants are benefitting more from these ongoing, interventionist 
actions than they would from the critical habitat designation. We have 
outlined our reasoning for excluding land from critical habitat below 
(see Exclusions Under Section 4(b)(2)).
    (59) Comment: One commenter stated that the draft MOA stipulation 
that Castle and Cooke Resorts, LLC would not seek Federal assistance 
and/or authorization from any Federal agency for activities that may 
adversely affect habitat found in some areas of proposed unit Lanai D 
falls short of protection that critical habitat provides. He also 
stated that even if Castle and Cooke Resorts, LLC does not apply for 
Federal assistance and/or authorization, that does not mean that the 
Federal government would not initiate any projects on Lanai that may 
affect the proposed critical habitat that may be excluded from final 
designation and designation would provide more protection under the 
Act.
    Our Response: To improve the current condition of the endangered 
and threatened species on Lanai, it is insufficient simply to prohibit 
harmful activities. Rather, it is necessary to carry out active 
management measures to confer a positive benefit on the species of 
concern, such as habitat manipulation, exotic species control, or 
simply allowing access for the purposes of reintroduction (Bean 2002). 
We feel the likelihood of federally-initiated projects on Lanai that 
may affect listed species is very low, and therefore critical habitat 
would have little regulatory benefit to the species other than those 
listed below in section Exclusions Under Section 4(b)(2).

[[Page 1248]]

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited independent opinions from 12 knowledgeable 
individuals with expertise in one or several fields, including 
familiarity with the species, familiarity with the geographic region 
that the species occurs in, and familiarity with the principles of 
conservation biology. We received comments from three. All three 
generally supported our methodology and conclusion, but none supported 
or opposed the proposed critical habitat designations. Comments 
received from the peer reviewers were summarized in the previous 
section and considered in developing the final rule.

Summary of Changes From the Revised Proposed Rule

    Based on a review of public comments received on the proposed 
determinations of critical habitat, we have reevaluated our proposed 
designations and included several changes to the final designations of 
critical habitat. These changes include the following:
    (1) The scientific names were changed for the following associated 
species found in the ``Supplementary Information: Discussion of the 
Plant Taxa'' section: Styphelia tameiameiae changed to Leptecophylla 
tameiameiae in the discussion of Gahnia lanaiensis, Hedyotis 
schlechtendahliana var. remyi, and Viola lanaiensis; Odontosoria 
chinensis changed to Sphenomeris chinensis in the discussion of G. 
lanaiensis and H. schlechtendahliana var. remyi; Diospyros ferrea 
changed to D. sandwicensis in the discussion of Abutilon 
eremitopetalum.
    (2) We removed Sapindus oahuensis from the list of associated 
species in the ``Supplementary Information: Discussion of the Plant 
Taxa'' section for Bonamia menziesii; added gulch bottoms to habitat in 
the species description section for Abutilon eremitopetalum; and 
throughout the species description section removed goats and pigs and 
replaced them with mouflon sheep and axis deer as current threats. 
Goats and pigs are no longer present on Lanai and were mistakenly 
included as current threats.
    (3) We received new information on the presence of Bidens micrantha 
ssp. kalealaha in Waiapaa Gulch. For Tetramolopium remyi, we updated 
the two occurrences to one occurrence, updated the number of plants to 
150 and updated ``Table 2.--Summary of existing occurrences on Lanai, 
and landownership for 37 species reported from Lanai.'' This new 
information did not affect our decisions in designating critical 
habitat for these species. Waipaa Gulch was proposed as critical 
habitat for B. micrantha ssp. kalealaha and the loss of a population of 
T. remyi is a recent extirpation and the habitat once occupied is still 
considered essential to the recovery of that species. We believe that 
its recent presence indicates a high likelihood of a seed bank in the 
area.
    (4) We changed ``flowering cycles, pollination vectors, seed 
dispersal agents'' to ``reproduction cycles, dispersal agents'' in the 
life history portion of the ``Supplementary Information: Discussion of 
the Plant Taxa'' section for the fern species Ctenitis squamigera, 
Diellia erecta, and Diplazium molokaiense.
    (5) We revised the list of manmade features that are excluded from 
the designation in order to exclude additional features based on 
information received during the public comment periods. The revised 
list is described in the ``Criteria Used to Identify Critical Habitat'' 
and in regulatory language for section 17.96 ``Critical habitat--
plants'' described at the end of this document.
    (6) We revised our decision on the essentiality of Kanepuu Preserve 
for the conservation of Bonamia menziesii (see ``Managed Lands'').
    (7) We made revisions to the unit boundaries based on information 
supplied by commenters, as well as information gained from field visits 
to some of the sites, that indicated that the primary constituent 
elements were not present in certain portions of the proposed unit, 
that certain changes in land use had occurred on lands within the 
proposed critical habitat that would preclude those areas from 
supporting the primary constituent elements, or that the areas were not 
essential to the conservation of the species in question. In addition, 
an area was excluded based on weighing the benefits of inclusion versus 
exclusion pursuant to section 4(b)(2) of the Act (see ``Economic 
Analysis'').
    A brief summary of the modifications made to each unit is given 
below (see also Figure 1).
BILLING CODE 4310-55-P

[[Page 1249]]

[GRAPHIC] [TIFF OMITTED] TR09JA03.000

BILLING CODE 4310-55-C

[[Page 1250]]

    (8) In accordance with the revisions described in (7) above, we 
revised section 17.12 ``Endangered and threatened plants'' to include 
only Bidens micrantha ssp. kalealaha, Portulaca sclerocarpa, and 
Tetramolopium remyi (see ``Economic Analysis'').
    (9) In accordance with the revisions described in (7) above, we 
revised section 17.96 ``Critical Habitat--plants'' to include only 
Bidens micrantha ssp. kalealaha, Portulaca sclerocarpa, and 
Tetramolopium remyi and updated their elevation ranges, based on 
information received during the public comment periods.

Lanai A

    This unit was proposed as critical habitat for two species, Cyperus 
trachysanthos and Hibiscus brackenridgei. We excluded the proposed 
critical habitat for C. trachysanthos from the final rule because this 
area no longer contains the suitable habitat of seasonally wet soils. 
The water source has permanently dried up due to alterations in the 
watershed properties of the island. Also, this area is not essential 
for the conservation of C. trachysanthos, a multi-island species, 
because we have proposed adequate habitat on other islands within its 
historical range.
    We excluded the proposed critical habitat for Hibiscus 
brackenridgei, a multi-island species. This area is not essential for 
the conservation of the species because the area lacks sufficient 
suitable soil and there are at least eight other places for this 
species that have the primary constituent elements, are less degraded, 
are already undergoing restoration, or are within a partnership, TNCH 
preserve or other reserve. Other areas on other islands within its 
historical range are proposed as critical habitat that provide habitat 
for 10 populations.
    Exclusion of this unit from critical habitat for Cyperus 
trachysanthos and Hibiscus brackenridgei resulted in the overall 
reduction of 574 ha (1,418 ac) of critical habitat on the island of 
Lanai.

Lanai B

    This unit was proposed as critical habitat for Tetramolopium remyi, 
a multi-island species. Modifications were made to this unit to exclude 
areas not essential to the conservation of this species (i.e. areas 
that are highly degraded). The area designated as critical habitat for 
T. remyi provides habitat within its historical range for one 
population. The designated area is situated around the recently 
extirpated known individuals and contains the primary constituent 
elements. In addition, this area most likely contains a viable seed 
bank because of the recent existence of mature, seed-bearing 
individuals in this area and because plants from drought-prone sites 
tend to survive through the existence of seed banks. This modification 
resulted in the reduction from 551 ha (1,363 ac) to 151 ha (373 ac). 
This unit was renamed Lanai 1--Tetramolopium remyi.

Lanai C

    This unit was proposed as critical habitat for the multi-island 
species Sesbania tomentosa. This unit was excluded from critical 
habitat because it is not essential for the conservation of the species 
and there are at least eight other places for this species that have 
more primary constituent elements, are less degraded, are already 
undergoing restoration, or are within a partnership, TNCH preserve, or 
other reserve. Other areas on other islands within the historical range 
of S. tomentosa are being designated or proposed as critical habitat 
and provide habitat for 10 populations.
    Exclusion of this unit from critical habitat for Sesbania tomentosa 
resulted in the overall reduction of 222 ha (549 ac) of critical 
habitat on the island of Lanai.

Lanai D

    Lanai D was proposed as critical habitat for 28 species: Abutilon 
eremitopetalum, Adenophorus periens, Bonamia menziesii, Brighamia 
rockii, Centaurium sebaeoides, Cenchrus agrimonioides, Clermontia 
oblongifolia ssp. mauiensis, Ctenitis squamigera, Cyanea grimesiana 
ssp. grimesiana, Cyanea lobata, Cyanea macrostegia ssp. gibsonii, 
Cyrtandra munroi, Diellia erecta, Diplazium molokaiensis, Gahnia 
lanaiensis, Hedyotis mannii, Hedyotis schlechtendahliana var. remyi, 
Hesperomannia arborescens, Hibiscus brackenridgei, Isodendrion 
pyrifolium, Labordia tinifolia var. lanaiensis, Melicope munroi, 
Neraudia sericea, Solanum incompletum, Spermolepis hawaiiense, 
Tetramolopium remyi, Vigna o-wahuensis and Viola lanaiensis.
    This unit was excluded from critical habitat under section 4(b)(2) 
of the Act for the reasons described in the ``Economic Analysis'' 
section below. Exclusion of this unit from critical habitat for the 28 
species listed above resulted in the overall reduction of 5,861 ha 
(14,482 ac) of critical habitat on the island of Lanai.

Lanai E1, E2 and E3

    No changes were made to these units and they are designated as 
critical habitat for Bidens micrantha ssp. kalealaha. They have been 
renamed units Lanai 2--Bidens micrantha ssp. kalealaha--North (53 ha 
(132 ac)), Lanai 3--Bidens micrantha ssp. kalealaha--Middle (60 ha (148 
ac)), and Lanai 4--Bidens micrantha ssp. kalealaha--South (49 ha (120 
ac)).

Lanai F

    This unit was proposed as critical habitat for the multi-island 
species Hibiscus brackenridgei. This unit was excluded from critical 
habitat because it is not essential for the conservation of the species 
because it is highly degraded. Other areas on other islands, within the 
species' historical range, are being proposed as critical habitat that 
provide habitat for 10 populations.
    Exclusion of this unit from critical habitat for Hibiscus 
brackenridgei resulted in the overall reduction of 331 ha (818 ac) of 
critical habitat on the island of Lanai.

Lanai G

    Lanai G was proposed as critical habitat for the multi-island 
species Portulaca sclerocarpa. Modifications were made to this unit to 
exclude inland areas that do not contain the primary constituent 
elements. Critical habitat for P. sclerocarpa includes only cliff faces 
along the shore. This modification resulted in the reduction from 151 
ha (373 ac) to 7 ha (17 ac). This unit was renamed Lanai 5--Portulaca 
sclerocarpa--Coast.

Lanai H

    No changes were made to this unit and it is designated as critical 
habitat for Portulaca sclerocarpa. It has been renamed Lanai 6--
Portulaca sclerocarpa--Isle, consists of Poopoo Islet, and contains 1 
ha (2 ac).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographic 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 geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation,'' as defined by the Act, means the use of all methods 
and procedures that are necessary to bring an endangered or a 
threatened species to the point at which listing under the Act is no 
longer necessary.

[[Page 1251]]

    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``* * * the 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
adversely modifying any of those physical or biological features that 
were the basis for determining the habitat to be critical.'' The 
relationship between a species survival and its recovery has been a 
source of confusion to some in the past. We believe that a species' 
ability to recover depends on its ability to survive into the future 
when its recovery can be achieved; thus, the concepts of long-term 
survival and recovery are intricately linked. However, in the March 15, 
2001, decision of the United States Court of Appeals for the Fifth 
Circuit (Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 
434) regarding a not prudent finding, the Court found our definition of 
destruction or adverse modification as currently contained in 50 CFR 
402.02 to be invalid. In response to this decision, we are reviewing 
the regulatory definition of adverse modification in relation to the 
conservation of the species.
    In order to be included in a critical habitat designation, 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 4 requires that we designate critical habitat for a 
species, to the extent such habitat is determinable, at the time of 
listing. When we designate critical habitat at the time of listing or 
under short court-ordered deadlines, we may not have sufficient 
information to identify all the areas essential for the conservation of 
the species or alternatively, we may inadvertently include areas that 
later will be shown to be nonessential. Nevertheless, we are required 
to designate those areas we know to be critical habitat, using the best 
information available to us.
    Within the geographic areas occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have some of the features and habitat characteristics 
that are necessary to sustain the species. We will not speculate about 
what areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation.
    Our regulations state that ``The Secretary shall designate critical 
habitat outside the geographic areas presently occupied by the species 
only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from recovery plans, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, and biological assessments or 
other unpublished materials.
    It is important to clearly understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the Act's 7(a)(2) jeopardy 
standard and section 9 prohibitions, as determined on the basis of the 
best available information at the time of the action. We specifically 
anticipate that federally funded or assisted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome. Furthermore, we 
recognize that designation of critical habitat may not include all of 
the habitat areas that may eventually be determined to be necessary for 
the recovery of the species.

A. Prudency

    We originally proposed that designation of critical habitat was 
prudent for six plants (Abutilon eremitopetalum, Cyanea macrostegia 
ssp. gibsonii, Gahnia lanaiensis, Portulaca sclerocarpa, Tetramolopium 
remyi, and Viola lanaiensis) from the island of Lanai on December 27, 
2000 (65 FR 82086). In that same proposal, we incorporated by reference 
the proposed prudency analysis for 13 other plants (Bonamia menziesii, 
Centaurium sebaeoides, Clermontia oblongifolia ssp. mauiensis, Ctenitis 
squamigera, Cyanea grimesiana ssp. grimesiana, Cyrtandra munroi, 
Hedyotis mannii, Hedyotis schlechtendahliana var. remyi, Hibiscus 
brackenridgei, Labordia tinifolia var. lanaiensis, Melicope munroi, 
Spermolepis hawaiiensis, and Vigna o-wahuensis) that are reported from 
Lanai as well as from Kauai, Niihau, Maui, or Kahoolawe (64 FR 48307, 
65 FR 66808, 65 FR 79192, and 65 FR 82086). No change was made to the 
proposed prudency findings for the 19 plants in the revised proposal 
published on March 4, 2002, and they were incorporated by reference (67 
FR 9806). In addition, in the December 27, 2000, proposal, we proposed 
that designation of critical habitat was not prudent for Phyllostegia 
glabra var. lanaiensis, and no change was made to this proposed 
prudency finding in the March 4, 2002, revised proposal (65 FR 82086 
and 67 FR 9806). In the March 4, 2002, revised proposal no change was 
made to the proposed prudency analysis published in other proposed 
rules for 16 plants (Adenophorus periens, Bidens micrantha ssp. 
kalealaha, Brighamia rockii, Cenchrus agrimonioides, Cyanea lobata, 
Cyperus trachysanthos, Diellia erecta, Diplazium molokaiense,

[[Page 1252]]

Hesperomannia arborescens, Isodendrion pyrifolium, Mariscus fauriei, 
Neraudia sericea, Sesbania tomentosa, Silene lanceolata, Solanum 
incompletum, and Zanthoxylum hawaiiense) that no longer occur on Lanai 
but are reported from one or more other islands, and they were 
incorporated by reference (65 FR 66808, 65 FR 79192, 65 FR 83158, 67 FR 
3940, and 67 FR 9806). In the March 4, 2002, revised proposal, we 
proposed that designation of critical habitat was prudent for 
Tetramolopium lepidotum ssp. lepidotum, a species for which a prudency 
finding had not been made previously, and that no longer occurs on 
Lanai but is reported only from Oahu (67 FR 9806).
    We believe that designation of critical habitat is prudent for 36 
species (Abutilon eremitopetalum, Adenophorus periens, Bidens micrantha 
ssp. kalealaha, Bonamia menziesii, Brighamia rockii, Cenchrus 
agrimonioides, Centaurium sebaeoides, Clermontia oblongifolia ssp. 
mauiensis, Ctenitis squamigera, Cyanea grimesiana ssp. grimesiana, 
Cyanea lobata, Cyanea macrostegia ssp. gibsonii, Cyperus trachysanthos, 
Cyrtandra munroi, Diellia erecta, Diplazium molokaiense, Gahnia 
lanaiensis, Hedyotis mannii, Hedyotis schlechtendahliana var. remyi, 
Hesperomannia arborescens, Hibiscus brackenridgei, Isodendrion 
pyrifolium, Labordia tinifolia var. lanaiensis, Mariscus fauriei, 
Melicope munroi, Neraudia sericea, Portulaca sclerocarpa, Sesbania 
tomentosa, Silene lanceolata, Solanum incompletum, Spermolepis 
hawaiiensis, Tetramolopium lepidotum ssp. lepidotum, Tetramolopium 
remyi, Vigna o-wahuensis, Viola lanaiensis, and Zanthoxylum hawaiiense) 
from the island of Lanai.
    We analyzed the potential threats and benefits for each species in 
accordance with the court's order and have not, at this time, found 
specific evidence of taking, vandalism, collection, or trade of these 
species or of similarly situated species. Consequently, while we remain 
concerned that these activities could potentially threaten these 36 
plant species 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 any of these species are currently threatened by 
taking or other human activity, which threats would be exacerbated by 
the designation of critical habitat. The potential benefits to 
designation of critical habitat for these 36 species include: (1) 
Triggering section 7 consultation in new areas it would not otherwise 
occur; (2) focusing conservation activities on the most essential area; 
(3) providing educational benefits to State or county governments or 
private entities; and (4) preventing people from causing inadvertent 
harm to the species. Therefore we believe that the designation of 
critical habitat for these 36 species is prudent because the potential 
benefits of critical habitat designation outweigh the potential 
threats.
    Designation of critical habitat is not prudent for Phyllostegia 
glabra var. lanaiensis because such designation would be of no benefit 
to this species. Phyllostegia glabra var. lanaiensis has not been seen 
on Lanai since 1914. In addition, this plant is not known to be in 
storage or under propagation. If this species is relocated, we may 
revise this final rule to incorporate or address new information 
becomes available (see 16 U.S.C. 1532(5)(B); 50 CFR 424.13(f)).

B. Methods

    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12) we used the best scientific information available to determine 
areas that contain the physical and biological features that are 
essential for the conservation of Abutilon eremitopetalum, Adenophorus 
periens, Bidens micrantha ssp. kalealaha, Bonamia menziesii, Brighamia 
rockii, Cenchrus agrimonioides, Centaurium sebaeoides, Clermontia 
oblongifolia ssp. mauiensis, Ctenitis squamigera, Cyanea grimesiana 
ssp. grimesiana, Cyanea lobata, Cyanea macrostegia ssp. gibsonii, 
Cyperus trachysanthos, Cyrtandra munroi, Diellia erecta, Diplazium 
molokaiense, Gahnia lanaiensis, Hedyotis mannii, Hedyotis 
schlechtendahliana var. remyi, Hesperomannia arborescens, Hibiscus 
brackenridgei, Isodendrion pyrifolium, Labordia tinifolia var. 
lanaiensis, Mariscus fauriei, Melicope munroi, Neraudia sericea, 
Portulaca sclerocarpa, Sesbania tomentosa, Silene lanceolata, Solanum 
incompletum, Spermolepis hawaiiensis, Tetramolopium lepidotum ssp. 
lepidotum, Tetramolopium remyi, Vigna o-wahuensis, Viola lanaiensis, 
and Zanthoxylum hawaiiense. This information included the known 
locations, site-specific species information from the HINHP database 
and our own rare plant database; species information from the Center 
for Plant Conservation's (CPC's) rare plant monitoring database housed 
at the University of Hawaii's Lyon Arboretum; island-wide Geographic 
Information System (GIS) coverages (e.g., vegetation, soils, annual 
rainfall, elevation contours, landownership); the final listing rules 
for these 36 species; the December 27, 2000, proposal; the March 4, 
2002, revised proposal; information received during the public comment 
periods and public hearings; recent biological surveys and reports; our 
recovery plans for these species; information received in response to 
outreach materials and requests for species and management information 
that we sent to all landowners, land managers, and interested parties 
on the island of Lanai; discussions with botanical experts; and 
recommendations from the Hawaii and Pacific Plant Recovery Coordinating 
Committee (HPPRCC) (see also the discussion below) (CPC in litt. 1999; 
GDSI 2000; HINHP Database 2000; HPPRCC 1998; Service 1995, 1996a, 
1996b, 1997, 1998a, 1998b, 1999, 2001; 65 FR 82086).
    In 1994, the HPPRCC initiated an effort to identify and map habitat 
it believed to be important for the recovery of 282 endangered and 
threatened Hawaiian plant species. The HPPRCC identified these areas on 
most of the islands in the Hawaiian chain, and in 1999, we published 
them in our Recovery Plan for the Multi-Island Plants (Service 1999). 
The HPPRCC expects there will be subsequent efforts to further refine 
the locations of important habitat areas and that new survey 
information or research may also lead to additional refinement of 
identifying and mapping of habitat important for the recovery of these 
species.
    The HPPRCC identified essential habitat areas for all listed, 
proposed, and candidate plants and evaluated species of concern to 
determine if essential habitat areas would provide for their habitat 
needs. However, the HPPRCC's mapping of habitat is distinct from the 
regulatory designation of critical habitat as defined by the Act. More 
data have been collected since the recommendations made by the HPPRCC 
in 1998. Much of the area that was identified by the HPPRCC as 
inadequately surveyed has now been surveyed to some degree. New 
location data for many species have been gathered. Also, the HPPRCC 
identified areas as essential based on species clusters (areas that 
included listed species as well as candidate species, and species of 
concern) while we have only delineated areas that are essential for the 
conservation of the specific listed species at issue. As a result, the 
critical habitat designations in this rule include not only some 
habitat that was identified as essential in the 1998 recommendations 
but also habitat that was not identified as essential in those 
recommendations.

[[Page 1253]]

C. Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements) that 
are essential to the conservation of the species and that may require 
special management considerations or protection. These features 
include, but are not limited to: Space for individual and population 
growth, and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, or rearing of offspring, germination, 
or seed dispersal; and habitats that are protected from disturbance or 
are representative of the historic geographical and ecological 
distributions of a species.
    Much of what is known about the specific physical and biological 
requirements of Abutilon eremitopetalum, Adenophorus periens, Bidens 
micrantha ssp. kalealaha, Bonamia menziesii, Brighamia rockii, Cenchrus 
agrimonioides, Centaurium sebaeoides, Clermontia oblongifolia ssp. 
mauiensis, Ctenitis squamigera, Cyanea grimesiana ssp. grimesiana, 
Cyanea lobata, Cyanea macrostegia ssp. gibsonii, Cyperus trachysanthos, 
Cyrtandra munroi, Diellia erecta, Diplazium molokaiense, Gahnia 
lanaiensis, Hedyotis mannii, Hedyotis schlechtendahliana var. remyi, 
Hesperomannia arborescens, Hibiscus brackenridgei, Isodendrion 
pyrifolium, Labordia tinifolia var. lanaiensis, Melicope munroi, 
Neraudia sericea, Portulaca sclerocarpa, Sesbania tomentosa, Solanum 
incompletum, Spermolepis hawaiiensis, Tetramolopium remyi, Vigna o-
wahuensis, and Viola lanaiensis is described above in the 
``Background'' section of this final rule. We are unable to identify 
these features for Mariscus fauriei, Silene lanceolata, Tetramolopium 
lepidotum ssp. lepidotum and Zanthoxylum hawaiiense, which no longer 
occur on the island of Lanai, because information on the physical and 
biological features (i.e., the primary constituent elements) that are 
considered essential to the conservation of these four species on Lanai 
is not known (see 67 FR 9806).
    All areas designated as critical habitat are within the historical 
range of the three species at issue and contain one or more of the 
physical or biological features (primary constituent elements) 
essential for the conservation of the species.
    As described in the discussions for each of the three species for 
which we are designating critical habitat, we are defining the primary 
constituent elements on the basis of the habitat features of the areas 
from which the plant species are reported, as described by the type of 
plant community (e.g., mesic Metrosideros polymorpha forest), 
associated native plant species, locale information (e.g., steep rocky 
cliffs, talus slopes, gulches, streambanks), and elevation. The habitat 
features provide the ecological components required by the plant. The 
type of plant community and associated native plant species indicate 
specific microclimate (localized climatic) conditions, retention and 
availability of water in the soil, soil microorganism community, and 
nutrient cycling and availability. The locale indicates information on 
soil type, elevation, rainfall regime, and temperature. Elevation 
indicates information on daily and seasonal temperature and sun 
intensity. Therefore, the descriptions of the physical elements of the 
locations of each of these species, including habitat type, plant 
communities associated with the species, location, and elevation, as 
described in the SUPPLEMENTARY INFORMATION: Discussion of the Plant 
Taxa section above, constitute the primary constituent elements for 
these species on the island of Lanai.

D. Criteria Used To Identify Critical Habitat

    The lack of detailed scientific data on the life history of these 
plant species makes it impossible for us to develop a robust 
quantitative model (e.g., population viability analysis (National 
Research Council 1995)) to identify the optimal number, size, and 
location of critical habitat units to achieve recovery (Beissinger and 
Westphal 1998; Burgman et al. 2001; Ginzburg et al. 1990; Karieva and 
Wennergren 1995; Menges 1990; Murphy et al. 1990; Taylor 1995). At this 
time, and consistent with the listing of these species and their 
recovery plans, the best available information leads us to conclude 
that the current size and distribution of the extant populations are 
not sufficient to expect a reasonable probability of long-term survival 
and recovery of these plant species. Therefore, we used available 
information, including expert scientific opinion, to identify 
potentially suitable habitat within the known historic range of each 
species.
    We considered several factors in the selection and proposal of 
specific boundaries for critical habitat for these three species. For 
each of these species, the overall recovery strategy outlined in the 
approved recovery plans includes: (1) Stabilization of existing wild 
populations, (2) protection and management of habitat, (3) enhancement 
of existing small populations and reestablishment of new populations 
within historic range, and (4) research on species biology and ecology 
(Service 1995, 1996a, 1997). Thus, the long-term recovery of these 
species is dependent upon the protection of existing population sites 
and potentially suitable unoccupied habitat within their historic 
range.
    The overall recovery goal stated in the recovery plans for each of 
these species includes the establishment of 8 to 10 populations with a 
minimum of 100 mature, reproducing individuals per population for long-
lived perennials; 300 mature, reproducing individuals per population 
for short-lived perennials; and 500 mature, reproducing individuals per 
population for annuals. There are some specific exceptions to this 
general recovery goal of 8 to 10 populations for species that are 
believed to be very narrowly distributed on a single island, but that 
does not apply to the three species. To be considered recovered, the 
populations of a multi-island species should be distributed among the 
islands of its known historic range (Service 1995, 1996a, 1997). A 
population, for the purposes of this discussion and as defined in the 
recovery plans for these species, is a unit in which the individuals 
could be regularly cross-pollinated and influenced by the same small-
scale events (such as landslides), and which contains a minimum of 100, 
300, or 500 mature, reproducing individuals, depending on whether the 
species is a long-lived perennial, short-lived perennial, or annual.
    By adopting the specific recovery objectives enumerated above, the 
adverse effects of genetic inbreeding and random environmental events 
and catastrophes, such as landslides, hurricanes or tsunamis, that 
could destroy a large percentage of a species at any one time, may be 
reduced (Menges 1990; Podolsky 2001). These recovery objectives were 
initially developed by the HPPRCC and are found in all of the recovery 
plans for these species. While they are expected to be further refined 
as more information on the population biology of each species becomes 
available, the justification for these objectives is found in the 
current conservation biology

[[Page 1254]]

literature addressing the conservation of rare and endangered plants 
and animals (Beissinger and Westphal 1998; Burgman et al. 2001; Falk et 
al. 1996; Ginzburg et al. 1990; Hendrix and Kyhl 2000; Karieva and 
Wennergren 1995; Luijten et al. 2000; Meffe and Carroll 1996; Menges 
1990; Murphy et al. 1990; Podolsky 2001; Quintana-Ascencio and Menges 
1996; Taylor 1995; Tear et al. 1995; Wolf and Harrison 2001). The 
overall goal of recovery in the short-term is a successful population 
that can carry on basic life-history processes, such as establishment, 
reproduction, and dispersal, at a level where the probability of 
extinction is low. In the long-term, the species and its populations 
should be at a reduced risk of extinction and be adaptable to 
environmental change through evolution and migration.
    The long-term objectives, as reviewed by Pavlik (1996), require 
from 50 to 2,500 individuals per population, based largely on research 
and theoretical modeling on endangered animals, since much less 
research has been done on endangered plants. Many aspects of species 
life history are typically considered to determine guidelines for 
species' interim stability and recovery, including longevity, breeding 
system, growth form, fecundity, ramet (a plant that is an independent 
member of a clone) production, survivorship, seed longevity, 
environmental variation, and successional stage of the habitat. 
Hawaiian species are poorly studied, and the only one of these 
characteristics that can be uniformly applied to all Hawaiian plant 
species is longevity (i.e., long-lived perennial, short-lived 
perennial, and annual). In general, long-lived woody perennial species 
would be expected to be viable at population levels of 50 to 250 
individuals per population, while short-lived perennial species would 
be viable at population levels of 1,500 to 2,500 individuals or more 
per population. These population numbers were refined for Hawaiian 
plant species by the HPPRCC (1994) due to the restricted distribution 
of suitable habitat typical of Hawaiian plants and the likelihood of 
smaller genetic diversity of several species that evolved from one 
single introduction. For recovery of Hawaiian plants, the HPPRCC 
recommended a general recovery guideline of 100 mature, reproducing 
individuals per population for long-lived perennial species, 300 
mature, reproducing individuals per population for short-lived 
perennial species, and 500 mature, reproducing individuals per 
population for annual species.
    The HPPRCC also recommended the conservation and establishment of 8 
to 10 populations to address the numerous risks to the long-term 
survival and conservation of Hawaiian plant species. Although absent 
the detailed information inherent to the types of Population Viability 
Analysis models described above (Burgman et al. 2001), this approach 
employs two widely recognized and scientifically accepted goals for 
promoting viable populations of listed species: (1) Creation or 
maintenance of multiple populations so that a single or series of 
catastrophic events cannot destroy the entire listed species (Luijten 
et al. 2000; Menges 1990; Quintana-Ascencio and Menges 1996); and (2) 
increasing the size of each population in the respective critical 
habitat units to a level where the threats of genetic, demographic, and 
normal environmental uncertainties are diminished (Hendrix and Kyhl 
2000; Luijten et al. 2000; Meffe and Carroll 1996; Podolsky 2001; 
Service 1997; Tear et al. 1995; Wolf and Harrison 2001). In general, 
the larger the number of populations and the larger the size of each 
population, the lower the probability of extinction (Meffe and Carroll 
1996; Raup 1991). This basic conservation principle of redundancy 
applies to Hawaiian plant species. By maintaining 8 to 10 viable 
populations in several critical habitat units, the threats represented 
by a fluctuating environment are alleviated and the species has a 
greater likelihood of achieving long-term survival and recovery. 
Conversely, loss of one or more of the plant populations within any 
critical habitat unit could result in an increase in the risk that the 
entire listed species may not survive and recover.
    Due to the reduced size of suitable habitat areas for these 
Hawaiian plant species, they are now more susceptible to the variations 
and weather fluctuations affecting quality and quantity of available 
habitat, as well as direct pressure from hundreds of species of non-
native plants and animals. Establishing and conserving 8 to 10 viable 
populations on one or more islands within the historic range of the 
species will provide each species with a reasonable expectation of 
persistence and eventual recovery, even with the high potential that 
one or more of these populations will be eliminated by normal or random 
adverse events, such as the hurricanes which occurred in 1982 and 1992 
on Kauai, fires, and nonnative plant invasions (HPPRCC 1994; Luijten et 
al. 2000; Mangel and Tier 1994; Pimm et al. 1998; Stacey and Taper 
1992). We conclude that designation of adequate suitable habitat for 8 
to 10 populations as critical habitat is essential to give the species 
a reasonable likelihood of long-term survival and recovery, based on 
currently available information.
    In summary, the long-term survival and recovery of Hawaiian plant 
species requires the designation of critical habitat units on one or 
more of the Hawaiian islands with suitable habitat for 8 to 10 
populations of each plant species. Some of this habitat is currently 
not known to be occupied by these species. To recover the species, it 
is essential to conserve suitable habitat in these unoccupied units, 
which in turn will allow for the establishment of additional 
populations through natural recruitment or managed reintroductions. 
Establishment of these additional populations will increase the 
likelihood that the species will survive and recover in the face of 
normal and stochastic events (e.g., hurricanes, fire, and non-native 
species introductions) (Mangel and Tier 1994; Pimm et al. 1998; Stacey 
and Taper 1992).
    In this rule, we have defined the primary constituent elements 
based on the general habitat features of the areas from which the 
plants are reported, such as the type of plant community, the 
associated native plant species, the physical location (e.g., steep 
rocky cliffs, talus slopes, streambanks), and elevation. The areas we 
are designating as critical habitat provide some or all of the habitat 
components essential for the conservation of the three plant species.
    Our approach to delineating critical habitat units was applied in 
the following manner:
    1. We focused on designating units representative of the known 
current and historical geographic and elevational range of each 
species; and
    2. Critical habitat units were designed to allow for expansion of 
existing wild populations and reestablishment of wild populations 
within the historic range, as recommended by the recovery plans for 
each species.
    The proposed critical habitat units were delineated by creating 
rough units for each species by screen digitizing polygons (map units) 
using ArcView (Environmental Systems Research Institute, Inc.), a 
computer GIS program. The polygons were created by overlaying current 
and historic plant location points onto digital topographic maps of 
each of the islands.
    The resulting shape files (delineating historic elevational range 
and potential, suitable habitat) were then evaluated. Elevation ranges 
were further refined and land areas identified as not suitable

[[Page 1255]]

for a particular species (i.e., not containing the primary constituent 
elements) were avoided. The resulting shape files for each species were 
then considered to define all suitable habitat on the island, including 
occupied and unoccupied habitat.
    These shape files of suitable habitat were further evaluated. 
Several factors were used to delineate the proposed critical habitat 
units from these land areas. We reviewed the recovery objectives as 
described above and in recovery plans for each of the species to 
determine if the number of populations and population size requirements 
needed for conservation would be available within the suitable habitat 
units identified as containing the appropriate primary constituent 
elements for each species. If more than the area needed for the number 
of recovery populations was identified as potentially suitable, only 
those areas within the least disturbed suitable habitat were designated 
as proposed critical habitat. A population for this purpose is defined 
as a discrete aggregation of individuals located a sufficient distance 
from a neighboring aggregation such that the two are not affected by 
the same small-scale events and are not believed to be consistently 
cross-pollinated. In the absence of more specific information 
indicating the appropriate distance to assure limited cross-
pollination, we are using a distance of 1,000 m (3,280 ft) based on our 
review of current literature on gene flow (Barret and Kohn 1991; 
Fenster and Dudash 1994; Havens 1998; Schierup and Christiansen 1996). 
The resulting critical habitat units were further refined by using 
satellite imagery and parcel data to eliminate areas that did not 
contain the appropriate vegetation or associated native plant species, 
as well as features such as cultivated agriculture fields, housing 
developments, and other areas that are unlikely to contribute to the 
conservation of one or more of the 32 plant species for which critical 
habitat was proposed on March 4, 2002. Geographic features (e.g., ridge 
lines, valleys, streams, coastlines, etc.) or manmade features (e.g., 
roads or obvious land use) that created an obvious boundary for a unit 
were used as unit area boundaries.
    Following publication of the proposed critical habitat rules for 
255 Hawaiian plants (67 FR 3940, 67 FR 9806, 67 FR 15856, 67 FR 16492, 
67 FR 34522, 67 FR 36968, 67 FR 37108), we reevaluated proposed 
critical habitat, State-wide, for each of the multi-island species 
using the recovery guidelines (8 to 10 populations with a minimum of 
100 mature, reproducing individuals per population for long-lived 
perennial species; 300 mature, reproducing individuals per population 
for short-lived perennial species; and 500 mature, reproducing 
individuals per population for annual species) to determine if we had 
inadvertently proposed for designation too much or not enough habitat 
to meet the essential recovery goals of 8 to 10 populations per species 
distributed among the islands of the species' known historic range 
(HINHP Database 2000, 2001; Wagner et al. 1990, 1999). For each multi-
island species, we then further evaluated areas of the proposed 
critical habitat for the existing quality of the primary constituent 
elements (i.e., intact native plant communities, predominance of 
associated native plants versus nonnative plants) and potential as a 
recovery area. We selected adequate area for our recovery goals of 8 to 
10 populations distributed among the islands of each species' 
historical range. Of the proposed critical habitat for a species, areas 
that did not meet these criteria and that may provide habitat for 
populations above the recovery goal of 8 to 10, were determined not 
essential for the conservation of the species and were excluded from 
the final designation.
    For the species endemic to Lanai, we modified the boundaries of 
proposed critical habitat using additional information from botanical 
experts and comments on the proposed rule. We excluded areas that do 
not contain one or more of the primary constituent elements or were not 
essential for the conservation of the species because: (1) The area is 
highly degraded and may not be restorable; (2) the area has some of the 
primary constituent elements but there are at least eight other places 
for the species that have more primary constituent elements or are less 
degraded or are already undergoing restoration or are within a 
partnership, Natural Area Reserve, TNCH preserve, or refuge; or (3) the 
threats to the species are uncontrollable in this area. In addition, 
some areas were excluded under section 4(b)(2) of the Act for economic 
or other reasons (See ``Exclusions Under Section 4(b)(2)''). The 
specific modifications are described above in the ``Summary of Changes 
from the Revised Proposed Rule.'' The boundaries of the final critical 
habitat units are described by their UTMs.
    Within the critical habitat boundaries, section 7 consultation is 
generally necessary and adverse modification could occur only if the 
primary constituent elements are affected. Therefore, not all 
activities within critical habitat would trigger an adverse 
modification conclusion. In selecting areas of designated critical 
habitat, we made an effort to avoid developed areas, such as towns and 
other similar lands, that are unlikely to contribute to the 
conservation of the three species. However, the minimum mapping unit 
that we used to approximate our delineation of critical habitat for 
these species did not allow us to exclude all such developed areas from 
the maps. In addition, existing manmade features and structures within 
the boundaries of the mapped unit, such as buildings; roads; aqueducts 
and other water system features--including, but not limited to, pumping 
stations, irrigation ditches, pipelines, siphons, tunnels, water tanks, 
gaging stations, intakes, and wells; telecommunications towers and 
associated structures and equipment; electrical power transmission 
lines and associated rights-of-way; 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 are therefore excluded under the terms of this regulation. 
Federal actions limited to those areas would not trigger a section 7 
consultation unless they affect the species or primary constituent 
elements in adjacent critical habitat.
    In summary, for these species we utilized the approved recovery 
plan guidance to identify appropriately sized land units containing 
essential occupied and unoccupied habitat. Based on the best available 
information, we believe these areas constitute the habitat necessary on 
Lanai to provide for the recovery of Bidens micrantha ssp. kalealaha, 
Portulaca sclerocarpa, and Tetramolopium remyi.

Managed Lands

    Currently occupied and historically known sites containing one or 
more of the primary constituent elements considered essential to the 
conservation of these 32 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 reports 
and surveys; annual performance and progress reports; management plans; 
grants; memoranda of understanding and cooperative agreements; DOFAW 
planning documents; internal letters and memos; biological assessments 
and environmental impact statements; and

[[Page 1256]]

section 7 consultations. Additionally, we contacted the major private 
landowner on Lanai by mail and we met with the landowner's 
representatives in April 2000 and August 2002 to discuss their current 
management for the plants on their lands. We also met with Maui County 
DOFAW office staff to discuss management activities they are conducting 
on Lanai. In addition, we reviewed new biological information and 
public comments received during the public comment periods and at the 
public hearings.
    Pursuant to the definition of critical habitat in section 3 of the 
Act, the primary constituent elements as found in any area so 
designated must also require ``special management considerations or 
protections.'' Adequate special management or protection is provided by 
a legally operative plan that addresses the maintenance and improvement 
of the essential elements and provides for the long-term conservation 
of the species. We consider a plan adequate when it: (1) Provides a 
conservation benefit to the species (i.e., the plan must maintain or 
provide for an increase in the species' population or the enhancement 
or restoration of its habitat within the area covered by the plan); (2) 
provides assurances that the management plan will be implemented (i.e., 
those responsible for implementing the plan are capable of 
accomplishing the objectives, have an implementation schedule and have 
adequate funding for the management plan); and, (3) provides assurances 
that the conservation plan will be effective (i.e., it identifies 
biological goals, has provisions for reporting progress, and is of a 
duration sufficient to implement the plan and achieve the plan's goals 
and objectives). If an area is covered by a plan that meets these 
criteria, it does not constitute critical habitat as defined by the Act 
because the primary constituent elements found there are not in need of 
special management.
    In determining whether a management plan or agreement provides a 
conservation benefit to the species, we considered the following:
    (1) The factors that led to the listing of the species, as 
described in the final rules for listing each of the species. Effects 
of clearing and burning for agricultural purposes and of invasive non-
native plant and animal species have contributed to the decline of 
nearly all endangered and threatened plants in Hawaii (Cuddihy and 
Stone 1990; Howarth 1985; Loope 1998; Scott et al. 1986; Service 1995, 
1996a, 1996b, 1997, 1998a, 1998b, 1999, 2001; Smith 1985; Stone 1985; 
Vitousek 1992; Wagner et al. 1985).
    Current threats to these species include non-native grass- and 
shrub-carried wildfire; browsing, digging, rooting, and trampling from 
feral ungulates (including axis deer and mouflon sheep); direct and 
indirect effects of non-native plant invasions, including alteration of 
habitat structure and microclimate; and disruption of pollination and 
gene-flow processes by adverse effects of mosquito-borne avian disease 
on forest bird pollinators, direct competition between native and non-
native insect pollinators for food, and predation of native insect 
pollinators by non-native hymenopteran insects (ants). In addition, 
physiological processes such as reproduction and establishment continue 
to be negatively affected by fruit- and flower-eating pests such as 
non-native arthropods, mollusks, and rats, and photosynthesis and water 
transport are affected by non-native insects, pathogens, and diseases. 
Many of these factors interact with one another, thereby compounding 
effects. Such interactions include non-native plant invasions altering 
wildfire regimes, feral ungulates carrying weeds and disturbing 
vegetation and soils, thereby facilitating dispersal and establishment 
of non-native plants, and numerous non-native insect species feeding on 
native plants, thereby increasing their vulnerability and exposure to 
pathogens and disease (Bruegmann et al. 2001; Cuddihy and Stone 1990; 
D'Antonio and Vitousek 1992; Howarth 1985; Mack 1992; Scott et al. 
1986; Service 1995, 1996a, 1996b, 1997, 1998a, 1998b, 1999, 2001; Smith 
1985; Tunison et al. 1992);
    (2) The recommendations from the HPPRCC in their 1998 report to us 
(``Habitat Essential to the Recovery of Hawaiian Plants''). As 
summarized in this report, recovery goals for endangered Hawaiian plant 
species cannot be achieved without the effective control of non-native 
species threats, wildfire, and land use changes; and
    (3) The management actions needed for assurance of survival and 
ultimate recovery of Hawaii's endangered plants. These actions are 
described in our recovery plans for these 32 species (Service 1995, 
1996a, 1996b, 1997, 1998a, 1998b, 1999, 2001), in the 1998 HPPRCC 
report to us, and in various other documents and publications relating 
to plant conservation in Hawaii (Cuddihy and Stone 1990; Mueller-
Dombois 1985; Smith 1985; Stone 1985; Stone et al. 1992). In addition 
to monitoring the plant populations, these actions include, but are not 
limited to: (1) Feral ungulate control; (2) nonnative plant control; 
(3) rodent control; (4) invertebrate pest control; (5) fire management; 
(6) maintenance of genetic material of the endangered and threatened 
plant species; (7) propagation, reintroduction, and augmentation of 
existing populations into areas deemed essential for the recovery of 
these species; (8) ongoing management of the wild, outplanted, and 
augmented populations; and (9) habitat management and restoration in 
areas deemed essential for the recovery of these species.
    In general, taking all of the above recommended management actions 
into account, the following management actions are ranked in order of 
importance: Feral ungulate control; wildfire management; non-native 
plant control; rodent control; invertebrate pest control; maintenance 
of genetic material of the endangered and threatened plant species; 
propagation, reintroduction, and augmentation of existing populations 
into areas deemed essential for the recovery of the species; ongoing 
management of the wild, outplanted, and augmented populations; 
maintenance of natural pollinators and pollinating systems, when known; 
habitat management and restoration in areas deemed essential for the 
recovery of the species; monitoring of the wild, outplanted, and 
augmented populations; rare plant surveys; and control of human 
activities/access (Service 1995, 1996a, 1996b, 1997, 1998a, 1998b, 
1999, 2001). On a case-by-case basis, some of these actions may rise to 
a higher level of importance for a particular species or area, 
depending on the biological and physical requirements of the species 
and the location(s) of the individual plants.
    As shown in Table 2, the 32 species of plants are found on private 
lands on the island of Lanai. Information received in response to our 
public notices; meetings with representatives of the landowner and Maui 
County DOFAW staff; the December 27, 2000, and March 4, 2002, 
proposals; public comment periods; and the March 22, 2001, and August 
1, 2002, public hearings, as well as information in our files, 
indicated that there is limited on-going conservation management action 
for these plants, except as noted below. Without management plans and 
assurances that the plans will be implemented, we are unable to find 
that the land in question does not require special management or 
protection.

Private Lands

    Two species (Bonamia menziesii and Hibiscus brackenridgei) are 
reported from The Nature Conservancy of

[[Page 1257]]

Hawaii's (TNCH) Kanepuu Preserve, which is located in the northeast-
central portion of Lanai (GDSI 2000; HINHP Database 2000; TNCH 1997). 
This preserve was established by a grant of a perpetual conservation 
easement from the private landowner to TNCH and is included in the 
State's Natural Area Partnership (NAP) program, which provides matching 
funds for the management of private lands that have been permanently 
dedicated to conservation (TNCH 1997).
    Under the NAP program, the State of Hawaii provides matching funds 
on a two-to-one basis for management of private lands dedicated to 
conservation. In order to qualify for this program, the land must be 
dedicated in perpetuity through transfer of fee title or a conservation 
easement to the State or a cooperating entity. The land must be managed 
by the cooperating entity or a qualified landowner according to a 
detailed management plan approved by the Board of Land and Natural 
Resources. Once approved, the six-year partnership agreement between 
the State and the managing entity is automatically renewed each year so 
that there are always six years remaining in the term, although the 
management plan is updated and funding amounts are re-authorized by the 
board at least every six years. By April 1 of any year, the managing 
partner may notify the State that it does not intend to renew the 
agreement; however, in such case, the partnership agreement remains in 
effect for the balance of the existing six-year term, and the 
conservation easement remains in full effect in perpetuity. The 
conservation easement may be revoked by the landowner only if State 
funding is terminated without the concurrence of the landowner and 
cooperating entity. Prior to terminating funding, the State must 
conduct one or more public hearings. The NAP program is funded through 
real estate conveyance taxes which are placed in a Natural Area Reserve 
Fund. Participants in the NAP program must provide annual reports to 
the State Department of Land and Natural Resources (DLNR), and DLNR 
makes annual inspections of the work in the reserve areas. See Haw. 
Rev. Stat. Secs. 195-1-195-11, and Hawaii Administrative Rules Sec. 13-
210.
    The management program within Kanepuu Preserve is documented in 
long-range management plans and yearly operational plans. These plans 
detail management measures that protect, restore, and enhance the rare 
plant and its habitat within the preserve (TNCH 1997, 1998, 1999). 
These management measures address the factors which led to the listing 
of Bonamia menzeisii and Hibiscus brackenridgei including control of 
non-native species of ungulates, rodents, weeds, and fire control. In 
addition, habitat restoration and monitoring are also included in these 
plans.
    The primary goals within Kanepuu Preserve are to: (1) Control non-
native species; (2) suppress wildfires; and (3) restore the integrity 
of the dryland forest ecosystem through monitoring and research. 
Specific management actions to address feral ungulates include the 
replacement of fences around some of the management units with 
Benzinal-coated wire fences as well as staff hunting and implementation 
of a volunteer hunting program with the DLNR. Additionally, a small 
mammal control program has been established to prevent small nonnative 
mammals (e.g., rats) from damaging rare native species and limit their 
impact on the preserve's overall native biota.
    To prevent further displacement of native vegetation by non-native 
plants, a non-native plant control plan has been developed, which 
includes monitoring of previously treated areas, and the control of 
non-native plants in management units with restoration projects.
    The fire control program focuses on suppression and pre-
suppression. Suppression activities consist of coordination with State 
and county fire-fighting agencies to develop a Wildfire Management Plan 
for the preserve (TNCH 1998). Pre-suppression activities include mowing 
inside and outside of the fence line to minimize fuels for fires.
    A restoration, research, and monitoring program has been developed 
at Kanepuu Preserve to create a naturally regenerating Nestegis 
sandwicensis-Diospyros sandwicensis dryland forest, and expand the 
current range of native-dominated vegetation. Several years of casual 
observation indicate that natural regeneration is occurring within 
native forest patches in the deer-free units (TNCH 1999). A draft of 
the Kanepuu Restoration Plan was completed in June 1999. This plan 
identifies sites for rare plant outplanting and other restoration 
activities. Monitoring is an important component to measure the success 
or failure rate of the animal and weed control programs. Management of 
these non-native species control programs is regularly amended to 
preserve the ecological integrity of the preserve.
    Comments received on the proposed rule and a site visit by Service 
staff revealed that Kanepuu Preserve does not contain as many of the 
primary constituent elements for Bonamia menzeisii and Hibiscus 
brackenridgei as previously thought or that exist in other areas of the 
State of Hawaii proposed as critical habitat for these species. The 
other areas proposed for these species are occupied, contain intact 
native habitat, are being managed for these species, and provide 
adequate area for the 8 to 10 populations needed to reach our recovery 
goals for these species. It is our belief that this area is not 
essential for the conservation of these species for the above stated 
reasons. We were able to find enough better quality habitat for 8 to 10 
populations needed to reach our recovery goals on this and other 
Hawaiian islands. Though it is occupied by Bonamia menziesii and 
Hibiscus brackenridgei and should continue to be managed for these and 
other species, this area was not considered essential to the 
conservation of any of the 37 species covered by this rule.
    The critical habitat areas described below constitute our best 
assessment of the physical and biological features needed for the 
conservation of Bidens micrantha ssp. kalealaha, Portulaca sclerocarpa, 
and Tetramolopium remyi, and the special management needs of these 
species, and are based on the best scientific and commercial 
information available and described above. We publish this final rule 
acknowledging that we have incomplete information regarding many of the 
primary biological and physical requirements for these species. 
However, both the Act and the relevant court orders require us to 
proceed with designation at this time based on the best information 
available. As new information accrues, we may consider reevaluating the 
boundaries of areas that warrant critical habitat designation.
    The approximate areas of the designated critical habitat by 
landownership or jurisdiction are shown in Table 4.
    Critical habitat includes habitat for these three species in the 
northwestern, central, and southern portions of Lanai. Lands designated 
as critical habitat have been divided into six units. A brief 
description of each unit is presented below.

[[Page 1258]]



 Table 4.--Approximate Critical Habitat Designated Area by Unit and Landownership or Jurisdiction, Maui County,
                                                     Hawaii
----------------------------------------------------------------------------------------------------------------
            Unit name                 State/local           Private             Federal              Total
----------------------------------------------------------------------------------------------------------------
Lanai 1--Tetramolopium remyi....  ..................  151 ha (373 ac)...  ..................  151 ha (373 ac)
Lanai 2--Bidens micrantha ssp.    ..................  53 ha (131 ac)....  ..................  53 ha (131 ac)
 kalealaha--North.
Lanai 3--Bidens micrantha ssp.    ..................  60 ha (148 ac)....  ..................  60 ha (148 ac)
 kalealaha--Middle.
Lanai 4--Bidens micrantha ssp.    ..................  48 ha (118 ac)....  ..................  48 ha (118 ac)
 kalealaha--South.
Lanai 5--Portulaca sclerocarpa--  ..................  7 ha (17 ac)......  ..................  7 ha (17 ac)
 Coast.
Lanai 6--Portulaca sclerocarpa--  ..................  1 ha (2 ac).......  ..................  1 ha (2 ac)
 Isle.
                                 ---------------------
    Grand Total.................  ..................  320 ha (789 ac)...  ..................  320 ha (789 ac)
----------------------------------------------------------------------------------------------------------------

Descriptions of Critical Habitat Units

Lanai 1--Tetramolopium remyi
    This unit is critical habitat for Tetramolopium remyi and is 151 ha 
(373 ac) on privately owned land. It lies approximately between 182 m 
(600 ft) and 274 m (900 ft) elevation, is slightly east of Puumaiekahi 
Gulch, contains a portion of Lapaiki Gulch and is completely in a 
conservation district (limited use). Awalua Road runs through the 
western portion of this unit. This unit provides habitat for one 
population of 300 mature, reproducing individuals of the short-lived 
perennial and is currently unoccupied. The habitat features contained 
in this unit that are important for this species include, but are not 
limited to, predominantly red sandy loam in a Dodonaea viscosa-
Heteropogon contortus community. In addition, this area is the most 
likely to contain a viable seed bank on the north side of the island 
because of the existence within the past year of mature, seed-bearing 
individuals in this area and because plants from drought-prone sites 
tend to survive through the existence of seed banks. The State of 
Hawaii is managing a small portion of this unit by fencing the area to 
control feral ungulates around the recently extirpated known 
individuals. This unit provides for one population within this multi-
island species' historical range on Lanai.
Lanai 2--Bidens micrantha ssp. kalealaha--North
    This unit is critical habitat for Bidens micrantha ssp. kalealaha 
and is 53 ha (131 ac) on privately owned land. This unit lies west of 
Lanai 3 and includes most of Kapohaku Gulch. This unit provides habitat 
for one population of 300 mature, reproducing individuals of this 
short-lived perennial and is currently unoccupied. The habitat features 
contained in this unit that are important for this species include, but 
are not limited to, gulch slopes in dry Dodonaea viscosa shrubland. 
This critical habitat unit provides area for one population within the 
historical range of this multi-island species and is in the gulch 
adjacent to the occupied unit Lanai 3--Bidens micrantha ssp kalealaha--
Middle. It is geographically separated (by a ridge) from other 
designated critical habitat units on this and other islands in order to 
avoid all populations from being destroyed by one naturally occurring 
catastrophic event.
Lanai 3--Bidens micrantha ssp. kalealaha--Middle
    This unit is critical habitat for Bidens micrantha ssp. kalealaha 
and is 60 ha (148 ac) on privately owned land. This unit lies between 
Lanai 2 and Lanai 4 and includes most of Waiapaa Gulch and Waiakaiole 
Gulch. This unit provides habitat for one population of 300 mature, 
reproducing individuals of this short-lived perennial and is currently 
occupied by less than 20 individuals. This unit is important to the 
conservation of the species because it supports the one extant colony 
of this species on Lanai. This unit also includes habitat that is 
important for the expansion of the present population. The habitat 
features contained in this unit that are important for this species 
include, but are not limited to, gulch slopes in dry Dodonaea viscosa 
shrubland. This critical habitat unit provides area for one population 
within the historical range of this multi-island species. It is 
geographically separated by a ridge from other designated critical 
habitat units on this and other islands in order to avoid all 
populations from being destroyed by one naturally occurring 
catastrophic event.
Lanai 4--Bidens micrantha ssp. kalealaha--South
    This unit is critical habitat for Bidens micrantha ssp. kalealaha 
and is 48 ha (118 ac) on privately owned land. This unit lies east of 
Lanai 3 and includes most of Paliakoae Gulch. This unit provides 
habitat for one population of 300 mature, reproducing individuals of 
this short-lived perennial and is currently unoccupied. The habitat 
features contained in this unit that are important for this species 
include, but are not limited to, gulch slopes in dry Dodonaea viscosa 
shrubland. This critical habitat unit provides area for one recovery 
population within the historical range of this multi-island species and 
is in a gulch adjacent to the occupied unit Lanai 3--Bidens micrantha 
ssp. kalealaha--Middle. It is geographically separated by a ridge from 
other designated critical habitat units on this and other islands in 
order to avoid all populations from being destroyed by one naturally 
occurring catastrophic event.
Lanai 5--Portulaca sclerocarpa--Coast
    This unit is critical habitat for Portulaca sclerocarpa and is 7 ha 
(17 ac) on privately owned land. This unit lies along the shore between 
Anapuka in the west and Huawai Bay in the east. This unit provides 
habitat for one population (combined with Lanai 6--Portulaca 
sclerocarpa--Isle) of 300 mature, reproducing individuals of this 
short-lived perennial and is currently unoccupied. The habitat features 
contained in this unit that are important for this species include, but 
are not limited to, exposed ledges in thin soil in coastal communities. 
This coastal habitat is unique to Lanai for this species; on the island 
of Hawaii, this species grows on weathered soils, cinder cones, or 
geologically young lava; in montane dry shrubland; often on bare 
cinder; near steam vents; or in open Metrosideros polymorpha-dominated 
woodlands, away from coastal areas. This critical habitat unit provides 
area for one recovery population within the historical range of this 
multi-island

[[Page 1259]]

species and is adjacent to the currently occupied habitat in Unit 6--
Portulaca sclerocarpa--Isle. It is geographically separated from other 
designated critical habitat on the island of Hawaii in order to avoid 
all populations from being destroyed by one naturally occurring 
catastrophic event.
Lanai 6--Portulaca sclerocarpa--Isle
    This unit is critical habitat for Portulaca sclerocarpa and is 1 ha 
(2 ac) on privately owned land. This unit comprises all of Poopoo 
Islet. This unit provides habitat for one population (combined with 
Lanai 5--Portulaca sclerocarpa--Coast) of 300 mature, reproducing 
individuals of this short-lived perennial and is currently occupied by 
about 10 plants. This unit is important to the conservation of the 
species because it supports the one extant colony of this species on 
Lanai. This unit also includes habitat that is important for the 
expansion (combined with Lanai 5--Portulaca sclerocarpa--Coast) of the 
present population. The habitat features contained in this unit that 
are important for this species include, but are not limited to, exposed 
ledges in thin soil in coastal communities. This coastal habitat is 
unique to Lanai for this species; on the island of Hawaii, this species 
grows on weathered soils, cinder cones, or geologically young lava; in 
montane dry shrubland; often on bare cinder; near steam vents; or in 
open Metrosideros polymorpha-dominated woodlands, away from coastal 
areas. This critical habitat unit provides area for one population 
within the historical range of this multi-island species. It is 
geographically separated from other designated critical habitat units 
on the island of Hawaii to prevent all populations from being destroyed 
by one naturally occurring catastrophic event.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Destruction 
or adverse modification of critical habitat occurs when a Federal 
action directly or indirectly alters critical habitat to the extent 
that it appreciably diminishes the value of critical habitat for the 
conservation of the species. Individuals, organizations, States, local 
governments, and other non-Federal entities are affected by the 
designation of critical habitat when their actions occur on Federal 
lands, require a Federal permit, license, or other authorization, or 
involve Federal funding.
    Section 7(a)(1) of the Act requires Federal agencies, including the 
Service, to use their authorities to carry out programs for the 
conservation of any species that is proposed or listed as endangered or 
threatened. Section 7(a)(4) of the Act requires Federal agencies 
(action agency) to confer with us on any action that is likely to 
jeopardize the continued existence of a species proposed for listing or 
result in destruction or adverse modification of proposed critical 
habitat. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that actions 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal action agency must 
enter into consultation with us. Through this consultation, the action 
agency would ensure that the permitted actions do not destroy or 
adversely modify critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions under certain 
circumstances, including instances where critical habitat is 
subsequently designated and the Federal agency has retained 
discretionary involvement, or control has been retained or is 
authorized by law. Consequently, some Federal agencies may request 
reinitiation of consultation or conferencing with us on actions for 
which formal consultation has been completed, if those actions may 
affect designated critical habitat or adversely modify or destroy 
proposed critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide ``reasonable and prudent alternatives'' to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
formal consultation that can be implemented in a manner consistent with 
the intended purpose of the action, that are consistent with the scope 
of the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the likelihood of the destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Activities on Federal lands that may affect critical habitat of 
Bidens micrantha ssp. kalealaha, Portulaca sclerocarpa, or 
Tetramolopium remyi will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers (Corps) under section 
404 of the Clean Water Act (33 U.S.C. 1344 et seq.), the Department of 
Housing and Urban Development, or an incidental take permit under 
section 10(a)(1)(B) of the Act from us; or some other Federal action, 
including funding (e.g., from the Federal Highway Administration, 
Federal Aviation Administration (FAA), Federal Emergency Management 
Agency (FEMA), Environmental Protection Agency (EPA), or Department of 
Energy); regulation of airport improvement activities by the FAA; and 
construction of communication sites licensed by the Federal 
Communications Commission will also continue to be subject to the 
section 7 consultation process. Federal actions not affecting critical 
habitat and actions on non-Federal lands that are not federally funded, 
authorized, or permitted do 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 (whether public or private) 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 the primary 
constituent elements including, but not limited to: Overgrazing; 
maintenance of feral ungulates; clearing or cutting of native live 
trees and shrubs, whether by burning or mechanical, chemical, or other 
means (e.g., woodcutting, bulldozing, construction, road building, 
mining, herbicide application); introducing or enabling the spread of 
non-native species; and taking actions that pose a risk of fire;

[[Page 1260]]

    (2) Activities that alter watershed characteristics in ways that 
would appreciably reduce groundwater recharge or alter natural, dynamic 
wetland or other vegetative communities. Such activities may include 
manipulation of vegetation such as timber harvesting, residential and 
commercial development, and grazing of livestock that degrades 
watershed values;
    (3) Rural residential construction that includes concrete pads for 
foundations and the installation of septic systems in wetlands where a 
permit under section 404 of the Clean Water Act would be required by 
the Corps;
    (4) Recreational activities that appreciably degrade vegetation;
    (5) Mining of sand or other minerals;
    (6) Introducing or encouraging the spread of non-native plant 
species into critical habitat units; and
    (7) Importation of non-native species for research, agriculture, 
and aquaculture, and the release of biological control agents that 
would have unanticipated effects on the listed species and the primary 
constituent elements of their habitats.
    If you have questions regarding whether specific activities will 
likely constitute adverse modification of critical habitat, contact the 
Field Supervisor, Pacific Islands Ecological Services Field Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
plants and animals, and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Branch of Endangered 
Species/Permits, 911 N.E. 11th Ave., Portland, OR 97232-4181 (telephone 
503/231-2063; facsimile 503/231-6243).

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude areas from critical habitat when the 
exclusion will result in the extinction of the species concerned.

Economic Impacts

    Following the publication of the proposed critical habitat 
designation, a draft economic analysis was conducted to estimate the 
potential economic impact of the designation, in accordance with the 
recent decision in the N.M. Cattlegrowers Ass'n v. U.S. Fish and 
Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001). The draft analysis was 
made available for review on August 16, 2002 (67 FR 46626). We accepted 
comments on the draft analysis until the comment period closed on 
August 30, 2002, and again from November 15, 2002 to November 25, 2002 
(67 FR 69176).
    We have not excluded or modified critical habitat units from the 
proposed rule based on economic impacts. Our draft economic analysis 
evaluated the potential future section 7 effects, including indirect 
effects, associated with designating critical habitat for 32 species 
(Abutilon eremitopetalum, Adenophorus periens, Bidens micrantha ssp. 
kalealaha, Bonamia menziesii, Brighamia rockii, Cenchrus agrimonioides, 
Centaurium sebaeoides, Clermontia oblongifolia ssp. mauiensis, Ctenitis 
squamigera, Cyanea grimesiana ssp. grimesiana, Cyanea lobata, Cyanea 
macrostegia ssp. gibsonii, Cyperus trachysanthos, Cyrtandra munroi, 
Diellia erecta, Diplazium molokaiense, Gahnia lanaiensis, Hedyotis 
mannii, Hedyotis schlechtendahliana var. remyi, Hesperomannia 
arborescens, Hibiscus brackenridgei, Isodendrion pyrifolium, Labordia 
tinifolia var. lanaiensis, Melicope munroi, Neraudia sericea, Portulaca 
sclerocarpa, Sesbania tomentosa, Solanum incompletum, Spermolepis 
hawaiiensis, Tetramolopium remyi, Vigna o-wahuensis, and Viola 
lanaiensis) on Lanai. However, given the difficulty of determining 
precisely what section 7 impacts should be attributed alone to critical 
habitat, we have analyzed the total section 7 impacts as well.
    The categories of potential costs considered in the analysis 
included the costs associated with: (1) Conducting section 7 
consultations associated with the listing or with the critical habitat, 
including incremental consultations and technical assistance; (2) 
modifications to projects, activities, or land uses resulting from the 
section 7 consultations; (3) potential delays associated with 
reinitiating completed consultations after critical habitat is 
finalized; (4) uncertainty and public perceptions resulting in loss of 
land value from the designation of critical habitat; (5) potential 
effects on property values including potential indirect costs resulting 
from the loss of hunting opportunities and increased regulation related 
costs due to the interaction of State and local laws; and (6) potential 
offsetting benefits associated with critical habitat, including 
educational benefits. The most likely economic effects of critical 
habitat designation are on activities funded, authorized, or carried 
out by a Federal agency.
    Following the close of the comment period on the draft economic 
analysis, a final addendum was completed that incorporated public 
comments on the draft analysis and made other changes in the draft, for 
example, to account for changes in unit boundaries due to the receipt 
of information during the comment period indicating that certain areas 
do not contain the necessary primary constituent elements or were not 
essential to the conservation of the species. Together, the draft 
analysis as modified by the addendum constitute our final economic 
analysis. The final economic analysis estimates that, over the next 10 
years, the designation may result in potential economic effects ranging 
from approximately $450,000 to $530,000 in quantifiable costs, and 
concludes that economic impacts from the designation of critical 
habitat would not be significant. This is a reduction of approximately 
$1.7 million from the costs estimated in the draft economic analysis, 
and is due to the exclusion of proposed units Lanai A, Lanai C, and 
Lanai F from final designation and the significant reduction in size to 
proposed units Lanai B and Lanai G (designation of 6,181 ha (15,271 ac) 
versus the 7,853 ha (19,405 ac) proposed as critical habitat, a 
reduction of approximately 1,672 ha (4,134 ac)). As described in the 
analysis, direct costs result from conservation projects and secondary 
costs result from investigations of the implications of critical 
habitat designation. Indirect costs attributed to critical habitat that 
were considered major in the draft economic analysis are avoided by the 
modifications made to units based on new biological information (i.e., 
excluding unit F and removing much of the land zoned as rural). The 
Addendum to the economic analysis states that the indirect cost of 
reduction in property values is not expected to occur, and ensuring 
that clear and correct information on the effects of a critical habitat 
designation is available to all potential buyers will further reduce 
the potential for such a scenario. A more detailed discussion of our 
economic analysis is contained in the draft economic analysis and the 
addendum. Both documents are included in our administrative record and 
are available for inspection at the Pacific Islands Fish and Wildlife 
Office (see ADDRESSES section).

Other Impacts

    As described above, section 4(b)(2) of the Act requires us to 
consider other relevant impacts, in addition to economic impacts, of 
designating

[[Page 1261]]

critical habitat. A proposed critical habitat unit, Lanai D, located on 
the central-eastern side of the island, was excluded from designation 
because we believed that doing so would further the goal of encouraging 
private landowners to undertake voluntary conservation activities, 
which will be necessary to achieve species recovery. The proposed 5,861 
ha (14,482 ac) unit is on private lands owned by Castle and Cooke 
Resorts, LLC. Castle and Cooke Resorts, LLC--which owns 99 percent of 
the island--is currently undertaking voluntary conservation activities 
within and adjacent to this unit, and has recently entered into an 
agreement with the Service for future activities (MOA, 2002), as well.
    The proposed unit Lanai D is occupied habitat for 17 species: 
Abutilon eremitopetalum, Bonamia menziesii, Centaurium sebaeoides, 
Clermontia oblongifolia ssp. mauiensis, Ctenitis squamigera, Cyanea 
grimesiana ssp. grimesiana, Cyanea macrostegia ssp. gibsonii, Cyrtandra 
munroi, Gahnia lanaiensis, Hedyotis mannii, Hedyotis schlechtendahliana 
var. remyi, Hibiscus brackenridgei, Labordia tinifolia var. lanaiensis, 
Melicope munroi, Spermolepis hawaiiense, Tetramolopium remyi, and Viola 
lanaiensis. It is unoccupied habitat for 11 species: Adenophorus 
periens, Brighamia rockii, Cenchrus agrimonioides, Cyanea lobata, 
Diellia erecta, Diplazium molokaiensis, Hesperomannia arborescens, 
Isodendrion pyrifolium, Neraudia sericea, Solanum incompletum, and 
Vigna o-wahuensis.
    According to our published recovery plans, recovery of these 
species will require reproducing, self-sustaining populations located 
in a geographic array across the landscape, with population numbers and 
population locations of sufficient robustness to withstand periodic 
threats due to natural disaster or biological threats (Service 1995, 
1996a, 1996b, 1997, 1998a, 1998b, 1999, 2001). The highest priority 
recovery tasks include active management such as plant propagation and 
reintroduction, fire control, alien species removal, and ungulate 
fencing. Failure to implement these active management measures, all of 
which require voluntary landowner support and participation, virtually 
assures the extinction of these species. Many of these types of 
conservation actions in this area of Lanai are carried out as part of 
the Lanai Forest and Watershed Partnership and by actions taken on the 
landowner's initiative in areas outside the watershed partnership area. 
These activities, which are described in more detail below, require 
substantial voluntary cooperation by Castle and Cooke Resorts, LLC.
    The following analysis describes the likely conservation benefits 
of a critical habitat designation compared to the negative impacts of a 
critical habitat designation. The Service paid particular attention to 
the following issues: Whether critical habitat designation would confer 
regulatory conservation benefits on these species; whether the 
designation would educate members of the public such that conservation 
efforts would be enhanced; and whether a critical habitat designation 
would have a positive, neutral, or negative impact on voluntary 
conservation efforts on this privately-owned island.
    If excluding an area from a critical habitat designation will 
provide substantial conservation benefits, and at the same time 
including the area fails to confer a counter-balancing positive 
regulatory or educational benefit to the species, then the benefits of 
excluding the area from critical habitat outweigh the benefits of 
including it. The results of this type of evaluation will vary 
significantly depending on the landowners, geographic areas, and 
species involved.

(1) Benefits of Inclusion

    Critical habitat in Lanai D was proposed for the following species: 
Abutilon eremitopetalum, Adenophorus periens, Bonamia menziesii, 
Brighamia rockii, Centaurium sebaeoides, Cenchrus agrimonioides, 
Clermontia oblongifolia ssp. mauiensis, Ctenitis squamigera, Cyanea 
grimesiana ssp. grimesiana, Cyanea lobata, Cyanea macrostegia ssp. 
gibsonii, Cyrtandra munroi, Diellia erecta, Diplazium molokaiensis, 
Gahnia lanaiensis, Hedyotis mannii, Hedyotis schlechtendahliana var. 
remyi, Hesperomannia arborescens, Hibiscus brackenridgei, Isodendrion 
pyrifolium, Labordia tinifolia var. lanaiensis, Melicope munroi, 
Neraudia sericea, Solanum incompletum, Spermolepis hawaiiense, 
Tetramolopium remyi, Vigna o-wahuensis, and Viola lanaiensis. The 
primary direct benefit of inclusion of the proposed unit Lanai D as 
final critical habitat would result from the requirement under section 
7 of the Act that Federal agencies consult with us to ensure that any 
proposed Federal actions do not destroy or adversely modify critical 
habitat.
    Historically, we have conducted only seven informal consultations 
under section 7 on Lanai, and only one consultation involved any of the 
28 species associated with proposed unit D. We do not expect further 
consultations in unit Lanai D for several reasons. Unit Lanai D is 
privately owned and does not contain any wetlands (the major reason for 
Federal permits). The landowner does not plan on applying for Federal 
funds (other than for habitat restoration) and does not foresee any 
reason to obtain federal permits that may create a federal nexus. Any 
funds received by the landowner for habitat restoration will require 
internal consultations, but will not likely adversely affect listed 
plant species or involve other Federal agencies. The majority of the 
land in proposed unit Lanai D is zoned as Conservation \1\ (71 
percent). Any lands zoned as Agriculture \2\ (27 percent) in this area 
are not currently used for agricultural purposes and are currently 
fallow. Likely future use by the landowner of this area is as watershed 
protection (MOA, 2002). As stated in the economic analysis, future 
development in this area is not expected over the long term. Past uses 
of this area include marginal agriculture (primarily grazing). For 
these specific reasons, we do not expect future consultations in 
proposed unit Lanai D.
---------------------------------------------------------------------------

    \1\ Conservation-zoned land is designated to conserve, protect 
and preserve the State's important natural resources through 
appropriate management in order to promote the long-term 
sustainability of these natural resources, and to promote public 
health, safety and welfare. Only limited development and commercial 
activity are allowed in the Conservation District.
    \2\ Agricultural-zoned land is a catch-all category that 
includes all lands not otherwise categorized, regardless of the 
agricultural quality of the land. Crops, livestock, and grazing are 
permitted in the zone, as are accessory structures and farmhouses. 
Although land in this zoning is not meant to be urbanized, it is, in 
practice, sometimes used for large-lot subdivisions. Listed species 
are found in some parts of this zoning, particularly in gulches, on 
hillsides, and on some of the land that is used for low-intensity 
grazing. In many cases, the fact that the land is Agricultural 
District indirectly protects listed species by limiting urban 
sprawl.
---------------------------------------------------------------------------

    Although we believe the likelihood of a consultation is small, in 
the unlikely event that the landowner began using Federal funds or 
permits for projects, consultation requirements under section 7 of the 
Act would be triggered as a result of the funding or permitting 
processes administered by the Federal agency involved. The benefit of 
critical habitat designation would ensure that any actions funded by or 
permits given by a Federal agency would not likely destroy or adversely 
modify any critical habitat. Without critical habitat, some site-
specific projects might not trigger consultation requirements under the 
Act in areas where species are not currently present; in contrast, 
Federal project areas with listed species present would still be 
covered under section 7. Given the overall low likelihood of Federal

[[Page 1262]]

projects being proposed in the area of proposed unit D, the Service 
believes there is low potential for negative impacts to unoccupied 
habitat as a consequence of Federal activities, and thus a low 
regulatory benefit of a critical habitat designation in this area. We 
believe there is a low likelihood of negative impacts because of 
reasons stated above (i.e., land use and zoning, land use history).
    Another reason that the benefits of including Lanai D in the 
critical habitat designation is small is that, even if the area is not 
included in the designation, the conservation agreement (MOA, 2002) 
will provide conservation benefits to the target species. The 
management actions as outlined will remove threats (e.g. axis deer, 
mouflon sheep, rats, invasive nonnative plants) from the Lanaihale and 
East Lanai Regions, engage in fire control measures, engage in nursery 
propagation of native flora (including the target species) and planting 
of such flora. These actions will significantly improve the habitat for 
all currently occurring species (Abutilon eremitopetalum, Bonamia 
menziesii, Centaurium sebaeoides, Clermontia oblongifolia ssp. 
mauiensis, Ctenitis squamigera, Cyanea grimesiana ssp. grimesiana, 
Cyanea macrostegia ssp. gibsonii, Cyrtandra munroi, Gahnia lanaiensis, 
Hedyotis mannii, Hedyotis schlechtendahliana var. remyi, Hibiscus 
brackenridgei, Labordia tinifolia var. lanaiensis, Melicope munroi, 
Spermolepis hawaiiense, Tetramolopium remyi, and Viola lanaiensis) and 
will provide suitable habitat for reintroduction of extirpated species 
(Adenophorus periens, Brighamia rockii, Cenchrus agrimonioides, Cyanea 
lobata, Diellia erecta, Diplazium molokaiensis, Hesperomannia 
arborescens, Isodendrion pyrifolium, Neraudia sericea, Solanum 
incompletum, and Vigna o-wahuensis).
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. This outcome would be 
important for these 28 species. Any information about the species and 
their habitats that reaches a wide audience, including other parties 
engaged in conservation activities, would be considered valuable. 
However, only one landowner would be affected directly by including 
Lanai D in the designation, and that landowner is already working with 
the Service to address the habitat needs of the species. Further, this 
area was included in the proposed designation, which itself has reached 
a wide audience, and has thus provided information to the broader 
public about the conservation value of the area. For these reasons, we 
would expect that including Lanai D in the designation would provide at 
most moderate educational benefits to the species.
    To be inclusive, we have considered some of these unlikely 
assumptions in this benefits of inclusion section. The economic 
analysis also identifies indirect impacts to landowners and other 
affected parties, and some of these impacts could result in benefits to 
the species. For example, the critical habitat designation could 
encourage the State to take measures to manage the populations of feral 
ungulates by fencing off portions of the State hunting areas (Economic 
Analysis section 4.b.). Such measures could result in preserving 
significant populations of the plants within the enclosed areas, and 
further the recovery of the species. The economic analysis concluded, 
however, that this result would be unlikely, because closing off 
portions of the State hunting areas would be vigorously protested by 
hunters. The economic analysis also stated that there is a possibility, 
of undetermined likelihood, that private landowners could be required 
by courts to take specific management actions if failing to take the 
action is a ``taking'' of the species (Economic Analysis section 4.c.). 
Management actions could include such activities as control of feral 
ungulates, non-native plants, rodents, and invertebrate pests; fire 
management; maintenance of plant genetic material; propagation; or 
management of the habitat or the plant populations. Each of these 
actions would provide commensurate benefits to the species, and 
designation of a particular area as critical habitat could further 
define and expand the scope of the management actions and resulting 
benefits. Many of these actions will be species-specific and benefit 
species as well as the island's watershed. Also, these types of 
management actions would ensure these areas continue to provide habitat 
for the seven island endemics as well as for reintroduction of several 
species including Solanum incompletum and Isodendrion pyrifolium which 
are no longer found on the island. We believe, however, that many of 
these same benefits would result from the agreement the Service has 
recently entered into with the landowner (MOA, 2002). Finally, the 
Economic Analysis discusses the possibility that designation could make 
development more difficult and/or costly (Economic Analysis sections 
4.d. and 4.f.). The State or Counties could require developers to 
prepare a State EIS instead of a less burdensome EA in order to obtain 
development approvals, and may ultimately require additional project 
modifications; in addition, landowners could perceive that development 
in rural and agricultural areas is limited. Preparation of an EIS would 
presumably result in decisionmaking that is more informed and that is 
better able to provide for the protection of the species. Similarly, to 
the extent that designation of critical habitat would result in 
additional or more finely tuned project modifications, it would further 
the conservation of the species. The final designation together with 
the excluded Unit D contain less than 6 ha (15 ac) of land designated 
as Rural lands. Of these, over half 3.4 ha (8.3 ac) are mountainous and 
the rest are coastal 2.4 ha (6 ac). In the unlikely event that land 
values are decreased or economic activities are slowed, these plant 
species would benefit from the resulting decreased level of invasive 
activities. For example, the Rural lands in Unit D provide habitat for 
two multi-island species, Centaurium sebaeoides and Brighamia rockii. 
For both species, the Lanai populations are the only non-coastal 
populations of the species that are known to exist. This makes 
protecting the Lanai populations and their habitat from harmful 
activities particularly important. The only anticipated development 
project identified in the Economic Analysis is the planned construction 
of a new quarry, and this does not fall within Unit D and has been 
dropped from the analysis.
    In sum, the Service believes that a critical habitat designation 
for listed plants on Lanai would provide a relatively low level of 
additional regulatory conservation benefits to each of the plant 
species. Any regulatory conservation benefits would accrue through the 
benefit associated with section 7 consultation. Based on a review of 
past consultations and consideration of the likely future activities in 
the area, there is little Federal activity expected to occur on this 
privately-owned island that would trigger section 7 consultation. The 
Service believes that critical habitat proposal and final designation 
provides some conservation benefits by educating the public on the 
site-specific areas on Lanai essential to the recovery of the extant 
and extirpated species.

[[Page 1263]]

(2) Benefits of Exclusion

    Proactive voluntary conservation efforts are necessary to prevent 
the extinction and promote the recovery of these species on Lanai and 
other Hawaiian islands (Shogren et al. 1999, Wilcove and Chen 1998, 
Wilcove et al. 1998). Consideration of this concern is especially 
important in areas where species have been extirpated and their 
recovery requires access and permission for reintroduction efforts. For 
example, eleven of the 28 species associated with proposed unit D are 
extirpated from Lanai, and natural repopulation is likely not possible 
without human assistance and landowner cooperation.
    Castle and Cooke Resorts, LLC, is involved in several important 
voluntary conservation agreements and is currently carrying out some of 
these activities for conservation and watershed protection purposes. 
For example, the Partners for Fish and Wildlife Awehi Gulch agreement 
was entered into in fiscal year 1998 with the stated purpose of 
restoring and protecting a mesic to dry forest community including a 
population of the endangered Gardenia brighamii. The strategy to be 
employed for this project was to construct a three-acre deer-proof 
fenced exclosure, ensure that all deer were removed from the fenced 
area, plant and water G. brighamii within the fenced area, and control 
invasive alien plants in areas around the out-planted individuals. The 
agreement is between Castle and Cooke Resorts, LLC, the State Division 
of Forestry and Wildlife (DOFAW), and the USFWS. The USFWS provided 
funding for fence materials ($24,000), DOFAW provided the labor to 
construct the fence, and Castle and Cooke provided the labor and 
materials needed to plant, water, and weed the area. The fence was 
completed and no deer were left within the exclosure. Shortly 
thereafter, Castle and Cooke planted 150 G. brighamii, planted other 
native species (50 individuals) appropriate to the area within the 
Awehi exclosure, conduced alien plant removal above the level agreed 
upon, and set up a watering system (tank and delivery lines) that will 
be used for establishing more that just the original gardenia plants in 
the exclosure.
    Another important voluntary project undertaken in partnership with 
the landowner is the Lanaihale Summit Forest Restoration Project. This 
is a very large and ambitious project (approximately 5,800 acres) 
within the area of proposed unit D, for which the USFWS has obligated a 
total of $177,500 to date. The landowner is matching that amount with 
at least $143,266 of in-kind cost-share in the form of fence-line 
clearing and native-plant restoration (growing, planting, and weed 
control). It is understood that these amounts will not be sufficient to 
complete the summit fence but will allow the project to get started 
with the assumption that the partnership will be able to secure 
additional funding from various sources to help complete the project. 
Castle and Cooke has entered into other agreements with agencies 
besides the Service, such as the Hawaii Division of Forestry and 
Wildlife and Hawaii Department of Health for additional funds to assist 
with completion of this project. The agreement documenting this project 
lists 10 of the proposed critical habitat plant species (among others) 
that will benefit from its completion. The project is currently 
ongoing. Castle and Cooke's Conservation Department has almost 
completed clearing the fence line for the first (Unit 1) of three 
exclosure units that will make up the summit fence project. They have 
also obtained bids from private contractors for construction of this 
first phase of fencing.
    A third voluntary partnership project undertaken in cooperation 
with this landowner is the Lanai Cloud Forest Exclosure project. For 
this much smaller exclosure project, the Service provided $27,500 to be 
matched by in-kind services valued at $9,213 to be provided by the 
company. The purpose of this project is to provide an area protected by 
a fence that excluded not only deer and sheep, but predators (rats and 
feral cats) as well. The exact size and location for this project have 
not yet been finalized, but will be selected to provide the greatest 
protection and restoration potential for listed plants and two species 
of imperilled tree snails. This project is yet to get underway due to 
the higher priority of the summit fence. The Service and the landowner 
are planning to complete this project by the end of fiscal year 2003.
    Another noteworthy voluntary agreement is the Lanai Forest and 
Watershed Partnership. While this multi-party agreement does not commit 
the company (or any party) to complete any conservation actions, it 
does demonstrate the willingness of the company to work cooperatively 
with all involved parties toward landscape-scale conservation efforts.
    In addition to the projects described above, to address the 
conservation needs of all of the listed species associated with 
proposed unit D and to cover a larger landscape area, Castle and Cooke 
Resorts, LLC, has recently entered into an agreement with the Service 
to voluntarily manage proposed unit D and some adjacent lands for the 
conservation benefit of all of the listed species from Lanai. This 
agreement includes the following important voluntary commitments by 
Castle and Cooke Resorts, LLC:
    1. Construction of exclosure fencing around large portions of 
Lanaihale and East Lanai (proposed unit D and adjacent lands); this 
fencing would expand upon the Lanaihale summit fence described above 
and protect a much larger area.
    2. Active management of feral ungulates that are negatively 
affecting listed plants within the fenced areas; through a combination 
of public hunting and staff hunting, feral ungulates will be eliminated 
or controlled to allow for the restoration of listed plant species 
within fenced areas.
    3. Active management of nonnative grasses and other fire hazards, 
and development of fire control measures;
    4. Nursery propagation and planting of native flora, including 
these listed species, within the fenced areas;
    5. In the unlikely event that future Federal projects occur on 
Lanai in the most important portions of proposed unit D (e.g., 
Lanaihale and some adjacent areas), the landowner has agreed to have 
these projects reviewed by the Service to a standard similar to that 
required by section 7 consultation for designated critical habitat. 
These areas were identified by the company's contract botanist as 
having the highest conservation value for these listed species. They 
include the Lanaihale area (2,339 ha (5,781 ac)), an adjacent area to 
the north (702 ha (1,734 ac)), and an area east of the Lanaihale area 
(1,082 ha (2,674 ac)).
    The Service believes that each of the listed species originally 
included within proposed unit D will benefit substantially from this 
agreement due to a reduction in ungulate browsing and habitat 
conversion, a reduction in competition with nonnative weeds, a 
reduction in risk of fire, and the reintroduction of species currently 
extirpated from various areas and for which the technical ability to 
propagate these species currently exists or will be developed in the 
near future.
    On Lanai, simply preventing ``harmful activities'' will not slow 
the extinction of listed plant species. Where consistent with the 
discretion provided by the Act, the Service believes it is necessary to 
implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove or 
reduce disincentives to conservation. While the impact of providing 
these incentives may be modest in economic terms, they can be 
significant in terms

[[Page 1264]]

of conservation benefits that can stem from the cooperation of the 
landowner. The continued participation of Castle and Cooke Resorts, 
LLC, in the existing Lanai Forest and Watershed Partnership and other 
voluntary conservation agreements will greatly enhance the Service's 
ability to further the recovery of these endangered plants. 
Approximately 27 percent of the proposed critical habitat on Lanai, 
including portions of proposed unit D, are zoned Agriculture. Although 
the Service's economic analysis did not find it likely, the landowner 
and other commenters nevertheless believe that there is a risk that the 
critical habitat designation will result in the rezoning of lands, that 
State and county permits will contain additional requirements and 
expense for protection of lands designated as critical habitat, and 
that there is an increased risk of third-party litigation. We believe 
that the landowner's concerns over these potential negative impacts 
would affect its voluntary conservation efforts, which we believe are 
necessary to conserve these species.
    As described earlier, Castle and Cooke Resorts, LLC, has a history 
of entering into conservation agreements with various Federal and State 
agencies and nongovernmental organizations on important portions of 
their lands. These arrangements have taken a variety of forms. They 
include partnership commitments such as the Awehi Gulch Partners for 
Fish and Wildlife project, Puhielelu Exclosure (funded through section 
6 of the Act), Lanai Summit Fence project in concert with NRCS and the 
Service, Lanai Snail Fence, Lanai Forest Stewardship Project, Lanai 
Forest and Watershed Partnership, and the Kanepuu Preserve (perpetual 
easement to TNCH).
    Thus, we believe it is essential for the recovery of these 28 
species to build on the previous voluntary conservation efforts. 
Because the Federal government owns no land on Lanai, and because large 
tracts of land suitable for conservation of threatened and endangered 
species are owned by one private landowner, successful recovery of 
listed species on Lanai is especially dependent upon working 
partnerships and the voluntary cooperation of this landowner. Without 
additional voluntary conservation efforts for these 28 species, 
recovery will not occur.

(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion

    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding proposed unit Lanai D as critical 
habitat outweigh the benefits of including it as critical habitat for 
Abutilon eremitopetalum, Adenophorus periens, Bonamia menziesii, 
Brighamia rockii, Centaurium sebaeoides, Cenchrus agrimonioides, 
Clermontia oblongifolia ssp. mauiensis, Ctenitis squamigera, Cyanea 
grimesiana ssp. grimesiana, Cyanea lobata, Cyanea macrostegia ssp. 
gibsonii, Cyrtandra munroi, Diellia erecta, Diplazium molokaiensis, 
Gahnia lanaiensis, Hedyotis mannii, Hedyotis schlechtendahliana var. 
remyi, Hesperomannia arborescens, Hibiscus brackenridgei, Isodendrion 
pyrifolium, Labordia tinifolia var. lanaiensis, Melicope munroi, 
Neraudia sericea, Solanum incompletum, Spermolepis hawaiiense, 
Tetramolopium remyi, Vigna o-wahuensis, and Viola lanaiensis.
    This conclusion is based on the following factors:
    1. Large portions of proposed unit D (Lanaihale area) are currently 
being managed under the Lanai Forest and Watershed Partnership by the 
landowner on a voluntary basis in cooperation with us and the State of 
Hawaii to achieve important conservation goals. Building on this 
partnership approach, Castle and Cooke Resorts, LLC, has entered into a 
long-term agreement with the Service to manage the area within proposed 
unit D and adjacent areas for conservation. In the past, Castle and 
Cooke Resorts, LLC, has cooperated with us, the State, and other 
organizations to implement voluntary conservation activities on their 
lands that have resulted in tangible conservation benefits.
    2. Simple regulation of ``harmful activities'' is not sufficient to 
conserve these species. Landowner cooperation and support will be 
required to prevent the extinction and promote the recovery of all of 
the listed species on this island due to the need to implement 
proactive conservation actions such as ungulate management, weed 
control, fire suppression, and plant propagation. This need for 
landowner cooperation is especially acute because the proposed unit 
Lanai D is unoccupied by eleven of the 28 species. Future conservation 
efforts, such as translocation of these eleven plant species back into 
unoccupied habitat on the island, will require the cooperation of 
Castle and Cooke Resorts, LLC.
    3. Excluding proposed unit Lanai D will foster participation in 
ongoing and future voluntary conservation efforts on the island. We 
believe the memorandum of agreement with Castle and Cooke Resorts, LLC, 
documents this commitment to voluntary conservation efforts on their 
lands on Lanai. This cooperation is essential to the conservation of 
the species.
    4. Given the current watershed partnership and recent conservation 
agreements between the Service and the landowner, the Service believes 
the overall regulatory and educational benefits of including this unit 
as critical habitat are relatively small in comparison. The designation 
of critical habitat can serve to educate the general public as well as 
conservation organizations regarding the potential conservation value 
of an area, but this goal will be effectively accomplished through the 
identification of this area in the management agreements described 
above. Likewise, there will be little Federal regulatory benefit to the 
species because, as described in the economic analysis and in this 
rule, there is a low likelihood that this proposed critical habitat 
unit will be negatively affected to any significant degree by Federal 
activities requiring section 7 consultation. The Service is unable to 
identify any other potential benefits associated with critical habitat 
for this proposed unit.
    In conclusion, we find that the net benefits of excluding proposed 
unit Lanai D from critical habitat for these species outweigh the 
benefits of including it. As described above, the overall benefits to 
these species of a critical habitat designation for this unit are 
relatively small. We conclude there is a higher likelihood of 
beneficial conservation activities occurring on this portion of Lanai 
without designated critical habitat than there would be with designated 
critical habitat in this location. We reached this conclusion because 
active management is integral to the recovery of these species, which 
are found almost entirely on private land. The landowner is more likely 
to continue and increase their ongoing voluntary conservation efforts 
on the island if this area is not designated as critical habitat.

(4) Exclusion of This Unit Will Not Cause Extinction of the Species

    In considering whether or not exclusion of proposed unit D might 
result in the extinction of any of these 28 species, the Service first 
considered the impacts to the seven species endemic to Lanai (Abutilon 
eremitopetalum, Cyanea macrostegia ssp. gibsonii, Gahnia lanaiensis, 
Hedyotis schlechtendahliana var. remyi, Labordia tinifolia var. 
lanaiensis, Phyllostegia glabra var. lanaiensis, and Viola lanaiensis), 
and second to the 21

[[Page 1265]]

species known from Lanai and one or more other Hawaiian islands.
    For both the seven endemic and the 21 ``multi-island'' species, it 
is the Service's conclusion that the conservation agreement developed 
by Castle and Cooke Resorts, LLC, and agreed to by the Service will 
provide more net conservation benefits than would be provided by 
designating proposed unit D as critical habitat. This agreement, which 
is described above, will provide tangible proactive conservation 
benefits that will reduce the likelihood of extinction for all Lanai's 
listed plants and increase their likelihood of recovery. We believe 
that extinction of any these species as a consequence of this exclusion 
is unlikely because there are no known threats in proposed unit D due 
to any current or reasonably anticipated Federal actions that might be 
regulated under section 7 of the Act. Implementation of the 
conservation agreement between the landowner and the Service, and the 
exclusion of proposed unit D, has the highest likelihood of preventing 
extinction of these species, especially the species endemic to the 
island of Lanai.
    In addition, critical habitat is being designated on another area 
of Lanai for one species (Unit 1--Tetramolopium remyi), and critical 
habitat has been proposed and is likely to be designated on other 
islands for the remaining 20 multi-island species consistent with the 
guidance in recovery plans. These other designations identify 
conservation areas for the maintenance and expansion of the existing 
populations.
    In sum, the above analysis indicates there is a much greater 
likelihood of the landowner undertaking conservation actions on Lanai 
to prevent extinction without the proposed unit Lanai D being 
designated as critical habitat. Therefore, the exclusion of the 
proposed unit Lanai D will not cause extinction and should in fact 
improve the chances of recovery for Abutilon eremitopetalum, 
Adenophorus periens, Bonamia menziesii, Brighamia rockii, Centaurium 
sebaeoides, Cenchrus agrimonioides, Clermontia oblongifolia ssp. 
mauiensis, Ctenitis squamigera, Cyanea grimesiana ssp. grimesiana, 
Cyanea lobata, Cyanea macrostegia ssp. gibsonii, Cyrtandra munroi, 
Diellia erecta, Diplazium molokaiensis, Gahnia lanaiensis, Hedyotis 
mannii, Hedyotis schlechtendahliana var. remyi, Hesperomannia 
arborescens, Hibiscus brackenridgei, Isodendrion pyrifolium, Labordia 
tinifolia var. lanaiensis, Melicope munroi, Neraudia sericea, Solanum 
incompletum, Spermolepis hawaiiense, Tetramolopium remyi, Vigna o-
wahuensis, and Viola lanaiensis.

Taxonomic Changes

    At the time we listed Cyanea grimesiana ssp. grimesiana and Cyanea 
lobata, 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 of these species. Also, the soon-to-be-published book 
Hawaii's Ferns and Fern Allies (Palmer, in press) has changed the 
family name for Ctenitis squamigera from Aspleniaceae to 
Dryopteridaceae. Due to the court-ordered deadlines, we are required to 
publish this final rule to designate critical habitat on Lanai before 
we can prepare and publish a notice of taxonomic changes for these 
three species. We plan to publish a taxonomic change notice for these 
three species after we have published the final critical habitat 
designations on Lanai.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget (OMB) has determined that this is a significant regulatory 
action because it may raise novel legal or policy issues. As required 
by the executive order, we have provided a copy of the rule, which 
describes the need, for this action and how designation meets that need 
and the economic analysis, which assesses the costs and benefits of 
this critical habitat designation, to OMB for review. OMB did not 
recommend or make any changes in this regulatory action.

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

    Under the Regulatory Flexibility Act (RFA)(5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness 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 governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the RFA to require Federal agencies to provide a 
certification statement with the factual basis for certifying that the 
rule will not have a significant economic effect on a substantial 
number of small entities.
    As discussed in our Draft Economic Analysis, we are certifying that 
the critical habitat designation for the three Lanai species will not 
have a significant effect on a substantial number of small entities 
because the lands designated as critical habitat are owned solely by 
one landowner, Castle and Cooke Resorts, LCC, which is not a small 
entity as defined by RFA, as amended by the SBREFA. The following 
discussion explains our rationale.
    The regulatory flexibility analysis determines whether this 
critical habitat designation potentially affects a ``substantial 
number'' of small entities in counties supporting critical habitat 
areas. It also quantifies the probable number of small businesses 
likely to experience a ``significant effect.'' While SBREFA does not 
explicitly define either ``substantial number'' or ``significant 
effect,'' the Environmental Protection Agency and other Federal 
agencies have interpreted these terms to represent an impact on 20 
percent or more of the small entities in any industry and an effect 
equal or greater than three percent or more of a business' annual 
revenues. In both tests, this analysis conservatively examines the 
total estimated section 7 costs calculated in the Draft Economic 
Analysis, including those impacts that may be ``attributable co-
extensively'' with the listing of the species.
    The RFA/SBREFA defines ``small governmental jurisdiction'' as the 
government of a city, county, town, school district, or special 
district with a population of less than 50,000. By this definition, 
Maui County is not a small governmental jurisdiction because its 
population was 128,100 in 2000. Although certain State agencies, such 
as DLNR, may be affected by the proposed critical habitat designation, 
State governments are considered independent sovereigns, not small 
governments, for the purposes of the RFA.
    No primary projects or activities that might be affected by the 
proposed critical habitat are expected to affect small businesses. 
Castle and Cooke Resorts, LLC, the sole owner of the lands on which 
critical habitat is designated, may be adversely affected by a decrease 
in property values. However, this is a company that received over $13.5 
million in net income in 1999 (Lynch. February 7, 2000). It is 
therefore not considered to be a small business. Thus, the proposed 
critical habitat designation is not likely to affect small businesses 
on Lanai.

[[Page 1266]]

    Our Draft Economic Analysis does mention that some small businesses 
may be adversely affected if, in the unlikely event that the Department 
of Land and Natural Resources builds fences around the critical 
habitat, some businesses that cater to the hunting community may be 
adversely affected. However, courts have indicated that an RFA/SBREFA 
analysis is properly limited to the impacts on entities directly 
regulated by the regulation. American Trucking Ass'ns v. U.S. Envtl. 
Protection Agency, 178 F.3d 1027, 1045 (D.C. Cir. 1999); Mid-Tex Elec. 
Corp. v. Federal Energy Regulatory Comm'n, 88 F.3d 1105,1170 (D.C. Cir. 
1996). In this instance, that would mean that the RFA/SBREFA analysis 
should consider impacts on entities subject to section 7 consultation 
requirements, not entities regulated indirectly because of affiliation 
or relationship to a directly regulated entity. Thus entities that are 
not directly regulated by the critical habitat designation, such as 
businesses that supply hunters on Lanai, are not considered in this 
analysis.
    Since these three plant species were listed (between 1991 and 
1994), there have been no formal section 7 consultations and only seven 
informal section 7 consultations on Lanai, in addition to consultations 
on Federal grants to State wildlife programs. None of these 
consultations affected small entities. Two informal consultations were 
conducted on behalf of a private consulting firm, representing Maui 
Electric Company, who requested species lists for a proposed generating 
station at Miki Basin. None of the three species were reported from 
this area. Two informal consultations were conducted on behalf of the 
FAA for airport navigational or improvement projects. None of the three 
species were reported from the project areas. One informal consultation 
was conducted on behalf of the U.S. Department of the Navy regarding 
nighttime, low-altitude terrain flights and confined area landings over 
and on limited areas of northwestern Lanai by the Marine Corps. None of 
the three species were reported from the project area. One informal 
consultation was conducted on behalf of the U.S. Department of 
Agriculture Natural Resources Conservation Service (NRCS) for the 
construction of a wildlife exclusion fence and removal of nonnative 
ungulates from the enclosure, control of invasive nonnative plants 
within the enclosure, and outplanting of native plants in the Lanaihale 
watershed area. Two species, Bidens micrantha ssp. kalealaha and 
Tetramolopium remyi, were reported from the project area. Funding for 
the project will be provided by NRCS, through their Wildlife Habitat 
Incentive Program, to Castle and Cooke Resorts, LLC. One informal 
consultation was conducted on behalf of the Service, for the effects of 
fencing and replanting of listed and endangered species within Awehi 
Gulch. None of the three species were reported from the Awehi Gulch 
project area. In addition, we are in the process of determining a 
project area in the Lanaihale watershed for fencing and restoration of 
native vegetation. Funding for the project will be provided by the 
Service to Castle and Cooke Resorts, LLC, in partnership with the State 
DLNR. Only one of the three species (Tetramolopium remyi) is reported 
from the project area.
    We have determined that Maui Electric Company is not a small entity 
because it is not an independent non-profit organization, small 
governmental jurisdiction, or a small business. The FAA, U.S. 
Department of the Navy, and NRCS are not small entities. The informal 
consultations on the Lanaihale watershed area project and the Awehi 
Gulch project indirectly affected or concerned the major landowner on 
Lanai, Castle and Cooke Resorts, LLC. As stated above, we have 
determined that Castle and Cooke Resorts, LLC, is not a small entity 
because it is not a small retail and service business with less than $5 
million in annual sales nor is it a small agricultural business with 
annual sales less than $750,000. We concurred with the NRCS's 
determination that the Lanaihale watershed area project, as proposed, 
was not likely to adversely affect listed species. At this time, the 
Lanaihale watershed area projects are ongoing. Therefore, the 
requirement to reinitiate consultation for ongoing projects will not 
affect a substantial number of small entities on Lanai.
    In areas where the species is clearly not present, designation of 
critical habitat could trigger additional review of Federal activities 
under section 7, that would otherwise not be required. However, there 
will be little additional impact on State and local governments and 
their activities because two of the proposed critical habitat areas are 
occupied by at least one species. Other than the federally funded 
habitat restoration projects in the Lanaihale watershed area, we are 
aware of relatively few activities in the designated critical habitat 
areas for these three plants that have Federal involvement and thus 
would require consultation for ongoing projects. As mentioned above, we 
have conducted only seven informal consultations under section 7 on 
Lanai to date, and only one consultation involved any of the three 
species. As a result, we cannot easily identify future consultations 
that may be due to the listing 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.
    On Lanai, all of the designations are on private land under one 
landowner. Nearly all of the land within the critical habitat units is 
unsuitable for development, land uses, and activities. This is due to 
the units remote locations, lack of access, and rugged terrain. The 
majority of this land is within the State Conservation District, where 
State land-use controls severely limit development and most activities. 
Approximately 46 percent of this land is within the State Agricultural 
District, and less than one percent is within the State Rural District. 
On non-Federal lands, activities that lack Federal involvement would 
not be affected by the critical habitat designations. However, 
activities of an economic nature that are likely to occur on non-
Federal lands in the area encompassed by these designations consist of 
improvements in communications and tracking facilities; ranching; road 
improvements; recreational use, such as hiking, camping, picnicking, 
game hunting, and fishing; botanical gardens; and crop farming. With 
the exception of communications and tracking facilities improvements by 
the FAA or the Federal Communications Commission, these activities are 
unlikely to have Federal involvement. On lands that are in agricultural 
production, the types of activities that might trigger a consultation 
include irrigation ditch system projects that may require section 404 
authorizations from the Corps and watershed management and restoration 
projects sponsored by NRCS. However the NRCS restoration projects 
typically are voluntary, and the irrigation ditch system projects 
within lands that are in agricultural production are rare, and would 
likely affect only the major landowner on the island (who is not a 
small entity), within these critical habitat designations.
    Lands that are within the State Rural District are primarily 
located within undeveloped coastal areas. The types of activities that 
might trigger a consultation include shoreline restoration or 
modification projects that may require section 404 authorizations

[[Page 1267]]

from the Corps or FEMA, housing or resort development that may require 
permits from the Department of Housing and Urban Development, small 
farms that may receive funding or require authorizations from the 
Department of Agriculture, watershed management and restoration 
projects sponsored by NRCS, and activities funded or authorized by the 
EPA. However, we are not aware of a significant number of future 
activities that would require Federal funds, permits, or authorizations 
in these coastal areas.
    Even where the requirements of section 7 might apply due to 
critical habitat, 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--can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures, by definition, must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation. As we have a very limited consultation 
history for these three species from Lanai, we can describe only the 
general kinds of actions that may be identified in future reasonable 
and prudent alternatives. These are based on our understanding of the 
needs of these species and the threats they face, especially as 
described in the final listing rules and in this critical habitat 
designation, as well as our experience with similar listed plants in 
Hawaii. In addition, all of these species are protected under the State 
of Hawaii's Endangered Species Act (Hawaii Revised Statutes, Chap. 
195D-4). Therefore, we have also considered the kinds of actions 
required under the State licensing process for these species. The kinds 
of actions that may be included in future reasonable and prudent 
alternatives include conservation set-asides; management of competing 
non-native species; restoration of degraded habitat; propagation; 
outplanting and augmentation of existing populations; construction of 
protective fencing; and periodic monitoring. These measures are not 
likely to result in a significant economic impact to a substantial 
number of small entities because any measure included as a reasonable 
and prudent alternative would have to be economically feasible to the 
individual landowner and because, as discussed above, we do not believe 
there will be a substantial number of small entities affected by the 
Act's consultation requirements.
    In summary, we have determined that, because all of the critical 
habitat designations are on lands under one landownership and because 
that landowner is not a small entity, this rule would not affect a 
substantial number of small entities and would not result in a 
significant economic effect on a substantial number of small entities. 
Most of this private land within the areas being designated as critical 
habitat is currently being used for recreational or conservation 
purposes, and therefore is not likely to require any Federal 
authorization. In the remaining areas, Federal involvement--and thus 
section 7 consultations, the only trigger for economic impact under 
this rule--would be limited to a subset of the area being designated. 
The most likely future section 7 consultations resulting from this rule 
would be for informal consultations on federally funded land and water 
conservation projects, species-specific surveys and research projects, 
and watershed management and restoration projects sponsored by NRCS and 
the Service. These consultations would likely occur on only a subset of 
the total number of parcels, all under one ownership, and, therefore, 
would not affect a substantial number of small entities. This rule 
would result in project modifications only when proposed Federal 
activities would destroy or adversely modify critical habitat. While 
this may occur, it is not expected frequently enough to affect the 
single landowner. Even when it does occur, we do not expect it to 
result in a significant economic impact, as the measures included in 
reasonable and prudent alternatives must be economically feasible and 
consistent with the proposed action. Therefore, we are certifying that 
the designation of critical habitat for Bidens micrantha ssp. 
kalealaha, Portulaca sclerocarpa, and Tetramolopium remyi will not have 
a significant economic impact on a substantial number of small 
entities. Therefore, a regulatory flexibility analysis is not required.

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

    In the economic analysis, we determined whether designation of 
critical habitat would cause: (a) Any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. Refer to the final addendum to the economic analysis for a 
discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211, on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Although this rule is 
a significant regulatory action under Executive Order 12866, it is not 
expected to significantly affect energy production supply and 
distribution facilities. No energy production, supply, and distribution 
facilities are included within designated critical habitat. Further, 
for the reasons described in the economic analysis, we do not believe 
the designation of critical habitat for Bidens micrantha ssp. 
kalealaha, Portulaca sclerocarpa, and Tetramolopium remyi on Lanai will 
affect future energy production. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. 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.
    (b) This rule will not produce a Federal mandate on State or local 
governments or the private sector of $100 million or greater in any 
year; that is, it is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act. The designation of critical habitat 
imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the three species from Lanai in a 
takings implication assessment. The takings implications assessment 
concludes that this final rule does not pose significant takings 
implications.

[[Page 1268]]

Federalism

    In accordance with Executive Order 13132, this final rule does not 
have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of Interior policy, we requested 
information from appropriate State agencies in Hawaii. The designation 
of critical habitat in the two areas currently occupied by one or more 
of the three plant species imposes no additional restrictions beyond 
those currently in place; and, therefore, has little incremental impact 
on State and local governments and their activities. The designation of 
critical habitat in the remaining four unoccupied areas may require 
section 7 consultation on non-Federal lands (where a Federal nexus 
occurs) that might otherwise not have occurred. In these cases, the 
most likely scenario would be section 7 consultation on Federal funding 
for State game management programs. However, of the four unoccupied 
areas, only the Lanai 1--Tetramolopium remyi unit falls within a State 
Game Management Area (GMA), and the area in which the recently 
extirpated Tetramolopium remyi population occurred within the unit has 
already been fenced by the State for protection against damage by 
ungulates. Therefore, there will be little additional impact on State 
and local governments and their activities as a result of the 
designation of critical habitat in currently unoccupied areas on Lanai.
    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 Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have designated critical 
habitat in accordance with the provisions of the Endangered Species 
Act. The rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the three plant species 
from Lanai.

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

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) Executive Order 13175 and the Department of 
the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands essential for the conservation of these three 
plant species. Therefore, designation of critical habitat for these 
three species does not involve any Tribal lands.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


    2. Amend Sec.  17.12(h) by revising the entries for Bidens 
micrantha ssp. kalealaha, Portulaca sclerocarpa, and Tetramolopium 
remyi under ``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species
----------------------------------------------------   Historic range          Family            Status     When listed   Critical habitat     Special
        Scientific name              Common name                                                                                                rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                                      * * * * * * *
Bidens micrantha ssp. kalealaha  Kookoolau.........  U.S.A. (HI).......  Asteraceae........  E                      467  17.96(b)..........           NA
 
                                                                      * * * * * * *
Portulaca sclerocarpa..........  Poe...............  U.S.A. (HI).......  Portulacaceae.....  E                      532  17.96(b)..........           NA
 

[[Page 1269]]

 
                                                                      * * * * * * *
Tetramolopium remyi............  None..............  U.S.A. (HI).......  Asteraceae........  E                      435  17.96(b)..........           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec.  17.96 by adding a new paragraph (b) to read as 
follows:


Sec.  17.96  Critical habitat--plants.

* * * * *
    (b) Critical habitat; plants on the island of Lanai, Hawaii.
    (1) Maps and critical habitat unit descriptions. The following 
paragraphs contain the legal descriptions of the critical habitat units 
designated for the island of Lanai, Hawaii. Existing manmade features 
and structures within proposed areas, such as buildings, roads, 
aqueducts, reservoirs, diversions, flumes, telecommunications 
equipment, telemetry antennas, radars, missile launch sites, arboreta 
and gardens, heiau (indigenous places of worship or shrines), airports, 
other paved areas, lawns, other rural residential landscaped areas, 
electrical transmission and distribution, and communication facilities 
and regularly maintained associated rights-of way and access ways do 
not contain one or more of the primary constituent elements described 
for each species in paragraph (b)(2) of this section and therefore, are 
not included in the critical habitat designations. Critical habitat 
units are described below. Coordinates in UTM Zone 4 with units in 
meters using North American Datum of 1983 (NAD83). The following map 
shows the general locations of the six critical habitat units 
designated on the island of Lanai.

    (i) Note: Map 1--Index map follows:
BILLING CODE 4310-55-P

[[Page 1270]]

[GRAPHIC] [TIFF OMITTED] TR09JA03.001

BILLING CODE 4310-55-C

[[Page 1271]]

    (ii) Lanai 1--Tetramolopium remyi (151 ha; 373 ac).

    (A) Unit consists of the following nine boundary points: 708156, 
2313405; 709229, 2313365; 709970, 2313244; 710178, 2312821; 710182, 
2312686; 709754, 2312448; 708741, 2312566; 708241, 2312691; 708156, 
2313405.

    (B) Note: Map 2 follows:
    [GRAPHIC] [TIFF OMITTED] TR09JA03.002
    
    (iii) Lanai 2--Bidens micrantha ssp. kalealaha--North (53 ha; 131 
ac)

    (A) Unit consists of the following 20 boundary points: 718727, 
2301883; 718642, 2302092; 718720, 2302377; 718928, 2302637; 719228, 
2302896; 719550, 2302974; 719799, 2303078; 720193, 2302917; 720260, 
2302858; 719948, 2302788; 719846, 2302865; 719474, 2302802; 719277, 
2302635; 719253, 2302561; 719078, 2302494; 719042, 2302419; 719144, 
2302231; 719136, 2302009; 719078, 2301859; 718727, 2301883.

    (B) Note: Map 3 follows:
    [GRAPHIC] [TIFF OMITTED] TR09JA03.003
    
    (iv) Lanai 3--Bidens micrantha ssp. kalealaha--Middle (60 ha; 148 
ac)

    (A) Unit consists of the following 19 boundary points: 719582, 
2301162; 719361, 2301274; 719868, 2302031; 719968, 2302070; 720134, 
2302344; 720198, 2302369; 720411, 2302710; 720524, 2302530; 720931, 
2302147; 720741, 2302073; 720699, 2302012; 720600, 2302026; 720464, 
2301954; 720259, 2301901; 720187, 2301857; 720106, 2301890; 719937, 
2301876; 719749, 2301413; 719582, 2301162.

    (B) Note: Map 4 follows:
    [GRAPHIC] [TIFF OMITTED] TR09JA03.004
    
    (v) Lanai 4--Bidens micrantha ssp. kalealaha--South (48 ha; 118 ac)

    (A) Unit consists of the following 11 boundary points: 721438, 
2301740; 721647, 2301574; 720952, 2301142; 720824, 2300969; 720507, 
2300707; 720411, 2300796; 720164, 2300917; 720513, 2301353; 721094, 
2301439; 721161, 2301532; 721438, 2301740.

    (B) Note: Map 5 follows:

[[Page 1272]]

[GRAPHIC] [TIFF OMITTED] TR09JA03.005

    (vi) Lanai 5--Portulaca sclerocarpa--Coast (7 ha; 17 ac).

    (A) Area consists of the following 109 boundary points and the 
intermediate coastline: 716811, 2294534; 714416, 2294262; 714411, 
2294277; 714422, 2294291; 714456, 2294290; 714473, 2294280; 714478, 
2294247; 714484, 2294226; 714558, 2294267; 714568, 2294317; 714590, 
2294331; 714662, 2294292; 714689, 2294248; 714719, 2294280; 714735, 
2294279; 714745, 2294295; 714745, 2294323; 714766, 2294357; 714795, 
2294361; 714829, 2294349; 714833, 2294329; 714834, 2294305; 714838, 
2294281; 714832, 2294257; 714855, 2294254; 714880, 2294241; 714901, 
2294221; 714907, 2294204; 714937, 2294195; 714949, 2294166; 714960, 
2294158; 714995, 2294154; 715038, 2294145; 715070, 2294126; 715089, 
2294125; 715107, 2294172; 715130, 2294182; 715151, 2294225; 715167, 
2294229; 715188, 2294229; 715221, 2294240; 715245, 2294248; 715267, 
2294269; 715290, 2294289; 715314, 2294291; 715335, 2294295; 715357, 
2294305; 715377, 2294327; 715415, 2294331; 715439, 2294357; 715477, 
2294353; 715496, 2294344; 715533, 2294357; 715564, 2294356; 715580, 
2294347; 715605, 2294340; 715615, 2294316; 715619, 2294292; 715644, 
2294298; 715659, 2294286; 715669, 2294259; 715670, 2294239; 715660, 
2294219; 715671, 2294213; 715692, 2294216; 715715, 2294212; 715735, 
2294242; 715758, 2294268; 715763, 2294284; 715770, 2294312; 715799, 
2294336; 715787, 2294371; 715800, 2294392; 715821, 2294402; 715849, 
2294396; 715860, 2294364; 715893, 2294324; 715983, 2294259; 716003, 
2294252; 716014, 2294216; 716064, 2294227; 716070, 2294286; 716106, 
2294307; 716142, 2294307; 716174, 2294283; 716210, 2294248; 716239, 
2294258; 716264, 2294284; 716262, 2294373; 716275, 2294406; 716412, 
2294390; 716458, 2294326; 716484, 2294363; 716529, 2294395; 716585, 
2294452; 716619, 2294499; 716658, 2294508; 716683, 2294499; 716719, 
2294550; 716756, 2294581; 716802, 2294587; 716811, 2294534.

    (B) Note: Map 6 follows:
    [GRAPHIC] [TIFF OMITTED] TR09JA03.006
    
    (vii) Lanai 6--Portulaca sclerocarpa--Isle (1 ha; 2 ac)

    (A) Area consists of the entire offshore island located at 
approximately: 716391, 2294222.

    (B) Note: Map 7 follows:

[[Page 1273]]

[GRAPHIC] [TIFF OMITTED] TR09JA03.007


                      (viii) Protected Species Within Each Critical Habitat Unit for Lanai
----------------------------------------------------------------------------------------------------------------
             Unit name                Species occupied                      Species unoccupied
----------------------------------------------------------------------------------------------------------------
Lanai 1--Tetramolopium remyi......  ....................  Tetramolopium remyi.
Lanai 2--Bidens micrantha ssp.      ....................  Bidens micrantha ssp. kalealaha.
 kalealaha--North.
Lanai 3--Bidens micrantha ssp.      Bidens micrantha
 kalealaha--Middle.                  ssp. kalealaha.
Lanai 4--Bidens micrantha ssp.      ....................  Bidens micrantha ssp. kalealaha.
 kalealaha--South.
Lanai 5--Portulaca sclerocarpa--    ....................  Portulaca sclerocarpa.
 Coast.
Lanai 6--Portulaca sclerocarpa--    Portulaca
 Isle.                               sclerocarpa.
----------------------------------------------------------------------------------------------------------------

    (2) Hawaiian plants--Constituent elements; Flowering plants.

Family Asteraceae: Bidens micrantha ssp. kalealaha (kookoolau)

    Lanai 2--Bidens micrantha ssp. kalealaha--North, Lanai 3--Bidens 
micrantha ssp. kalealaha--Middle, and Lanai 4--Bidens micrantha ssp. 
kalealaha--South, identified in the legal descriptions in (b)(1)(iii), 
(b)(1)(iv), and (b)(1)(v) of this section, constitute critical habitat 
for Bidens micrantha ssp. kalealaha on Lanai. Within these units, the 
currently known primary

[[Page 1274]]

constituent elements of critical habitat include, but are not limited 
to, the habitat components provided by:
    (i) Gulch slopes in dry Dodonaea viscosa shrubland; and
    (ii) Elevations between 409 and 691 m (1,342 and 2,267 ft).

Family Asteraceae: Tetramolopium remyi (NCN)

    Lanai 1--Tetramolopium remyi, identified in the legal descriptions 
in (b)(1)(ii) of this section, constitutes critical habitat for 
Tetramolopium remyi on Lanai. Within this unit, the currently known 
primary constituent elements of critical habitat include, but are not 
limited to, the habitat components provided by:
    (i) Red, sandy, loam soil in dry Dodonaea viscosa-Heteropogon 
contortus communities with one or more of the following associated 
native species: Bidens mauiensis, Waltheria indica, Wikstroemia 
oahuensis, or Melanthera lavarum; and
    (ii) Elevations between 90 and 481 m (295 and 1,578 ft).

Family Portulacaceae: Portulaca sclerocarpa (poe)

    Lanai 5--Portulaca sclerocarpa--Coast and Lanai 6--Portulaca 
sclerocarpa--Isle, identified in the legal descriptions in (b)(1)(vi) 
and (b)(1)(vii) of this section, constitute critical habitat for 
Portulaca sclerocarpa on Lanai. Within these units, the currently known 
primary constituent elements of critical habitat include, but are not 
limited to, the habitat components provided by:
    (i) Exposed ledges in thin soil in coastal communities; and
    (ii) Elevations between 0 and 30 m (0 and 98 ft).

    Dated: December 27, 2002.
David P. Smith,
Acting Assistant Secretary of Fish and Wildlife and Parks.
[FR Doc. 03-130 Filed 1-8-03; 8:45 am]
BILLING CODE 4310-55-P