[Federal Register Volume 69, Number 68 (Thursday, April 8, 2004)]
[Rules and Regulations]
[Pages 18499-18507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7934]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG09


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status and Prudency Determination for Designation of 
Critical Habitat for Two Plant Species From the Commonwealth of the 
Northern Mariana Islands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status and critical habitat prudency pursuant to the 
Endangered Species Act of 1973, as amended (Act), for two plant 
species: Nesogenes rotensis (no common name) and Osmoxylon mariannense 
(no common name). Nesogenes rotensis and Osmoxylon mariannense are 
found only on the island of Rota in the U.S. Commonwealth of the 
Northern Mariana Islands (CNMI). Based on a public comment, we have re-
examined the basis of recognition of Tabernaemontana rotensis as a 
distinct endemic species on Rota and the U.S. Territory of Guam, and 
are not listing this species as endangered. This rule implements the 
protection and recovery provisions afforded by the Act for these 
species.

DATES: This rule is effective May 10, 2004.

FOR FURTHER INFORMATION CONTACT: Gina M. Shultz, Acting Field 
Supervisor, the Pacific Islands Fish and Wildlife Office; telephone, 
808/792-9400; facsimile, 808/792-9581.

SUPPLEMENTARY INFORMATION:

Background

    Nesogenes rotensis, Osmoxylon mariannense, and Tabernaemontana 
rotensis all occur on the island of Rota in the CNMI; Tabernaemontana 
rotensis is also found in the U.S. Territory of Guam.
    We provided detailed physical descriptions for these species and 
their habitats for Guam and Rota in the proposed listing rule (65 FR 
35025, June 1, 2000).

Discussion of the Three Plant Species

Nesogenes rotensis

    Williams has observed Nesogenes rotensis in flower throughout the 
year; however, she has never observed it in fruit (Laura Williams, CNMI 
Division of Fish and Wildlife (DFW), pers. comm. 2004).
    Biannual surveys for this species have been conducted since 2000. 
The species was observed in flower in February 2000, and a direct count 
was made on June 27, 2000 (L. Arriola, in litt. 2000). At that time 
there were 80 individuals within an approximate area of 960 yd \2\ (800 
m \2\). In May and November 2001, direct counts made by staff from CNMI 
DFW identified 458 and 579 adult plants, respectively. No individuals 
of Nesogenes rotensis were observed in May or November of 2003 
following supertyphoon Pongsona; however, 34 adults were observed in 
December 2003 (L. Williams, pers. comm. 2004).

Osmoxylon mariannense

    In 2000, a survey conducted by biologists with the CNMI DFW 
identified six living, and five dead, individual trees on Rota (L. 
Arriola, in litt. 2000). A survey conducted in 2002 by Taisacan 
confirmed eight occurrences in this same vicinity, again with only one 
living mature tree in each. Osmoxylon mariannense individuals were 
defoliated during supertyphoon Pongsona; however, are leafing out and 
appear to be recovering (E. Taisacan, pers. comm. 2003).

Tabernaemontana rotensis

    Tabernaemontana rotensis has been recognized as an endemic species 
on Guam and Rota by most who have studied the flora of the Marianas 
(Fosberg in Stone 1980, Raulerson pers. comm., Herbst pers. comm.) and 
is recognized as distinct by the government of Guam. Nevertheless, in 
an authoritative monographic work on the genus in the Old World 
(Leeuwenberg 1991), it was submerged in an expansive interpretation of 
the widespread species T. pandacaqui, which was originally described 
from the

[[Page 18500]]

Philippines, but that in Leeuwenberg's interpretation ranges from 
southern China to Australia and includes several dozen previously 
recognized species. Differences of this sort are not uncommon regarding 
species or groups of related species that have broad and discontinuous 
ranges. Prompted in part by a comment from the Air Force, we have re-
examined the basis for recognition of T. rotensis as a distinct endemic 
species and now consider Leeuwenberg's treatment to be the most 
credible taxonomic interpretation of the native Tabernaemontana of Guam 
and Rota. Since we have no authority to list plants at a level below 
subspecies or variety, and there is no indication that T. pandacaqui is 
endangered or threatened throughout all or a significant portion of its 
range, we are not listing T. rotensis. Despite this determination, we 
recognize that native Tabernaemontana is an important natural resource 
and an element of the native biodiversity of these two islands. It is 
perfectly appropriate that local authorities seek to conserve this 
species, but under our current understanding of its taxonomy, it does 
not qualify for protection under the Act. If further information 
becomes available that supports recognition of an endemic taxon, we 
will reconsider the need to list.

Previous Federal Action

    On June 1, 2000, we published the proposed rule to list as 
endangered three plant species from the Mariana Islands (65 FR 35025). 
In that proposed rule (beginning on page 35027), we included a detailed 
summary of the previous Federal actions completed prior to publication 
of the proposal. We now provide updated information on the actions that 
we have completed since publication of the proposed rule. Our final 
listing decision for Nesogenes rotensis, Osmoxylon mariannense, and 
Tabernaemontana rotensis was deferred due to lack of resources because 
the Service's Pacific Islands Office (where the proposed listing was 
initiated) staff were under court orders to designate critical habitat 
for 255 Hawaiian plants and four Hawaiian invertebrates. Pursuant to a 
settlement agreement approved by the U.S. District Court for the 
District of Hawaii on August 21, 2002, the Service must make a final 
decision on whether to list these species and submit this decision to 
the Federal Register by April 1, 2004 (Center for Biological Diversity 
v. Norton, Civil No. 99-00603 (D. Haw.)).

Summary of Comments and Recommendations

    In our June 1, 2000, proposed rule and associated notifications, we 
requested that all interested parties submit comments, data, or other 
information that might contribute to the development of a final rule. A 
60-day comment period closed on July 31, 2000. Appropriate CNMI and 
Government of Guam agencies, Federal agencies, and other interested 
parties were contacted and requested to comment. A legal notice 
announcing the publication of the listing proposal was published in the 
Marianas Variety newspaper on June 16, 2000, and the Pacific Daily News 
on June 23, 2000. During this period we received one request for a 
public hearing from the CNMI DFW. On October 30, 2000, we gave notice 
in the Federal Register (65 FR 64649) and the Marianas Variety of the 
public hearing to be held on the island of Rota and reopened the public 
comment period until November 29, 2000. On November 16, 2000, we held a 
public hearing at the Rota Resort, Rota.
    We reopened the public comment period on January 9, 2004, because 
we believed that additional review was warranted at this time since 
three years had passed since publication of the proposed rule (69 FR 
1560). In order to address any additional comments received in response 
to reopening the comment period and to meet the August 21, 2002, court 
order to submit to the Federal Register a final listing decision for 
these three plants no later than April 1, 2004, the comment period was 
open for 18 days, closing on January 26, 2004. The reopening of the 
comment period gave all interested parties additional time to consider 
the proposed rule's information and submit comments on the proposal.
    During the comment periods, we received a total of 18 letters, 
facsimile transmissions, comment cards, and e-mails from public 
agencies and individuals. Eleven of these written communications were 
from various departments of the government of the CNMI and Guam, two 
were from the Air Force, and the remaining five were from non-
governmental entities. Of the written comments, four reviewers 
supported the listing of Nesogenes rotensis, Osmoxylon mariannense, and 
Tabernaemontana rotensis, ten opposed the listing, three provided 
information on the species but remained neutral on the listing, and one 
recommended delaying the listing of Tabernaemontana rotensis. Five 
persons provided testimony at the public hearing held on November 16, 
2000. We received oral comments from a representative from the Mayor's 
office on Rota and four representatives from the CNMI DLNR at this 
public hearing. Representatives of the Mayor's office and the CNMI DLNR 
also responded by letter or e-mail during the first comment period.
    This final rule has been revised and updated to reflect the 
comments and information received during the comment periods. We 
address those substantive comments concerning the rule in the summary 
that follows.

Peer Review

    Our Interagency Cooperative Policy for Peer Review in Endangered 
Species Act Activities published in the Federal Register (59 FR 34270) 
states that the Service will incorporate independent peer review in 
listing decisions during the public comment period in the following 
manner: (1) solicit the expert opinions of a minimum of three 
appropriate and independent specialists regarding pertinent scientific 
and commercial data and assumptions relating to the taxonomy, 
population models, and supportive biological and ecological information 
for species under consideration for listing; and (2) summarize in the 
final decision document the opinions of all independent peer reviewers 
received on the species under consideration. The purpose of such review 
is to ensure that listing decisions are based on scientifically sound 
data, assumptions and analyses, including input of appropriate experts 
and specialists.
    In accordance with our policy, we sought the expert opinions of 
seven independent reviewers regarding the proposed rule. The purpose of 
such review is to ensure that our decisions are based on scientifically 
sound data, assumptions, and analyses. We invited these peer reviewers 
to comment, during the public comment periods, on the accuracy of the 
data used regarding the proposed listing of Nesogenes rotensis, 
Osmoxylon mariannense, and Tabernaemontana rotensis and conclusions 
drawn from these data. We received comments from four peer reviewers 
during the comment period. Three reviewers concur with our 
determination to list based upon available information on the species. 
One peer reviewer recommended a delay in the listing of Tabernaemontana 
rotensis pending the collection and analysis of an additional five 
years of data. All of the reviewers agreed that the proposed rule was 
based on scientifically sound data, assumptions, and analysis. These 
experts' comments are incorporated in the final rule and

[[Page 18501]]

summarized in the following responses to comments.
Issue 1: Biological Justification and Methodology
    Comment 1: One peer reviewer recommended that as additional 
individuals of Tabernaemontana rotensis have been found since the time 
of the proposed listing we continue to gather information on population 
data and monitor select groups of individuals of to determine local 
trends in numbers, seedling survival rates, and causes of mortality in 
populations on the islands of Guam and Rota. Based on the analysis of 
this new information, the status of the species would then be re-
assessed after five years. Other reviewers also suggested that, based 
on the detection of new individuals, Tabernaemontana rotensis, may be 
more widespread than originally believed. The peer reviewer also 
believed that we had failed to incorporate information on a significant 
population of Tabernaemontana rotensis which occurs on an upper terrace 
of Tagua Point.
    Our Response: The Service collected, collated, and analyzed that 
new information on the newly documented individuals of Tabernaemontana 
rotensis and distribution on Guam and Rota since the publication of the 
proposed listing rule in 2000. This included field observations and 
information from persons with direct knowledge of the species. The new 
information was provided by knowledgeable private individuals, 
Territory of Guam and Commonwealth biologists, and the Air Force. 
However, we are not listing T. rotensis on the basis of taxonomy.

Section 4(i) Comments Received From Commonwealth and Territorial 
Government Agencies

Issue 1: Biological Justification and Methodology
    Comment 2: The Guam Department of Agriculture (GDOA) and the Air 
Force provided additional information on the locations and population 
numbers of Tabernaemontana rotensis. Several reviewers, including the 
GDOA, CNMI DLNR, and the Air Force commented, however, that listing of 
one or more of the three species should be based on the results of 
comprehensive, island-wide surveys as it would be premature to list 
them absent the results of such survey efforts.
    Our Response: As required by the Act (section 4(a)(1)) and its 
implementing regulations, we must list species as endangered or 
threatened based on the best available scientific and commercial 
information. We have determined that Nesogenes rotensis and Osmoxylon 
mariannense meet the definition of endangered. However, we are not 
listing Tabernaemontana rotensis on the basis of taxonomy.
    As cited above in the response to Comment 1, since publication of 
the proposed listing in 2000, we have compiled new information on the 
numbers of individuals and distribution of Nesogenes rotensis and 
Osmoxylon mariannense and incorporated this information into the final 
rule. These two species have been the subject of searches conducted in 
the last 20 years on Rota by knowledgeable biologists and technicians, 
including staff from the CNMI DLNR and DFW. Biannual surveys for 
Nesogenes rotensis have been conducted on Rota since 2000 by biologists 
from the CNMI DFW to assess the health and status of the single known 
population at Po[ntilde]a Point Fishing Cliff; however, no surveys have 
been conducted for Nesogenes rotensis in other coastal habitat areas on 
Rota. Nesogenes rotensis is currently known from a single population of 
34 individuals. Surveys between 1980 and 1995 on Rota located 20 
individuals of Osmoxylon mariannense in the same limestone forest area 
that it had been reported from almost 50 years earlier (D. Grout and L. 
Mehrhoff, pers. comm.1997; L. Raulerson, pers. comm. 1998). Surveys 
conducted in 1997 and 1998 in the same area following several typhoons 
located only eight individuals (E. Taisacan and G. Hughes, pers. comm. 
1998). In a survey conducted in 2000, CNMI DFW identified six living 
and five dead trees (L. Arriola, in litt. 2000). And in a 2002 survey, 
eight living trees were reported in the same vicinity (E. Taisacan, 
pers. comm. 2003).
    Comment 3: The CNMI DLNR requested that, in addition to 
comprehensive, island-wide surveys, the following issues be considered 
prior to listing: species distribution, identification of destructive 
pests and diseases, propagation techniques, land ownership rights, 
public education and awareness, management plans for existing 
populations, and short- and long-term recovery plans for the species.
    Our Response: As cited above in response to Comment 2, since 
publication of the proposed listing in 2000, we compiled new 
information on the numbers of individuals and the distributions of 
Nesogenes rotensis and Osmoxylon mariannense, and have incorporated 
this information into this final rule.
    To date, no specific diseases have been identified for these 
species, and we are not aware of any research on destructive pests or 
diseases of these two species. Individuals of Osmoxylon mariannense 
have been reported to suffer defoliation by an unknown agent (L. 
Mehrhoff and C. Russell, pers. comm. 1997; E. Taisacan, pers. comm. 
1997). Invertebrate pests, rats, or disease are suspected to be the 
cause for a lack of seedlings or juveniles of Osmoxylon mariannense, 
deleterious effects on the leaves, and the death of several mature 
individual trees (D. Grout, pers. comm. 1997).
    We are aware of ongoing efforts by the CNMI DNLR to propagate 
Osmoxylon mariannese for outplanting on Rota (E. Taisacan, in litt. 
2002). A summary of these efforts is provided in this final rule below 
under Factor 3. There is no species-specific management plan.
    Currently, no Federal recovery plans exist for Nesogenes rotensis 
and Osmoxylon mariannense because such documents are prepared for 
species subsequent to their listing as endangered or threatened under 
the Act. Following the listing of Nesogenes rotensis and Osmoxylon 
mariannese, recovery plans will be completed pursuant to section 
4(f)(1) of the Act for these three species. These plans will provide a 
framework for combining and coordinating Federal, State, and regional 
agency efforts for conservation of the species as well as establish 
recovery priorities and estimate the cost of tasks necessary to 
accomplish these priorities. They will also describe site-specific 
management actions necessary to achieve conservation and survival of 
these species.
    Comment 4: The GDOA also commented that they did not feel that fire 
was a threat to Tabernaemontana rotensis because none of the trees 
occur in a fire-prone area, and fire is not known to occur in limestone 
forests on Guam or Rota. Rather, they point out that fires originate 
from human use of an area or vandalism. In addition, GDOA feels that 
few obvious threats to Tabernaemontana rotensis have been noted on 
Guam. Finally, GDOA suggests that clearings created by typhoons or 
humans might actually favor reproduction in this species and that the 
species, overall, appears to be quite hardy and resilient to adverse 
environmental and anthropogenic damage.
    Our Response: The threat of fire is no longer an issue because we 
are not listing T. rotensis on the basis of taxonomy.
Issue 2: Effects of Listing
    Comment 5: The CNMI DLNR commented that Tabernaemontana rotensis 
and Osmoxylon mariannense

[[Page 18502]]

are currently listed as endangered under CNMI public law and that 
stakeholders have taken the initiative, under local home rule, to 
protect the resources under their jurisdiction.
    Our Response: Section 4 of the Act provides guidance regarding the 
listing of species. Listing decisions are based upon the best 
scientific and commercial data available and take into consideration 
those efforts, if any, being made by any State or foreign nation, or 
any political subdivision of a State or foreign nation, to protect such 
species, whether by predator control, protection of habitat and food 
supply, or other conservation practices, within any area under its 
jurisdiction. With Federal protection as listed species, Federal 
agencies all insure that these species are not jeopardized pursuant to 
section 7 actions and Federal monies may be made available for their 
conservation pursuant to section 6 of the Act. Osmoxylon mariannense 
and Nesogenes rotensis are endemic to Rota. Osmoxylon mariannense is 
included on the ``List of Protected Wildlife and Plant Species in the 
CNMI'' (Table 3 of the 1999 revised DFW regulations implementing CNMI 
Public Law 2-51) for Rota; however, Nesogenes rotensis is not. Pursuant 
to these DFW regulations, protected species may not be hunted or 
harassed. These regulations do not, however, identify specific 
prohibitions regarding collection or possession of protected plant 
species or any requirements to analyze the effects of any proposed 
actions on such species. Cooperative efforts between the Service and 
the Rota DFW have resulted in the construction of fenced exclosures 
around several individuals of Osmoxylon mariannense on Rota. We are 
unaware of any other actions to protect the unfenced trees and to 
alleviate the threats posed by feral Sambal deer and pigs as well as 
invasive non-native plant species.
    Comment 6: The Mayor of Rota commented that there are no Federal 
lands on Rota and asked if Federal protection would extend to private 
property.
    Our Response: Federal protection of listed plants extends to 
private lands under two circumstances: (1) removal, cutting, digging 
up, damaging, or destroying endangered plants would constitute a 
violation of section 9 if conducted in knowing violation of State law 
or regulations or in violation of State criminal trespass law and (2) 
any activity that would be authorized, funded, or implemented by a 
Federal entity requires, pursuant to section 7(a) of the Act, that the 
Federal entity 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 (50 CFR part 402). If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service to ensure that its actions are not likely to jeopardize the 
continued existence of the species or destroy or adversely modify its 
critical habitat. Examples of Federal agency actions on private lands 
in the Commonwealth of the Northern Mariana Islands that may require 
consultation include the following: Army Corps of Engineers projects, 
such as the construction of roads, firebreaks, and bridges; various 
U.S. armed forces activities on the northern Mariana Islands, including 
combat and mobility training and construction; Natural Resources 
Conservation Service projects; Federal Emergency Management Agency 
activities; and U.S. Department of Housing and Urban Development 
projects. Conservation of these plant species may be consistent with 
some ongoing operations at these sites; however, the listing of these 
species in the CNMI could result in some restrictions on certain 
Federal activities and the use of certain lands.
    Comment 7: The Air Force and another reviewer commented that the 
Service should accept the taxonomic inclusion of Tabernaemontana 
rotensis into Tabernaemontana pandacaqui based on Leeuwenburg (1991) as 
it is the only peer-reviewed study directly applicable on Guam.
    Our Response: We have re-examined the basis for recognition of T. 
rotensis' as a distinct endemic species and now consider Leeuwenberg's 
treatment to be the most credible taxonomic interpretation of the 
native Tabernaemontana of Guam and Rota. Accordingly, we are not 
listing T. rotensis.

Non-Government Comments

    Comment 8: One reviewer asked if the listing of Nesogenes rotensis, 
Osmoxylon mariannense, and Tabernaemontana rotensis would impede local 
recovery efforts with the need to obtain numerous Federal permits and 
extra paperwork that would be required by the Service policy regarding 
the propagation of listed species.
    Our Response: Under the Act, the controlled propagation of animals 
and plants in certain situations is recognized as an essential tool for 
the conservation and recovery of listed species. In recognition of 
this, our ``Policy Regarding Controlled Propagation of Species Listed 
Under the Act'' (65 FR 56916) addresses botanical facilities and others 
who may be involved in the propagation of listed species. The goals of 
this policy include coordinating recovery actions specific to 
controlled propagation activities; maximizing benefits to the listed 
species from controlled propagation efforts; assuring that appropriate 
recovery measures other than controlled propagation and other existing 
recovery priorities are considered in making controlled propagation 
decisions; and ensuring prudent use of funds. We have also made 
substantial efforts to avoid adverse impacts, economic or otherwise, in 
order that cooperative recovery partnership opportunities may be 
maintained or increased with qualified organizations and individuals. 
As such, no significant adverse impacts to persons or entities involved 
in the propagation of federally-listed plant species, including 
Osmoxylon mariannense and Nesogenes rotensis, are anticipated.
    Comment 9: One reviewer commented that the Service should propose 
critical habitat for Nesogenes rotensis, Osmoxylon mariannense, and 
Tabernaemontana rotensis concurrent with the final rule to list the 
species.
    Our Response: In this final rule, we find that critical habitat for 
N. rotensis and O. mariannense is prudent but not determinable at this 
time due to a lack of information regarding the physical and biological 
features or specific areas essential to the conservation of these three 
species. In accordance with section 4(b)(6)(C)(ii) of the Act, however, 
it is our intent, if funded, to gather this information and to propose 
critical habitat for these two plant species within one year of their 
listing. In the interim, we will protect the two plant species through 
the provisions provided pursuant to sections 7 and 9 of the Act. 
However, we are not listing T. rotensis on the basis of taxonomy.
    Comment 10: One reviewer asked if the listing of Nesogenes 
rotensis, Osmoxylon mariannense, and Tabernaemontana rotensis would 
result in extra protection for these three species.
    Our Response: This is discussed in Our Response to Comment 6. 
However, we are not listing T. rotensis on the basis of taxonomy.

Summary of Factors Affecting the Species

    Section 4(a)(1) (16 U.S.C. 1531 et seq.) of the Act and regulations 
(50 CFR part 424) promulgated to implement the Act describe the 
procedures for adding species to the Federal lists. We may

[[Page 18503]]

determine a species to be endangered or threatened due to one or more 
of the five factors described in section 4(a)(1) of the Act. These 
factors and their application to Nesogenes rotensis and Osmoxylon 
mariannense are discussed in the following sections. The primary 
threats facing these two species are summarized in Table 1.
    The only known population of Nesogenes rotensis at Pona Point 
Fishing Cliff occurs in an area adjacent to a trail that is subject to 
bonfires, collecting, trampling by fishermen and tourists, and 
potential expansion of the park's facilities. Casuarina equisetifolia 
(ironwood), a large-stature, fast-growing non-native tree, is 
colonizing the Po[ntilde]a Point Fishing Cliff area. Ironwoods can 
reach heights of up to 65 ft (20 m) and form monotypic stands that can 
shade out other plant species. Dominance by Casuarina equisetifolia 
takes up much of the available nutrients, and the species is believed 
to release allelopathic chemicals that prevent understory growth (Neal 
1965; Smith 1985). Ironwoods presence constitutes a major threat to 
Nesogenes rotensis through degradation of suitable habitat. As such, 
given the current single population is comprised of only 34 
individuals, Nesogenes rotensis is extremely vulnerable to other 
factors. For example, two typhoons have made landfall on Guam and Rota 
since this species was proposed for listing: typhoon Chataan in July 
2002 and supertyphoon Pongsona in December 2002. While the species 
appears to be recovering from the effects of supertyphoon Pongsona, it 
remains extremely vulnerable during this recovery period (L. Williams, 
pers. comm. 2004).

                                                      Table 1.--Summary of Primary Threats to Nesogenes rotensis and Osmoxylon mariannense
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Non-native                           Development/  road     Typhoons/      Trampling/
            Species               Feral  animals      Rodents           plants       Invertebrate  pests          work             storms        collection       Vandalism     Limited  numbers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Nesogenes rotensis.............  Unknown........  Unknown........  Yes.............  Unknown............  Yes................  Yes...........  Yes...........  Potential.....  Yes; 34
                                                                                                                                                                                individuals.
Osmoxylon mariannense..........  Yes............  Potential......  Yes.............  Potential..........  Yes................  Yes...........  Unknown.......  Potential.....  Yes; 8
                                                                                                                                                                                individuals.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    The primary threat to Osmoxylon mariannense is degradation or 
disturbance of native forest habitat from a variety of factors 
including competition from invasive non-native species and feral 
ungulate activity. Rota has historically experienced typhoon 
disturbances that have opened the canopy of the sabana forest 
considerably, creating conditions favorable to invasive non-native 
shrubs and vines that compete with Osmoxylon mariannense (L. Mehrhoff, 
in litt. 1995). Feral pigs (Sus scrofa) and deer (Cervus mariannus) are 
abundant on Rota, and their browsing and trampling threaten unfenced 
individuals (G. Hughes, pers. comm. 1998; L. Williams, pers. comm. 
2004). Predation of seeds that fall to the forest floor by insects, 
house mice (Mus musculus), and/or rats (Rattus spp.) is also a 
suspected cause of reduced or absent reproductive vigor. Since several 
individuals occur in close proximity to roadways, routine road 
maintenance and/or improvement also pose a threat to the species.
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Native vegetation, including cloud 
limestone forest habitat for Osmoxylon mariannense and open coastal 
scrubland habitat for Nesogenes rotensis on Rota, has undergone extreme 
alteration due to past and present land use practices, including 
ranching, deliberate and unintentional non-native animal and plant 
introductions, agricultural, and military activities during World War 
II (Falanruw et al. 1989).
    Rota was subject to extensive agricultural development 
(particularly cultivation of sugar cane in the lowland areas) by the 
Japanese prior to World War II. The island was not, however, invaded by 
allied forces during World War II. Rota retains less than 60 percent of 
its historic native forest (Falanruw et al. 1989). Continued loss of 
native forest is attributable to application of the Agricultural 
Homestead Act of 1990 that allows for the distribution of 2.5-ac (1-ha) 
parcels of public land to eligible participants. Land use plans have 
proposed that approximately 25 to 45 percent of Rota be designated 
private agricultural homestead land or as land likely to be converted 
to agricultural homesteads (Resources Northwest, Inc. 1997). In 2001, 
the Agricultural Homestead Act of 1990 was amended to allow 
agricultural homestead permitting on any public lands not required for 
government use or reserved for other purposes by any other provision of 
the law. Thus, individuals awaiting permits may choose many areas of 
Rota's public lands for agricultural homesteads, rather than areas 
planned and reserved specifically for those purposes (Pub. L. 12-53). 
Therefore, the potential for agricultural development continues to 
threaten the remaining limestone forests on Rota, which include habitat 
for Osmoxylon mariannense.
    Throughout the Mariana Islands, goats, pigs, cattle, and deer have 
severely damaged forest vegetation by browsing on plants, causing 
habitat degradation and erosion (Kessler 1997; Marshall et al. 1995) 
that then retards forest growth and regeneration (Lemke 1992). 
Remaining habitat is threatened by fragmentation and degradation 
associated with resort development, agricultural activities, and road 
maintenance and construction (D. Grout and L. Mehrhoff, pers. comms. 
1997). Individuals of Osmoxylon mariannense on Rota were almost lost 
during road-widening activities that occurred in the late 1990s (D. 
Grout and L. Mehrhoff, pers. comms. 1997). Coastal habitat is 
threatened by fragmentation and degradation associated with resort 
development, and potential beach park expansion and development of park 
facilities at the only known location of Nesogenes rotensis.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. At this time, overutilization of the two species 
is not known to be an important factor. Unrestricted scientific or 
horticultural collecting by interested individuals may significantly 
affect these species due to their extremely low numbers. The only 
population of Nesogenes rotensis is located in a public park and 
threatened by trampling by foot traffic and bonfires set by tourists 
and fishermen. Due to the small population size, reproductive vigor may 
also be depressed by a limited gene pool.
    Propagation studies are ongoing only for Osmoxylon mariannense on 
Rota. Seeds were collected from wild individuals of Osmoxylon 
mariannense and planted in October 2001 and March 2002. From the 
October planting, approximately 150 individuals had germinated by 
November, and, as of March 2002, 11 are surviving in a

[[Page 18504]]

nursery. The seeds planted in March 2002, produced approximately 100 
seedlings. Thirty-five of these individuals survived and are in good 
condition (Taisacan 2002).
    C. Disease and predation. To date, no specific diseases have been 
identified for these species. Individuals of Osmoxylon mariannense have 
suffered defoliation by an unknown agent (E. Taisacan, pers. comm. 
1997). Invertebrate pests, rats, or disease are suspected to have 
caused the defoliation due to the poor health of the leaves, the lack 
of seedlings or juveniles of Osmoxylon mariannense, and the death of 
several previously mapped older individual plants (D. Grout, pers. 
comm. 1997).
    Feral ungulates threaten seedlings of Osmoxylon mariannense (G. 
Wiles, in litt. 1998; D. Janeke, pers. comm. 2003; L. Williams, pers. 
comm. 2004). Cooperative efforts between the Service and the Rota DFW 
have resulted in the construction of fenced exclosures around several 
individuals of Osmoxylon mariannense. The majority of individuals of 
Osmoxylon mariannense are not currently protected by fencing and are 
vulnerable to browsing or trampling by feral ungulates.
    D. The inadequacy of existing regulatory mechanisms. Osmoxylon 
mariannense is on the list of protected species for the government of 
the CNMI but there are no specific prohibitions regarding collection or 
possession of protected plant species or requirement for the analysis 
of potential adverse effects associated with proposed projects. 
Nesogenes rotensis is not included on this list of protected species in 
the CNMI.
    At the time of publication of the proposed rule, an island-wide 
multiple species habitat conservation plan for Rota was envisioned by 
the CNMI government and local Rota residents. This plan was to be 
prepared with technical assistance from the Service. The preparation of 
this plan has since been abandoned by the CNMI government in lieu of 
the development of a project-specific habitat conservation plan to 
address impacts to a single species, the Mariana crow (Corvus kubaryi) 
(Arlene Pangelinan, Service, pers. comm. 2003).
    E. Other natural or manmade factors affecting its continued 
existence. The combination of storm disturbance and resultant 
competition from invasive, non-native plant species adversely affects 
the condition of habitat occupied by Osmoxylon mariannense (L. 
Williams, pers. comm. 2004). Rota has a long history of disturbances by 
tropical typhoons (Weir 1991). While native biota are adapted to these 
events, these typhoons, in combination with anthropogenic disturbances, 
and the relatively new presence of invasive species threaten the 
continued existence of Nesogenes rotensis and Osmoxylon mariannense. 
Within the past decade, frequent typhoons have made landfall on Rota, 
severely affecting the islands. Most recently, super typhoon Pongsona 
affected the Mariana Islands, particularly Guam and Rota, with winds of 
up to 184 mph. While Nesogenes rotensis and Osmoxylon mariannense are 
expected to have adapted to high winds, typhoons, and storm surge, 
their distribution and numbers have been reduced significantly due to 
human activities and this makes the remaining individuals particularly 
susceptible to extirpation or extinction from a natural disaster. 
Destruction of the sabana forest canopy by typhoons has adversely 
affected Osmoxylon mariannense by altering sub-canopy vegetation 
conditions over the long-term by opening up and drying out older, 
closed forest habitat (E. Taisacan, pers. comm. 1998; L. Williams, 
pers. comm. 2004). The single population of Nesogenes rotensis is 
extremely vulnerable to typhoons, storm surge, and high surf because 
its open scrubland habitat is located in a coastal area. Osmoxylon 
mariannense is threatened by competition from one or more invasive, 
non-native plant species including Momordica charantia, Mikania 
scandens, and Passiflora suberosa. In opened forest areas, various 
opportunistic, weedy vines such as Momordica charantia, Momordica 
scandens, and Passiflora suberosa cover the ground (Fosberg 1960; G. 
Hughes, pers. comm. 1998) and may alter conditions necessary for seed 
germination and seedling growth provided in closed-canopy, high-stature 
forests covered with mosses and various epiphytic species. Casuarina 
equisetifolia is becoming established in the coastal scrubland habitat 
at Pona Point Fishing Cliff and will likely spread and change the 
coastal scrubland into a forest habitat with no understory due to 
restriction of available sunlight, restriction of available nutrients, 
and possibly release of a chemical agent that prevents other plants 
from growing beneath it and, thereby, adversely affecting the single 
remaining population of Nesogenes rotensis (Smith 1985; L. Williams, 
pers. comm. 2004).
    Small population size and limited distribution make these species 
particularly vulnerable to extinction from reduced reproductive vigor 
or random environmental events. On Rota, 8 individuals of Osmoxylon 
mariannense, and a single population of 34 individuals of Nesogenes 
rotensis are known. A single adverse environmental event or lack or 
decline of successful reproduction in Nesogenes rotensis or Osmoxylon 
mariannense could lead to the extinction of these two species. 
Nesogenes rotensis is found in the coastal zone where a single 
disturbance from storm surge could destroy a significant percentage of 
the individuals or the entire population. In addition, the continuing 
adverse impacts of trampling of Nesogenes rotensis by people and/or 
expansion of facilities at Pona Point could also destroy a significant 
percentage of the individuals or the entire population resulting in the 
extinction of this species.
    We have carefully assessed the best scientific and commercial 
information available on the past, present, and future threats facing 
these species in determining the actions to take in this rule. Based on 
this evaluation, the appropriate action is to list Nesogenes rotensis 
and Osmoxylon mariannense as endangered. Nesogenes rotensis is endemic 
to the island of Rota and has one population with fewer than 34 
individuals. Osmoxylon mariannense is endemic to the island of Rota and 
has eight occurrences, with only one living tree in each. These two 
species are threatened by one or more of the following: habitat 
degradation or destruction by feral ungulates; competition for space, 
light, water, and nutrients with invasive non-native plant species; 
road construction and maintenance activities; trampling by humans 
(Nesogenes rotensis); development; limited reproductive vigor; 
vandalism; natural disasters or random environmental events; and 
potentially disease or predation by insects, mice, or rats. Because 
these species are in danger of extinction throughout all or a 
significant portion of their ranges, they fit the definition of 
endangered as defined in the Act.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
implementing regulations (50 CFR 424.12(a)) state that critical habitat 
is not determinable if information sufficient to perform the required 
analyses of impacts of the designation is lacking, or if the biological 
needs of the species are not

[[Page 18505]]

sufficiently well known to permit identification of an area as suitable 
habitat.
    We find that designation of critical habitat for Nesogenes rotensis 
and Osmoxylon mariannense, is not determinable at this time because we 
are unable to identify the physical and biological features essential 
to the conservation of these two species and we are unable to identify 
whether specific unoccupied areas are essential for their conservation. 
When a ``not determinable'' finding is made, we must, within one year 
of the publication date of the final listing rule, designate critical 
habitat, unless the designation is found to be not prudent.
    We will continue to protect these two species and their habitat 
through the recovery process and section 7 consultations to assist 
Federal agencies in avoiding jeopardizing these species.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, development of recovery 
plans, requirements for Federal protection, and prohibitions against 
certain activities. Recognition through listing results in public 
awareness and encourages conservation actions by Federal, State, 
Tribal, and local agencies, non-governmental conservation 
organizations, and private individuals. The Act provides for possible 
land acquisition and cooperation with the States and requires that 
recovery actions be carried out for listed species. Recovery planning 
and implementation, the protection required by Federal agencies and the 
prohibitions against certain activities involving listed species are 
discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement plans for the conservation of endangered and threatened 
species (``recovery plans''). The recovery process involves halting or 
reversing the species' decline by addressing the threats to its 
survival. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems, thus allowing delisting.
    Recovery planning, the foundation for species recovery, includes 
the development of a recovery outline as soon as a species is listed, 
and later, preparation of draft and final recovery plans, and revision 
of the plan as significant new information becomes available. The 
recovery outline--the first step in recovery planning--guides the 
immediate implementation of urgent recovery actions, and describes the 
process to be used to develop a recovery plan. The recovery plan 
identifies site-specific management actions that will achieve recovery 
of the species, measurable criteria that determine when a species may 
be downlisted or delisted, and methods for monitoring recovery 
progress. Recovery teams, consisting of species experts, Federal and 
State agencies, non-government organizations, and stakeholders, are 
often established to develop recovery plans. When completed, a copy of 
the recovery outline, draft recovery plan, or final recovery plan will 
be available from our Web site (http://endangered.fws.gov) or, if 
unavailable or inaccessible, from our office (see FOR FURTHER 
INFORMATION CONTACT section).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, non-governmental organizations, businesses, and 
private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands. To achieve the recovery of these species requires 
cooperative conservation efforts on private lands as many occur 
primarily or solely on private lands.
    The funding for recovery actions can come from a variety of 
sources, including Federal budgets, State programs, and cost share 
grants for non-Federal landowners, the academic community, and non-
governmental organizations. Additionally, pursuant to section 6 of the 
Act, we would be able to grant funds to the CNMI for management actions 
that promote the protection and recovery of these two plant species. 
Information on the Service's grant programs that are available to aid 
species recovery can be found on our Web site at: http://endangered.fws.gov/grants/index.html. In the event that our internet 
connection is inaccessible, please check www.grants.gov or check with 
our grants contact at U.S. Fish and Wildlife Service, Ecological 
Services, 911 NE 11th Avenue, Portland, OR 97232-4181 (telephone 503/
231-2063; FAX 503/231-6243).
    For additional information on available conservation measures, 
refer to Summary of Factors Affecting the Species, B.
    Please let us know if you are interested in participating in 
recovery efforts for Nesogenes rotensis and Osmoxylon mariannense (see 
FOR FURTHER INFORMATION CONTACT section). Additionally, we invite you 
to submit any further information on these species whenever it becomes 
available or other information you may have for species' recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT section).
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened, and with respect to its critical 
habitat if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) of the Act requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of the species or destroy 
or adversely modify its critical habitat if any has been designated. If 
a Federal action may affect a listed species or its critical habitat, 
the responsible Federal agency must enter into formal consultation with 
us.
    Federal agency actions that may require consultation for Nesogenes 
rotensis and Osmoxylon mariannense include, but are not limited to: 
Army Corps of Engineers projects, such as the construction of roads, 
firebreaks, and bridges; various U.S. armed forces activities on the 
northern Mariana Islands, such as combat and mobility training, and 
construction; Natural Resources Conservation Service projects; Federal 
Emergency Management Agency activities; and U.S. Department of Housing 
and Urban Development projects. Federal actions not affecting the two 
species, as well as actions on non-Federal lands that are not federally 
funded or permitted, would not require section 7 consultation.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act implemented at 
50 CFR 17.61 for endangered plants would apply. These prohibitions, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to import or export, transport in interstate or foreign 
commerce in the course of a commercial activity, sell or offer for sale 
these two species in interstate or foreign

[[Page 18506]]

commerce, or to remove the species from areas under Federal 
jurisdiction. In addition, for plants listed as endangered, the Act 
prohibits the malicious damage or destruction in areas under Federal 
jurisdiction and the removal, cutting, digging up, damaging, or 
destroying of such endangered plants in knowing violation of any State, 
Commonwealth, or Territory law or regulation, or in the course of any 
violation of State, Commonwealth, or Territory criminal trespass law. 
Certain exceptions to the prohibitions apply to any employee or agent 
of the Service, any other Federal land management agency, or a State 
conservation agency (50 CFR 17.61(c)(2)-(4)).
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plant species under certain circumstances. Such permits are 
available for scientific purposes, to enhance the propagation or 
survival of the species. We anticipate that the only permits that would 
be sought or issued would be in association with recovery efforts as 
these two species are not common in cultivation or the wild.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify, to the maximum extent practicable at the 
time a species is listed, those activities that are likely to 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effects of the listing on 
proposed and ongoing activities within a species' range.
    We believe the following activities could potentially result in a 
violation of section 9; however, possible violations are not limited to 
these actions alone: collection (including scientific collection absent 
authorization by the Service), damage, or destruction of Nesogenes 
rotensis or Osmoxylon mariannense on non-Federal lands if conducted in 
knowing violation of CNMI law or regulations, including CNMI criminal 
trespass law. In addition, possible violations include importing or 
exporting these species, and selling or shipping specimens in 
interstate or foreign commerce in the course of commercial activity.
    We will review other activities not identified above on a case-by-
case basis to determine whether they may be likely to result in a 
violation of section 9 of the Act. We do not consider these lists to be 
exhaustive and provide them as information to the public. You should 
direct questions regarding whether specific activities would constitute 
a violation of section 9 to the Field Supervisor of the Pacific Islands 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).
    You may request copies of the regulations regarding listed plants 
and address questions about prohibitions and permits to the U.S. Fish 
and Wildlife Service, Ecological Services, Permits Branch, 911 NE 11th 
Avenue, Portland OR 97232-4181 (telephone 503/231-2063; FAX 503/231-
6243).

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined in the National Environmental Policy Act 
of 1969, need not be prepared in connection with regulations adopted 
pursuant to section 4(a) of the Act. We published a notice outlining 
our reasons for this determination in the Federal Register on October 
25, 1983 (48 FR 49244).

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 listed Nesogenes 
rotensis and Osmoxylon mariannense as endangered species in accordance 
with the provisions of the Endangered Species Act.

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not 
impose record keeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. The existing OMB control number is 1018-0094 and 
expires July 31, 2004.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Pacific Islands Fish and Wildlife 
Office (See FOR FURTHER INFORMATION CONTACT section.)

Author

    The primary authors of this final rule are the staff of the Fish 
and Wildlife Service (see FOR FURTHER INFORMATION CONTACT section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record-keeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we 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.


0
2. Section 17.12(h) is amended by adding the following, in alphabetical 
order under FLOWERING PLANTS, to the List of Endangered and Threatened 
Plants:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species
----------------------------------------------------------     Historic range             Family             Status         When     Critical   Special
          Scientific name                Common name                                                                       listed    habitat     rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Nesogenes rotensis................  None.................  Western Pacific        Verbenaceae--Verbena   E                     742         NA         NA
                                                            Ocean--U.S.A.          family.
                                                            (Commonwealth of the
                                                            Northern Mariana
                                                            Islands).
 

[[Page 18507]]

 
                                                                      * * * * * * *
Osmoxylon mariannense.............  None.................  Western Pacific        Araliaceae--Ginseng    E                     742         NA         NA
                                                            Ocean--U.S.A.          family.
                                                            (Commonwealth of the
                                                            Northern Mariana
                                                            Islands).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: April 1, 2004.
Marshall Jones,
Deputy Director, Fish and Wildlife Service.
[FR Doc. 04-7934 Filed 4-7-04; 8:45 am]
BILLING CODE 4310-55-P