[Federal Register: February 19, 2008 (Volume 73, Number 33)]
[Proposed Rules]               
[Page 9078-9085]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2008-0016; 1111 FY07 MO-B2]
RIN 1018-AV00

Endangered and Threatened Wildlife and Plants; Listing 
Phyllostegia hispida (No Common Name) as Endangered Throughout Its 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; request for public comments.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list Phyllostegia hispida (no common name), a plant species from the 
island of Molokai in the Hawaiian Islands, as endangered under the 
Endangered Species Act of 1973, as amended (Act). If we finalize this 
rule as proposed, it would extend the Act's protections to this 
species. We have determined that critical habitat for Phyllostegia 
hispida is prudent but not determinable at this time.

DATES: We will accept comments received or postmarked on or before 
April 21, 2008. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by April 4, 

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV00; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222, Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 

personal information you provide us (see the Public Comments Solicited 
section below for more information).

FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, 
U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife 
Office, 300 Ala Moana Boulevard, Box 50088, Honolulu, HI 96850; 
telephone 808-792-9400; facsimile 808-792-9581. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.


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Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and regulations that may 
be addressing those threats;
    (2) Additional information concerning the range, distribution, and 
population size of this species, including the locations of any 
additional populations of this species;
    (3) Any information on the biological or ecological requirements of 
the species;
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species;
    (5) Which areas would be appropriate as critical habitat for the 
species and why they should be proposed for designation as critical 
habitat; and
    (6) The reasons why areas should or should not be designated as 
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531, 
et seq.), including whether the benefits of designation would outweigh 
threats to the species that designation could cause, such that the 
designation of critical habitat is prudent.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. We will not accept anonymous comments; your 
comment must include your first and last name, city, State, country, 
and postal (zip) code. Finally, we will not consider hand-delivered 
comments that we do not receive, or mailed comments that are not 
postmarked, by the date specified in the DATES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 

personal identifying information in addition to the required items 
specified in the previous paragraph, such as your street address, phone 
number, or e-mail address, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 

appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR 


    Phyllostegia hispida is known only from the island of Molokai, 
Hawaii. Molokai is approximately 38 miles (mi) (61 kilometers (km)) 
long and up to 10 mi (16 km) wide, and encompasses an area of about 260 
square (sq) mi (674 sq km) (Foote, et al. 1972, p. 11; Department of 
Geography 1998, p. 13). Three shield volcanoes make up most of the land 
mass, dividing the island into roughly three geographic segments--West 
Molokai Mountain, East Molokai Mountain, and a volcano that formed 
Kalaupapa Peninsula (Department of Geography 1998, pp. 11, 13).
    The taller and larger East Molokai Mountain which makes up eastern 
Molokai rises 4,970 ft (1,514 m) above sea level on the island's summit 
at Kamakou and comprises roughly 50 percent of the island's land area 
(Department of Geography 1998, p. 11; Foote, et al. 1972, p. 11). 
Phyllostegia hispida is known only from the wet forests of eastern 
Molokai, at elevations from 2,300 to 4,200 feet (ft) (700 to 1,280 
meters (m)) (Wagner, et al. 1999, p. 819). The wet forests where 
Phyllostegia hispida has been recorded are found only on the windward 
side of East Molokai, which differs topographically from the leeward 
side. Precipitous cliffs line the northern windward coast, with deep 
inaccessible valleys dissecting the coastline. The annual rainfall on 
the windward side ranges from 75 to over 150 inches (in) (200 to over 
375 centimeters (cm)), distributed throughout the year. The soils are 
poorly drained and high in organic matter. The gulches and valleys are 
usually very steep, but sometimes gently sloping (Foote, et al. 1972, 
p. 14).
    The native habitats and vegetation of the Hawaiian Islands have 
undergone extreme alterations because of past and present land use, as 
well as the intentional or inadvertent introduction of nonnative plant 
and animal species. Introduced mammals, particularly pigs (Sus scrofa), 
have greatly impacted native Hawaiian plant communities. Pigs have been 
described as the most pervasive and disruptive nonnative influence on 
the unique native forests of the Hawaiian Islands, and are widely 
recognized as one of the greatest threats to forest ecosystems in 
Hawaii today (Aplet, et al. 1991, p. 56; Anderson and Stone 1993, p. 
195; Loope 1999, p. 56). Introduced (nonnative) plant species, which 
now comprise approximately half of the plant taxa in the islands, have 
come to dominate many Hawaiian ecosystems, and frequently outcompete 
native plants for space, light, water, and nutrients, as well as alter 
ecosystem function, rendering habitats unsuitable for native species 
(Cuddihy and Stone 1990, pp. 73-91; Vitousek 1986, pp. 29-41).
    The plant Phyllostegia hispida, known only from the island of 
Molokai, has only a few recorded occurrences, and for a short period of 
time recently, was thought to be possibly extinct in the wild. 
Alteration of the plant's native habitat by feral pigs and nonnative 
plants are thought to be the primary threats to P. hispida, in 
conjunction with the threat of predation by feral pigs, competition 
with nonnative plants, and the negative demographic and genetic 
consequences of extremely small population size.

Species Information

    Phyllostegia hispida was first described by William Hillebrand in 
1870 from a specimen collected from an area that he described as the 
``heights of Mapulehu'' on the island of Molokai (Wagner, et al. 2005), 
and is recognized as a distinct taxon in Wagner, et al. (1999, pp. 817-
819). Wagner, et al. describes the plant as a non-aromatic member of 
the mint family (Lamiaceae). P. hispida is described as a loosely 
spreading, many-branched vine that often forms large tangled masses. 
Leaves are thin and flaccid with hispid hairs and glands. The leaf 
margins are irregularly and shallowly lobed. Six to eight white flowers 
make up each verticillaster (a false whorl, composed of a pair of 
nearly sessile cymes in the axils of opposite leaves or bracts), and 
nutlets are approximately 0.1 in (2.5 millimeters (mm)) long (Wagner, 
et al. 1999, pp. 817-819). No life history information is currently 
available on this species.
    The few documented specimens of Phyllostegia hispida are typically 
found in wet Metrosideros polymorpha (ohia)-dominated forest at an 
elevation between 3,650 and 4,200 ft (1,112 and 1,280 m). Associated 
native species included Cheirodendron trigynum (olapa), Ilex anomala 
(aiae), Cibotium glaucum (hapuu), Broussaisia argutus (kanawao), Rubus 
hawaiensis (akala), Sadleria cyatheoides (amau), Pipturus

[[Page 9080]]

albidus (mamaki), Nertera granadensis (makole), Athyrium microphyllum, 
Elaphoglossum fauriei, and bryophytes (HBMP Database 2005).
    From 1910 to 1979, there were a total of 8 recorded occurrences of 
Phyllostegia hispida in the wet forests of eastern Molokai (Hawaii 
Biodiversity and Mapping Program (HBMP) Database 2005). None of these 
historic occurrences have been relocated during surveys conducted in 
the wet forests of east Molokai over the past several years (The Nature 
Conservancy of Hawaii (TNCH) 1997b, pp. 1-19; Steve Perlman and Ken 
Wood, National Tropical Botanical Garden (NTBG), pers. comms. 2006). In 
1996, two adult plants were found in eastern Molokai within TNCH's 
Kamakou Preserve, one next to the Pepeopae Boardwalk and the other east 
of Hanalilolilo growing along the fence within the State of Hawaii's 
Puu Alii Natural Area Reserve (NAR). Within only a few months of 
discovery, the individual growing along the Puu Alii fence died (HBMP 
Database 2005; TNCH 1997a, p. 2). In 1997, a single Phyllostegia 
individual was discovered on the rim of Pelekunu Valley in the Puu Alii 
NAR (HBMP Database 2005; TNCH 1997b, p. 6). There is some uncertainty, 
however, as to whether this individual was, in fact, P. hispida, as it 
was identified as P. manni by Hawaii Division of Forestry and Wildlife 
(DOFAW) staff based upon the size and lobing of its leaves (Robert 
Hobdy, Robert Hobdy Environmental Consultant, pers. comm. 2006; Joel 
Lau, HBMP, pers. comm. 2006; Torrie Nohara, DOFAW, pers. comm. 2006). 
This individual plant was protected from feral ungulates inside a 
fenced exclosure. Seeds were collected, and seedlings were produced by 
DOFAW and outplanted into the exclosure with the wild plant (T. Nohara, 
pers. comm. 2006).
    In November 1996, TNCH erected an exclosure around the Pepeopae 
Boardwalk individual and began frequent, recurrent weeding and 
monitoring within the fenced area (TNCH 1997a, p. 2). They also built 
an exclosure approximately 656 ft (200 m) away for future outplantings 
of propagated individuals. Plants grown from leaf buds collected from 
the Pepeopae Boardwalk plant were outplanted into the exclosure in 
December 1997 (TNCH 1998a, p. 7). They survived through 1998 (TNCH 
1998b, Appendix 1, dot 28), but have since been confirmed dead (Sam 
Aruch, TNCH, pers. comm. 2006; Ed Misaki, TNCH, pers. comm. 2006).
    The Pepeopae Boardwalk individual died in 1998 or 1999 (HBMP 
Database 2005), and the wild plant and outplantings in Puu Alii NAR, 
which may possibly have been Phyllostegia manni and not P. hispida (see 
above; the question of taxonomic identity was never resolved), died 
several years ago (S. Perlman, pers. comm. 2005; K. Wood, pers. comm. 
2005; Guy Hughes, Kalaupapa National Historic Park (KNHP), pers. comm. 
2006). The University of Hawaii's Lyon Arboretum has material from the 
individual that was growing along the Puu Alii fence and from the 
Pepeopae Boardwalk individual in micropropagation (Service Captive 
Propagation Database (SCPD) 2005).
    Surveys have been conducted in the wet forests of east Molokai over 
the years, but failed to locate additional Phyllostegia hispida plants. 
The species was thought to have been extirpated from the wild until 
2005, when two seedlings were found in a Hanalilolilo stream bank in 
Kamakou Preserve, indicating the possible presence of a mature plant, 
or plants, somewhere in the vicinity (TNCH 1997b, pp. 1-19; S. Perlman, 
pers. comm. 2005; S. Perlman and K. Wood, pers. comms. 2006). One of 
the seedlings was collected by a botanist with HBMP and provided to 
Lyon Arboretum in Honolulu, which in turn provided it to KNHP on 
Molokai for attempted propagation. That plant has since died (G. Hughes 
and Bill Garnett, KNHP, pers. comms. 2006). The other seedling was 
collected by a botanist with NTBG. Cuttings were propagated from this 
seedling and provided to KNHP for growing out (S. Perlman, pers. comm. 
    Phyllostegia hispida was again thought to be extirpated from the 
wild until a single juvenile plant was discovered in May 2006 within 
the Puu Alii NAR along the Puu Alii fenceline at 4,100 ft (1,250 m) 
elevation (S. Perlman, pers. comm. 2006). Although protected within a 
10-ft (3-m) diameter fenced exclosure (Bryan Stevens, Maui DOFAW, pers. 
comm. 2006), that individual has died for unknown reasons (H. 
Oppenheimer, Maui Plant Extinction Prevention Program (PEP), pers. 
comm. 2007). However, 10 new wild plants were discovered within the Puu 
Alii NAR in April 2007; although most are seedlings, one of these 
individuals is mature and has fruited and produced seeds (H. 
Oppenheimer, pers. comm. 2007). Seeds were collected from the mature 
plant and sent to the Lyon Arboretum, and cuttings were taken from some 
of the other plants for propagation. Four of the newly discovered 
seedlings were found next to the Puu Alii fence, and are enclosed with 
temporary fencing material.
    In addition to the newly identified wild plants, 12 of the cuttings 
that were grown out at KNHP were outplanted into an enclosure in TNCH's 
Kamakou Preserve in April 2007, and 11 of these were still doing well 
as of June 2007. Another 12 were outplanted into a second enclosure in 
Kamakou Preserve in June 2007 (H. Oppenheimer, pers. comm. 2007), 
bringing the total number of Phyllostegia hispida plants in the wild to 
10 naturally occurring and 23 recently outplanted individuals.

Previous Federal Action

    We first identified Phyllostegia hispida as a candidate for listing 
in the September 19, 1997, Notice of Review of Plant and Animal Taxa 
that are Candidates or Proposed for Listing as Endangered or Threatened 
Species (Notice of Review) (62 FR 49397). Candidates are those taxa for 
which we have on file sufficient information on biological 
vulnerability and threats to support preparation of a listing proposal, 
but for which development of a listing regulation is precluded by other 
higher priority listing activities.
    On May 4, 2004, the Center for Biological Diversity petitioned the 
Service to list 225 species of plants and animals as endangered under 
the provisions of the Act, including Phyllostegia hispida. In our 
Notice of Review, dated September 12, 2006, we retained a listing 
priority number of 2 for this species, in accordance with our priority 
guidance published on September 21, 1983 (48 FR 43098). A listing 
priority of 2 reflects threats that are both imminent and high in 
magnitude, as well as the taxonomic classification of P. hispida as a 
full species. We determined that publication of a proposed rule to list 
the species was precluded by our work on higher priority listing 
actions during the period from May 2, 2005, through August 23, 2006 (71 
FR 53756). However, we have since completed those actions. As such, we 
had available resources to initiate the proposal to list this species.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for adding species to the Federal list of 
endangered and threatened species. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act. The five listing factors are: 
(A) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (B) overutilization for commercial,

[[Page 9081]]

recreational, scientific, or educational purposes; (C) disease or 
predation; (D) the inadequacy of existing regulatory mechanisms; and 
(E) other natural or manmade factors affecting its continued existence.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    As with virtually every other native plant community in the 
islands, the wet forests of Molokai where Phyllostegia hispida occurs 
have been impacted by introduced (nonnative) pigs and introduced 
(nonnative) plants (DOFAW 1991, pp. 3, 14-23; TNCH 1994, pp. 6, 9-12; 
HBMP Database 2005). The poor reproduction and survivorship of P. 
hispida clearly indicate that the current conditions are less than 
optimal for this species, although we do not yet fully understand the 
specific mechanisms that are undermining its viability.
Feral Pigs
    European pigs, introduced to Hawaii by Captain James Cook in 1778, 
hybridized with domesticated Polynesian pigs, became feral, and invaded 
forested areas, especially wet and mesic forests and dry areas at high 
elevations. They are currently present on Kauai, Niihau, Oahu, Molokai, 
Maui, and Hawaii. These introduced pigs are extremely destructive and 
have both direct and indirect impacts on native plant communities. 
While rooting in the earth in search of invertebrates and plant 
material, pigs directly impact native plants by disturbing and 
destroying vegetative cover, trampling plants and seedlings, and may 
reduce or eliminate plant regeneration by damaging or eating seeds and 
seedlings (further discussion of predation is under Factor C, below). 
Pigs are a major vector for the establishment and spread of competing 
invasive nonnative plant species, by dispersing these plant seeds on 
their hooves and coats as well as through their digestive tracts, and 
by fertilizing the disturbed soil through their feces. Pigs feed 
preferentially on the fruits of many nonnative plants, such as 
Passiflora mollisima (banana poka) and Psidium cattleianum (strawberry 
guava), thereby facilitating the spread of these invasive species, and 
also contribute to erosion by clearing vegetation and creating large 
areas of disturbed soil, especially on slopes (Aplet, et al. 1991, p. 
56; Smith 1985, pp. 190, 192, 196, 200, 204, 230-231; Stone 1985, pp. 
254-255, 262-264; Medeiros, et al. 1986, pp. 27-28; Scott, et al. 1986, 
pp. 360-361; Tomich 1986, pp. 120-126; Cuddihy and Stone 1990, pp. 64-
65; Loope, et al. 1991, pp. 1-21; Wagner, et al. 1999, p. 52).
    Feral pigs are present in the wet forest habitat formerly and 
currently inhabited by Phyllostegia hispida within Puu Alii NAR and 
Kamakou Preserve, and their impacts continue to degrade the condition 
of the forest there (DOFAW 1991, pp. 3, 14-23; TNCH 1994, pp. 6, 9-12; 
HBMP Database 2005). They are considered a major threat to native 
species and to the overall health of the watershed in which P. hispida 
occurs (DOFAW 1991, pp. 3, 14-23; TNCH 1994, pp. 6, 9-12). Significant 
management actions are directed at feral ungulate control in the area 
where P. hispida has been found within Puu Alii NAR and Kamakou 
Preserve on Molokai, such as large-scale watershed fencing, 
construction of ungulate exclosures around rare plants, public hunting, 
and staff hunting (TNCH 1997a, pp. 2-3; TNCH 1998a, pp. 1-2, 7; DOFAW 
2000, pp. 3, 12; HBMP Database 2005). When the individual P. hispida 
was discovered in 1996 next to the boardwalk at Pepeopae, TNCH noted 
pig signs (e.g., droppings, evidence of rooting, wallows) in the 
vicinity (HPMP Database 2005) and immediately erected a fenced 
exclosure around the plant to protect it (TNCH 1997a, pp. 2-3). 
Similarly, a fenced exclosure was erected around the individual that 
was discovered within the Puu Alii NAR in 1997 to protect it from feral 
pigs (T. Nohara, pers. comm. 2006). The juvenile plant discovered 
within the Puu Alii NAR in 2005 was immediately fenced to protect it 
from feral pigs (B. Stevens, pers. comm. 2006), as were four of the 
most recently discovered plants along the fenceline at Puu Alii NAR (H. 
Oppenheimer, pers. comm. 2007). Due to the well-documented negative 
impacts of feral pigs on native Hawaiian plant communities, the known 
habitat degradation caused by pigs in the habitat occupied by P. 
hispida, and the continuing presence of pigs in the limited area where 
P. hispida is found, we consider habitat modification and degradation 
by feral pigs to be a significant and immediate threat to this species.
Nonnative Plants
    Introduced nonnative plant species are a pervasive threat to the 
native flora throughout the Hawaiian Islands. Of the current total of 
nearly 2,000 native and naturalized plant taxa, approximately half are 
introduced nonnative species from other parts of the world, and nearly 
100 of these are considered invasive pest species (Smith 1985, p. 180). 
On the Hawaiian Islands and other tropical islands, studies have shown 
that many of these introduced plant taxa outcompete and displace native 
plants, and often alter the habitat to the point that it is no longer 
suitable for the native plant species; these studies include nonnative 
pest plants found in habitat similar to that of Phyllostegia hispida 
(Smathers and Gardner 1978, pp. 274-275; Smith 1985, pp. 196, 206, 230; 
Loope and Medeiros 1992, pp. 7-8; Medeiros, et al. 1992, pp. 30-32; 
Ellshoff, et al. 1995, pp. 1-5; Meyer and Florence 1996, pp. 777-780; 
Medeiros, et al. 1997, pp. 30-32; Loope, et al. 2004, pp. 1472-1473). 
In particular, nonnative pest plants may make habitat less suitable for 
native plants by modifying availability of light, altering soil-water 
regimes, modifying nutrient cycling, or altering fire characteristics 
of native plant communities (Smith 1985, pp. 206, 217, 225, 227-233; 
Cuddihy and Stone 1990, p. 74). Although there is no empirical evidence 
specific to P. hispida due to the lack of research on the species, 
scientists familiar with P. hispida believe it does not handle either 
shade or competition well (H. Oppenheimer, pers. comm. 2007), and 
nonnative plants are likely to contribute to both of these conditions. 
Examples of some of the nonnative plants documented in the area 
occupied by P. hispida include Axonopus fissifolius (narrow-leaved 
carpetgrass), Clidemia hirta (Koster's curse), Erechtites 
valerianifolia (fireweed), Juncus effuses (Japanese mat rush), Rubus 
rosifolius (thimbleberry), and Sacciolepis indica (Glenwood grass). 
Because of demonstrated habitat modification and resource competition 
by nonnative plant species in habitat similar to the wet forest habitat 
of P. hispida, and the ongoing presence of high numbers of invasive 
nonnative plant species in the area currently occupied by P. hispida, 
we consider habitat modification and degradation by nonnative plants to 
be a significant and immediate threat to this species.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization for commercial, recreational, scientific, or 
educational purposes is not known to be a threat to Phyllostegia 
hispida, and as such is not addressed in this proposal.

C. Disease or Predation

    Because the native vegetation of Hawaii evolved without any 
browsing or grazing mammals present, many plant species do not have 
natural defenses against such impacts (Carlquist 1980, pp. 173-175; 
Lamoureux 1994, pp. 54-55). Native plants such as

[[Page 9082]]

Phyllostegia hispida do not have physical or chemical adaptations, such 
as thorns or noxious compounds, to protect them, thereby rendering them 
particularly vulnerable to predation by introduced pigs or other 
ungulates (Department of Geography 1998, pp. 137-138; Carlquist 1980, 
p. 175). Browsing by ungulates has been observed on many other native 
plants, including common and rare or endangered species (Cuddihy and 
Stone 1990, pp. 64-65). In a study of feral pig populations in the 
Kipahulu Valley on the island of Maui, pigs were observed feeding on at 
least 40 plant species in the rainforest ecosystem, 75 percent of which 
were native plants occurring in the herbaceous understory and subcanopy 
layer (Diong 1982, p. 160). Therefore, even though we have no evidence 
of direct browsing for P. hispida, given the presence of pigs in the 
area where P. hispida occurs, we consider it likely that pigs may 
impact the species directly through predation. Therefore, we believe 
feral pigs pose a potentially significant and immediate threat to the 

D. The Inadequacy of Existing Regulatory Mechanisms

    Currently, there are no Federal, State, or local laws, treaties, or 
regulations that specifically conserve or protect Phyllostegia hispida 
from the threats described in this rule.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The most significant threat to Phyllostegia hispida is its 
extremely low numbers. A total of 33 plants, only one of which is 
reproductively mature, are currently known to exist in the wild. 
Twenty-three of these are only recently outplanted. Although propagules 
of P. hispida have been collected on an opportunistic basis and some 
controlled propagation of the species has taken place, there is no 
dedicated funding for propagation of the species and no formal plan 
exists for outplanting and reintroduction. Outplantings have been 
attempted on an ad hoc basis, but unfortunately none of these 
outplantings has yet proven successful for more than the short-term.
    Species that are known from few wild individuals and are endemic to 
a single, small island are inherently more vulnerable to extinction 
than widespread species because of the higher risks posed to a few 
populations and individuals by genetic bottlenecks, random demographic 
fluctuations, and localized catastrophes, such as hurricanes and 
disease outbreaks (Mangel and Tier 1994, pp. 607-614; Pimm, et al. 
1988, pp. 757-785). In the case of Phyllostegia hispida, the entire 
population of the species is small and restricted to a highly localized 
geographic area, rendering it highly vulnerable to the risk of 
extinction in the wild due to the lack of redundancy in populations. 
Although some species are naturally rare, the poor survivorship of P. 
hispida suggest that the requisite biological or ecological needs of 
the species are not being met under current conditions. Deterministic 
factors, such as habitat alteration or loss of a key pollinator, may 
have reduced this population to such a small size that it is now 
vulnerable to a stochastic extinction event (Gilpin and Soul[eacute] 
1986, pp. 24-25). Small population size has therefore become a primary 
and immediate threat to this species.

Proposed Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to Phyllostegia hispida. The species' extremely low numbers and highly 
restricted geographic range make it particularly susceptible to 
extinction at any time from random events such as hurricanes. There is 
only one plant known to exist in the wild that is reproductively 
mature. Although several individuals have recently been outplanted, no 
outplanting effort for this species has yet been successful. Therefore, 
the future of these propagated individuals is highly uncertain. 
Although the species is found on protected lands, it nonetheless faces 
immediate and continuing threats from habitat destruction and 
degradation due to feral pig activity, competition with nonnative plant 
species, and predation by nonnative mammals, as well as the threat of 
extinction at any time from a random stochastic event such as a 
    The Endangered Species Act (Sec. 3(5)(C)(6)) defines an endangered 
species as ``any species which is in danger of extinction throughout 
all or a significant portion of its range.'' Based on the immediate and 
ongoing significant threats to Phyllostegia hispida throughout its 
entire limited range, as described above, and the fact that there is 
only one adult reproductive individual of the species known, we 
consider the species P. hispida to be in danger of extinction 
throughout all of its range. Therefore, on the basis of the best 
available scientific and commercial information, we are proposing to 
list P. hispida as an endangered species.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all listed 
species. The protection required of Federal agencies and the 
prohibitions against certain activities involving listed plants are 
discussed, in part, below.
    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 designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) 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 a Federal action may 
adversely affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with the 
    For Phyllostegia hispida, Federal agency actions that may require 
consultation as described in the preceding paragraph include the 
provision of Federal funds to State and private entities through 
Federal programs, such as the Service's Landowner Incentive Program, 
State Wildlife Grant Program, and Federal Aid in Wildlife Restoration 
program, as well as the various grants administered by the U.S. 
Department of Agriculture, Natural Resources Conservation Service. 
Other types of actions that may require consultation include Army Corps 
of Engineers activities, such as the construction or maintenance of 
boardwalks and bridges subject to section 404 of the Clean Water Act 
(33 U.S.C. 1344, et seq.).
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply

[[Page 9083]]

to endangered plants. 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, transport in interstate or foreign commerce 
in the course of a commercial activity, sell or offer for sale in 
interstate or foreign commerce, or remove and reduce the species to 
possession from areas under Federal jurisdiction. In addition, for 
plants listed as endangered, the Act prohibits the malicious damage or 
destruction on areas under Federal jurisdiction and the removal, 
cutting, digging up, or damaging or destroying of such plants in 
knowing violation of any State law or regulation, including State 
criminal trespass law. Certain exceptions to the prohibitions apply to 
agents of the Service and State conservation agencies. Although Hawaii 
has a strong Endangered Species law (HRS, Sect. 195-D), Phyllostegia 
hispida is not currently protected under that law. Federal listing of 
Phyllostegia hispida will automatically invoke State listing under 
Hawaii's Endangered Species law and supplement the protection available 
under other State laws. The Federal Endangered Species Act will, 
therefore, offer additional protection to this species.
    The Act and 50 CFR 17.62 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving endangered 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
species. We anticipate that the only permits that would be sought or 
issued for Phyllostegia hispida would be in association with recovery 
efforts, as this species is not common in cultivation or the wild. 
Requests for copies of the regulations regarding listed species and 
inquiries about prohibitions and permits may be addressed to U.S. Fish 
and Wildlife Service, Ecological Services, Eastside Federal Complex, 
911 NE. 11th Avenue, Portland, OR 97232-4181 (telephone 503-231-6158; 
facsimile 503-231-6243).

Critical Habitat


    Critical habitat is defined in section 3 of the Act as (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. Conservation, as defined under section 3 of the Act, means to 
use and the use of all methods and procedures that are necessary to 
bring an endangered or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7(a)(2) requires consultation 
on Federal actions that may affect critical habitat. The designation of 
critical habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation does not allow government or public access to private 
lands. Section 7(a)(2) is a purely protective measure and does not 
require implementation of restoration, recovery, or enhancement 
measures, although conservation measures are required under section 
7(a)(1) of the Act.

Prudency Determination

    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, we designate critical habitat at the time the 
species is determined to be endangered or threatened. Our regulations 
(50 CFR 424.12(a)(1)) state that the designation of critical habitat is 
not prudent when one or both of the following situations exist: (1) The 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    There is no documentation that Phyllostegia hispida is threatened 
by taking or other human activity. In the absence of finding that the 
designation of critical habitat would increase threats to a species, if 
there are any benefits to a critical habitat designation, then a 
prudent finding is warranted. The potential benefits include: (1) 
Triggering consultation under section 7 of the Act, in new areas for 
actions in which there may be a Federal nexus where it would not 
otherwise occur because, for example, it is or has become unoccupied or 
the occupancy is in question; (2) focusing conservation activities on 
the most essential features and areas; (3) providing educational 
benefits to State or county governments or private entities; and (4) 
preventing people from causing inadvertent harm to the species.
    The primary regulatory effect of critical habitat is the section 
7(a)(2) requirement that Federal agencies refrain from taking any 
action that destroys or adversely affects critical habitat. At present, 
the only known extant individuals of Phyllostegia hispida occur on 
State and private land, and all previously known occurrences have been 
on State and privately owned lands. Further, there are no Federal lands 
or lands under Federal jurisdiction in the forests of east Molokai, the 
historic range of this species. Therefore, it is unlikely that this 
species currently occurs, or would occur in the future, on Federal 
lands. Nevertheless, lands that may be designated as critical habitat 
in the future for this species may be subject to Federal actions that 
trigger the section 7 consultation requirement, such as the granting of 
Federal monies for conservation projects and/or the need for Federal 
permits for projects, such as the construction and maintenance of 
boardwalks and bridges subject to section 404 of the Clean Water Act 
(33 U.S.C. 1344, et seq.). There may also be some educational or 
informational benefits to the designation of critical habitat. 
Educational benefits include the notification of land owners, land 
managers, and the general public of the importance of protecting the 
habitat of this species. In the case of Phyllostegia hispida, these 
aspects of critical habitat designation would potentially benefit the 
conservation of the species. Therefore, since we have determined that 
the designation of critical habitat will not likely increase the degree 
of threat to the species and may provide some measure of benefit, we 
find that designation of critical habitat is prudent for Phyllostegia 

Primary Constituent Elements

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, in determining which areas to propose 
as critical habitat, we must consider those physical and biological 
features (primary constituent elements in the necessary and appropriate 
quantity and spatial arrangement) essential to the conservation of the 
species. We must also consider those areas essential to the 
conservation of the species that are outside the geographical area 
occupied by the species. These primary

[[Page 9084]]

constituent elements include, but are not limited to, space for 
individual and population growth and for normal behavior; food, water, 
or other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, rearing of offspring, germination, or 
seed dispersal; and habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distributions of a species.
    We are currently unable to identify the primary constituent 
elements for Phyllostegia hispida, because information on the physical 
and biological features that are considered essential to the 
conservation of this species is not known at this time. As discussed in 
the ``Species Information'' section of this proposed rule, between the 
years 1910 and 1996 only 10 occurrences of P. hispida were documented, 
and the location information for these occurrences was recorded at a 
relatively coarse scale. Elevations are known only for the few 
individuals discovered within the last 10 years. From 1996 through 2005 
a total of only 6 plants (3 adults, 2 seedlings, and 1 juvenile) were 
located, all existing only as single individuals in disparate 
locations. All of the previously known adults have died without 
reproducing naturally in the wild; the first mature plant to be 
observed fruiting was just discovered in April 2007. The two seedlings 
discovered in 2005 were collected and deposited with propagation 
facilities to attempt production of additional seedlings for 
outplanting in the future. The reasons for the deaths of the three 
adult and one juvenile plants are unknown, as are the reasons for poor 
natural reproduction in the wild. Key features of the plant's life 
history, such as longevity, dispersal mechanisms, or vectors for 
pollination, are unknown.
    The plant community where the few remaining wild individuals of 
Phyllostegia hispida are found has been highly modified by the presence 
of nonnative plants and feral pigs, and the poor viability of the 
species occurrences observed in recent years indicates that current 
conditions are not sufficient to meet the basic biological requirements 
of this species. Because P. hispida has never been observed in an 
unaltered environment, the optimal conditions that would provide the 
biological or ecological requisites of the species are not known. 
Although, as described above, we can surmise that habitat degradation 
from a variety of factors has contributed to the decline of the 
species, we do not know specifically what essential physical or 
biological features of that habitat are currently lacking for P. 
hispida. As we are unable to identify the physical and biological 
features essential to the conservation of P. hispida, we are unable to 
identify areas that contain these features.
    Therefore, although we have determined that the designation of 
critical habitat is prudent for Phyllostegia hispida, since the 
biological requirements of the species are not sufficiently known, we 
find that critical habitat for P. hispida is not determinable at this 

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our proposed rule is based on scientifically sound data, 
assumptions, and analyses. We will send these peer reviewers copies of 
this proposed rule immediately following publication in the Federal 

Register. We will invite these peer reviewers to comment, during the 
public comment period, on the specific assumptions and conclusions 
regarding the proposal to list Phyllostegia hispida as endangered and 
our decision regarding critical habitat for this species.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days after the date 
of publication of this proposal in the Federal Register. Such requests 
must be made in writing and be addressed to the Field Supervisor at the 
address in the ADDRESSES section.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the emergency rule? What else could we do to make the 
rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. 
You also may e-mail the comments to this address: Exsec@ios.goi.gov.

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

    This rule does not contain any new collections of information that 
require approval by Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. This rule will not impose recordkeeping 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.

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, 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. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov or upon request from the 

Field Supervisor, Pacific Islands Fish and Wildlife Office (see FOR 


    The primary author of this document is staff from the Pacific 
Islands Fish and Wildlife Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

[[Page 9085]]

Proposed Regulation Promulgation

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


    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; Public Law 99-625, 100 Stat. 3500, unless otherwise 

    2. In Sec.  17.12(h) add the following to the List of Endangered 
and Threatened Plants in alphabetical order under Flowering Plants:

Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules

                                                                      * * * * * * *
         Flowering Plants

                                                                      * * * * * * *
Phyllostegia hispida.............  None................  U.S.A. (HI)........  Lamiaceae--Mint....  E                       TBD           NA           NA

                                                                      * * * * * * *

    Dated: February 5, 2008.
 Kenneth Stansell,
Deputy Director, U.S. Fish and Wildlife Service.
 [FR Doc. E8-2841 Filed 2-15-08; 8:45 am]