[Federal Register Volume 63, Number 245 (Tuesday, December 22, 1998)]
[Proposed Rules]
[Pages 70745-70751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33857]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF31


Endangered and Threatened Wildlife and Plants: Proposed 
Threatened Status for the Plant Yermo xanthocephalus

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service proposes to list the plant Yermo 
xanthocephalus (desert yellowhead) as a threatened species pursuant to 
the Endangered Species Act of 1973, as amended. Yermo xanthocephalus is 
a recently described Wyoming endemic known only from the south end of 
Cedar Rim on the summit of Beaver Rim in southern Fremont County, 
Wyoming. It is known from a single population occupying an area of less 
than two hectares (ha) (five acres (ac)) of suitable habitat. In 1998 
this population contained an estimated 15,000 plants and existed 
entirely on Federal lands. Surface disturbances associated with oil and 
gas development, compaction by vehicles, trampling by livestock, and 
randomly occurring, catastrophic events threaten the existing 
population.

DATES: Comments from all interested parties must be received by 
February 22, 1999. Public hearing requests must be received by February 
5, 1999.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Wyoming Field Office, U.S. Fish and 
Wildlife Service, 4000 Airport Parkway, Cheyenne, Wyoming 82001. 
Comments and materials received will be available for public 
inspection, by appointment,

[[Page 70746]]

during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mike Long, Field Supervisor, Wyoming 
Field Office (see ADDRESSES section), telephone (307) 772-2374, 
extension 34; facsimile (307) 772-2358.

SUPPLEMENTARY INFORMATION:

Background

    Yermo xanthocephalus was discovered by Wyoming botanist Robert Dorn 
while conducting field work in the Beaver Rim area of central Wyoming 
in 1990. Dorn discovered a small population of an unusual species of 
Composite (Asteraceae). Dorn's closer examination revealed that the 
species was unknown to science and represented a new genus. Dorn (1991) 
named his discovery Y. xanthocephalus, or literally ``desert 
yellowhead.''
    Y. xanthocephalus is a tap-rooted, glabrous (hairless) perennial 
herb with leafy stems to 30 centimeters (cm) (12 inches (in)) high. The 
leathery leaves are alternate, lance-shaped to oval, 4-25 cm (1.5-10 
in) long and often folded along the midvein. Leaf edges are smooth or 
toothed. Flower heads are many (25-180) and crowded at the top of the 
stem. Each head contains four to six yellow disk flowers (ray flowers 
are absent) surrounded by five yellow, keeled involucre (whorled) 
bracts (small leaves beneath the flower). The pappus (the outer whorl 
of flowering parts) consists of many white bristles.
    The species is restricted to shallow deflation hollows in outcrops 
of Miocene sandstones of the Split Rock Formation (Van Houten 1964). 
These wind-excavated hollows accumulate drifting snow and may be more 
mesic (moist) than surrounding areas. The vegetation of these sites is 
typically sparse, consisting primarily of low-cushion plants and 
scattered clumps of Indian ricegrass (Stipa hymenoides).
    Dorn observed approximately 500 plants within 1 ha (2.5 ac) in 1990 
on Federal surface managed by the Bureau of Land Management (BLM). 
Surveys conducted since 1990 by Richard Scott, Professor of Biology at 
Central Wyoming College in Riverton, have failed to locate additional 
populations on outcrops of the White River, Wagon Bed, and Wind River 
formations in the Beaver Rim area. The plant population has increased 
from 500 in 1990 to an estimated 15,000 plants in 1998, possibly in 
response to higher than normal precipitation (R. Scott, Central Wyoming 
College, pers. comm., 1998).

Previous Federal Action

    In the plant notice of review published on September 30, 1993 (58 
FR 51144), we designated Y. xanthocephalus a Category 2 species for 
potential listing under the Endangered Species Act (Act) of 1973, as 
amended (16 U.S.C. 1531 et seq.). At that time, Category 2 species were 
those for which data in our possession indicated listing was possibly 
appropriate, but for which substantial data on biological vulnerability 
and threats were not currently known or on file to support a proposed 
rule. On February 28, 1996, we published a Notice of Review in the 
Federal Register (61 FR 7596) that discontinued the designation of 
Category 2 species as candidates, and this species was upgraded to 
candidate status at that time. A candidate is a species for which we 
possess substantial information on biological vulnerability and threats 
to support preparation of a listing proposal.
    Processing of this proposal is a Tier 2 activity under the current 
listing priority guidance (63 FR 25502, May 8, 1998). Tier 1 actions 
are emergency listings. Tier 2 actions include processing final 
decisions on proposed listings; resolving the conservation status of 
candidate species; processing administrative findings on petitions; and 
delisting or reclassifying actions.
    On November 24, 1997, we received a petition from the Biodiversity 
Legal Foundation and Biodiversity Associates alleging that Y. 
xanthocephalus warranted emergency listing. On December 22, 1997, we 
notified the petitioners that emergency listing was not appropriate 
because BLM regulations provided some conservation measures for the 
species, and current exploratory oil and gas activities near the known 
occupied habitat of Y. xanthocephalus were being coordinated with our 
staff in the Wyoming Field Office. In addition, we notified the 
petitioners that petitions for candidate species are considered second 
petitions, because candidate species are species for which we have 
already decided that listing is warranted. Therefore, no 90-day finding 
was required for Biodiversity Legal Foundation's petition.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal lists. A species may be determined 
endangered or threatened due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to Y. 
xanthocephalus (desert yellowhead) are as follows:

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

    The entire known range of Y. xanthocephalus consists of an area of 
less than two ha (five ac) in southern Fremont County, Wyoming. Surveys 
conducted since 1990 have failed to find additional populations, 
although there are a number of sites with similar soils, drainage and 
plant associations in the area. The plant is easily recognized during 
its summer flowering season, so it seems likely that surveys would have 
found additional populations if they exist. Therefore, the species is 
vulnerable to extinction from even small-scale habitat degradation due 
to its small population size and limited geographic range.
    The known population is threatened by surface disturbances 
associated with recreation, oil and gas development, mineral 
extraction, trampling by livestock, and soil compaction by vehicles 
(Fertig 1995). Recreational off-road vehicle use presents a threat to 
Y. xanthocephalus through the crushing of plants and compaction or 
erosion of soil. This threat is greatest in the spring and summer when 
plants are in flower or heavy with fruit. No physical barriers prevent 
vehicle use in the immediate area of the Y. xanthocephalus population. 
The known population is several miles from Wyoming State Highway 135 
and other maintained roads. In 1996, Highway 135 had an estimated daily 
traffic of 360 vehicles (Wyoming Department of Transportation 1996). A 
two-track, four-wheel drive trail leading to an abandoned oil well 
bisects the population, and is open to hunters or other recreationists 
using four-wheel drive trucks and other smaller all-terrain vehicles 
(ATVs). The most common activities that attract users to the area are 
hunting, rock collecting and searching for human artifacts (such as 
arrowheads). The population is a few miles north of the Sweetwater 
Crossing on the Oregon-California Trail, which is a popular tourist 
attraction. There has been no significant surface disturbance caused by 
vehicles during the past four years that the site has been under study 
(R. Scott, pers. comm., 1998). The BLM Resource Management Plan limits 
vehicle use to existing roads (including established two-tracks), but 
the potential for habitat and plant destruction by ATV's remains a 
threat.

[[Page 70747]]

    Oil and gas development also threaten the known population. In 
1997, BLM leased for oil and gas development a 1,160 ac tract 
(designated WYW140702) that encompasses the Y. xanthocephalus 
population. An adjacent lease (WYW138846) consisting of 2,080 ac was 
purchased by the same operator in May 1996. Both leases are for a 10-
year period, and no specific lease stipulations were included to 
protect the plant. Construction of well pads, access roads, and 
pipelines through occupied habitat would result in direct destruction 
or crushing of plants and soil compaction and erosion. The 1920 Mineral 
Leasing Act promotes maximum recovery of Federal mineral resources. 
However, the 1987 Amendments to the Mineral Leasing Act (30 U.S.C. 
226(g)) require lessees to have an approved operating plan that 
protects surface resources prior to submitting Applications for 
Permission to Drill. The BLM regulations provide that species that are 
candidates for listing under the Endangered Species Act be afforded 
protection.
    The current lessee is aware that the plant exists in the area, and 
has been very cooperative with BLM staff. The current drilling plan 
proposes exploration in locations that should not pose a threat to Y. 
xanthocephalus, but the current operator is free to sell its leases to 
other companies that could revise the drilling plan. An existing two-
track road leading to an abandoned oil well currently bisects the only 
population of Y. xanthocephalus. Redrilling of abandoned wells in 
search of producing formations that may have been previously overlooked 
is a common technique used during oil and gas exploration. Permits to 
drill can be conditioned by BLM to provide some protection to the 
plant. However, a greater level of protection would be afforded by 
stipulations contained directly in the leases, and such stipulations to 
protect the plant cannot be added to the leases until renewal in 2007.
    Although the current oil and gas exploratory wells pose no threat 
to Y. xanthocephalus, the discovery of an oil and/or gas pool on the 
lease areas would precipitate field developments that would introduce 
new threats to the plant and its habitat. In-field development could 
involve up to eight wells per section, depending on the characteristics 
of the producing formations. This intensified drilling activity would 
result in a new network of additional roads and well pads, and more 
human intrusion into what is now a remote area.
    Seismic explorations for oil and gas producing formations also 
present a threat to Y. xanthocephalus and its habitat through use of 
explosives, direct trampling, and soil compaction. However, these 
activities were carried out in the lease area during the early 1990s, 
so a permit application for further exploration is not likely. In 
addition, seismic explorations on BLM surface now require environmental 
analysis prior to permitting, and BLM will protect occupied Y. 
xanthocephalus habitat from damage if a request for further exploration 
is received (J. Kelly, BLM, pers. comm., 1998).
    The known Y. xanthocephalus population is located in BLM's Lander 
Resource Area, which is rich in locatable mineral resources, such as 
gold, copper, and uranium. Private parties can stake a mining claim and 
extract locatable minerals in accordance with the 1872 General Mining 
Law, and such activity could jeopardize the known population of Y. 
xanthocephalus. Zeolites, a locatable mineral with properties useful in 
water softening, manufacturing of catalysts, and pollution control, are 
found in the Beaver Rim area. The mineral also may have marketability 
for use in processes to remove radioactive products from radioactive 
wastes (Bureau of Land Management 1986). The BLM's authority to 
regulate mineral claims under the 1872 General Mining Law is limited, 
although mining activities in areas with five or more acres of surface 
disturbance of unpatented BLM land are required to have an approved 
operating plan under 43 CFR 3809. Although the staking of locatable 
mineral claims on or near the plant's habitat is not likely, official 
withdrawal of the area from locatable mineral claims would remove this 
threat.
    Livestock grazing may also present a threat to Y. xanthocephalus 
habitat, which is within an existing grazing allotment. Livestock 
trampling of plants does occur, primarily because the Y. xanthocephalus 
area is a travel corridor between pastures (Fertig 1995). There are no 
existing barriers to prevent livestock access to the habitat. Fencing 
of the area would protect the plants from this threat, but also would 
probably result in a change in the associated plant community in the 
habitat. This change could result in unanticipated adverse impacts to 
the survival of Y. xanthocephalus.

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

    Y. xanthocephalus is vulnerable to over-collecting conducted for 
scientific or educational purposes because of its small extant 
population size and habitat. The leaves of Y. xanthocephalus contain a 
chemical that produces a mild numbing sensation in the human mouth when 
even tiny portions are tasted (R. Scott, pers. comm., 1998). This could 
indicate potential medicinal qualities that could prove attractive to 
pharmaceutical companies, but the potential for this to be a threat to 
the existing population is currently unknown.

C. Disease or Predation

    Cattle graze in the immediate vicinity of occupied Y. 
xanthocephalus habitat, but observation on the site indicate that the 
plant is not palatable to grazers. Tracks reveal that domestic and wild 
animals grazing the area spit out Y. xanthocephalus leaves and flowers 
after tasting (R. Scott, pers. comm., 1998). Predation of Y. 
xanthocephalus fruit by insects does occur, but it is unknown whether 
or not the extent of current predation differs from historical levels. 
Thus, the degree of threat that this factor poses to the species is 
unknown.

D. The Inadequacy of Existing Regulatory Mechanisms

    The State of Wyoming has no endangered species act or other laws to 
provide protection to plant species. The current BLM Lander Resource 
Management Plan (RMP), which covers the known population of Y. 
xanthocephalus, was approved in 1987, three years prior to the species' 
discovery. Therefore, the plan does not specifically mention the 
species. The RMP protects special status plant species in general 
across the entire Resource Area, and provides no-surface-occupancy 
restrictions for threatened and endangered species impacted by oil and 
gas development. As Y. xanthocephalus is not currently listed, and no 
specific stipulations were included with the current oil and gas 
leases, attempts by BLM to restrict activities by imposing conditions 
during the application to drill stage are appealable by the operator.

E. Other Natural or Manmade Factors Affecting its Continued Existence

    Species with small population size and restricted distribution are 
vulnerable to extinction by natural processes and human disturbance 
(Levin et al. 1996). Random events causing population fluctuations or

[[Page 70748]]

population extirpations become a serious concern when the number of 
individuals or the geographic distribution of the species is very 
limited. A single human-caused or natural environmental disturbance 
could destroy the entire population of Y. xanthocephalus.
    This species occupies an area of less than five acres, and while 
the total number of plants known to exist has increased from 500 when 
it was discovered in 1990 to an estimated 15,000 in 1998, this increase 
may be due to higher than normal precipitation during recent years. The 
establishment of this species is episodic and dependent on suitable 
spring and summer moisture conditions (Fertig 1995). Seed set in 1990 
was characterized as ``almost nil'' due to destruction of achenes 
(fruits) by insects and drought (Dorn 1991). A series of drought years 
could result in a severe reduction in population size and eventual 
extinction.
    The species was described by Fertig (1995) as a ``classic `K' 
selected species characterized by a long-lived perennial growth form, 
adaptation to severe habitats, and low annual reproductive output.'' 
This low reproductive output makes the species increasingly vulnerable 
to extinction due to chance events as population size declines, because 
it is unlikely that the species will exhibit a high rate of population 
growth, even if environmental conditions improved after such an event.
    In addition to the above factors, threats to Y. xanthocephalus are 
increased when people use the occupied area for recreational purposes. 
For example, erosion or trampling of plants is possible due to hikers 
or off-road vehicle use. The species occurs on relatively barren sites 
with less than 25 percent total vegetative cover, and may be intolerant 
of competition (Fertig 1995). Competition from plants not native to the 
area would pose a greater threat than competition from species with 
which Y. xanthocephalus has evolved. Non-native plants that might 
outcompete Y. xanthocephalus could be introduced to the area if their 
seeds are carried in on the footwear or clothing of recreationists.
    An additional threat that affects Y. xanthocephalus is that posed 
by its small population size. Populations of plants that remain very 
small for several generations or that have gone through a past episode 
of rapid population decline may lose much of their previous genetic 
variability (Godt et al. 1996). When a population's genetic variability 
falls to low levels, its long term persistence may be jeopardized 
because its ability to respond to changing environmental conditions is 
reduced. In addition, the potential for inbreeding depression 
increases, which means that fertility rates and survival rates of 
offspring may decrease. Although environmental and demographic factors 
usually supersede genetic factors in threatening species viability, 
inbreeding depression and the low genetic diversity may enhance the 
probability of extinction of rare plant species (Levin et al. 1996).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to Y. xanthocephalus in determining to issue this proposed rule. 
Federal listing under authority of the Act is the best mechanism 
currently available to ensure protection to Y. xanthocephalus on public 
lands throughout its limited range. Although the population has 
increased in recent years, the future existence of the species is still 
threatened by potential oil and gas in-field development and by its 
extremely limited habitat and population size. Therefore, based on this 
evaluation, the preferred action is to list Y. xanthocephalus as a 
threatened species, which would provide BLM with a strong legal 
obligation to ensure adequate protective measures in the operating 
plans for the existing oil and gas leases. While not in immediate 
danger of extinction, Y. xanthocephalus is likely to become an 
endangered species in the foreseeable future if the threats to the 
habitat are realized and if present threats posed by small population 
size and limited geographic range continue to exist. We have determined 
that threatened status would provide adequate protection from the 
described threats. As the species occurs only on Federal surface, a 
classification as endangered, if warranted, would provide no additional 
level of protection.

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 
geographical 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'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. 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 
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. We find that 
designation of critical habitat is not prudent because it would provide 
no additional benefit to the species beyond that conferred by listing 
it as threatened and because it may increase the danger of collection 
to the species. The reasons for this conclusion, including the factors 
considered in weighing the benefits against the risks of designation, 
are provided below.
    Critical habitat receives consideration under section 7 of the Act 
with regard to actions carried out, authorized, or funded by the a 
Federal agency (see Available Conservation Measures section). As such, 
designation of critical habitat may affect activities on Federal lands 
and may affect activities on non-Federal lands where such a Federal 
nexus exists. Under section 7 of the Act, Federal agencies are required 
to ensure that their actions do not jeopardize the continued existence 
of a species or result in destruction or adverse modification of 
critical habitat. However, both jeopardizing the continued existence of 
a species and adverse modification of critical habitat have similar 
standards and thus similar thresholds for violation of section 7 of the 
Act. In fact, biological opinions that conclude that a Federal agency 
action is likely to adversely modify critical habitat but not 
jeopardize the species for which the critical habitat has been 
designated are extremely rare. Given the extremely limited range of Y. 
xanthocephalus, it is likely that any case of adverse modification of 
its habitat would also constitute jeopardy for the taxon.
    The designation of critical habitat for the purpose of informing 
Federal agencies of the location of occupied Y. xanthocephalus habitat 
is not necessary because the BLM currently permits the surveys and 
monitoring of the only extant population. However, vandalism and 
unauthorized collection of Y.

[[Page 70749]]

xanthocephalus could be a significant threat to the species' survival 
and recovery, because of the plant's rarity and the fact that it is a 
monotypic genus. Critical habitat designation would require publication 
of the legal description of the five ac habitat site in the Federal 
Register, providing information to encourage collectors. The species 
has generated little interest in the botanical community, so collecting 
of specimens is currently not a threat. However, the plant may have 
some medicinal qualities that could elicit the interest of collectors 
in the future. Therefore, publication of its exact location could 
result in adverse effects to the species in the future.
    The Service acknowledges that critical habitat designation, in some 
situations, may provide some value to the species by identifying areas 
important for species conservation and calling attention to those areas 
in special need of protection. Critical habitat designation of 
unoccupied habitat may also benefit these species by alerting 
permitting agencies to potential sites for reintroduction and allowing 
them the opportunity to evaluate proposals that may affect those areas. 
However, in this case, the one site where this species exists is well 
known by the BLM, and it is not known to have previously existed on any 
other sites. If future management actions include unoccupied habitat, 
any benefit provided by designation of such habitat as critical would 
be conferred more effectively and efficiently through the current 
coordination process.
    Taking of listed plants is regulated under section 9 of the Act 
only in cases of (1) removal and reduction to possession of federally 
listed plants from lands under Federal jurisdiction, or their malicious 
damage or destruction on such lands; and (2) removal, cutting, digging-
up, or damaging or destroying in knowing violation of any State law or 
regulation, including State criminal trespass law. Designation of 
critical habitat provides no additional benefits or protection from 
potential take beyond those that this species would receive by virtue 
of its listing as threatened and likely would increase the degree of 
threat from collection, vandalism, or other human activities. 
Protection of Y. xanthocephalus will be most effectively addressed 
through the recovery process under section 4 and the consultation 
process under section 7 of the Act, and the current interagency 
coordination processes.
    Given all of the above considerations, we find that the designation 
of critical habitat for Y. xanthocephalus is not prudent because the 
minimal benefits of such designation would be far outweighed by the 
increase of threats from over collection or other human activities. 
Critical habitat designation would provide no additional benefit to the 
species beyond that conferred under sections 7 and 9 of the Act by 
listing.

Available Conservation Measures

    Conservation measures provided to a 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 encourages and results in 
conservation actions by Federal, State, local and private agencies, 
groups and individuals. The Act provides for possible land acquisition, 
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 impacting 
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 proposed or listed 
as endangered or threatened, and with respect to its critical habitat, 
if any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer 
informally with us on any action that is likely to jeopardize the 
continued existence of a proposed species 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 such species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into formal consultation with us.
    Thus, the Act will require BLM to evaluate potential impacts to Y. 
xanthocephalus that may result from activities it authorizes or 
permits, such as oil and gas development, grazing, and recreational 
use. The BLM's regulations require protection of candidate species on 
lands managed by the agency. However, no special land management 
designations or conservation agreements currently exist to provide 
special protections for Y. xanthocephalus. Section 43 U.S.C. 1712(c)(3) 
allows BLM to protect tracts as Areas of Critical Environmental Concern 
(ACEC) to protect surface resources, including candidate, proposed, or 
listed species. The habitat for this plant could be considered for ACEC 
designation. The BLM has expressed interest in entering into a 
Candidate Conservation Agreement with us. The BLM has provided us with 
a draft of such a potential Agreement which outlines management, 
inventory, and monitoring actions to be taken to ensure the 
conservation of this species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.71, 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. Section 
4(d) of the Act allows for the provision of such protection to 
threatened species through regulation. This protection may apply to 
this species in the future if regulations are promulgated. Seeds from 
cultivated specimens of threatened plants are exempt from these 
prohibitions provided that their containers are marked ``Of Cultivated 
Origin.'' Certain exceptions to the prohibitions apply to agents of the 
Service and State conservation agencies.
    The Act and 50 CFR 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
species. For threatened plants, permits also are available for 
botanical or horticultural exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act. It is anticipated 
that few trade permits would ever be sought or issued because the 
species is not in cultivation or common in 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, P.O. Box 25486, Denver Federal Center, Denver,

[[Page 70750]]

Colorado 80225 (telephone (303) 236-7400, Facsimile (303) 236-0027).
    We adopted a policy on July 1, 1994, (59 FR 34272) to identify to 
the maximum extent practicable at the time a species is proposed for 
listing those activities that would or would not constitute a violation 
of section 9 of the Act. The intent of this policy is to increase 
public awareness of the effect of the listing on proposed and ongoing 
activities within a species' range. We believe that based upon the best 
available information, the actions listed below would not result in a 
violation of section 9 provided these activities are carried out in 
accordance with existing regulation and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, agricultural conversions, range 
management, rodent control, mineral development, road construction, 
human recreation, pesticide application, controlled burns) and 
construction/maintenance of facilities (e.g., fences, power lines, 
pipelines, utility lines) when such activity is conducted according to 
any reasonable and prudent measures given by the Service in a 
consultation conducted under section 7 of the Act;
    (2) Casual, dispersed human activities on foot (e.g., bird 
watching, sightseeing, photography, and hiking.)
    The actions listed below may potentially result in a violation of 
section 9; however, possible violations are not limited to these 
actions alone:
    (1) Unauthorized collecting of the species on Federal Lands;
    (2) The unauthorized incidental destruction of Y. xanthocephalus 
habitat on Federal surface land (e.g., conversion of habitat to 
cropland, road construction, water development, range management, 
mineral development, and off-highway vehicle use);
    (3) Unauthorized application of herbicides in violation of label 
restrictions;
    (4) Unauthorized land use activities that would significantly 
modify the species' habitat;
    (5) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits to conduct 
activities are available for purposes of scientific research and 
enhance of propagation or survival of the species.
    Questions regarding whether specific activities, such as changes in 
land use, will constitute a violation of section 9 should be directed 
to the Wyoming Field Office (see ADDRESSES section).

Public Comments Solicited

    We intend that any final action resulting from this proposal be as 
accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or other interested party concerning 
this proposed rule are now solicited.
    Comments particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to Y. xanthocephalus;
    (2) The location of any additional sites that contain Y. 
xanthocephalus;
    (3) Additional information concerning Y. xanthocephalus 
distribution, population size and/or population trend;
    (4) Information regarding current or planned land uses, and their 
possible beneficial or negative impact to Y. xanthocephalus or its 
habitat (e.g., agricultural conversion, oil and gas development, land 
exchanges, range management, habitat conservation plans, conservation 
easements);
    (5) Biological or physical elements that best describe Y. 
xanthocephalus habitat that could be important for the conservation of 
the species;
    (6) Alternative land use practices that will reduce or eliminate 
the take of Y. xanthocephalus;
    (7) Other management strategies that will conserve the species 
throughout its range.
    Final promulgation of the regulations on this species will take 
into consideration the comments and any additional information received 
by the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and addressed to the Wyoming Field Office (see 
ADDRESSES section).
    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 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 may also e-mail the comments to this address: E[email protected].

Required Determinations

    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 concerning 
regulations adopted pursuant to section 4(a) of the Act of 1973, as 
amended. A notice outlining our reasons for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244).
    This rule does not contain any new collections of information, 
other than those associated with permits, already approved under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of 
Management and Budget clearance number 1018-0094. 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 control 
number. For additional information concerning permit and associated 
requirements for threatened species, see 50 CFR 17.32.

References Cited

Bureau of Land Management. 1986. Final Resource Management Plan/ 
Environmental Impact Statement for the Lander Resource Area.
Dorn, R.D. 1991. Y. xanthocephalus (Asteraceae: Senecioneae): A New 
genus and Species from Wyoming. Madrono 38(3):198-201.
Fertig, W. 1994. Demographic monitoring Data: Y. xanthocephalus 
(Desert yellowhead). Wyoming Natural Diversity Database Report. 
University of Wyoming. Laramie, Wyoming.
Fertig, W. 1995. Status Report on Y. xanthocephalus in central 
Wyoming. Wyoming Natural Diversity Database Report to the BLM, 
Wyoming State Office and Rawlins District. 46 pp.
Godt, M. J. W., B. R. Johnson, and J. L. Hamrick. 1996. Genetic 
diversity and population size in four rare southern Appalachian 
plant species. Conservation Biology 10:796-805.

[[Page 70751]]

Levin, D. A., J. Francisco-Ortega, and R. K. Jansen. 1996. 
Hybridization and the extinction of rare plant species. Conservation 
Biology 10:10-16.
Love, J.D. 1961. Geological Survey Bulletin 112: Split Rock 
Formation (Miocene) and moonstone Formation (Pliocene) in central 
Wyoming. Contributions to General Geology. 1-I. United States 
Government Printing Office, Washington, D.C.
Van Houten, F.B. 1964. Tertiary Geology of the Beaver Rim Area 
Fremont and Natrona counties, Wyoming: Geological Survey Bulletin 
1164. United States Government Printing Office, Washington, D.C.
Wyoming Transportation Planning Program. 1996 Vehicle Miles. Wyoming 
Department of Transportation, Cheyenne, Wyoming.

    Author. The primary author of this proposed rule is Chuck Davis, 
U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center, 
Denver, Colorado 80225, (303) 236-7400, extension 235.

List of Subjects in 50 CFR Part 17

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

Proposed Regulations Promulgation

    Accordingly, the Service proposes to amend 50 CFR Part 17, as set 
forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

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


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                             Species
------------------------------------------------------------------       Historic range              Status        When listed    Critical     Special
            Scientific name                    Common name                                                                        habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
     Asteraceae--Composite Family
 
                   *                  *                  *                  *                  *                  *                  *
Yermo xanthocephalus..................  Desert yellowhead........  U.S.A. (WY)..............  T                             NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: December 7, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-33857 Filed 12-21-98; 8:45 am]
BILLING CODE 4310-55-P