[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Rules and Regulations]
[Pages 10692-10697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6213]



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[[Page 10693]]


DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB97


Endangered and Threatened Wildlife and Plants; Reclassification 
of Mirabilis Macfarlanei (MacFarlane's Four-O'clock) From Endangered to 
Threatened Status

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) makes a final 
determination to reclassify the plant Mirabilis macfarlanei 
(MacFarlane's four-o'clock) to threatened status. The species was 
listed as an endangered species in 1979. This action is due to 
improvement in the status of the species and the discovery of 
additional populations. Mirabilis macfarlanei now occurs in three 
geographically isolated units occupying approximately 163 acres in 
Idaho and Oregon. The Snake River unit has approximately 4,752 plants 
occupying about 25 acres. The Salmon River unit has approximately 1,660 
plants occupying 68 acres. The recently discovered Imnaha River unit 
has approximately 800 plants on 70 acres. In addition, the species 
meets the minimum goals for reclassification identified in the 
Mirabilis macfarlanei Recovery Plan approved in 1985. The determination 
made under the Endangered Species Act of 1973 (Act), as amended, is 
based on a review of all information currently available for the 
species. The change in classification reflects an improvement in the 
species' status. Reclassification will not significantly alter the 
protection afforded this species under the Act.

EFFECTIVE DATE: April 15, 1996.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, 4696 Overland Road, Room 576, Boise, Idaho 
83705.

FOR FURTHER INFORMATION CONTACT: Dr. Robert L. Parenti, Botanist, at 
the above Boise address (208) 334-1931.

SUPPLEMENTARY INFORMATION:

Background

    Mirabilis macfarlanei is a member of the four-o'clock family 
(Nyctaginaceae). It is a perennial plant with a stout, deep-seated 
taproot. The stems are freely branched, swollen at the nodes so that 
the plant forms hemispherical clumps 6 to 12 decimeters (24 to 47 
inches (in.)) in diameter. The leaves are opposite, somewhat succulent, 
green above and glaucescent (with a whitish or bluish cast) below. 
Lower leaves are orbicular or ovate-deltoid in shape and become 
progressively smaller toward the top of the stem. The inflorescence is 
a four- to seven-flowered cluster subtended by an involucre. The 
flowers are striking due to their large size, up to 25 millimeters (mm) 
(1 in.) long and 25 mm (1 in.) wide, and showy magenta color. They are 
funnel-form in shape with a widely expanding limb. The flower is five-
merous, with five stamens (male reproductive structures) generally 
exerted. Flowering is from early May to early June, with mid-May 
usually being the peak flowering period. Mirabilis macfarlanei is most 
closely related to M. greenei Wats. of the Klamath (Siskiyou) region of 
California and Oregon (Constance and Rollins 1936).
    Mirabilis macfarlanei was named for Ed MacFarlane, a boatman on the 
Snake River, who pointed out the plant along the Oregon side of the 
Snake River to Rollins and Constance in 1936. These botanists described 
the species later that year (Constance and Rollins 1936). Records 
indicate MacFarlane's four-o'clock was collected along the Snake River 
(Hells Canyon area) in 1939. In 1947, a second population was 
discovered near the confluence of Skookumchuck Creek and the Salmon 
River in Idaho by R.J. Davis. The Salmon River plants are 
geographically isolated from the Snake River plants. Futile searches 
for M. macfarlanei from 1947 to the mid-1970's led botanists to 
consider that the species was possibly extinct. In May 1977, two plants 
were found within the Snake River unit along the Snake River near 
Cottonwood Landing on the Oregon side of the river. Within the Salmon 
River unit, 25 plants were rediscovered in 1979 on 10 acres of Bureau 
of Land Management (Bureau) land (Heidel 1979) at Skookumchuck and 700 
plants were discovered in 1980 on 45 acres of Bureau land in the Long 
Gulch area above the Salmon River, Idaho County, Idaho.
    Since 1983, 6,485 additional plants have been located on 
approximately 108 acres, bringing the total number to 7,212 plants 
inhabiting approximately 163 acres in three disjunct areas. The Snake 
River unit has about 4,752 plants occupying about 25 acres of habitat 
that occurs along 6 miles of Hells Canyon on the banks and canyonland 
slopes above the Snake River, Idaho County, Idaho and Wallowa County, 
Oregon. Known localities within the Snake River unit include Cottonwood 
Landing, Island Gulch, Kurry Creek, Kurry Creek-West Creek divide, Mine 
Gulch, Tyron Bar, and West Creek. The Salmon River unit has about 1,660 
plants occupying approximately 68 acres along 18 miles of banks and 
canyonland slopes above the Salmon River, Idaho County, Idaho. Known 
localities within the Salmon River unit include Coddy Draw, Henry's 
Gulch, John Day Creek, Long Gulch, Lucas Draw, Lucile Caves, 
Skookumchuck Creek, and Slicker Bar. The third unit, the Imnaha, was 
discovered in 1983 and has approximately 800 plants on 70 acres of 
habitat along 3 miles of canyonland slopes above the Imnaha River, 
Wallowa County, Oregon. Within the Imnaha unit, only two localities, 
Fence Creek and Buck Creek, have been documented. The plants generally 
occur on talus slopes within canyonland corridors above the three 
rivers.
    Within the Snake River unit, all of the plants occur on Nez Perce 
and Wallowa/Whitman National Forests lands. A majority of the plants 
along the Snake River are within the Hells Canyon National Recreation 
Area. Within the Salmon River unit, 935 plants (56 percent) inhabit 13 
acres of private lands with the remaining plants and 55 acres of 
habitat managed by the Bureau (Coeur d'Alene District). Within the 
Imnaha unit, approximately 300 plants (37 percent) are located on 10 
acres of private lands. The remaining 500 plants occur on 60 acres of 
Wallowa/Whitman National Forest lands above Fence Creek, Wallowa 
County, Oregon.
    No other species of Mirabilis occurs in Hells Canyon and no member 
of the regional flora resembles MacFarlane's four-o'clock. This large 
plant is easily recognized by its large, green, succulent leaves that 
are oppositely arranged on the stem. The cluster of large, magenta 
flowers is unlike anything else in the flora of the northwest (Moseley, 
Idaho Department of Fish and Game, pers. comm. 1992). The generic name, 
Mirabilis, in Latin means wondrous.
    Mirabilis taxa in the United States are mainly restricted to the 
southwest. It is unusual for Mirabilis macfarlanei to exist as far 
north as west-central Idaho and northeast Oregon. It is conjectured 
that the genus expanded northward during a period of warmer climate. As 
regional climates cooled, the species or its predecessor was, in 
essence, ``trapped'' (Stebbins 1979). The Salmon River and Snake River 
canyonland areas in northeastern Oregon and west-central Idaho provide 
some of the longest growing seasons and mildest winter conditions of 
the intermountainous region east of the Oregon Cascades. Mirabilis 
macfarlanei is found on talus slopes in canyonland corridors where

[[Page 10694]]
the climate is regionally warm and dry with precipitation occurring 
mostly in a winter-to-spring period. If M. macfarlanei originated in 
northern areas during a warmer period and its path of retreat with 
cooling climate was cut off by less favorable conditions, the warmer 
climate (such as near Riggins, Idaho, in the Salmon River Canyon) would 
explain the restricted distribution of the species.
    Mirabilis macfarlanei generally occurs as scattered plants on open, 
steep (50 percent) slopes of sandy soils, generally having west to 
southeast aspects. However, during the 1984 season, a locality was 
discovered having an east aspect. Talus rock underlies the soil in 
which the plants are rooted. There are a variety of soils that support 
this plant throughout its range. Sandy soils support some of the Long 
Gulch populations of M. macfarlanei and are quite susceptible to 
displacement by wind and water erosion.
    The plant community is in a transition zone between Agropyron 
spicatum-Poa sandbergii and Rhus glabra-Agropyron spicatum, consisting 
of Agropyron spicatum (bluebunch wheatgrass), Bromus tectorum 
(cheatgrass), Sporobolus cryptandrus (sand dropseed), Phacelia 
heterophylla (scorpion weed), Lomatium dissectum (desert parsley), 
Celtis reticulata (hackberry), Rhus glabra (smooth sumac), Achillea 
millefolium (yarrow), and Chrysothamnus nauseosus (rabbit bush) 
(Daubenmire 1970, Franklin and Dyrness 1973). Near Long Gulch, Idaho, 
an Agropyron spicatum-Poa sandbergii community existed. The latter 
species have, however, been replaced by the alien Bromus tectorum 
(Johnson 1984).
    From 1936 to 1979, Mirabilis macfarlanei was known only from two 
localities with approximately 27 individual plants. Subsequently, M. 
macfarlanei was added to the Federal List of Endangered and Threatened 
Plants on October 26, 1979 (44 FR 61912), as an endangered species.
    At the time Mirabilis macfarlanei was listed as endangered, 
estimates of population size (number of plants) were based upon sparse 
data. Prior to listing, several professional and amateur botanists 
actively searched for the plant in several canyonlands in Idaho and 
Oregon without success. Many botanists believed that the plant was 
extremely rare and perhaps extirpated from likely habitat in Idaho and 
Oregon.
    The 1985 Mirabilis macfarlanei Recovery Plan includes the following 
primary sub-objective for delisting the species:

    Mirabilis macfarlanei may be considered recovered when a total 
of 10 colonies (5 colonies, or any combination of 10, in each of 2 
geographically distinct and isolated populations) are protected and 
managed to assure their continued existence * * *

    Specific criteria for reclassifying from endangered to threatened:

    Mirabilis macfarlanei may be considered for reclassification to 
threatened when four of the colonies in each population meet the 
above criteria. The objectives will be reevaluated should new 
colonies be discovered.

    Recovery objectives have been reevaluated based on additional 
information developed since 1985. For example, extant colonies (defined 
as localities currently occupied by plants) that are being protected 
and managed meet the criteria for reclassification from endangered to 
threatened. An updated Recovery Plan will be prepared reflecting data 
obtained since the plant was listed in 1979.

Previous Federal Action

    Federal action on this plant taxon began as a result of section 12 
of the Act, 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 Mirabilis macfarlanei 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 this report as a petition 
within the context of section 4(c)(2) (now section 4(b)(3)) of the Act, 
and its intention to review the status of the plant taxa named therein. 
As a result of that review, on June 16, 1976, the Service published a 
proposed rule in the Federal Register (41 FR 24523) to determine 
endangered status pursuant to section 4 of the Act for approximately 
1,700 vascular plant taxa including Mirabilis macfarlanei. The list of 
1,700 species 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 relation to the 1976 proposal are 
summarized in an April 26, 1978, Federal Register publication (43 FR 
17909). On October 26, 1979, the Service published a final rule listing 
M. macfarlanei as an endangered species (44 FR 61912). A recovery plan 
was developed and approved for M. macfarlanei on March 27, 1985.

Summary of Comments and Recommendations

    In the August 26, 1993, proposed rule to reclassify the species 
from endangered to threatened (58 FR 45085) and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might contribute to the development of a 
final decision. Appropriate State agencies, county governments, city 
governments, Federal agencies, scientific organizations, and other 
interested parties were contacted and requested to comment. Newspaper 
notices inviting public comments were published in the Idaho Statesman 
on October 11, 1993, and in the Portland Oregonian and the Lewiston 
Tribune on October 12, 1993.
    One written comment was received during the 60-day comment period 
following publication of the proposed rule. The comment was submitted 
by the U.S. Forest Service. They were in favor of the reclassification 
of the species to threatened status and provided information considered 
in developing this rule.

Summary of Factors Affecting the Species

    After a through review and consideration of all information 
available, the Service has determined that Mirabilis macfarlanei should 
be reclassified from an endangered to a threatened species. Section 4 
of the Endangered Species Act (16 U.S.C. 1533) and regulations (50 CFR 
part 424) promulgated to implement the listing provisions of the Act 
set forth the procedures for reclassifying species on the Federal 
lists. A species may be listed or reclassified as endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1). These factors and their application to Mirabilis 
macfarlanei Const. and Roll. (MacFarlane's four-o'clock) are as 
follows:
    A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range. During a 1991 plant survey, 
threats identified in the Hells Canyon National Recreation Area portion 
of the Snake River unit included resumed prospecting or mining near the 
``Mine Gulch'' population of Mirabilis macfarlanei. Habitat destruction 
due to vehicular travel along with surface disturbance associated with 
mining could contribute to degradation of M. macfarlanei habitat. For 
example, the widening of Road No. 493 in the vicinity of the Kurry 
Creek population

[[Page 10695]]
has caused surface disturbance with talus material falling on plants.
    Livestock damage was also observed during the 1991 survey, but 
appeared to minimally impact the species. There was increased weedy 
invasion in many areas because of previous grazing activity (Mancuso 
and Moseley 1991). At the present time, all of the populations of 
Mirabilis macfarlanei within the Snake River unit are on habitat 
managed by the U.S. Forest Service and are directly or indirectly 
protected through the section 7 consultation process.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Increased collecting pressure is a foreseeable 
problem if the sites become known. The collection of plant material 
could easily cause extirpation from many of the localities, especially 
those with small numbers of plants. Other species of Mirabilis are 
cultivated and prized as garden ornamentals. Mirabilis macfarlanei is 
an attractive plant with a very showy magenta flower. For example, 
Hitchcock et al. (1973) recommended that the ``rather attractive'' 
plants are worth a try in the wild garden. Statements such as this 
could invoke actions that place the species in further jeopardy. The 
Cottonwood Landing population occurs adjacent to a hiking trail along 
the Snake River in Hells Canyon. Although the population is still 
unprotected from casual collecting, there has been no apparent decline 
of the species at this location. Because Hells Canyon is designated as 
a National Recreation Area, there is a potential for increased 
recreational use of the river trail and potential collecting.
    C. Disease or Predation. Mule deer prefer forbs and some 
utilization of Mirabilis macfarlanei has been observed (Johnson 1984). 
In the West-Kurry Divide 3 location, some feeding has apparently been 
done by deer and rabbits, but the plant population is not particularly 
threatened by this use (Mancuso and Moseley 1991).
    Studies were conducted by the Bureau between 1981 and 1983 to 
determine the effect of domestic grazing on Mirabilis macfarlanei in 
the Long Gulch and John Day sites of Idaho (Johnson 1984). The study 
included both ``cattle grazing'' and ``no cattle grazing'' treatments. 
The no cattle grazing treatment utilized a 45-acre exclosure at Long 
Gulch. The grazing treatment was on Bureau land between Long Gulch and 
John Day Creek. Both of these areas were historically used for fall and 
spring range by sheep and cattle, with the primary grazing period 
during spring from late March to early June. This coincides with the 
peak flowering time for M. macfarlanei from mid-May to early June. 
Bureau studies indicate that M. macfarlanei can be adversely affected 
by high grazing pressure and concentrations of livestock (Johnson 
1984). However, moderate to light grazing has caused no detrimental 
impact to the plant (Johnson, pers. comm. 1992). Tueller and Tower 
(1979) observed that exclosure sites previously subjected to heavy 
livestock grazing and now provided protection produce high yields of 
native forbs and grasses.
    During the period of human settlement, much of the Salmon River 
area was heavily grazed by domestic livestock, with a decline in 
overall range condition and climax vegetation. Within the Salmon River 
evolutionary unit, grazing is no longer a threat to populations of 
Mirabilis macfarlanei. The Bureau has reduced grazing on Bureau lands 
to a point where the plant species is not adversely affected. In the 
John Day locale, one private landowner has reduced grazing in a 
cooperative effort to protect M. macfarlanei plants and habitat (Riley, 
Bureau of Land Management, pers. comm. 1992).
    In the Snake River evolutionary unit, the Forest Service has two 
grazing allotments in the vicinity where Mirabilis macfarlanei plants 
are found. However, one allotment in the Tyron Bar area has not been 
grazed for 12 years. The Hells Canyon National Recreation Area is 
currently soliciting scoping comments on a proposal to stock portions 
of the allotment. The proposal will exclude that habitat in the 
vicinity of the Tyron Bar M. macfarlanei populations. In the second 
allotment, the area in the vicinity of the West-Kurry Divide 1, 2, and 
3, M. macfarlanei populations are not suitable for grazing due to the 
lack of water. The Forest Service has also initiated a policy that 
requires removing domestic livestock from M. macfarlanei sites before 
the plant starts to grow in April (Stein, pers. comm. 1992). Currently, 
general range improvement has taken place in the canyonlands in the 
Snake River evolutionary unit where M. macfarlanei occurs, due 
primarily to improved livestock grazing management.
    As described in the 1979 final rule that listed Mirabilis 
macfarlanei as an endangered species, at least two species of fungi had 
been observed on the vegetative parts of the plants in Idaho. Current 
information neither mentions nor references fungi species affecting 
plant parts. The fungus identified as a threat in the 1979 listing has 
not since been reported.
    Insect depredation has also been shown to be detrimental to 
Mirabilis macfarlanei. A lepidopteran (Lithariapteryx spp.) has been 
discovered feeding on the buds and leaves of M. macfarlanei (Baker 
1983). Examination of some of the nearly opened flowers revealed 
ovaries, as well as other floral and vegetative parts, eaten away. In 
addition, a second group of depredating insects, including at least two 
species of spittle bugs, was so abundant on certain plants as to cause 
the complete dieback of all emergent plant parts (Baker 1983). In many 
cases, there was significant plant stunting where sizeable numbers of 
spittle bugs were observed (Baker 1983, 1984). However, these effects 
have not been observed at all sites.
    D. The inadequacy of existing regulatory mechanisms. Habitat 
Management Plans (HMP's) have been developed and implemented for 
Mirabilis macfarlanei for three populations on Bureau lands in the 
Salmon River unit to provide protection and quality habitat for the 
species. The three HMP's are for the Long Gulch, Skookumchuck, and 
Lucile Caves areas in Idaho County, Idaho, along the Salmon River. The 
Long Gulch HMP area, which includes 45 acres, was fenced in 1981 to 
exclude cattle grazing. Monitoring studies that began in 1983 used the 
fenced area to evaluate and compare an ungrazed area with nearby grazed 
lands. The Skookumchuck HMP, which includes 28 acres located between 
Highway 95 and the old highway, was developed primarily as a protection 
mechanism against herbicide use in the immediate area. In addition, 
seasonal monitoring of M. macfarlanei is conducted within the 
Skookumchuck HMP to determine the trends of the small population. The 
Lucile Caves HMP was developed to monitor the success of transplanting 
plants in the area and for use as a research area. Monitoring of the 
Lucile Caves transplant project indicates that the transplanted 
population has remained static.
    Under the Oregon Endangered Species Act (ORS 564.100-564.135) and 
pursuant regulations (OAR 603, Division 73), the Oregon Department of 
Agriculture has listed Mirabilis macfarlanei as endangered (OAR 603-73-
070). The Oregon statute contains prohibitions against the ``take'' of 
State-listed plants, but there are exceptions and significant 
enforcement difficulties. Some private landowners in Idaho and Oregon 
have cooperated with the Bureau and the Forest Service to assist in the 
conservation of M. macfarlanei. 
    Currently, Idaho has not passed legislation to protect endangered 
or

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threatened plants or developed an official State list of such plants.
    E. Other natural or manmade factors affecting its continued 
existence. In Bureau studies conducted between 1981 and 1983, no 
Mirabilis macfarlanei plants were noted on moderately sloped areas 
(less than 20 percent) that were historically used by livestock for 
loafing and concentration areas (Johnson 1984). Cattle trampling damage 
to plants was observed in the grazed area, but appeared limited. The 
presence of livestock trampling the ground and causing soil erosion is 
also a potential hazard. However, minimal erosion was noticed in the 
Hells Canyon population locales, even though there was some grazing 
(Mancuso and Moseley 1991).
    Within the Snake River unit, most of the natural communities in the 
Pittsburg portion of Hells Canyon have been degraded by the invasion of 
alien weedy plant species, many of them annuals. Most of this 
degradation has been aggravated by many years of intensive domestic 
grazing pressures (Mancuso and Moseley 1991). Undesirable plants, 
especially Bromus tectorum, have increased as a result of grazing 
(Johnson 1984). Because of alien species invasion, the germination, 
growth, and development of native plants are often impeded. Continued 
invasion by weedy alien species has been an ongoing problem for 
Mirabilis macfarlanei and many other native plant species. As a result, 
the inhibition of M. macfarlanei growth and development has been noted 
(Baker 1983).
    The Service initiated a study to determine the allelopathic 
(interference) effects of Bromus tectorum on Mirabilis jalapa (Peruvian 
four-o'clock). Preliminary studies indicate that B. tectorum inhibits 
the germination, growth, and development of M. jalapa plants. Other 
selected plants used in laboratory studies showed inhibition similar to 
M. jalapa (Owen 1984). Field studies indicate M. macfarlanei is 
adversely affected when growing with dense stands of B. tectorum (Baker 
1983; Johnson, pers. comm. 1992). This is especially true during the 
earlier stages of growth.
    To date, low seed viability for Mirabilis macfarlanei has been 
reported; therefore, viable sexual propagation may be very low (Johnson 
1984). Low seed viability reduces genetic variability within the 
species. Primary reproduction of M. macfarlanei is rhizomatous and 
plants are long-lived. Because M. macfarlanei plant populations appear 
to be static after 12 years of data collection, ``natural'' increases 
are probably very slow or non-existent.
    Past indiscriminate herbicide spraying has had adverse effects on 
the small number of Mirabilis macfarlanei plants located within the 
Salmon River unit downslope from Highway 95. In addition, using 
insecticides for insect control is detrimental to many of the known 
pollinators of this species, including several genera of bees. Species 
of the Bombus genus are apparently the most effective pollinators.
    Remaining localities of Mirabilis macfarlanei with small numbers of 
plants are subject to elimination from stochastic events. Species that 
are reduced to very small numbers may also be subject to the additional 
threat of poor genetic viability. Small numbers may reduce the ability 
of M. macfarlanei to adapt to environmental changes or events that may 
cause their extirpation. However, the smaller populations reported at 
several localities in recent surveys have been characterized as 
vigorous to extremely vigorous.
    In summary, this species has been the focus of a 12-year recovery 
program, and has benefitted from management and research 
accomplishments. The amount of occupied habitat that has been located 
in Idaho and Oregon since listing represents a three-fold increase due 
to new discoveries. In addition, the number of known individuals has 
increased two hundred sixty-fold from 27 plants, when listed, to 
approximately 7,212 plants by 1991.
    In 1990 and 1991, permanent plots for monitoring population trends 
of Mirabilis macfarlanei were established at Tyron Bar above the Snake 
River in Oregon, at Fence Creek on the Imnaha River in Oregon, and West 
Creek on the Snake River in Idaho. A population model to determine 
population viability will be developed (Kaye et al. 1990). Specific 
parameters monitored in Idaho and Oregon include: (1) numbers at each 
census plot, (2) cover, (3) average height, (4) flowering plants, (5) 
phenology, (6) climatic data, (7) deer-, elk-, and cattle-use days, and 
(8) other vegetation trend data. Permanent photo trend plots, belt 
transects, and permanent plots have also been established.
    Further recovery efforts for Mirabilis macfarlanei will depend on 
cooperation with private landowners. The Service is exploring 
opportunities for land exchanges to acquire private lands for public 
ownership to further protect the species.
    The discovery of additional localities on public lands, better 
grazing management, and the static condition of existing populations in 
both the Salmon River and the Snake River evolutionary units have 
reduced the degree of threat to this species. The Service is encouraged 
by the discovery of the third Mirabilis macfarlanei unit, with the 
possibility of more locales being found within each of these 
evolutionary units. The commitment by the Forest Service to monitor and 
evaluate M. macfarlanei population trends on their lands has benefited 
the species. The Forest Service has revised livestock grazing practices 
at locations within the Snake River unit containing M. macfarlanei, so 
that the plants can germinate and develop. Continued monitoring, 
research, and revised grazing management activities by the Bureau at 
locations containing M. macfarlanei in the Salmon River evolutionary 
unit has also provided the Service with valuable information on M. 
macfarlanei. The cooperation between the land management agencies and 
private landowners has also added to the effort to conserve M. 
macfarlanei plants and habitat.
    In reviewing the progress toward recovery that this species has 
made since listing, the Service concludes that Mirabilis macfarlanei is 
no longer in danger of extinction throughout all or a significant 
portion of its range. However, due to a lack of plant recruitment in 
some areas, insect predation, alien plant invaders, and several small 
populations, the Service finds that delisting this species is not 
warranted at this time. In light of the foregoing threats, M. 
macfarlanei may still be likely to become endangered in the foreseeable 
future without further site protection and improved recruitment.
    The Service has carefully assessed the best scientific and 
commercial information available regarding past, present, and future 
threats faced by the species in finalizing this rule. Based on this 
evaluation, this rule reclassifies Mirabilis macfarlanei from 
endangered to threatened status. Critical habitat is not being 
designated for reasons discussed in the ``Critical Habitat'' section of 
this rule.

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 
a species is listed. The Service finds that designation of critical 
habitat is not prudent for Mirabilis macfarlanei at this time. Service 
regulations (50 CFR 424.12(a)(1) state that designation of critical 
habitat is not prudent when one or both of the following situations

[[Page 10697]]
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.
    As discussed under Factor B above, Mirabilis macfarlanei is 
vulnerable to taking and vandalism. Landowners have been alerted to the 
presence of the plant without the publication of precise maps and 
descriptions of critical habitat in the Federal Register, as required 
in a proposal for critical habitat. The publication of such precise 
maps and descriptions would increase the vulnerability of these plants 
to take or vandalism and, therefore, could contribute to their decline. 
As noted previously, M. macfarlanei is an attractive plant with 
beautiful magenta flowers. Protection of the species' habitat will 
continue to be addressed through the recovery process and through the 
section 7 consultation process. Therefore, the Service finds that 
designation of critical habitat for M. macfarlanei is not prudent at 
this time because such designation would increase the species' 
vulnerability to vandalism and collecting and because it is unlikely to 
aid in the conservation of the species.

Effects of the Rule

    This rule changes the status of Mirabilis macfarlanei from 
endangered to threatened and formally recognizes that this species is 
no longer in imminent danger of extinction throughout a significant 
portion of its range. Reclassification to threatened does not 
significantly alter the protection afforded this species under the Act.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any listed species. The consultation and other 
requirements of section 7 apply equally to endangered and threatened 
species. Most populations of Mirabilis macfarlanei occur on Forest 
Service or Bureau lands. These agencies have been involved in recovery 
and section 7 consultation activities for this species since it was 
listed as endangered in 1979 and are likely to remain involved. 
Recovery activities are not expected to diminish since the primary 
objective of the recovery strategy is delisting of the species. The 
recovery plan will be revised to reflect information acquired since the 
original plan was approved in 1985.
    Certain prohibitions that apply to endangered plants do not apply 
to plants listed as threatened. The removal and reduction to possession 
of Mirabilis macfarlanei from areas under Federal jurisdiction 
continues to be prohibited under section 9 of the Act and 50 CFR 17.71. 
However, the malicious damage or destruction of endangered plants on 
areas under Federal jurisdiction, and the removal, cutting, digging up 
or damage or destruction of endangered 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 will no longer 
constitute a violation of section 9. Take of M. macfarlanei will 
continue to be prohibited pursuant to the State of Oregon's Endangered 
Species Act. The import, export, and interstate and foreign commerce 
prohibitions of section 9 continue to apply to M. macfarlanei.
    Pursuant to section 10 of the Act and 50 CFR 17.72, permits may be 
issued to carry out otherwise prohibited activities involving 
threatened plants. Such permits are available for scientific purposes 
and to enhance the propagation or survival of endangered and threatened 
species. For threatened plants, permits also are available for 
botanical or horticultural exhibition, educational purposes, or special 
purposes consistent with the purposes and policy of the Act. Requests 
for copies of the regulations regarding listed species and inquiries 
about prohibitions and permits may be addressed to the U.S. Fish and 
Wildlife Service, Ecological Services, Endangered Species Permits, 911 
NE. 11th Avenue, Portland, Oregon 97232-4181 (503/231-2063; FAX 503/
231-6243).
    This reclassification is not an irreversible commitment on the part 
of the Service. Reclassifying Mirabilis macfarlanei to endangered would 
be possible should changes occur in management, habitat, or other 
factors that alter the present threats to the species' survival and 
recovery.

National Environmental Policy Act

    The Fish and Wildlife Service has 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 Endangered Species 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 Boise Field Office (See ADDRESSES above).

    Author: The primary author of this final rule is Dr. Andrew F. 
Robinson Jr., U.S. Fish and Wildlife Service, 2600 SE 98th Avenue, 
Suite 100, Portland, Oregon 97266 (503/231-6179).

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.


Sec. 17.12  [Amended]

    2. Section 17.12(h) is amended by revising the entry in the 
``Status'' column for Mirabilis macfarlanei under ``FLOWERING PLANTS'' 
to ``T'' instead of ``E'', and the entry in the ``When listed'' column 
to read ``66,581''.

    Dated: November 9, 1995.
Mollie H. Beattie,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 96-6213 Filed 3-14-96; 8:45 am]
BILLING CODE 4310-55-P