[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Proposed Rules]
[Pages 71757-71758]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29153]

[[Page 71757]]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0073; 4500030113]

Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List Phoenix dactylifera `Sphinx' (Sphinx Date Palm)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list Phoenix dactylifera `Sphinx' 
(sphinx date palm) as endangered or threatened under the Endangered 
Species Act of 1973, as amended (Act). We find that the petition does 
not present substantial scientific or commercial information indicating 
that the petitioned action may be warranted. We find that the petition 
does not identify an entity that is listable under the Act. Therefore, 
we are not initiating a status review for the sphinx date palm in 
response to this petition.

DATES: The finding announced in this document was made on December 4, 

ADDRESSES: This finding is also available on the Internet at http://www.regulations.gov at [Docket No. FWS-R2-ES-2012-0073]. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the Arizona 
Ecological Services Office, 2321 West Royal Palm Road, Suite 103, 
Phoenix, Arizona 85021-4951. Please submit any new information, 
materials, comments, or questions concerning this finding to the above 

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Office (see ADDRESSES), by telephone at 
(602) 242-0210, or by facsimile to (602) 242-2513. If you use a 
telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.



    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.), requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. We 
are to base this finding on information provided in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files at the time that the petition was 
submitted to us. To the maximum extent practicable, we are to make this 
finding within 90 days of our receipt of the petition, and to publish 
our notice of the finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information for a listable entity was 
presented, we are required to promptly conduct a species status review, 
which we subsequently summarize in a 12-month finding.

Petition History

    On July 11, 2011, we received a petition dated July 7, 2011, from 
Richard C. Malone, on behalf of the Mountgrove Property Owners 
Association (petitioner), requesting that the single existing grove of 
Phoenix dactylifera `Sphinx' (sphinx date palm) be listed as endangered 
under the Act. For the purposes of this document, we will hereafter 
refer to Phoenix dactylifera `Sphinx' as the sphinx date palm.
    The petition discusses the origin and taxonomy of the sphinx date 
palm, and provides details of its life history. The petitioner mentions 
threats to the entity, and provides brief examples of potential 
population declines. The petition also discusses the petitioners' views 
on the advantages of protection for the sphinx date palm for research, 
education, propagation, as well as the economic advantages of the 
grove's production of high-quality fruit. The petition includes 
citations for various references and resources used to support the 
statements in the petition.
    The petition clearly identified itself as such and included the 
requisite identification information for the petitioners, as required 
by 50 CFR 424.14(a). This finding addresses the petition. Below, we 
address the petitioner's request to list Phoenix dactylifera `Sphinx' 
as endangered.

Species Information

    All information in this section is from the petition. The Service 
has no information in its files on the sphinx date palm beyond that 
presented in the petition.
    The grove in Phoenix consists of 450 mature trees and is the only 
known stand (contiguous area occupied by trees of similar type) of 
sphinx date palm. The grove is located in the Mountgrove district, 
south of Lafayette Boulevard, north of the Arizona canal, bordered by 
46th Place on the west and 47th place on the east in the Arcadia area 
of central Phoenix. There are a few additional individual palms in the 
Phoenix Metro and Yuma areas of Arizona, and two sphinx date palms are 
reported to exist in California.
    The petitioner does not provide descriptive information specific to 
the sphinx cultivar. They do provide information for the date palm 
(Phoenix dactylifera Linnaeus), the taxon from which the sphinx date 
palm was cultivated. The date palm is an erect palm with solitary or 
clustered stems. It can reach heights of 30 to 35 meters (m) (100 to 
115 feet (ft)) and grow to diameters of 50 centimeters (cm) (20 inches 
(in)). The trunk is covered from the ground up with overlapping 
diamond-shaped, woody leaf bases. Feather-like green-gray pinnae 
(leaves) are arranged irregularly on long (3 to 5 m (9 to 16 ft)) 
petioles (stalk or stem that connects the pinnae to the plant). 
Inflorescences (arrangements or clusters of multiple flowers on a stem) 
have waxy, cream-colored flowers and grow to 1 m (3.3 ft) on male 
plants and 2 m (2.6 ft) on female plants (these palms are dioecious; 
that is, individual palms contain either male reproductive parts or 
female reproductive parts).
    The sphinx date palm has a lifespan of 100 to 130 years. 
Reproduction in the cultivar is vegetative (asexual; only one plant is 
involved and the offspring is genetically identical to its parent). 
Propagation is accomplished by removing offshoots (lateral shoot from 
the main stem of the plant) from mature palms. These offshoots must 
contain their own root ball (main mass of roots at the base of a 
plant). Propagation in this slow-growing cultivar is a long process, 
spanning 3 generations of 8 years each. Approximately 25 years were 
required to propagate the 450 offshoots needed to plant the grove. 
Pollination, and thus fruit production, is fully dependent on human 
intervention as male palms are not sufficiently numerous or near to 
date-bearing (female) palms for pollination to occur by natural means.
    It is believed that Southwest Asia is the native region of the 
sphinx date palm's parent taxon, the date palm; however, its origin is 
not known with certainty. The sphinx date palm was

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described in the late 1910s or early 1920s from a grove in Phoenix, 
Arizona, where it had been propagated from a seedling around 1917. The 
sphinx cultivar is thought to be a chance hybrid between Hayani (a 
variety of date palm) and another heirloom (a plant cultivated for 
multiple human generations and typically particular to a given region). 
Currently this entity is known only from cultivation.
    The petition consistently refers to the sphinx date palm as a 
cultivar of P. dactylifera. The International Code of Nomenclature for 
Cultivated Plants defines a cultivar as ``an assemblage of plants that 
(a) has been selected for a particular character or combination of 
characters, (b) is distinct, uniform, and stable in these characters, 
and (c) when propagated by appropriate means, retains those 
characters'' (Art. 2.3). It further notes that cultivars vary in origin 
and modes of reproduction, and that plants ``which are asexually 
propagated from any part of a plant * * * may form a cultivar.'' By 
this definition, and as indicated in the petition, the sphinx date palm 
is a cultivar of the date palm (Phoenix dactylifera Linnaeus).

Previous Federal Actions

    There have been no previous Federal actions for this entity.

Evaluation of Listable Entity

    Upon receipt of a petition to list, delist, or reclassify a 
species, we are to consider whether such petition ``clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved'' (50 CFR 424.14(b)(2)(i)). Under 
the Act, a species is defined as including any subspecies of fish or 
wildlife or plants, and any distinct population segment (DPS) of any 
species of vertebrate fish or wildlife which interbreeds when mature 
(16 U.S.C. 1532).
    The sphinx date palm, like many vascular plants, is of hybrid 
origin. We acknowledge that hybridization is an important mechanism of 
plant speciation, as hybrids can display new phenotypes and promote 
adaptive evolution. We also acknowledge that it is conceivable that 
over time, the sphinx date palm could become sufficiently 
reproductively isolated to accrue substantial genetic distinction from 
its parent species to become a species itself. At this time, however, 
Phoenix's grove of sphinx date palms is a collection of individuals 
which does not represent a cohesive population entity with an 
evolutionary lineage separate from its parent species. In modern 
taxonomic practice, entities such as the sphinx date palm hybrid do not 
constitute a species.
    The sphinx date palm is a cultivar. Cultivars are not eligible for 
protection under the Act. Speaking to this distinction, there has been 
much litigation on the subject of the intent of the relative ambiguity 
of the term ``species'' in the Act. In Trout Unlimited v. Lohn (559 F. 
3d 946 9th Cir. 2009), the 9th Circuit Court of Appeals found that 
``the [Act's] primary goal is to preserve the ability of natural 
populations to survive in the wild.'' The Act (16 U.S.C. 1531(b)) 
states''[t]he purposes of this [Act] are to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved, [and] to provide a program for the conservation of 
such endangered species and threatened species * * *.'' Regarding this 
provision, the court found ``[t]hat the purpose of the [Act] is to 
promote populations that are self-sustaining without human interference 
can be deduced from the statute's emphasis on the protection and 
preservation of the habitats of endangered and threatened species.'' 
The court also points to the use in the statute of the term 
[artificial] propagation as merely a means ``to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this [Act] are no longer necessary'' (16 U.S.C. 
1532(3)). Trout Unlimited v. Lohn, therefore, interprets the Act as a 
statutory means to protect animal and plant resources that are natural 
and self-sustaining. The sphinx date palm, as a cultivar whose 
propagation depends fully on human intervention, does not meet these 
    The Act defines a species as including ``any subspecies of fish or 
wildlife or plants, and any distinct population segment of any species 
of vertebrate fish or wildlife which interbreeds when mature'' (16 
U.S.C. 1532 (16)). The Service considers plant varieties and subspecies 
to be essentially identical (``Determination that 11 Plant Taxa are 
Endangered Species and 2 Plant Taxa are Threatened Species'', 43 FR 
17910). Cultivar is a taxonomic level below that of subspecies and 
variety, and, therefore, cultivars are not listable entities as defined 
in the Act.
    We conclude that the sphinx date palm is not a listable entity as 
defined under the Act. Therefore, after a review of the guiding 
regulations, we conclude that the petitioned entity does not constitute 
a ``listable entity'' and cannot be listed under the Act.
    The District Court in the District of Oregon in their determination 
for Alsea Valley Alliance v. Evans (161 F. Supp. 2d 1154 D. Ore.), 
referenced cases in which it was found that ``[l]isting distinctions 
below that of subspecies or a DPS of a species are not allowed under 
the [Act]'' (Southwest Center, 980 F. Supp at 1085). The court noted 
that the ``term `distinct population segment' was amended in the [Act] 
in 1978 so that it would `exclude taxonomic [biological] categories 
below subspecies [smaller taxa] from the definition'' (H.R. CONF. REP. 
No. 95-1804, at 17 (1978) reprinted in 1978 U.S.C.C.A.N. 9485, 14855). 
Under the definition in the Act, and as analyzed above, the sphinx date 
palm does not meet the criteria for species or subspecies.
    We conclude that the sphinx date palm is not a valid taxonomic 
entity and does not meet the definition of a species or a subspecies 
under the Act. Therefore, after a review of the guiding regulations and 
litigated precedents, we conclude that the petitioned entity does not 
constitute a ``listable entity'' and cannot be listed under the Act.


    In summary, the petition does not present substantial information 
indicating that listing the Sphinx date palm as endangered is 
warranted, because the entity as petitioned is not listable under the 


    The primary authors of this notice are the staff members of the 
Southwest Region of the U.S. Fish and Wildlife Service (see ADDRESSES).


    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 5, 2012.
Rowan W Gould,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012-29153 Filed 12-3-12; 8:45 am]