[Federal Register Volume 61, Number 153 (Wednesday, August 7, 1996)]
[Rules and Regulations]
[Pages 41020-41024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19963]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB88
Endangered and Threatened Wildlife and Plants; Endangered Status
for the Hawaiian Plant Pritchardia aylmer-robinsonii (wahane)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
endangered status pursuant to the Endangered Species Act of 1973, as
amended (Act), for the plant Pritchardia aylmer-robinsonii (wahane).
The species is endemic to the island of Niihau, Hawaiian Islands. The
species and its habitat have been affected and are currently threatened
by cattle, pigs, and sheep. Due to the small number of existing
individuals and their very narrow distribution, this species is subject
to reduced reproductive vigor and/or an increased likelihood of
extinction from naturally occurring events. This final rule implements
the Federal protection provisions provided by the Act.
EFFECTIVE DATE: This rule takes effect on September 6, 1996.
ADDRESSES: The complete file for this final rule is available for
public inspection, by appointment, during normal business hours, at the
U.S. Fish and Wildlife Service, Pacific Islands Ecoregion, 300 Ala
Moana Boulevard, Room 3108, P.O. Box 50088, Honolulu, Hawaii 96850.
FOR FURTHER INFORMATION CONTACT: Robert P. Smith, Pacific Islands
Ecoregion Manager, at the above address (808/541-2749).
SUPPLEMENTARY INFORMATION:
Background
In 1947, on one of his botanical collecting trips to Niihau, Harold
St. John discovered a new species of the only genus of palms native to
the Hawaiian Islands. He named it Pritchardia aylmer-robinsonii in
honor of Aylmer F. Robinson, a member of the family that owns the
island and a person who provided St. John with much information
regarding the island's plants (St. John 1959).
Historically, Pritchardia aylmer-robinsonii was found at three
sites in the eastern and central portions of the island of Niihau.
Trees were found on Kaali Cliff and in Mokouia and Haao Valleys at
elevations between 70 and 270 meters (m) (230 and 890 feet (ft))
(Hawaii Heritage Program (HHP) 1991a to 1991d). The most recent
observations indicate two plants still remain on Kaali Cliff (Read and
Hodel 1990). Originally a component of the Coastal Dry Forest, this
species now occurs only in a rugged and steep area where it receives
some protection from grazing animals. The substrate in the seepage area
is rocky talus. Prosopis pallida (kiawe), an introduced tree, is one of
the palm's few associated plant taxa. Other native plants that have
been found in the area include Brighamia insignis ('olulu), Cyperus
trachysanthos (pu'uka'a), Lipochaeta lobata var. lobata (nehe), and
Lobelia niihauensis (HHP 1991e; St. John 1959; Keith Woolliams, Waimea
Arboretum and Botanical Garden, pers. comm. 1980). Pritchardia aylmer-
robinsonii of the palm family (Arecaceae) is a fan-leaved tree about 7
to 15 m (23 to 50 ft) tall with a trunk approximately 20 to 30
centimeters (cm) (8 to 12 inches (in.)) in diameter. The upper and
lower leaf surfaces are green and hairless, and leaf segments are
rather thin and drooping. The lower surfaces of the petiole and the
leaf ribs are covered with dense, tan wool. The branched, hairless
flower clusters are located among the leaves and are no longer than the
petioles. Each flower is comprised of a cup-shaped, three-lobed calyx;
three petals; six stamens; and a three-lobed stigma. The spherical,
hard, black fruit is 1.8 to 2 cm (0.7 to 0.8 in.) in diameter. This
species is distinguished from others of the genus by the thin leaf
texture and drooping leaf segments; the tan woolly hairs on the
underside of the petiole and the leaf blade base; the stout hairless
flower clusters that do not extend beyond the fan-shaped leaves; and
the smaller spherical fruit (Read and Hodel 1990).
Hawaiian land practices prior to European contact probably
destroyed most of the forest on Niihau. Grazing animals were introduced
to the island beginning in the 1700s. Cattle (Bos taurus), goats (Capra
hircus), sheep (Ovis aries), and pigs (Sus scrofa) have decreased
available habitat for Pritchardia aylmer-robinsonii as well as directly
damaging trees, seedlings, and/or seeds. The entire island is now
classified an Agricultural District, and it is managed as a cattle and
sheep ranch. Although approximately 200 immature individuals have been
cultivated on Niihau and Kauai, extinction from naturally occurring
events and/or reduced reproductive vigor due to the small number of
reproductive plants are major threats. Because palms take many years to
mature, it is not known whether the immature plants now in cultivation
are capable of reproducing and sustaining a viable population.
Roof rats (Rattus rattus) are a potential threat to this species
since they eat the seeds of some palms of this genus and are found on
Niihau (Beccari and Rock 1921; Cuddihy and Stone 1990; Department of
Geography 1983; St. John 1959; Tomich 1986; Wagner et al. 1985; John
Fay, U.S. Fish and Wildlife Service, pers. comm. 1992).
Previous Federal Action
Federal action on these plants began as a result of section 12 of
the Endangered Species Act (Act) of 1973, as amended (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 aylmer-robinsonii was considered to be
endangered. On July 1, 1975, the Service published a notice in the
Federal Register (40 FR 27823) of its acceptance of the Smithsonian
report as a petition within the context of section 4(c)(2) (now section
4(b)(3)) of the Act, and giving notice of its intention to review the
status of the plant taxa named
[[Page 41021]]
therein. As a result of that review, the Service published a proposed
rule on June 16, 1976, 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 Pritchardia aylmer-
robinsonii. The list of 1,700 plant taxa was assembled on the basis of
comments and data received by the Smithsonian Institution and the
Service in response to House Document No. 94-51 and the July 1, 1975,
Federal Register publication. General comments received in response to
the 1976 proposal are summarized in an April 26, 1978, Federal Register
publication (43 FR 17909). In 1978, amendments to the Act required that
all proposals over 2 years old be withdrawn. A 1-year grace period was
given to proposals already over 2 years old. On December 10, 1979, the
Service 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), and February 21,
1990 (55 FR 6183). In these notices, Pritchardia aylmer-robinsonii was
treated as a candidate for Federal listing.
Section 4(b)(3)(B) of the Act requires the Secretary to make
findings on petitions that present substantial information indicating
that the petitioned action may be warranted within 12 months of their
receipt. Section 2(b)(1) of the 1982 amendments further requires all
petitions pending on October 13, 1982, be treated as having been newly
submitted on that date. On October 13, 1983, the Service found that the
petitioned listing of Pritchardia aylmer-robinsonii was warranted but
precluded by other pending listing actions, in accordance with section
4(b)(3)(B)(iii) of the Act; notification of this finding was published
on January 20, 1984 (49 FR 2485). Such a finding requires the Service
to consider the petition as having been resubmitted, pursuant to
section 4(b)(3)(C)(i) of the Act. The finding was reviewed in October
of 1984, 1985, 1986, 1987, 1988, 1989, 1990, and 1991. Publication of
the proposed rule constituted the final 1-year finding for this
species.
On December 17, 1992, the Service published a proposal in the
Federal Register (57 FR 59970) to list the plant Pritchardia aylmer-
robinsonii as endangered. This proposal was based primarily on
information supplied by the Hawaii Heritage Program and observations by
botanists and naturalists. The Service determines Pritchardia aylmer-
robinsonii to be endangered with the publication of this rule.
The processing of this final listing rule conforms with the
Service's final listing priority guidance published in the Federal
Register on May 16, 1996 (61 FR 24722). The guidance clarifies the
order in which the Service will process rulemakings following two
related events: 1) the lifting, on April 26, 1996, of the moratorium on
final listings imposed on April 10, 1995 (Public Law 104-6), and 2) the
restoration of significant funding for listing through passage of the
omnibus budget reconciliation law on April 26, 1996, following severe
funding constraints imposed by a number of continuing resolutions
between November 1995 and April 1996. The guidance calls for giving
highest priority to handling emergency situations (Tier 1) and second
highest priority (Tier 2) to resolving the listing status of the
outstanding proposed listings. This final rule falls under Tier 2. At
this time there are no pending Tier 1 actions.
Summary of Comments and Recommendations
In the December 17, 1992, proposed rule and associated
notifications, all interested parties were requested to submit factual
reports or information that might contribute to the development of a
final rule. The public comment period ended February 16, 1993.
Appropriate State agencies, county governments, Federal agencies,
scientific organizations, and other interested parties were contacted
and requested to comment. A newspaper notice inviting public comment
was published in Kauai's ``The Garden Island'' on December 28, 1992.
Two letters of comment, including one from an organization and one from
an individual, were received and are discussed below.
One respondent supported the listing of Pritchardia aylmer-
robinsonii and one opposed the listing. One issue was raised in the
opposing respondent's letter. This issue and the Service's response is
discussed below.
Issue: Listing of this species will give Federal and State
governments authority to interfere with private landowners and to seize
private lands.
Response: Section 9 of the Act contains the prohibitions and, in
general, prohibits the sale of an endangered plant species in
interstate or foreign commerce, or importing or exporting such a plant
species. With regard to prohibitions applicable to private lands,
section 9 prohibits individuals on private lands from removing or
damaging an endangered plant species in knowing violation of State law.
Section 10 of the Act outlines some exceptions to these prohibitions.
In addition, while the Act authorizes land acquisition from a willing
seller as a tool to help protect and recover a listed species in some
cases, it does not provide for ``seizure'' of private lands. If
additional measures are needed to protect the species, such as
propagation of the species on Federal land, the Service will work
cooperatively with the landowner. Federally listed species are also
accorded listed status under Hawaii State law. In general, Hawaii law
prohibits the taking of listed species within that State and encourages
conservation measures by State agencies. For more information on
applicable provisions of State law, contact the Hawaii Department of
Land and Natural Resources.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that Pritchardia aylmer-
robinsonii should be classified as an endangered species. Procedures
found at section 4(a)(1) of the Act and regulations (50 CFR part 424)
promulgated to implement the listing provisions of the Act were
followed. A species may be determined to be an endangered species due
to one or more of the five factors described in section 4(a)(1). These
factors and their application to Pritchardia aylmer-robinsonii St. John
(wahane) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. The habitat of Pritchardia aylmer-
robinsonii has undergone extreme alteration because of past and present
land management practices, including agricultural use and introductions
of alien animals. The Hawaiians made extensive agricultural use of
Niihau before European contact. Modification of habitat by introduced
animals, currently cattle, pigs, and sheep and formerly goats, is one
of the major threats facing Pritchardia aylmer-robinsonii.
Cattle (Bos taurus) were introduced to the Hawaiian Islands in
1793. Feral cattle formerly occurred on Niihau and caused much damage
on the island. Goats (Capra hircus) were successfully introduced to the
Hawaiian Islands in 1792. All feral goats were removed from Niihau in
about 1910, but they had already caused considerable damage to the dry
and mesic forests. Sheep (Ovis
[[Page 41022]]
aries) were also introduced to Niihau, where they have and continue to
damage the native vegetation and substrate. Pigs (Sus scrofa) were
introduced to the Hawaiian Islands by the Polynesian immigrants and
later from European ships. Pigs presently on Niihau cause damage to the
substrate and plants and eat the seeds of Pritchardia aylmer-robinsonii
(Cuddihy and Stone 1990; Stone 1985; Tomich 1986; Wagner et al. 1985;
J. Fay, pers. comm. 1992).
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Because the natural population is on a privately
owned island with limited public access, activities such as
unrestricted collecting for scientific or horticultural purposes and
excessive visits by individuals interested in seeing rare plants are
unlikely to occur.
C. Disease or predation. Niihau is used as a cattle and sheep ranch
with animals ranging in many areas of the island. Predation is a
probable threat since Pritchardia aylmer-robinsonii is not known to be
unpalatable to these ungulates. St. John noted damage to one tree
believed to have been caused by an animal (1959). The current
occurrence of plants only in a rocky area inaccessible to ungulates
indicates the effect that browsing mammals have had in restricting the
distribution of the species.
Roof and black rats (Rattus rattus), which occur on Niihau, have
been reported to damage the fruit of other species of Pritchardia and,
thus, pose a potential threat to Pritchardia aylmer-robinsonii (Beccari
and Rock 1921).
D. The inadequacy of existing regulatory mechanisms. The known
natural habitat of this species is located exclusively on privately
owned land. There is currently no existing regulatory mechanism or
other authority to prevent further decline of this species on private
land. Hawaii's Endangered Species Act states, ``Any species of aquatic
life, wildlife, or land plant that has been determined to be an
endangered species pursuant to the [Federal] Endangered Species Act
shall be deemed to be an endangered species under the provisions of
this chapter* * *'' (HRS, sect. 195D-4(a)). Federal listing
automatically triggers listing under Hawaii State law, which prohibits
taking of endangered plants in the State and encourages conservation by
State agencies (HRS, sect. 195D-4).
State laws relating to the conservation of biological resources
allow for the acquisition of land as well as the development and
implementation of programs concerning the conservation of biological
resources (HRS, sect. 195D-5(a)). The State may enter into agreements
with Federal agencies to administer and manage any area required for
the conservation, management, enhancement, or protection of endangered
species (HRS, sect. 195D-5(c)). Funds for these activities can be made
available under section 6 of the Federal Act (State Cooperative
Agreements). The Hawaii Department of Land and Natural Resources is
mandated to initiate changes in conservation district boundaries to
include ``the habitat of rare native species of flora and fauna within
the conservation district'' (HRS, sect. 195D-205-4). Currently, the
entire island of Niihau is within the Agricultural District. Listing of
this species will activate the protection available under the State Act
and other laws. The Federal Act offers additional protection to this
species because it is a violation of the Act for any person to remove,
cut, dig up, damage, or destroy any such plant in an area not under
Federal jurisdiction in knowing violation of State law or regulation or
in the course of any violation of a State criminal trespass law.
E. Other natural or manmade factors affecting its continued
existence. The small number of individuals of Pritchardia aylmer-
robinsonii increases the potential for extinction from naturally
occurring events. A single human-caused or natural environmental
disturbance could destroy the only two naturally occurring individuals
as well as a significant portion of the cultivated plants on Niihau and
Kauai. In addition, the limited gene pool may depress reproductive
vigor.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this species in this final rule. Based on this
evaluation, this rulemaking will list Pritchardia aylmer-robinsonii as
endangered. This species numbers only two naturally occurring
individuals in one population. Approximately 200 immature individuals
have been cultivated on Niihau and Kauai. The species is threatened by
habitat degradation, lack of legal protection, and/or predation by
cattle, pigs, and sheep. Small population size and limited distribution
make this species particularly vulnerable to reduced reproductive vigor
and/or extinction from naturally occurring events. Because this species
is in danger of extinction throughout all or a significant portion of
its range, it fits the definition of endangered as defined in the Act.
Critical habitat is not being designated for Pritchardia aylmer-
robinsonii for reasons discussed in the ``Critical Habitat'' section of
this final rule.
Critical Habitat
Section 4(a)(3) of the Act, as amended, requires that, to the
maximum extent prudent and determinable, the Secretary designate
critical habitat at the time a species is listed as endangered or
threatened. The Service finds that designation of critical habitat is
not presently prudent for Pritchardia aylmer-robinsonii. The Service's
regulations (50 CFR 424.12(a)(1)) state that designation of critical
habitat is not prudent when one or both of the following situations
exist: (1) the species is imperiled by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of such threat to the species; or (2) such designation of
critical habitat would not be beneficial to the species.
In the case of the Pritchardia aylmer-robinsonii, the second
criterion is met. All individuals of Pritchardia aylmer-robinsonii are
found on private lands where Federal involvement in land-use activities
does not generally occur. Critical habitat has legal significance to
actions authorized, funded, or carried out by Federal agencies under
section 7 of the Act. Since section 7 would not apply to wholly private
activities, critical habitat designation would not appreciably benefit
the species in this case.
Available Conservation Measures
Conservation measures provided to species listed as endangered
under the Act include recognition, recovery actions, requirements for
Federal protection, and prohibitions against certain activities.
Recognition through listing can encourage conservation actions by
Federal, State, and private agencies, groups, and individuals. The Act
provides for possible land acquisition and cooperation with the State
and requires that recovery plans be developed for listed species. The
requirements for Federal agencies and the prohibitions against certain
activities involving listed plants are discussed, in part, below.
Section 7 of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any taxon that is proposed or
listed as endangered 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. When
a species is listed, section 7(a)(2) of the
[[Page 41023]]
Act requires Federal agencies to insure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of such a species or to destroy or adversely modify its critical
habitat. If a Federal action may affect a listed species or its
critical habitat, the responsible Federal agency must enter into
consultation with the Service. No Federal activities are known to occur
within the habitat of Pritchardia aylmer-robinsonii.
The Act and its implementing regulations found at 50 CFR 17.61,
17.62, and 17.63 for endangered plant species, set forth a series of
general prohibitions and exceptions that apply to all endangered plant
species. With respect to Pritchardia aylmer-robinsonii, all
prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR
17.61, apply. These prohibitions, in part, make it illegal for any
person subject to the jurisdiction of the United States to import or
export any endangered plant species; transport such species in
interstate or foreign commerce in the course of a commercial activity;
sell or offer for sale such species in interstate or foreign commerce;
remove and reduce to possession an endangered plant species from areas
under Federal jurisdiction; maliciously damage or destroy any such
species on any area under Federal jurisdiction; or remove, cut, dig up,
damage, or destroy any such species on any other area in knowing
violation of any State law or regulation or in the course of any
violation of a State criminal trespass law. Certain exceptions apply to
agents of the Service and State conservation agencies. The Act and 50
CFR 17.62 and 17.63 also provide for the issuance of permits to carry
out otherwise prohibited activities involving endangered plant species
under certain circumstances.
It is the policy of the Service, published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent
practicable those activities that would or would not constitute a
violation of section 9 of the Act at the time of listing. The intent of
this policy is to increase public awareness of the effect of listing on
proposed or ongoing activities. Pritchardia aylmer-robinsonii exists as
two individuals in one population on privately owned land. Since there
is no Federal ownership, and the species is not in commercial trade,
the only potential section 9 involvement would relate to removing or
damaging the plant in knowing violation of State law. Hawaii's
Endangered Species Act states, ``Any species of aquatic life, wildlife,
or land plant that has been determined to be an endangered species
pursuant to the [Federal] Endangered Species Act shall be deemed to be
an endangered species under the provisions of this chapter * * *''
(HRS, sect. 195D-4(a)). Federal listing automatically triggers listing
under Hawaii State law, which prohibits taking of endangered plants in
the State and encourages conservation by State agencies (HRS, sect.
195D-4). The Service is not aware of any other activities being
conducted that will be affected by this listing and result in a
violation of section 9. Questions regarding whether specific activities
will constitute a violation of section 9 should be directed to the
Ecoregion Manager of the Service's Pacific Islands Office (see
ADDRESSES section). Requests for copies of the regulations concerning
listed plants and inquiries regarding prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Ecological Services,
Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon,
97232-4181 (telephone 503/231-2063; Facsimile 503/231-6243).
National Environmental Policy Act
The Service has determined that an Environmental Assessment or
Environmental Impact Statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to Section 4(a) of the Act
of 1973, as amended. A notice outlining the Service's reasons for this
determination was published in the Federal Register on October 25, 1983
(48 FR 49244).
References Cited
A complete list of all references cited herein is available upon
request from the Pacific Islands Ecoregion (see ADDRESSES section).
Authors
The authors of this final rule are Marie M. Bruegmann and Zella E.
Ellshoff, Pacific Islands Ecoregion, (see ADDRESSES section) (808/541-
2749).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulation Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, is amended as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Section 17.12(h) is amended by adding the following, in
alphabetical order under flowering plants, to the List of Endangered
and Threatened Plants, to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
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Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
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Flowering Plants:
* * * * * * *
Pritchardia aylmer-robinsonii Wahane.............. U.S.A. (HI)......... Arecaceae........... E 586 NA NA
* * * * * * *
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[[Page 41024]]
Dated: July 19, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-19963 Filed 8-6-96; 8:45 am]
BILLING CODE 4310-55-P
