[Federal Register Volume 68, Number 99 (Thursday, May 22, 2003)]
[Rules and Regulations]
[Pages 28054-28075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11157]



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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; Designation of Critical 
Habitat for Five Plant Species From the Northwestern Hawaiian Islands, 
Hawaii; Final Rule

  Federal Register / Vol. 68, No. 99 / Thursday, May 22, 2003 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH09


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Five Plant Species From the Northwestern Hawaiian 
Islands, 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 five of six plant species known historically from 
the Northwestern Hawaiian Islands. The five species are Amaranthus 
brownii, Mariscus pennatiformis, Pritchardia remota, Schiedea 
verticillata, and Sesbania tomentosa. A total of approximately 493 
hectares (1,219 acres) of land on Nihoa, Necker, and Laysan Islands 
fall within the boundaries of the seven critical habitat units 
designated for the five species. This critical habitat designation 
requires the Service to consult 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 June 23, 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 List of Endangered and Threatened Plants (50 CFR 17.12(h)), 
there are six plant species that, at the time of listing, were reported 
from the Northwestern Hawaiian Islands (NWHI). Amaranthus brownii, 
Pritchardia remota, and Schiedea verticillata are endemic to the NWHI, 
while Cenchrus agrimonioides, Mariscus pennatiformis, and Sesbania 
tomentosa are reported from several other Hawaiian islands in addition 
to the NWHI (see Table 1).

                                          Table 1.--Summary of Island Distribution of Six Species From the NWHI
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Island distribution
                    Species                    ---------------------------------------------------------------------------------------------------------
                                                   Kauai       Oahu       Molokai      Lanai       Maui       Hawaii         NWHI, Kahoolawe, Niihau
--------------------------------------------------------------------------------------------------------------------------------------------------------
Amaranthus brownii (no common name)...........  ..........  ..........  ..........  ..........  ..........  ..........  Nihoa (C)
Cenchrus agrimonioides (kamanomano)...........  ..........           C  ..........          H            C          R   Kure (H*), Laysan (H), Midway
                                                                                                                         (H)
Mariscus pennatiformis (no common name).......          H           H   ..........  ..........           C          R   Laysan (C)
Pritchardia remota (loulu)....................  ..........  ..........  ..........  ..........  ..........  ..........  Nihoa (C), Laysan(**)
Schiedea verticillata (no common name)........  ..........  ..........  ..........  ..........  ..........  ..........  Nihoa (C)
Sesbania tomentosa (ohai).....................           C           C           C          H            C           C  Niihau (H), Kahoolawe (C),
                                                                                                                         Necker (C), Nihoa (C)
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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.
* Cenchrus agrimonioides var. laysanensis was last observed 23 years ago.
** It has been suggested that Pritchardia remota was the species of Pritchardia once extant on Laysan; however, this is not known for certain.
 NWHI include Kure Atoll, Midway Atoll, and Laysan, Necker, Nihoa islands.

    Although we considered designating critical habitat on the NWHI for 
each of the six plant species, for the reasons described below, the 
final designation includes critical habitat for five of six plant 
species. Species that also occur on other islands may have critical 
habitat designated on other islands in previous or subsequent 
rulemakings.

The Northwestern Hawaiian Islands

    The NWHI are a chain of islands that extend along a linear path for 
approximately 1,600 kilometers (km) (1,000 miles (mi)) in a 
northwestern direction from Nihoa Island to Kure Atoll and include the 
following: Nihoa Island, Necker Island, French Frigate Shoals, Gardner 
Pinnacles, Maro Reef, Laysan Island, Lisianski Island, Pearl and Hermes 
Atoll, Midway Atoll, and Kure Atoll (Figure 1). They are remnants of 
once larger islands that have slowly eroded and subsided and that exist 
today as small land masses or coral atolls covering the remnants of 
volcanic islands (Department of Geography 1998; Service 1998).

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[GRAPHIC] [TIFF OMITTED] TR22MY03.000

    Nihoa rises approximately 274 meters (m) (900 feet (ft)) above sea 
level and has an area of approximately 69 hectares (ha) (171 acres 
(ac)). Its steep topography and crater shape reveal its volcanic 
origin. Necker Island, less than 92 m (300 ft) in elevation and 19 ha 
(46 ac) in area, consists of thin-layered, weathered lava flows. La 
Perouse Pinnacles at French Frigate Shoals and Gardner Pinnacles are 
the last exposed volcanic remnants in the archipelago. French Frigate 
Shoals is a crescent-shaped atoll nearly 29 km (18 mi) across. More 
than a dozen small sandy islands dot the fringes of this atoll. Maro 
Reef is a largely submerged area marked by breakers and a few pieces of 
coral that intermittently protrude above the waterline. Laysan Island 
is approximately 405 ha (1,002 ac) in size and fringed by a reef. In 
the center of the island is a 52 ha (129 ac) hypersaline lagoon. 
Lisianski Island is 147 ha (364 ac) in size and bounded to the north by 
an extensive reef system. The central lagoon once found on this island 
has filled with sand. Pearl and Hermes Reef, an inundated atoll, 
includes nearly 40,469 ha (100,000 ac) of submerged reef and seven 
small sandy islets totaling less than 34 ha (85 ac). Midway Atoll is 
approximately 8 km (5 mi) in diameter and includes three islands: Sand, 
Eastern, and Spit. Both Sand and Eastern Islands have been highly 
altered by man. Kure Atoll is the northernmost exposed land in the 
Hawaiian archipelago. Two islands, Green and Sand, are found on the 
southern edge of the atoll and are included in the Hawaii State Seabird 
Sanctuary System. Green Island was altered considerably in the past and 
today suffers from enormous nonnative species problems (Elizabeth 
Flint, Service, pers. comm., 2000).
    One of the six listed plants was historically known from Kure Atoll 
(Cenchrus agrimonioides var. laysanensis), two were known from Laysan 
(C. agrimonioides var. laysanensis and Mariscus pennatiformis ssp. 
bryanii), one from Midway (C. agrimonioides var. laysanensis), four 
from Nihoa (Amaranthus brownii, Pritchardia remota, Schiedea 
verticillata, and Sesbania tomentosa), and one from Necker (Sesbania 
tomentosa) (see Table 1 above).
    Nihoa (209 km (140 mi) from Niihau) and Necker (an additional 290 
km (180 mi) northwest of Nihoa) are the islands in the northwestern 
group that are closest to the main Hawaiian Islands. Both are small, 
residual fragments of volcanoes that formed approximately 7.2 and 10.3 
million years ago, respectively (Service 1986). Although both of these 
islands were uninhabited at the time of their modern discovery in the 
late eighteenth century, there is an extensive heiau (indigenous place 
of worship or shrine) complex on Necker, and agricultural terraces and 
other Hawaiian archaeological features can be found on Nihoa (Cleghorn 
1984; Department of Geography 1998; Service 1986).
    In 1892, a guano mining business began operation on Laysan and 
flourished until 1904. During this time, rabbits were introduced to 
Laysan for a rabbit canning industry, and the rabbits were allowed to 
reproduce and roam freely (Morin and Conant 1998; Tomich 1986). This 
failed as a profitable business, and no attempt was made to control the 
number of rabbits on the island. The rabbits were finally eradicated 
from Laysan Island in the early 1920s, although not before the 
vegetation had been thoroughly devastated. Since then, the vegetation 
of Laysan has recovered to a remarkable degree, although some species, 
like the native palms (Pritchardia sp.) (lolou), are no longer 
naturally extant on the island (Tomich 1986; E. Flint, pers. comm., 
2000).
    Midway Atoll was discovered and named Middlebrook Islands in 1859 
by Captain Nick Brooks. The atoll was taken into possession by the 
United States in 1867, and in 1903, President Theodore Roosevelt placed 
the atoll under the control of the U.S. Navy. In 1935, Pan American 
World Airways set up an airbase for the weekly Trans-Pacific Flying 
Clipper Seaplane service. In 1941, the Japanese attacked Midway Atoll 
on their return from the attack on Pearl Harbor. In 1942, the United 
States defeated the Japanese Fleet north of the atoll, turning the tide 
of World War II in the Pacific. In 1988, the atoll was added to the 
National Wildlife Refuge (NWR) system, and in 1996, the jurisdiction of 
Midway Atoll was transferred from the U.S. Navy to the Department of 
the Interior (Service 2000). Despite this evidence of human use, these 
islands continue to support an assemblage of endemic plants and animals 
not found elsewhere in the archipelago (Department of Geography 1998).

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    Kure Atoll was discovered and named in 1827 by the captain of a 
Russian vessel. Between 1876 and 1936, Australian Copra & Guano Ltd. 
mined guano from Green Island and Sand Island, the two islands that 
make up Kure Atoll. Military bases were built on the islands during 
World War II, and a Loran C station with two 158 m (518 ft) high masts 
was operated until 1998. The towers are no longer on the islands. The 
airstrip built on Green Island is no longer usable, and landing is only 
possible by boat (Service 1998a).

Hawaiian Islands National Wildlife Refuge

    The reefs and islets of the Northwestern Hawaiian chain from Nihoa 
Island through Pearl and Hermes Atoll are protected as the Hawaiian 
Islands National Wildlife Refuge (HINWR). The HINWR was established in 
1909 to protect the large colonies of seabirds, which were being 
slaughtered for the millinery trade, and a variety of other marine 
organisms, including sea turtles and the critically endangered Hawaiian 
monk seal (Monachus schauinslandi), as well as to address the 
commercial exploitation of wildlife resources (Executive Order 1019). 
Within the refuge's boundaries are eight islands and atolls: Nihoa, 
Necker, French Frigate Shoals, Gardner Pinnacles, Maro Reef, Laysan, 
Lisianski, and Pearl and Hermes Atoll. There is no public or 
recreational use allowed at HINWR. Access is strictly regulated through 
a permit system because of the sensitivity of the organisms on these 
islands to human disturbance and the high risk of importation of 
nonnative plant and invertebrate species. For those who do access the 
refuge, strict quarantine procedures are in effect. Other than the 
refuge staff, only individuals conducting scientific research or 
undertaking natural history film recording have been granted official 
permission to visit the HINWR (E. Flint, pers. comm., 2002).

Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve

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

Discussion of Plant Taxa

Species Endemic to the Northwestern Hawaiian Islands

Amaranthus brownii (No Common Name (NCN))
    Amaranthus brownii, a member of the amaranth family 
(Amaranthaceae), is an herbaceous annual with leafy upright or 
ascending stems, 30 to 90 centimeters (cm) (1 to 3 ft) in length. The 
slightly hairy, alternate leaves are long, narrow, and more or less 
folded in half lengthwise. The species is monoecious, with male and 
female flowers being found on the same plant. Amaranthus brownii can be 
distinguished from other Hawaiian members of the genus by its spineless 
leaf axils (the points between the stem and a leaf branch), linear 
leaves, and indehiscent (remaining closed at maturity) fruits (Wagner 
et al., 1999).
    The growing season for Amaranthus brownii extends from December to 
June or July. Conant (1985) reported finding plants in an early 
flowering stage in February and collected seed from dead plants during 
June. Phenology may vary somewhat from year to year, depending on 
rainfall and climatic factors. Pollination vectors, seed dispersal 
agents, specific environmental requirements, and limiting factors for 
this species are unknown (Service 1998d).
    Amaranthus brownii is currently the rarest native plant on Nihoa 
(Conant 1985). When it was first collected in 1923, it was ``most 
common on the ridge leading to Miller's Peak, but abundant also on the 
ridges to the east'' (Herbst 1977). In 1983, the two known groups of 
colonies were separated by a distance of 0.4 km (0.25 mi) and contained 
a total of approximately 35 plants: one occurrence of about 23 plants 
near Miller's Peak and a second occurrence of approximately a dozen 
plants in three small groups in Middle Valley. No plants have been seen 
at either location since 1983, even though Service staff have surveyed 
for the species annually (Service 1998d). None of the surveys conducted 
since 1983 have been conducted in the winter months when this annual 
species is easiest to find and identify. Access to the island is 
particularly limited during the winter due to difficult and dangerous 
landing conditions (Cindy Rehkemper, Service, pers. comm., 2001).
    Amaranthus brownii typically grows in shallow soil on rocky 
outcrops. It is found in fully exposed locations at elevations between 
30 and 242 m (100 and 800 ft). Associated native plant taxa include 
Chenopodium oahuense (aheahea), Eragrostis variabilis (kawelu), Ipomoea 
indica (koali awa), Ipomoea pes-caprae ssp. brasiliensis (pohuehue), 
Panicum torridum (kakonakona), Scaevola sericea (naupaka), Schiedea 
verticillata (NCN), Sicyos pachycarpus (kupala), Sida fallax (ilima), 
and Solanum nelsonii (akia) (Hawaii Natural Heritage Program (HINHP) 
Database 2000).
    The threats to Amaranthus brownii on Nihoa include competition with 
the nonnative plant Portulaca oleracea (pigweed), alteration of 
substrate, fire, potential introduction of rats and mice, human 
disturbances, a risk of extinction from naturally occurring events 
(such as hurricanes), and reduced reproductive vigor due to the small 
number of extant individuals (Service 1998d).
Pritchardia remota (loulu)
    Pritchardia remota, a member of the palm family (Arecaceae), is a 
tree 4 to 5 m (13 to 16 ft) tall with a ringed, wavy trunk about 15 cm 
(5.9 in) in diameter. The rather ruffled, fan-shaped leaves are 
approximately 80 cm (31 in) in diameter and somewhat waxy to pale green 
with a few tiny scales on the lower surface. The flowering stalks, 
which can be up to 30 cm (12 in) in length, are branched, and the 
flowers are arranged spirally along the hairless stalks. Pritchardia 
remota is the only species of Pritchardia on Nihoa and can be 
distinguished from other species in the genus by its wavy leaves; 
short, hairless inflorescences; and small, round fruits (Read and Hodel 
1999; 61 FR 43178).
    Pritchardia remota is a long-lived perennial, and populations on 
Nihoa have remained stable for several years. Conant (1985) reported 
finding plants with fruit and flowers in the spring and summer. 
Phenology may vary somewhat from year to year, depending on rainfall 
and climatic factors. Pollination vectors, seed dispersal agents, 
specific environmental requirements, and limiting factors for this 
species are unknown (Service 1998d).
    Pritchardia remota occurs on Nihoa at elevations between 15 and 151 
m (50 and 500 ft) and may have historically occurred on Laysan Island 
as well (Beccari and Rock 1921). Currently, Pritchardia remota is known 
from four colonies on Nihoa that are found along 0.2 km (0.1 mi) of the 
length of two valleys on opposite sides of the island, approximately 
0.6 km (0.4 mi) apart. More than 680 plants, including seedlings, are 
found in West Palm Valley and at least 392 plants are found in East 
Palm Valley (HINHP Database 2000). A few individuals are also found at 
the bases of basalt cliffs on the steep outer slopes of each of the two 
valleys

[[Page 28057]]

(HINHP Database 2000). Pritchardia remota is also present in a 
shadehouse on Laysan Island as seedlings, from seeds collected at Nihoa 
for outplanting on Laysan as part of identified recovery efforts for 
this species (Service 1998d).
    Pritchardia remota is one of the few Hawaiian members of the genus 
that occurs in relatively dry climates like that found on Nihoa. Its 
distribution on Nihoa, however, may be related to availability of water 
since many individuals are found in valleys and near freshwater seeps 
(Service 1998d). In the Pritchardia remota coastal forest community, 
this species assumes complete dominance, creating a closed canopy and 
understory of thick layers of fallen fronds (Gagne and Cuddihy 1999). 
Native plants which occur nearby include Chenopodium oahuense, Sesbania 
tomentosa (ohai), Sida fallax, and Solanum nelsonii, (Service 1998d).
    The threats to Pritchardia remota on Nihoa include competition with 
nonnative plants, potential introduction of rats and mice, possible 
herbivory by nonnative insect species, fire, human disturbances, a risk 
of extinction from naturally occurring events (such as landslides), and 
reduced reproductive vigor due to the small number of extant 
individuals (Service 1998d).
Schiedea verticillata (NCN)
    Schiedea verticillata, a member of the pink family 
(Caryophyllaceae), is a perennial herbaceous species, which dies back 
to an enlarged root during the dry season. Stems, which can reach 0.4 
to 0.6 m (1.3 to 2 ft) in length, are both upright or pendant 
(drooping). The stalkless leaves are fleshy, broad, and pale green and 
are usually arranged in threes. Schiedea verticillata, the only member 
of its genus to grow in the NWHI, is distinguished from other species 
in the genus by its exceptionally large sepals and (usually) three 
leaves per node (Wagner et al., 1999).
    Schiedea verticillata is a short-lived perennial. Dr. Steve Weller, 
University of California at Irvine, found that Schiedea verticillata 
produces more seeds and more nectar than any other species in its 
genus. It also has the highest degree of genetic diversity among 
individuals of any species in the genus (Service 1998d). This species' 
reproductive cycle may not be seasonal, since Conant (1985) has found 
many life stages simultaneously throughout the year. Her observations 
also indicate that individual plants flower, set seed, and disperse 
seed in a relatively short period of time. Pollination vectors, seed 
dispersal agents, specific environmental requirements, and limiting 
factors for this species are unknown (Service 1998d).
    All but one of the historic colonies of Schiedea verticillata are 
known to be extant on Nihoa. Colony locations and plant numbers appear 
to shift, but total numbers islandwide have remained relatively stable 
for several years. Seven colonies, containing a total of 497 
individuals, were documented between 1980 and 1983 (HINHP Database 
2000). In 1992, Service staff counted between 170 and 190 plants in 6 
colonies. In 1996, a total of 359 plants, distributed in 10 colonies 
primarily on the western half of the island, were identified, with an 
occurrence of 13 plants on the east spur of the island near Tunnel 
Cave. Two previously unobserved colonies of 2 and 99 plants were 
located on the north cliffs above Miller's Valley. Other colonies 
included 24 plants at Dog's Head, 37 plants at Devil's Slide, 10 plants 
near Miller's Peak, a previously unknown occurrence of 62 plants on the 
ridge separating West and West Palm valleys, 80 plants near lower West 
Valley, 28 individuals near Pinnacle Peak, and 4 plants northeast of 
Pinnacle Peak (Service 1998).
    Schiedea verticillata typically grows in rocky scree, soil pockets, 
and cracks in coastal cliff faces and in Pritchardia remota coastal 
mesic forest at elevations between 30 and 242 m (100 and 800 ft). 
Associated native plant taxa include Eragrostis variabilis, Rumex 
albescens (huahuako), Tribulus cistoides (nohu), and lichens (HINHP 
Database 2000).
    The threats to Schiedea verticillata on Nihoa include competition 
with nonnative plant species, possible herbivory by nonnative insect 
species, potential introduction of rats and mice, human disturbances, a 
risk of extinction from naturally occurring events (such as 
rockslides), and reduced reproductive vigor due to the small number of 
individuals (Conant 1985; Service 1998d).

Multi-Island Species

Cenchrus agrimonioides (kamanomano)

    Cenchrus agrimonioides, a short-lived perennial member of the grass 
family (Poaceae), has leaf blades that are flat or folded and a 
prominent midrib. The species is distinguished from others in the genus 
by a cylindrical to lance-shaped bur and the arrangement and position 
of the bristles on the bur (O'Connor 1999; Wagner et al., 1999). The 
two varieties, C. agrimonioides var. laysanensis and C. agrimonioides 
var. agrimonioides, differ from each other in that C. agrimonioides 
var. laysanensis has smaller burs, shorter stems, and narrower leaves.
    Little is known about the life history of Cenchrus agrimonioides. 
It has been observed to produce fruit year round (Service 1999), but 
other information about its flowering, pollination vectors, seed 
dispersal agents, longevity, specific environmental requirements, and 
limiting factors is generally unknown.
    Historically, Cenchrus agrimonioides var. agrimonioides was known 
from Oahu, Lanai, Maui, and (in an undocumented report) the island of 
Hawaii (61 FR 53108; 65 FR 79192). Cenchrus agrimonioides var. 
laysanensis was historically known from Laysan and Midway Islands and 
Kure Atoll in the NWHI but has not been seen there since about 1980 
(HINHP Database 2000; O'Connor 1999). It occurred on coastal sandy 
substrate in Scaevola sericea-Eragrostis variabilis scrub at an 
elevation of 5 m (16 ft). Morin and Conant (1998) report that C. 
agrimonioides var. laysanensis disappeared from Laysan before 1923, 
from Midway Atoll sometime shortly after 1902, and was last seen on 
Green Island (Kure Atoll) in about 1980. Cenchrus agrimonioides var. 
laysanensis has not been relocated during periodic monitoring on Laysan 
for more than 20 years and has not been seen on Midway during recent 
surveys in 1995 and 1999. It has not been seen on Kure Atoll for over 
20 years, in spite of DOFAW's annual seabird surveys and a botanical 
survey conducted there as recently as 2001. In addition, no viable 
genetic material of this variety is known to exist. We believe that it 
is extremely unlikely that individual plants will be rediscovered on 
these three islands and atolls.
Mariscus pennatiformis (NCN)
    Mariscus pennatiformis is a member of the sedge family 
(Cyperaceae). It is a short-lived perennial with a woody root system 
covered with brown scales. The stout, three-angled stems are between 
0.4 and 1.2 m (1.3 and 4 ft) tall. This species differs from other 
members of the genus by its slightly concave, smooth stems; the length 
and number of spikelets (elongated flower-clusters); leaf width; and 
the length and diameter of stems. The two subspecies, M. pennatiformis 
ssp. bryanii and M. pennatiformis ssp. pennatiformis, are distinguished 
by the length and width of the spikelets; shape and length of the 
fruit; and color, length, and width of the glumes (scaly floral bracts) 
(Koyama 1990).
    At the time Mariscus pennatiformis was listed in 1994 (59 FR 
94559), we followed the taxonomic treatments in the Manual of the 
Flowering Plants of Hawaii (Wagner et al. 1990). Subsequent

[[Page 28058]]

to this, we became aware of a new taxonomic treatment for the species 
and plan to publish a notice of taxonomic change to formalize this 
change after publication of this final rule.
    Individuals of Mariscus pennatiformis on Laysan Island were closely 
monitored for 10 years, but the only flowering observed was of one 
individual from November to December, coinciding with record high 
rainfall (Service 1999). Little else is known about this plant's 
flowering cycles, pollination vectors, seed dispersal agents, 
longevity, specific environmental requirements, or limiting factors 
(Service 1999).
    Historically, Mariscus pennatiformis was found on Kauai, Oahu, 
Maui, Hawaii, and Laysan Island. Currently, M. pennatiformis ssp. 
pennatiformis is found on Maui while M. pennatiformis ssp. bryanii is 
known only from Laysan Island. This subspecies, M. pennatiformis ssp. 
bryanii, was found until recently on the southeast end of the central 
lagoon and the west and northeast sides of Laysan (HINHP Database 2000; 
Koyama 1990). Numbers have fluctuated from as many as 200 to only 1 
individual over the past 10 years. Currently, a single occurrence of 
about 200 individuals of M. pennatiformis ssp. bryanii remains on the 
southeast end of the lagoon (Service 1999).
    Mariscus pennatiformis ssp. bryanii is found on coastal sandy 
substrate at an elevation of 5 m (16 ft). Associated native species 
include Cyperus laevigatus (makaloa), Eragrostis variabilis, and 
Ipomoea sp. (HINHP Database 2000; Koyama 1990).
    The threats to Mariscus pennatiformis ssp. bryanii on the island of 
Laysan include seed predation by the endangered Laysan finch (Telespiza 
cantans) and burrowing activities of nesting seabirds. The native plant 
Ipomoea pes-caprae (beach morning glory) is another possible threat 
since it periodically overgrows Mariscus individuals (Service 1999). In 
addition, native Sicyos spp. (anunu) vines, Eragrostis variabilis, and 
Boerhavia repens (alena) appear to impede natural dispersal of M. 
pennatiformis ssp. bryanii into other suitable locations (Schultz 
2000).
Sesbania tomentosa (ohai)
    Sesbania tomentosa, a member of the legume family (Fabaceae), is 
typically a sprawling short-lived perennial shrub to small tree. Each 
compound leaf consists of 18 to 38 oblong to elliptic leaflets that are 
usually sparsely to densely covered with silky hairs. The flowers are 
salmon-colored 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 Sesbania sesban in flower 
color, petal and calyx length, and the number of seeds per pod (Geesink 
et al. 1999).
    The pollination biology of Sesbania tomentosa has been studied by 
Dr. David Hopper as part of his dissertation research conducted at the 
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 colonies 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 Nihoa and Necker. Although once found on Niihau and Lanai, it is 
no longer extant on those islands (Geographic Decision Systems 
International (GDSI) 2000; HINHP Database 2000; Service 1999; 54 FR 
56333). On Nihoa, this species has been described as relatively common 
in some areas, with one population consisting of several thousand 
plants. On Necker Island, S. tomentosa is known from the tops of all 
hills of the main island. A few individuals are found on the Northwest 
Cape as well (Service 1999).
    Sesbania tomentosa is found in shallow soil on sandy beaches and 
dunes in Chenopodium oahuense coastal dry shrubland or mixed coastal 
dry cliffs at elevations up to 84 m (276 ft) (HINHP Database 2000). 
Associated plant species include Pritchardia remota, Scaevola sericea, 
Sida fallax, and Solanum nelsonii (Geesink et al. 1999; HINHP Database 
2000; Service 1999).
    The primary threats to Sesbania tomentosa on Nihoa and Necker 
include competition with various nonnative plant species, lack of 
adequate pollination, potential introduction of rats and mice, 
predation by nonnative insects, and fire (Service 1999).

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 Pritchardia remota and Sesbania tomentosa (as S. hobdyi and S. 
tomentosa var. tomentosa) were considered endangered. On July 1, 1975, 
we published a notice in the Federal Register (40 FR 27823) of our 
acceptance of the Smithsonian report as a petition within the context 
of section 4(c)(2) (now section 4(b)(3)) of the Act, and we 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 Amaranthus brownii, Cenchrus 
agrimonioides var. laysanensis, and Sesbania tomentosa. The list of 
1,700 plant taxa was assembled on the basis of comments and data 
received by the Smithsonian Institution and the Service in response to 
House Document No. 94-51 and the July 1, 1975, Federal Register 
publication (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. The Service published updated Notices 
of Review for plants on December 15, 1980 (45 FR 82479), September 27, 
1985 (50 FR 39525), February 21, 1990 (55 FR 6183), and September 30, 
1993 (58 FR 51144). We listed Amaranthus brownii, Cenchrus 
agrimonioides, Mariscus pennatiformis, Pritchardia remota, Schiedea 
verticillata, and Sesbania tomentosa as endangered between 1994 and 
1996. A summary of the listing actions can be found in Table 2, and a 
summary of the critical habitat actions can be found in Table 3.

[[Page 28059]]



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


  Table 3.--Summary of Critical Habitat Actions, to Date, for Six Plant Species From the Northwestern Hawaiian
                                                     Islands
----------------------------------------------------------------------------------------------------------------
                                       Proposed critical habitat                 Final critical habitat
                                    designations or nondesignations    -----------------------------------------
            Species             ---------------------------------------
                                   Date(s)        Federal Register        Date(s)         Federal Register
----------------------------------------------------------------------------------------------------------------
Amaranthus brownii.............     05/14/02  67 FR 34522                    (\1\)  This final rule.
Cenchrus agrimonioides.........     12/18/00  65 FR 79192                 05/14/03  68 FR 25934.
                                    04/03/02  67 FR 15856
                                    03/04/02  67 FR 9806
Mariscus pennatiformis.........     12/18/00  65 FR 79192                 02/27/03  68 FR 9116.
                                    01/28/02  67 FR 3940                  05/15/03  68 FR 25934.
                                    04/03/02  67 FR 15856
                                    05/14/02  67 FR 34522
                                    05/28/02  67 FR 15856
                                    05/28/02  67 FR 36968
Pritchardia remota.............     05/14/02  67 FR 34522                    (\1\)  This final rule.
Schiedea verticillata..........     05/14/02  67 FR 34522                    (\1\)  This final rule.
Sesbania tomentosa.............     11/07/00  65 FR 66808                 02/27/03  68 FR 9116.
                                    12/18/00  65 FR 79192                 03/18/03  68 FR 12982.
                                    12/29/00  65 FR 83158                 05/14/03  68 FR 25934.
                                    01/28/02  67 FR 3940                     (\1\)  This final rule.
                                    04/03/02  67 FR 15856
                                    03/04/02  67 FR 9806
                                    04/05/02  67 FR 16492
                                    05/14/02  67 FR 34522
                                    05/28/02  67 FR 37108
                                    05/28/02  67 FR 36968
----------------------------------------------------------------------------------------------------------------
\1\ See DATES section of this rule.

    At the time each of the six plants were listed, we determined that 
designation of critical habitat was not prudent because it would not 
benefit the plant or would increase the degree of threat to the 
species. The not prudent determinations for these species, along with 
others, were challenged in Conservation Council for Hawaii v. Babbitt, 
2 F. Supp. 2d 1280 (D. Haw. 1998). On March 9, 1998, the United States 
District Court for the District of Hawaii directed us to review the 
prudency determinations for 245 listed plant species in Hawaii, 
including Amaranthus brownii, Cenchrus agrimonioides, Mariscus 
pennatiformis, Pritchardia remota, Schiedea verticillata, and Sesbania 
tomentosa. Among other things, the court held that in most cases we did 
not sufficiently demonstrate that the species are threatened by human 
activity or that such threats would increase with the designation of 
critical habitat. The court also held that we failed to balance any 
risks of designating critical habitat against any benefits (id. at 
1283-85).
    On August 10, 1998, the court ordered us to publish proposed 
critical habitat designations or nondesignations for at least 100 
species by November 30, 2000, and to publish proposed designations or 
nondesignations for the remaining 145 species by April 30, 2002 
(Conservation Council for Hawaii v. Babbitt, 24 F. Supp. 2d 1074 (D. 
Haw., 1998)).
    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, nonprofit organizations, county 
governments, the State's Division of Forestry and Wildlife (DOFAW), 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, chill cooperative projects, 
polarize relationships with hunters, or potentially increase trespass 
or vandalism on private lands. In addition, commenters also cited a 
lack of information on the biological and ecological needs of these 
plants, which, they suggested, may lead to designation based on 
guesswork. The respondents who supported the designation of critical 
habitat cited that designation

[[Page 28060]]

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.
    On November 7, 2000, we published the first of the court-ordered 
proposed critical habitat designations or nondesignations for Kauai and 
Niihau plants (65 FR 66808). The proposed critical habitat designations 
or nondesignations for Maui and Kahoolawe plants were published on 
December 18, 2000 (65 FR 79192), for Lanai plants on December 27, 2000 
(65 FR 82086), and for Molokai plants on December 29, 2000 (65 FR 
83158). All of these proposed rules had been sent to the Federal 
Register by, or on, November 30, 2000, as required by the court's 
order. In those proposals, we proposed that critical habitat was 
prudent for three of the NWHI species (Cenchrus agrimonioides, Mariscus 
pennatiformis, and Sesbania tomentosa) that are reported from Kauai 
and/or Niihau, as well as from Maui and Molokai. Critical habitat was 
proposed for Cenchrus agrimonioides and Mariscus pennatiformis on Maui, 
and for Sesbania tomentosa on Kauai, Maui, and Molokai.
    On October 3, 2001, we submitted a joint stipulation with 
Earthjustice to the U.S. District Court 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, we published revised proposed critical habitat 
designations or nondesignations for plant species from Kauai and Niihau 
(67 FR 3940), for plant species from Lanai on March 4, 2002 (67 FR 
9806), for plant species from Maui and Kahoolawe on April 3, 2002 (67 
FR 15856), and for plant species from Molokai on April 5, 2002 (67 FR 
16492); these proposals included critical habitat on one or more 
islands for three of the NWHI species: Cenchrus agrimonioides, Mariscus 
pennatiformis, and Sesbania tomentosa.
    On May 14, 2002, we published the proposed critical habitat 
designations or nondesignations for plant species from the NWHI (67 FR 
34522), for Hawaii Island plants on May 28, 2002 (67 FR 36968), and for 
Oahu plants on May 28, 2002 (67 FR 37108). These proposed rules were 
sent to the Federal Register by April 30, 2002, as required by the 1998 
court order.
    In the May 14, 2002, proposal, critical habitat was proposed for 
493 ha (1,219 ac) on Nihoa, Necker, and Laysan Islands. In that 
proposed rule, we indicated that critical habitat was prudent, and we 
proposed critical habitat, for Amaranthus brownii, Pritchardia remota, 
and Schiedea verticillata. We also proposed critical habitat for 
Mariscus pennatiformis and Sesbania tomentosa. Critical habitat was not 
proposed for Cenchrus agrimonioides in the NWHI because the only 
variety of that species that occurs there, C. a var. laysanensis, has 
not been seen in the wild for over 20 years and no genetic material of 
this variety is known to exist. Publication of the proposed rule opened 
a 60-day public comment period.
    On July 11, 2002, we submitted joint stipulations with Earthjustice 
to the U.S. District Court 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), the 
Northwestern Hawaiian Islands (April 30, 2003), Oahu (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 September 12, 2002, we published a notice announcing the 
availability of the draft economic analysis on the proposed critical 
habitat for NWHI (67 FR 57784). We accepted comments on the draft 
analysis until the comment period closed on October 15, 2002.

Summary of Comments and Recommendations

    In the proposed rule published on May 14, 2002 (67 FR 34522), we 
requested that all interested parties submit written comments on the 
proposed designation or nondesignation of critical habitat for six 
plant species from the NWHI. We also contacted all appropriate Federal, 
State, and local agencies, scientific organizations, and other 
interested parties and invited them to comment. No request for a public 
hearing was received. We received individually written letters from 13 
parties, including 4 of the 13 designated peer reviewers, 2 State 
agencies, 2 branches of the military, and 5 private organizations or 
individuals. The majority of commenters supported the designation of 
critical habitat for the NWHI, and no commenters were expressly opposed 
to the designation.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited independent opinions from 13 knowledgeable 
individuals with expertise in one or several fields, including 
familiarity with the species, the geographic region that the species 
occurs in, and knowledge of the principles of island conservation 
biology. We received comments from four of these individuals who 
generally supported our methods and conclusion and who provided 
additional information. Comments received from peer reviewers are 
summarized in the following section and were considered in the 
development of the final rule.
    All comments received were reviewed for substantive issues, 
notation of errors, and new information regarding critical habitat for 
Amaranthus brownii, Cenchrus agrimonioides, Mariscus pennatiformis, 
Pritchardia remota, Schiedea verticillata, and Sesbania tomentosa. 
Similar comments received were grouped into four general issues and are 
addressed in the following summary.

Issue 1: Biological Justification and Methodology

    (1) Comment: One peer reviewer questioned the Service for 
considering all three critical habitat units (Nihoa, Necker, and Laysan 
Islands) to be critical habitat for Amaranthus brownii, Mariscus 
pennatiformis, Pritchardia remota, Schiedea verticillata, and Sesbania 
tomentosa as there is no record that any of these species occurred on 
all three islands and as at least one species (i.e., Mariscus 
pennatiformis ssp. bryanii) is a single-island endemic.
    Our Response: All three islands are not considered to be critical 
habitat for all five of the species. On Nihoa Island, critical habitat 
is designated for Amaranthus brownii, Pritchardia remota, Schiedea 
verticillata, and Sesbania tomentosa. On Necker Island, critical 
habitat is designated for Sesbania tomentosa, and on Laysan Island 
critical habitat is designated for Mariscus pennatiformis and 
Pritchardia remota (as a recovery population). The critical habitat 
units on each island are designated for species within extant or 
historic range or within areas identified in the recovery plans for 
conservation of the species.

[[Page 28061]]

Issue 2: Effects of Critical Habitat Designation

    (2) Comment: One peer reviewer noted that while the designation of 
critical habitat is unlikely to have a major impact on the future of 
NWHI plant species, it would increase awareness of the unique 
biological attributes of these islands and ultimately increase the 
likelihood that these species will persist. Another reviewer supported 
the designation of critical habitat stating that such designation would 
provide an added, and much needed, layer of protection for plant 
habitat insofar as: (1) The Departments of the Interior and Commerce 
disagree on the seaward boundaries of the HINWR; (2) the State of 
Hawaii has overlapping jurisdiction with the HINWR; (3) a public 
process is currently in motion to establish a National Marine Sanctuary 
in the NWHI, which could create an increased commercial interest in 
eco-tourism in the area; and (4) the native Hawaiian community has 
expressed a desire for access to Nihoa and Necker Islands for 
ceremonial purposes. A final reviewer stated that, although the 
protection afforded by the designation of critical habitat is unclear, 
such designation has advocacy value because the courts are more likely 
to find violations of the Act for listed species within such habitat.
    Our Response: Critical habitat is one of a number of conservation 
tools established in the Act.
    (3) Comment: One reviewer commented that the Service should 
consider unoccupied, historic habitat that falls outside of the HINWR 
(i.e., Kure Atoll) for designation as critical habitat as some plant 
species may need to be re-introduced into such habitat to avoid 
extinction. Another reviewer expressed concern that the Service was 
restricting the designation of critical habitat to areas within the 
HINWR in order to avoid public controversy.
    Our Response: We recognize that the long-term conservation of the 
NWHI species is dependent upon the protection of existing populations 
and the establishment and protection of additional populations within 
the historic range (i.e., unoccupied habitat) of each species or within 
areas identified in the recovery plans for conservation of the species. 
As such, we examined the current and historically occupied habitat, and 
areas identified in the recovery plans for conservation of the species. 
For Amaranthus brownii, Pritchardia remota, and Schiedea verticillata, 
species known only from the islands within the NWHI, we were able to 
locate sites within the HINWR that: (1) Contain the primary constituent 
elements that are essential to the conservation of one or more of the 
species; (2) are within the historical range or are identified in the 
recovery plans for conservation of one or more of the species; and (3) 
are sufficient to meet our overall recovery goals for these species. 
For Mariscus pennatiformis, the only subspecies known from the NWHI is 
M. p. ssp. bryanii. Critical habitat also is designated for this taxon 
on Laysan Island. Critical habitat also was designated for M. p. ssp. 
pennatiformis on Kauai and Maui (68 FR 9116, 68 FR 25934, May 14, 2003) 
and is proposed on Oahu (67 FR 37108). Critical habitat was designated 
on Nihoa and Necker for Sesbania tomentosa as well as Kauai, Molokai, 
and Maui (68 FR 9116, 68 FR 12982, 68 FR 25934, May 14, 2003) and is 
proposed on Oahu and the island of Hawaii (67 FR 37108, 67 FR 36968).
    We are not designating critical habitat for Cenchrus agrimonioides 
at this time for the following reasons: C. a. var. laysanensis, the 
only variety of this species known from the NWHI, is historically known 
from Laysan, Midway, and Kure Atoll. This plant has not been reported 
on Laysan and Midway for over 70 and 100 years, respectively. A 
permanent year-round camp on Laysan, staffed by paid employees and 
volunteers, conducts periodic monitoring of both native and nonnative 
plant species, and C. a. var. laysanensis has not been seen during 
these monitoring efforts. On Midway, C. a. var. laysanensis was not 
seen during the most recent botanical surveys of 1995 and 1999. 
Cenchrus agrimonioides var. laysanensis has not been seen on Kure Atoll 
for over 20 years though the State DOFAW conducts annual seabird 
surveys and a botanical survey was conducted there as recently as 2001. 
In addition, no viable genetic material of this variety is known to 
exist (see D. Criteria Used to Identify Critical Habitat). The 
rediscovery of currently unknown individual plants on these three 
islands and atolls is believed to be extremely unlikely.
    (4) Comment: The Office of Hawaiian Affairs, a State agency, 
commented that critical habitat must allow 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 Pa akai o Ka Aina decisions.
    Our Response: We understand and support the cultural significance 
of these islands to the Native Hawaiian people, and it is our policy to 
permit religious and ceremonial gatherings as long as they do not 
result in effects that are deleterious to habitat for listed species or 
biota of the islands or that could compromise human safety. Typically, 
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. However, Nihoa, Necker, 
and Laysan Islands, and their surrounding reefs, are part of the HINWR, 
which we manage in accordance with the National Wildlife Refuge System 
Administration Act of 1966. There is no general public or recreational 
use allowed at HINWR. Access is strictly regulated through a permit 
system because of the sensitivity of the organisms on these islands to 
human disturbance and the high risk of importation of nonnative plant 
and invertebrate species. Other than the refuge staff, only individuals 
conducting scientific research or undertaking natural history film 
recording have been granted official permission to visit the HINWR, and 
these persons are required to apply for a Special Use Permit and abide 
by the terms and conditions set forth in this permit in order to ensure 
that the biological integrity, diversity, and environmental health of 
the refuge are maintained for the benefit of present and future 
generations of Americans (E. Flint, pers. comm., 2002). Examples of 
preventative measures put in place by the Special Use Permit program 
include quarantine protocols to prevent introduction of unwanted plants 
or insects, and a limitation on the number of people on the island(s) 
at any one time. In addition, through the Special Use Permit program, 
we are able to protect the cultural artifacts present on these islands.

Issue 3: Species-Specific Biological Comments

    (5) Comment: One peer reviewer found it unlikely that the species 
of Pritchardia that once occurred on Laysan Island would have been 
Pritchardia remota. Species of this genus are single-island endemics, 
and no collections of Pritchardia remota are known from Laysan Island. 
This reviewer did feel that the introduction of Pritchardia remota to 
Laysan Island was ecologically appropriate given that there is suitable 
habitat for the species and that the species of Pritchardia that once 
occurred on Laysan Island is no longer extant.
    Our Response: The now extinct species of Pritchardia that once 
occurred on Laysan Island was not clearly identified; however, the idea 
that P. remota did occur on Laysan was suggested by Joseph Rock in 
1921. We have revised the text in the final rule to

[[Page 28062]]

reflect the uncertainty of the species that was once extant on Laysan. 
Pritchardia remota has been recommended as a replacement because it is 
believed to be closest to the species of Pritchardia that once was 
present on the island. The recovery plan prepared for three plant 
species on Nihoa Island, including P. remota, proposes establishing a 
population on Laysan Island as part of the recovery process for this 
species. HINWR staff are working with staff from our Ecological 
Services, Pacific Islands Office, in this effort. At one time, there 
were 11 palms outplanted on Laysan from seeds brought directly from 
Nihoa Island. These survived until they were flooded by high lake 
levels and died. HINWR staff now have approximately 400 seedlings (from 
seed gathered at Nihoa Island) in a shade house on Laysan Island. These 
will be outplanted to suitable habitat on Laysan (E. Flint, pers. 
comm., 2002).
    (6) Comment: One peer reviewer commented that it is essential that 
surveys for Amaranthus brownii be conducted on Nihoa Island in the 
winter to maximize its detection. This reviewer feels that it is 
inappropriate to recommend protective measures for a plant whose 
population has not been assessed in 20 years.
    Our Response: Amaranthus brownii was last seen on Nihoa Island in 
1983 as two colonies that totaled 35 plants. We have surveyed Nihoa for 
this species for over 20 years. While we agree that the winter months 
are the optimal time to survey for this winter annual species, as it is 
more easily detected during this period, access to the island during 
this season is extremely limited. Landings during the winter months can 
be difficult and dangerous due to sea conditions that can change 
without warning, stranding visitors on an island with a limited source 
of fresh water and no regular food supply. Because Amaranthus brownii 
was detected on Nihoa Island in 1983 and habitat conditions are the 
same, we consider the species to be extant (as a seedbank) and have 
found it appropriate to designate critical habitat for this species on 
Nihoa Island.
    (7) Comment: One peer reviewer requested that the Service use 
Cyperus pennatiformis, the currently accepted name for Mariscus 
pennatiformis. Concern was expressed, as the current nomenclature is 
what will be used in scientific and grey literature, that there could 
be confusion otherwise. The reviewer also noted that Cyperus 
pennatiformis ssp. bryanii occurs only on Laysan Island and that C. p. 
ssp. pennatiformis occurs on Kauai, Maui, Oahu, and Hawaii. As such, C. 
p. ssp. bryanii should be acknowledged as a distinct genetic 
population, even if the subspecies are not separately listed under the 
Act.
    Our Response: We acknowledge that the current accepted nomenclature 
for this species has changed since the final rule listing Mariscus 
pennatiformis as endangered was published in 1994 (59 FR 94559). At 
that time, however, we followed the accepted taxonomic treatment in The 
Manual of Flowering Plants of Hawaii (Wagner et al. 1990). In the 
revised edition of the manual (Wagner et al. 1999), the species has 
been assigned to the genus Cyperus, and its subspecies are now 
varieties (Strong & Wagner 1997; Wagner et al. 1999). We plan to 
publish a notice revising the name for this species; however, this 
could not be accomplished prior to the completion of this final rule. 
The discussion of Mariscus pennatiformis in the section on Multi-Island 
Species under ``Discussion of Plant Taxa'' states that M. p. ssp. 
bryanii occurs only on Laysan Island. Listing as endangered at the 
species level provides protection for all varieties and subspecies of 
the species. Critical habitat is designated on Laysan Island for M. p. 
ssp. bryanii. Critical habitat was designated for M. p. ssp. 
pennatiformis on Kauai and Maui (68 FR 9116, 68 FR 25934, May 14, 2003) 
and is proposed on Oahu (67 FR 37108).
    (8) Comment: One reviewer expressed concern regarding the Service's 
decision not to designate critical habitat for Cenchrus agrimonioides 
var. laysanensis because the taxon had not been seen in the wild for 
over 20 years and no viable genetic material is known to exist. The 
reviewer asserts that there have been no comprehensive botanical 
surveys of all of the islands where the taxon was known to exist, 
citing that the Service had made a similar decision for another plant 
species on Kauai, only to have it rediscovered.
    Our Response: Critical habitat is not designated for Cenchrus 
agrimonioides var. laysanensis, the only variety of this species known 
from the NWHI, for the following reasons: C. a. var. laysanensis is 
historically known from Laysan, Midway, and Kure Atoll. This plant has 
not been reported on Laysan and Midway for over 70 and 100 years, 
respectively. A permanent year-round camp on Laysan, staffed by paid 
employees and volunteers, conducts periodic monitoring of both native 
and nonnative plant species, and C. a. var. laysanensis has not been 
seen during these monitoring efforts. On Midway, C. a. var. laysanensis 
was not seen during the most recent botanical surveys of 1995 and 1999. 
Cenchrus agrimonioides var. laysanensis has not been seen on Kure Atoll 
for over 20 years though the State DOFAW conducts annual seabird 
surveys and a botanical survey was conducted there as recently as 2001. 
In addition, no viable genetic material of this variety is known to 
exist. The rediscovery of currently unknown individual plants on these 
three islands and atolls is believed to be extremely unlikely (see D. 
Criteria Used to Identify Critical Habitat).

Issue 4: Nonnative Species

    (9) Comment: One peer reviewer commented that the most important 
factor in maintaining biota on these remote islands is to have a 
vigorous and comprehensive quarantine system and a method to eliminate 
and investigate unauthorized landings. Additionally, the reviewer 
stressed the crucial nature of both an active and proactive eradication 
and management scheme for nonnative species.
    Our Response: We have in place quarantine procedures for the HINWR, 
which include very strict measures to prevent the introduction of 
invasive invertebrate and vertebrate species. On islands where invasive 
nonnative species have already been introduced, we are implementing 
measures targeted at their eradication. In those areas where such 
eradication efforts have not yet been initiated, we are gathering 
information on methods by which we can best control and eliminate 
invasive taxa. Text was also provided in the ``Discussion of Plant 
Taxa'' to make it clear that the presence of rats and mice on Nihoa, 
Necker, and Laysan was a potential threat as these nonnative species 
are not currently present.

Summary of Changes From the Proposed Rule

    Based on a review of public comments received on the critical 
habitat proposal, we have included the following several changes in 
this final rule:
    (1) Based upon more refined GIS analysis, we corrected the total 
land area, 498 ha (1,232 ac) proposed as critical habitat for 
Pritchardia remota and Mariscus pennatiformis on Laysan Island to 493 
ha (1,219 ac) designated as critical habitat for Pritchardia remota and 
Mariscus pennatiformis on Laysan Island.
    (2) At the time we listed Mariscus pennatiformis (59 FR 94559), we 
followed the taxonomic treatment in the widely used and accepted Manual 
of the Flowering Plants of Hawaii (Wagner et al., 1990). Since that 
time, the species has been assigned to the genus Cyperus

[[Page 28063]]

(Wagner et al., 1999). We plan to publish a notice of name change for 
Mariscus pennatiformis subsequent to publishing this final rule.
    (3) We revised the text to reflect that the species of Pritchardia 
historically extant on Laysan Island is uncertain but that it had been 
suggested that the species may have been P. remota (Wagner et al., 
1999). We have also revised the primary constituent elements for P. 
remota on Laysan and Nihoa.
    (4) We revised the list of excluded, manmade features in the 
``Criteria Used to Identify Critical Habitat'' and section 17.99 
``Critical Habitat-Plants'' to delete from the final rule reference to 
roads, aqueducts, radar, missile launch sites, airports, paved areas, 
or rural landscaping because these features either do not exist on 
these islands or do not contain primary constituent elements for these 
plants on these islands.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation,'' as defined by the Act, means the use of 
all methods and procedures that are necessary to bring an endangered or 
threatened species to the point at which listing under the Act is no 
longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``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, habitat 
in areas known to be occupied at the time of listing must contain 
physical or biological features essential to the conservation of the 
species and which may require special management considerations or 
protection. Outside the areas known to have been occupied at the time 
of listing, an area must be essential to the conservation of the 
species in order to qualify for designation. Thus, 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. Nevertheless, we are required to designate those areas we 
believe to be critical habitat, using the best information available to 
us.
    Our regulations state that ``The Secretary shall designate as 
critical habitat areas outside the geographical area presently occupied 
by a 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 indicate 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

    The designation of critical habitat is not prudent when the species 
is threatened by taking or other human activity, and identification of 
critical habitat can be expected to increase the degree of such threat 
to the species (50 CFR 424.12(a)(1)).

[[Page 28064]]

    To determine whether critical habitat would be prudent for 
Amaranthus brownii, Pritchardia remota, and Schiedea verticillata, we 
analyzed the potential threats and benefits for each species in 
accordance with the court's order. Due to low numbers of individuals 
and populations and their inherent immobility, the three plants may be 
vulnerable to unrestricted collection, vandalism, or disturbance, 
though this is unlikely given their inaccessibility. Recently, we 
received information on the commercial trade in palms conducted through 
the Internet (Grant Canterbury, Service, in litt., 2000). Several 
nurseries advertise and sell seedlings and young plants, including 13 
species of Hawaiian Pritchardia. Seven of these species are federally 
protected, including Pritchardia remota. While we have determined that 
designation of critical habitat is not prudent for other species of 
Pritchardia because the benefits of designating critical habitat do not 
outweigh the potential increased threats from vandalism or collection 
(65 FR 66808, 65 FR 83158), we do not believe this species is 
threatened by these same activities because of its inaccessibility. 
Nihoa is more than 273 km (170 mi) from Lihue, Kauai, and more than 
1,600 km (1,000 mi) from Midway. It is a part of the HINWR, and a 
permit is required for access to the island. Access to the island is 
further limited due to difficult and dangerous landing conditions. 
Passengers must be dropped off and the boat sent back out to sea, as 
there are no mooring docks or beaches. The boat must return later to 
pick up the passengers, when conditions allow. Sea conditions are apt 
to change without warning, stranding visitors on this inhospitable 
island that has no fresh water and no regular food supply (C. 
Rehkemper, pers. comm., 2001).
    We examined the evidence available for Amaranthus brownii and 
Schiedea verticillata and have not, at this time, found specific 
evidence of taking, vandalism, collection, or trade of these taxa or of 
similar species. Therefore, consistent with applicable regulations (50 
CFR 424.12(a)(1)(i)) and the court's discussion of these regulations, 
we do not believe that these three species are currently threatened by 
taking or other human activity, which would be exacerbated by the 
designation of critical habitat.
    Therefore, we believe that designation of critical habitat is 
prudent for Amaranthus brownii, Pritchardia remota, and Schiedea 
verticillata. The reasons why we believe designation of critical 
habitat is prudent for Sesbania tomentosa and Mariscus pennatiformis 
are contained in the final rules published on January 9, 2003, and 
February 27, 2003, respectively (68 FR 1220 and 68 FR 9116). The 
reasons why we believe designation of critical habitat is prudent for 
Cenchrus agrimonioides are contained in the final rule published on 
January 9, 2003 (68 FR 1220). Although critical habitat for Cenchrus 
agrimonioides is not being designated on the NWHI (as it has not been 
seen there for over 20 years and no viable genetic material exists), we 
are designating critical habitat for this species on Maui (68 FR 25934, 
May 14, 2003).

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 Amaranthus brownii, Mariscus 
pennatiformis, Pritchardia remota, Schiedea verticillata, and Sesbania 
tomentosa. Using the best information available, we could not identify 
areas in the NWHI that are essential for Cenchrus agrimonioides for the 
reasons described in section D. Criteria Used to Identify Critical 
Habitat. This information included the known locations and 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 housed at the 
University of Hawaii's Lyon Arboretum; islandwide Geographic 
Information System (GIS) coverages (e.g., vegetation, soils, annual 
rainfall, elevation contours, landownership); the final listing rules 
for these species; the May 14, 2002, proposal of critical habitat; 
information received during the public comment period; recent 
biological surveys and reports; recovery plans for these species; 
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 1998d, 1999; 59 FR 56333; 61 FR 43178; 61 FR 
53108; 65 FR 83158; 67 FR 16492; 67 FR 34522).
    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 that 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.

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 Amaranthus brownii,

[[Page 28065]]

Mariscus pennatiformis, Pritchardia remota, Schiedea verticillata, and 
Sesbania tomentosa is described in the ``Background'' section of this 
final rule.
    All areas designated as critical habitat are within the historical 
range or have been identified in the recovery plans for these species 
as sites for conservation of one or more of the five 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 five 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., Pritchardia remota mesic coastal forest), 
associated native plant species, locale information (e.g., steep rocky 
cliffs, talus slopes, gulches), 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 Plant Taxa 
section above, constitute the primary constituent elements for these 
species in the NWHI.

D. Criteria Used To Identify Critical Habitat

    The Service considered a number of factors in the selection and 
proposal of specific boundaries for critical habitat. For each, the 
overall recovery strategy outlined in the 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 or within 
areas identified in the recovery plans for conservation of the species, 
and (4) research on species biology and ecology (Service 1998d, 1999). 
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 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., a population viability analysis) to identify 
the optimal number, size, and location of critical habitat units needed 
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. 
We used the same information, along with the opinions of scientists 
familiar with these species, to identify potentially suitable habitat 
within the known historic range of each species.
    The recovery goals stated in the recovery plans for these species 
include the following: Establishment of 8 to 10 populations with a 
minimum of 300 mature, reproducing individuals per population for 
Mariscus pennatiformis and Sesbania tomentosa distributed among the 
islands of each species known historic range (Service 1999). For 
purposes of this discussion, a population, as defined in the recovery 
plan 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 300 
mature, reproducing individuals for these short-lived perennial species 
(Service 1999).
    Within the five species at issue, there are three exceptions to 
this general recovery goal of 8 to 10 populations for species that are 
believed to be very narrowly distributed. The recovery goals for 
Amaranthus brownii, Pritchardia remota, and Schiedea verticillata 
include one to three additional colonies of each species on an island 
other than Nihoa (Service 1998d). In the case of Pritchardia remota, 
Laysan Island should be considered, since a palm that may have been 
this species formerly occurred there. For Amaranthus brownii and 
Schiedea verticillata, Necker Island should be considered since it is 
adjacent to Nihoa, has similar habitat, and is protected as a U.S. Fish 
and Wildlife Service refuge (Service 1998d). Should establishment of 
one to three colonies of any or all of these taxa on an island other 
than Nihoa occur, delisting may be considered when they have reached a 
minimum of 100 mature individuals per colony for Pritchardia remota, a 
minimum of 300 mature individuals per colony for Schiedea verticillata, 
and a minimum of 500 mature individuals for Amaranthus brownii. Each 
colony should be stable or increasing for a minimum of five consecutive 
years. If the establishment of additional colonies on an island other 
than Nihoa proves infeasible for these taxa, they may be considered 
recovered if five colonies of each species reach the population targets 
described above (Service 1998d). The critical habitat designations 
reflect these exceptions for these species.
    By adopting these specific recovery objectives, the adverse effects 
of genetic inbreeding and random environmental events and catastrophes, 
such as landslides, hurricanes, or tsunamis, which 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 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.
    Many aspects of species life history are 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 generally poorly studied, and the only 
one of these characteristics that can be uniformly determined for all 
Hawaiian plant

[[Page 28066]]

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. The HPPRCC revised these population numbers for 
Hawaiian plant species due to the restricted distribution of suitable 
habitat and the likelihood of smaller genetic diversity of several 
species that evolved from a 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 (HPPRCC 1994).
    The HPPRCC recommended the conservation and establishment of 8 to 
10 populations of multi-island plant species and establishment of 
additional colonies on other islands for Nihoa plant species in order 
to address the numerous risks to the long-term survival and 
conservation of these species. Although absent the detailed information 
inherent to population viability analysis models (Burgman et al. 2001), 
this approach employs two widely recognized and scientifically accepted 
goals for promoting viable populations of listed species: (1) The 
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 (or colonies) and the 
larger the size of each population (or colony), the lower the 
probability of extinction (Meffe and Carroll 1996; Raup 1991). This 
basic conservation principle of redundancy when applied to Hawaiian 
plant species reduces the threats represented by a fluctuating 
environment and offers the species a greater likelihood of achieving 
long-term survival and recovery. Conversely, loss of one or more of the 
plant populations (colonies) within any critical habitat unit could 
result in an increase in the risk that the entire listed species may 
not survive and recover. Similarly, actions that eliminate, or reduce 
the function of, a primary constituent element could result in an 
increase in the risk of adverse modification of critical habitat.
    Due to the reduced size of suitable habitat areas for these 
Hawaiian plant species, they are 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 
nonnative plants and animals. Establishing and conserving the specific 
target number of populations or colonies 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 the island of Kauai, fires, and 
nonnative plant invasions (HPPRCC 1994; Luijten et al. 2000; Mangel and 
Tier 1994; Pimm et al. 1998; Stacey and Taper 1992). Based upon this 
information, we conclude that designation of adequate suitable habitat 
to meet recovery goals for these five plant species is essential to 
give each of the species a reasonable likelihood of long-term survival 
and recovery.
    All currently or historically occupied sites or sites identified as 
conservation areas within the recovery plans for these species, 
containing one or more of the primary constituent elements considered 
essential to the conservation of the five plant species were examined 
to determine if special management considerations or protection are 
required. We reviewed all available management information on these 
plants at these sites including published and unpublished reports, 
surveys, and plans; internal letters, memos, trip reports; and, section 
7 consultations. Additionally, we contacted staff of the HINWR to 
discuss their current management for these plants on national wildlife 
refuge lands.
    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 require ``special management considerations or 
protections.'' In determining and weighing the relative significance of 
the threats that would need to be addressed in management plans or 
agreements, we considered the following:

--The factors that led to the listing of the species, as described in 
the final rules for listing each of the species. For all or nearly all 
endangered plants in the NWHI, the major threats include adverse 
impacts due to nonnative plants and invertebrates, seed or fruit 
predation by rats and mice, and fire (USFWS 1998d, 1999; 59 FR 56333; 
61 FR 43178).
--The recommendations from the HPPRCC in their 1998 report to the 
Service (``Habitat Essential to the Recovery of Hawaiian Plants'').
--The management actions needed for assurance of survival and ultimate 
recovery of Hawaii's endangered plants. These actions are described in 
the Service's recovery plans for these five species (USFWS 1998d, 1999) 
and in the 1998 HPPRCC report to the Service (HPPRCC 1998). These 
actions include, but are not limited to, the following: (1) Nonnative 
plant control; (2) rodent control; (3) invertebrate pest control; (4) 
fire control; (5) maintenance of genetic material of the endangered 
plants species; (6) propagation, reintroduction, and/or augmentation of 
existing populations into areas deemed essential for the recovery of 
these species; (7) ongoing management of the wild, outplanted (the 
planting of propagated plants (material) into the wild)), and augmented 
populations; (8) habitat management and restoration in areas deemed 
essential for the recovery of these species; and (9) monitoring of the 
wild, outplanted, and augmented populations.

    In general, taking all of the above recommended management actions 
into account, the following management actions are ranked in order of 
importance. It should be noted, however, that, 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: (1) Nonnative plant control; (2) Rodent control; (3) 
Invertebrate pest control; (4) Fire control; (5) Maintenance of genetic 
material of the endangered plant species; (6) Propagation, 
reintroduction, and/or augmentation of existing populations into areas 
deemed essential for the recovery of the species; (7) Ongoing 
management of the wild, outplanted, and augmented populations; (8) 
Maintenance of natural pollinators and pollinating systems, when known; 
(9) Habitat management and restoration in areas deemed essential for 
the

[[Page 28067]]

recovery of the species; (10) Monitoring of the wild, outplanted, and 
augmented populations; (11) Rare plant surveys; and (12) Control of 
human activities/access.
    All five species of plants are known from Federal lands within the 
HINWR. Management of the HINWR has been guided by the 1986 HINWR Master 
Plan/Environmental Impact Statement, which places primary emphasis on 
protecting and enhancing refuge wildlife resources, particularly 
threatened and endangered species (USFWS 1986). This plan does not 
specifically document management actions that maintain or enhance 
populations of endangered plants or their habitat on the islands of the 
HINWR. We are aware that current management actions within HINWR for 
these species include monitoring of populations and potential pests, 
and control or eradication of some alien plants (E. Flint, pers. comm., 
2000; Morin and Conant 1998; Shultz 2000; USFWS 1998d). However, 
funding limitations and the difficulty of travel logistics allow only a 
maximum of one short visit per year to Nihoa Island, and less frequent 
visits to Necker.
    Morin and Conant's draft ``Laysan Island Ecosystem Restoration 
Plan'' (1998), a long-term planning document that was developed as an 
integrated approach to managing the entire biota of Laysan Island, 
outlines conservation management actions for the endangered plant 
species on Laysan. These conservation management actions include the 
prevention of new plant or animal introductions to the island, 
restoration of the Laysan Island ecosystem that was present prior to 
major human-caused habitat modification, control/eradication of 
nonnative species, reintroduction of native species which are currently 
extinct on the island, and establishment of periodic comprehensive 
ecosystem monitoring (Morin and Conant 1998). A permanent year-round 
camp on Laysan, staffed by paid employees and volunteers, has enabled 
some control of nonnative plant species, propagation and outplanting of 
native plants for restoration efforts, and periodic monitoring of both 
native and nonnative plant species (E. Flint, pers. comm., 2000; Morin 
and Conant 1998). In the future, the plan may serve as a guiding 
document for endangered plant species management on other NWHI as well. 
However, because the plan is not fully funded or implemented yet, and 
because is has not yet been adopted for the other islands on which 
these plants occur, we know of no areas in the HINWR at this time that 
do not require special management or protection for the five species 
for which we have designated critical habitat.
    In summary, the long-term conservation of Hawaiian plant species 
requires the designation of critical habitat units on one or more of 
the Hawaiian islands with suitable habitat in accordance with species-
specific recovery goals as outlined in adopted recovery plans. Some of 
this designated critical habitat is currently unoccupied by these 
species but in order to recover the species, it is essential to 
conserve suitable habitat in these unoccupied units. This, in turn, 
will allow for the establishment of additional populations through 
natural recruitment or managed reintroduction. Establishment of these 
additional populations (colonies) will increase the likelihood that the 
species will survive and recover in the face of normal and stochastic 
events (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), and elevation. The areas we are 
designating as critical habitat provide some or all of the habitat 
components essential for the conservation of the five plant species.
    Our approach to delineating critical habitat units was applied in 
the following manner:
    (1) Critical habitat was proposed and will be designated on an 
island-by-island basis for ease of understanding for landowners and the 
public, for ease of conducting the public hearing process, and for ease 
of conducting public outreach. In Hawaii, landowners and the public are 
most interested and affected by issues centered on the island on which 
they reside.
    (2) We focused on designating units representative of the known 
current and historical geographic and elevation range of each species; 
and
    (3) Critical habitat units were designed to allow for expansion of 
existing wild populations and reestablishment of wild populations 
within the historic range, or within sites identified as conservation 
areas in the recovery plans for these species.
    For Amaranthus brownii, Mariscus pennatiformis, Prichardia remota, 
Schiedea verticillata, and Sesbania tomentosa, currently and 
historically occupied habitat was examined in identifying and 
designating critical habitat. Critical habitat boundaries were 
delineated to include the entire island on which the species are found 
or were historically found.
    Critical habitat is not designated for Cenchrus agrimonioides in 
the NWHI for the following reasons. In the NWHI, this taxon is 
historically known from only Laysan and Midway Islands, and Kure Atoll. 
It has not been reported on Laysan and Midway for over 70 and 100 
years, respectively. A permanent year-round camp on Laysan, staffed by 
paid employees and volunteers, conducts periodic monitoring of both 
native and nonnative plant species, and Cenchrus agrimonioides has not 
been seen during these monitoring efforts (Morin and Conant 1998). On 
Midway, Cenchrus agrimonioides was not seen during the most recent 
botanical surveys conducted in 1995 and 1999 (Chris Swenson, Service, 
pers. comm., 2002). Cenchrus agrimonioides has not been seen on Kure 
Atoll for over 20 years even though DOFAW conducts annual seabird 
surveys and a botanical survey was conducted there as recently as 2001 
(DOFAW 2001). In addition, no viable genetic material of this the 
specific variety that occurs in the NWHI is known to exist. The 
rediscovery of currently unknown individual plants on these three 
islands and atolls is believed to be extremely unlikely because we 
believe this perennial plant would have been seen during these surveys. 
Although genetic material of the closely related Cenchrus agrimonioides 
var. agrimonioides exists, this variety is known only from mountainous 
habitat on Oahu, which is very different from the habitat on the NWHI 
where Cenchrus agrimonioides var. laysanensis occurred. We would not 
use var. agrimonioides for restoration purposes in the NWHI because 
this variety is not known from the NWHI and its preferred habitat is 
not available in the NWHI.
    Following publication of the proposed critical habitat rules for 
the 245 Hawaiian plants (67 FR 3940, 67 FR 9806, 67 FR 15856, 67 FR 
16492, 67 FR 34522, 67 FR 36968, 67 FR 37108), some of which were 
revised, we reevaluated proposed critical habitat for Mariscus 
pennatiformis and Sesbania tomentosa, Statewide, using the recovery 
guidelines to determine if we had inadvertently proposed for 
designation too much or not enough habitat to meet the essential 
recovery goals for these species distributed among the islands of its 
known historic range (HINHP Database 2000, 2001; Wagner et al. 1990, 
1999). We then further evaluated areas of the proposed critical habitat 
for all five species for the existing quality of the primary 
constituent elements (i.e., intact native plant communities and

[[Page 28068]]

predominance of associated native plants versus nonnative plants), 
potential as a recovery area, and current or expected management of 
known threats (e.g., weed control and nonnative insect, slug, and snail 
control). Areas that contain high quality primary constituent elements, 
are zoned or managed specifically for conservation, and have ongoing or 
expected threat abatement actions were considered the most essential 
within these areas, and we selected adequate area to meet recovery 
goals (e.g., 8 to 10 populations).
    Of the proposed critical habitat for Mariscus pennatiformis and 
Sesbania tomentosa, areas that did not contain high quality constituent 
elements and that may provide habitat for populations above the 
recovery goal of 8 to 10 populations were determined not essential for 
the conservation of the species and excluded from final designation. 
However, all of the proposed critical habitat for Sesbania tomentosa on 
Nihoa and Necker and all of the proposed critical habitat on Laysan for 
Mariscus pennatiformis was considered essential for conservation of 
these species and is designated as critical habitat. For Amaranthus 
brownii, Pritchardia remota, and Schiedea verticillata, taxa known only 
from the NWHI, we determined that critical habitat on the islands of 
Laysan and Nihoa was essential for their conservation because it 
contains occupied habitat important for the expansion of current 
colonies and the establishment of additional colonies. In addition, 
these areas may require special management considerations or protection 
in order to address the threats to each species.
    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 addition, existing manmade features and 
structures within boundaries of the mapped unit do not contain one or 
more of the primary constituent elements and would be excluded under 
the terms of this proposed regulation. Federal actions limited to those 
areas would not trigger a section 7 consultation unless they affect the 
species or primary constituent elements in adjacent critical habitat.
    In summary, the critical habitat areas described below constitute 
our best assessment of the physical and biological features needed for 
the conservation of Amaranthus brownii, Mariscus pennatiformis, 
Pritchardia remota, Schiedea verticillata, and Sesbania tomentosa 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.

 Table 4.--Approximate Critical Habitat Designated Area by Unit and Landownership or Jurisdiction, Northwestern
                                            Hawaiian Islands, Hawaii
----------------------------------------------------------------------------------------------------------------
            Unit name                State/local          Private            Federal               Total
----------------------------------------------------------------------------------------------------------------
Nihoa 1--Amaranthus brownii.....  none.............  none.............  69 ha (171 ac)..  69 ha (171 ac)
Nihoa 2--Pritchardia remota.....  none.............  none.............  69 ha (171 ac)..  69 ha (171 ac)
Nihoa 3--Scheidea verticillata..  none.............  none.............  69 ha (171 ac)..  69 ha (171 ac)
Nihoa 4--Sesbania tomentosa.....  none.............  none.............  69 ha (171 ac)..  69 ha (171 ac)
Necker 1--Sesbania tomentosa....  none.............  none.............  19 ha (46 ac)...  19 ha (46 ac)
Laysan 1--Mariscus pennatiformis  none.............  none.............  405 ha (1,002     405 ha (1,002 ac)
                                                                         ac).
Laysan 2--Pritchardia remota....  none.............  none.............  405 ha (1,002     405 ha (1,002 ac)
                                                                         ac).
                                 --------------------
    Grand Total.................  none.............  none.............  493 ha (1,219     493 ha (1,219 ac)
                                                                         ac).
----------------------------------------------------------------------------------------------------------------

    Critical habitat includes habitat for these five species on the 
islands of Nihoa, Necker, and Laysan. Lands designated as critical 
habitat are under Federal ownership and managed by the Department of 
the Interior (the Service). The designated lands have been divided into 
seven units. A brief description of each unit is presented below.

Descriptions of Critical Habitat Units

Nihoa 1--Amaranthus brownii
    This unit is critical habitat for Amaranthus brownii and is 69 ha 
(171 ac) on federally owned land. It includes the entire island, which 
is part of the HINWR. The unit is currently unoccupied but provides 
habitat that is essential to the conservation of up to 500 reproducing 
individuals of this annual species endemic to Nihoa. The area 
designated as critical habitat is considered to be the most likely to 
contain a viable seed bank of Amaranthus brownii. The habitat features 
contained in this unit that are essential for this species include, but 
are not limited to, shallow soil and rocky outcrops in fully exposed 
locations that contain one or more of the following associated native 
plant species: Chenopodium oahuense, Eragrostis variabilis, Ipomoea 
indica, Ipomoea pes-caprae ssp. brasiliensis, Panicum torridum, 
Scaevola sericea, Schiedea verticillata, Sicyos pachycarpus, Sida 
fallax, and Solanum nelsonii. This critical habitat unit is essential 
to the conservation of the species because it supports habitat for the 
re-establishment of populations of this endemic species.
Nihoa 2--Pritchardia remota
    This unit is critical habitat for Pritchardia remota and is 69 ha 
(171 ac) on federally owned land. It includes the entire island, which 
is part of the HINWR. This unit, which contains at least 4 colonies 
that consist of at least 1,074 individuals (including seedlings) of P. 
remota, provides habitat that is essential to the conservation of 100 
mature, reproducing individuals of this long-lived perennial species. 
The habitat features contained in this unit that are essential for this 
species include, but are not limited to, a coastal forest community 
that contains one or more of the following associated native plant 
species: Chenopodium oahuense, Sesbania tomentosa, Solanum nelsonii, 
and Sida fallax. This unit is essential to the conservation of the 
species because

[[Page 28069]]

it supports the only extant wild occurrence of this species and is 
geographically separated from the designated critical habitat unit on 
Laysan Island to avoid destruction by one naturally occurring 
catastrophic event.
Nihoa 3--Schiedea verticillata
    This unit is critical habitat for Schiedea verticillata and is 69 
ha (171 ac) on federally owned land. It includes the entire island, 
which is part of the HINWR. The unit provides habitat that is essential 
to the conservation of 300 mature, reproducing individuals of this 
short-lived perennial and, based on surveys conducted in 1996, 
contained at least 11 colonies and a total of at least 372 individuals. 
The habitat features contained in this unit that are essential for this 
species include, but are not limited to, rocky scree, soil pockets, and 
cracks on coastal cliff faces and in Pritchardia remota coastal mesic 
forest that contain one or more of the following associated native 
species and lichens: Eragrostis variabilis, Rumex albescens, and 
Tribulus cistoides. This critical habitat unit is essential to the 
conservation of the species because it supports extant colonies of S. 
verticillata and includes habitat that is important to the expansion of 
the present population on Nihoa.
Nihoa 4--Sesbania tomentosa
    This unit is critical habitat for Sesbania tomentosa and is 69 ha 
(171 ac) on federally owned land. It includes the entire island, which 
is part of the HINWR. The unit contains habitat essential to the 
conservation of 300 mature, reproducing individuals of this short-lived 
perennial and contains one island-wide population of at least 1,000 
individuals. The habitat features contained in this unit that are 
essential for this species include, but are not limited to, shallow 
sandy soils on beaches and dunes in Chenopodium oahuense coastal dry 
shrubland that contain one or more of the following associated native 
plant species: Pritchardia remota, Scaevola sericea, Sida fallax, and 
Solanum nelsonii. This critical habitat unit is essential to the 
conservation of the species because it supports extant colonies of 
Sesbania tomentosa and is also geographically separated from designated 
critical habitat on other islands to avoid destruction by one naturally 
occurring catastrophic event.
Necker 1--Sesbania tomentosa
    This unit is critical habitat for Sesbania tomentosa and is 19 ha 
(46 ac) on federally owned land. It includes the entire island, which 
is part of the HINWR. The unit contains Annexation and Summit Hills, is 
occupied by one population of undetermined size, and provides habitat 
that is essential for the conservation of up to one population of 300 
mature, reproducing individuals of this short-lived perennial species. 
The habitat features contained in this unit that are essential for this 
species include, but are not limited to, shallow sandy soils on beaches 
and dunes in Chenopodium oahuense coastal dry shrubland that contain 
one or more of the following associated native plant species: Sida 
fallax, Scaevola sericea, Solanum nelsonii, and Pritchardia remota. 
This unit is essential to the conservation of Sesbania tomentosa 
because it supports the only extant colony of the species on Necker. 
This unit also includes habitat that is important for the expansion of 
the present population, which is currently considered not viable. This 
unit is located at the westernmost range of this multi-island species 
and is geographically separated from designated critical habitat on 
other islands to avoid destruction by one naturally occurring 
catastrophic event.
Laysan 1--Mariscus pennatiformis
    This unit is critical habitat for Mariscus pennatiformis and is 
approximately 405 ha (1,002 ac) in size, which includes a 52 ha (129 
ac) hypersaline lagoon in its center. It is all on Federal land and is 
part of the HINWR. The unit is occupied by one occurrence of 
approximately 200 individuals and provides habitat essential to the 
conservation of 300 reproducing individuals. The habitat features 
contained in this unit that are essential for this species include, but 
are not limited to, coastal sandy substrate that contains one or more 
of the following associated native plant species: Cyperus laevigatus, 
Eragrostis variabilis, and Ipomoea sp. This critical habitat unit is 
essential to the conservation of Mariscus pennatiformis ssp. bryanii 
because it supports the only extant colony, which is currently 
considered not viable. It also contains habitat that is important to 
the expansion of this taxon.
Laysan 2--Pritchardia remota
    This unit is critical habitat for Pritchardia remota and is 
approximately 405 ha (1,002 ac) in size, which includes a 52 ha (129 
ac) hypersaline lagoon in its center. It is all on Federal land and is 
part of the HINWR. The unit is currently unoccupied but provides 
habitat essential to the conservation of 100 reproducing individuals of 
this long-lived perennial species. The habitat features contained in 
this unit that are essential for this species include, but are not 
limited to, the coastal strand community that contains one or more of 
the following associated native plant species: Chenopodium oahuense and 
Solanum nelsonii.
    This unit is currently unoccupied but is essential to the 
conservation of Pritchardia remota because it provides habitat for the 
establishment of a new colony in order to achieve recovery goals for 
the species. This unit is also geographically separated from the 
occupied designated critical habitat unit on Nihoa, which serves to 
avoid the destruction of both colonies by one naturally occurring 
catastrophic event.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) 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 directly 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) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened, and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. 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.
    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

[[Page 28070]]

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 
formal 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 
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 resulting in 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 
Amaranthus brownii, Mariscus pennatiformis, Pritchardia remota, 
Schiedea verticillata, or Sesbania tomentosa will require section 7 
consultation.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. We 
note that such activities may also jeopardize the continued existence 
of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly destroy or adversely modify 
critical habitat include, but are not limited to:
    (1) Activities that appreciably degrade or destroy habitat defined 
in the discussion of the primary constituent elements including, but 
not limited to: Clearing or cutting of native live trees and shrubs, 
whether by burning or mechanical, chemical, or other means (e.g., 
woodcutting or herbicide application); introducing or enabling the 
spread of nonnative species; and taking actions that pose a risk of 
fire;
    (2) Construction activities by the U.S. Department of the Interior 
(the Service);
    (3) Research activities funded by the U.S. Department of the 
Interior (the Service) or National Oceanic and Atmospheric 
Administration (National Marine Sanctuaries Program, National Marine 
Fisheries Service); and
    (4) Activities not mentioned above funded or authorized by the 
Department of the Interior (U.S. Geological Survey, National Park 
Service), Department of Commerce (National Oceanic and Atmospheric 
Administration), Western Pacific Regional Fisheries Council, or any 
other Federal Agency.
    If you have questions regarding whether specific activities will 
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 
wildlife and plants, and inquiries about prohibitions and permits, may 
be addressed to the U.S. Fish and Wildlife Service, Division of 
Endangered Species, 911 N.E. 11th Ave., Portland, OR 97232-4181 
(telephone 503/231-2063; facsimile 503/231-6243).

Economic Analysis

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 on May 14, 2002, a draft economic analysis was conducted to 
estimate the potential economic impact of the designation, in 
accordance with recent decisions 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 September 12, 2002 (67 FR 
57784). We accepted comments on the draft analysis until the comment 
period closed on October 15, 2002.
    No comments addressing the economic analysis were received, and no 
information has come to light that might change the conclusions of the 
draft economic analysis. Therefore, the draft analyses constitutes the 
final economic analysis for this rule. The economic analysis estimates 
that, over the next 10 years, the designation may result in potential 
economic effects of approximately $30,800, and that economic benefits 
from the designation of critical habitat would not be significant. 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). We do 
not believe the economic impacts of this designation, which would 
result primarily from section 7 consultations on FWS, NMS, and private 
research activities, would be significant. Therefore, no critical 
habitat units in the proposed rule were excluded or modified due to 
economic impacts.
    As described above, section 4(b)(2) of the Act also requires us to 
consider other relevant impacts, in addition to economic impacts, of 
designating critical habitat. No critical habitat units were excluded 
or modified due to non-economic impacts.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget (OMB) has determined that this critical habitat designation 
is not a significant regulatory action. This rule will not have an 
annual economic effect of $100 million or more or adversely affect any 
economic sector, productivity, competition, jobs, the environment, or 
other units of government. This designation will not create 
inconsistencies with other agencies' actions or otherwise interfere 
with an action taken or planned by another agency. It will not 
materially affect entitlements, grants, user fees, loan programs, or 
the rights and obligations of their recipients. Finally, this 
designation will not raise novel legal or policy issues. Accordingly, 
OMB has not reviewed this final critical habitat designation.

[[Page 28071]]

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Act (SBREFA) of 1996), whenever an 
agency is required to publish a notice of rulemaking for any proposed 
or final rule, it must prepare and make available for public comment a 
regulatory flexibility analysis that describes the effects of the rule 
on small entities (i.e., small businesses, small organizations, and 
small government jurisdictions).
    However, no regulatory flexibility analysis is required if the head 
of the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
RFA to require Federal agencies to provide a statement of the factual 
basis for certifying that a rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA does not explicitly define either ``substantial number'' or 
``significant economic impact.'' Consequently, to assess whether a 
``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in the area. Similarly, this analysis 
considers the relative cost of compliance on the revenues/profit 
margins of small entities in determining whether or not entities incur 
a ``significant economic impact.'' Only small entities that are 
expected to be directly affected by the designation are considered in 
this portion of the analysis. This approach is consistent with several 
judicial opinions related to the scope of the RFA. (Mid-Tex Electric 
Co-Op, Inc. v. F.E.R.C. and America Trucking Associations, Inc. v. 
EPA.)
    In today's rule, we are certifying that the designation of critical 
habitat for the five plant species on the NWHI will not have a 
significant effect on a substantial number of small entities. The 
following discussion explains our rationale.
    Federal courts and Congress have indicated that an RFA/SBREFA 
analysis is appropriately limited to impacts to entities directly 
regulated by the requirements of the regulation (Service 2002). As 
such, entities not directly regulated by the critical habitat 
designation are not considered in this section of the analysis.
    Small entities include small organizations, such as independent 
nonprofit organizations and small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. The RFA/SBREFA defines ``small organization'' 
as any not-for-profit enterprise that is independently owned and 
operated and is not dominant in its field (5 U.S.C. 601).
    For the purposes of the RFA/SBREFA, Federal agencies (e.g., the 
Service, U.S. Geological Survey, National Park Service, National 
Oceanic and Atmospheric Administration, National Marine Fisheries 
Service, and Western Pacific Regional Fisheries Council) are not 
considered small governments and thus are not small entities. State 
governments are not considered small governmental entities and thus 
DLNR is not considered a small entity. The University of Hawaii is a 
large State university system, so it is also not a small entity. The 
Bishop Museum, which may sponsor research, is not likely to be 
considered a small organization because it is the largest museum in the 
State and thus is dominant in its field.
    Thus, none of the entities potentially impacted by the designation 
of critical habitat are likely to be considered a small entity under 
the RFA/SBREFA. For these reasons, we are certifying that the 
designation of critical habitat for Amaranthus brownii, Mariscus 
pennatiformis, Pritchardia remota, Schiedea verticillata, and Sesbania 
tomentosa will not have a significant economic impact on a substantial 
number of small entities. Therefore, a regulatory flexibility analysis 
is not required.

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

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. Our assessment of 
the economic effects of this designation are described in the economic 
analysis. Based on the effects identified in this analysis, we believe 
that this rule will not have an effect on the economy of $100 million 
or more, will not cause a major increase in costs or prices for 
consumers, and will not have 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 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. According to OMB, this 
rule is not a significant regulatory action under Executive Order 
12866, and we do not expect it to significantly affect energy 
production supply and distribution facilities because 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 the five NWHI plants 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. All of the 
land being designated as critical habitat in this rule is owned by the 
Federal government and is managed as a National Wildlife Refuge by the 
Service. Small governments will not be affected unless they propose an 
action affecting the refuge and 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. For the reasons described above, 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

[[Page 28072]]

implications of designating critical habitat for the five species from 
the NWHI in a takings implication assessment. The takings implications 
assessment concludes that this final rule does not pose significant 
takings implications.

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.
    Because all of the designated critical habitat, including the 
unoccupied unit, is on Federal land, there should be no impact on State 
and local governments and their activities as a result of the 
designation of critical habitat in currently unoccupied areas of the 
NWHI.

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 five plant species 
from the NWHI.

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 five 
plant species. Therefore, designation of critical habitat for these 
five 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 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

0
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]

0
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.


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2. Amend Sec.  17.12(h) by revising the entries for Amaranthus brownii, 
Mariscus pennatiformis, Pritchardia remota, Schiedea verticillata, and 
Sesbania tomentosa under FLOWERING PLANTS in the List of Endangered and 
Threatened Plants to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species
------------------------------------------------------    Historic range          Family         Status    When listed   Critical habitat      Special
         Scientific name              Common name                                                                                               rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
Amaranthus brownii..............  None...............  U.S.A. (HI)........  Amaranthaceae.....        E           587   17.99(g)..........           NA
Mariscus pentiformis............  None...............  U.S.A. (HI)........  Cyperaceae........        E           559   17.99(a)(1),                 NA
                                                                                                                         (e)(1), (g).
Pritchardia remota..............  Loulu..............  U.S.A. (HI)........  Arecaceae.........        E           587   17.99(g)..........           NA
Schiedea verticillata...........  None...............  U.S.A. (HI)........  Caryophyllaceae...        E           587   17.99(g)..........           NA
Sesbania tomentosa..............  Ohai...............  U.S.A. (HI)........  Fabaceae..........        E           559   17.99(a)(1), (c),            NA
                                                                                                                         (e)(1), (g).
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


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3. Amend Sec.  17.99 as set forth below:
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(1) By revising the section heading to read as follows; and
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(2) By adding new paragraphs (g) and (h) to read as follows:


Sec.  17.99  Critical habitat; plants on the islands of Kauai, Niihau, 
and Molokai, HI, and on the Northwestern Hawaiian Islands.

* * * * *
    (g) Maps and critical habitat unit descriptions for the 
Northwestern Hawaiian Islands. The following paragraphs contain the 
legal descriptions of the critical habitat units

[[Page 28073]]

designated for the Northwestern Hawaiian Islands. Existing manmade 
features within boundaries of the mapped areas, such as water features, 
telecommunications equipment, arboreta and gardens, and heiau 
(indigenous places of worship or shrines) and other archaeological 
sites do not contain one or more of the primary constituent elements 
described for each species in paragraphs (h) of this section and 
therefore are not included in the critical habitat designations. 
Coordinates are in WGS84 datum. See Map 1 for the the general locations 
of the seven critical habitat units designated for the islands of 
Laysan, Nihoa, and Necker.
    (1) Index map--Map 1--follows:
    [GRAPHIC] [TIFF OMITTED] TR22MY03.001
    
    (2) Nihoa 1--Amaranthus brownii--entire island (approximately 69 
ha; 171 ac).
    (i) Nihoa Island is located between 23[deg]3' N. and 23[deg]4' N. 
and between 161[deg]54' W. and 161[deg]56' W.
    (ii) Note: Map 2 follows:
    [GRAPHIC] [TIFF OMITTED] TR22MY03.002
    
    (3) Nihoa 2--Pritchardia remota--entire island (approximately 69 
ha; 171 ac).
    (i) Nihoa Island is located between 23[deg]3' N. and 23[deg]4' N. 
and between 161[deg]54' W. and 161[deg]56' W.
    (ii) Note: Map 3 follows:
    [GRAPHIC] [TIFF OMITTED] TR22MY03.003
    
    (4) Nihoa 3--Schiedea verticillata--entire island (approximately 69 
ha; 171 ac).
    (i) Nihoa Island is located between 23[deg]3' N. and 23[deg]4' N. 
and between 161[deg]54' W. and 161[deg]56' W.
    (ii) Note: Map 4 follows:
    [GRAPHIC] [TIFF OMITTED] TR22MY03.004
    
    (5) Nihoa 4--Sesbania tomentosa--entire island (approximately 69 
ha; 171 ac).
    (i) Nihoa Island is located between 23[deg]3' N. and 23[deg]4' N. 
and between 161[deg]54' W. and 161[deg]56' W.
    (ii) Note: Map 5 follows:

[[Page 28074]]

[GRAPHIC] [TIFF OMITTED] TR22MY03.005

    (6) Necker 1--Sesbania tomentosa--entire island (approximately 18 
ha; 46 ac).
    (i) Necker Island is located between 23[deg]34' N. and 23[deg]35' 
N. and between 164[deg]41' W. and 164[deg]43' W.
    (ii) Note: Map 6 follows:
    [GRAPHIC] [TIFF OMITTED] TR22MY03.006
    
    [INSERT Map 6](7) Laysan 1--Mariscus pennatiformis--entire island 
(approximately 405 ha; 1,219 ac).
    (i) Laysan Island is located between 25[deg]45' N. and 25[deg]47' 
N. and between 171[deg]43' W. and 171[deg]45' W.
    (ii) Note: Map 7 follows:
    [GRAPHIC] [TIFF OMITTED] TR22MY03.007
    
    (8) Laysan 2--Pritchardia remota--entire island (approximately 405 
ha; 1,219 ac).
    (i) Laysan Island is located between 25[deg]45' N. and 25[deg]47' 
N. and between 171[deg]43' W. and 171[deg]45' W.
    (ii) Note: Map 8 follows:
    [GRAPHIC] [TIFF OMITTED] TR22MY03.008
    
    (9) Table of protected species within each critical habitat unit 
for the Northwestern Hawaiian Islands.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Island                                              Species--Occupied                                        Species--Unoccupied
--------------------------------------------------------------------------------------------------------------------------------------------------------
Laysan...............................  Mariscus pennatiformis.....................................................  Pritchardia remota
Necker...............................  Sesbania tomentosa.                                                          ....................................
Nihoa................................  Pritchardia remota, Schiedea verticillata, Sesbania tomentosa..............  Amaranthus brownii
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (h) Plants on the Northwestern Hawaiian Islands; Constituent 
elements.

Family Amaranthaceae: Amaranthus brownii (NCN)

    Nihoa 1--Amaranthus brownii, identified in the legal description in 
paragraph (g) of this section, constitutes critical habitat for 
Amaranthus brownii. On Nihoa, the currently known primary constituent 
elements of critical habitat include, but are not limited to, the 
habitat components provided by:
    (1) Shallow soil in fully exposed locations on rocky outcrops and 
containing one or more of the following associated native plant 
species: Chenopodium oahuense, Eragrostis variabilis, Ipomoea indica, 
Ipomoea pes-caprae ssp. brasiliensis, Panicum torridum, Scaevola 
sericea, Schiedea verticillata, Sicyos pachycarpus, Sida fallax, or 
Solanum nelsonii; and (2)

[[Page 28075]]

Elevations between 30 and 242 m (100 and 800 ft).

Family Arecaceae: Pritchardia remota (loulu)

    Nihoa 2--Pritchardia remota, and Laysan 2-- Pritchardia remota, 
identified in the legal descriptions in paragraph (g) of this section, 
consitute critical habitat for Pritchardia remota.
    (1) On Nihoa, the currently known primary constituent elements of 
critical habitat include, but are not limited to, the habitat 
components provided by:
    (i) Pritchardia remota coastal forest community and containing one 
or more of the following associated native plant species: Chenopodium 
oahuense, Sesbania tomentosa, Sida fallax, or Solanum nelsonii; and
    (ii) Elevations between sea level and 151 m (500 ft).
    (2) On Laysan Island, the currently known primary constituent 
elements of critical habitat include, but are not limited to, the 
habitat components provided by:
    (i) Coastal strand habitat with Chenopodium oahuensee and Solanum 
nelsonii; and
    (ii) Elevations between sea level to 12 m (0 to 40 ft).

Family Caryophyllaceae: Schiedea verticillata (NCN)

    Nihoa 3--Schiedea verticillata, identified in the legal description 
in paragraph (g) of this section, constitutes critical habitat for 
Schiedea verticillata. On Nihoa, the currently known primary 
constituent elements of critical habitat for Schiedea verticillata 
include, but are not limited to, the habitat components provided by:
    (1) Rocky scree, soil pockets, and cracks on coastal cliff faces 
and in Pritchardia remota coastal mesic forest and containing one or 
more of the following associated native plant species: Eragrostis 
variabilis, Rumex albescens, Tribulus cistoides, or lichens; and
    (2) Elevations between 30 and 242 m (100 and 800 ft).

Family Cyperaceae: Mariscus pennatiformis (NCN)

    Laysan 1--Mariscus pennatiformis, identified in the legal 
description in paragraph (g) of this section, constitutes critical 
habitat for Mariscus pennatiformis. On Laysan Island, the currently 
known primary constituent elements of critical habitat for Mariscus 
pennatiformis include, but are not limited to, habitat components 
provided by:
    (1) Coastal sandy substrate containing one or more of the following 
associated native plant species: Cyperus laevigatus, Eragrostis 
variabilis, or Ipomoea sp.; and
    (2) Elevation of 5 m (16 ft).

Family Fabaceae: Sesbania tomentosa (ohai)

    Nihoa 4--Sesbania tomentosa, and Necker 1--Sesbania tomentosa, 
identified in the legal descriptions in paragraph (g) of this section, 
constitute critical habitat for Sesbania tomentosa. On Nihoa and 
Necker, the currently known primary constituent elements of critical 
habitat for Sesbania tomentosa include, but are not limited to, habitat 
components provided by:
    (1) Shallow soil on sandy beaches and dunes in Chenopodium oahuense 
coastal dry shrubland or mixed coastal dry cliffs and containing one or 
more of the following associated native plant species: Pritchardia 
remota, Scaevola sericea, Sida fallax, or Solanum nelsonii; and
    (2) Elevations between sea level and 84 m (0 and 276 ft).

    Dated: April 30, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-11157 Filed 5-21-03; 8:45 am]
BILLING CODE 6560-50-P