[Federal Register Volume 64, Number 202 (Wednesday, October 20, 1999)]
[Rules and Regulations]
[Pages 56590-56596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27187]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE57


Endangered and Threatened Wildlife and Plants; Final Rule to List 
Astragalus desereticus (Deseret milk-vetch) as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
the plant species, Astragalus desereticus (Deseret milk-vetch), to be a 
threatened species under the authority of the Endangered Species Act of 
1973, as amended (Act). Astragalus desereticus, considered extinct 
until its rediscovery in 1981, exists in one small population in Utah 
County, Utah. Threats to the plant include residential development, 
highway widening, livestock grazing and trampling, and other impacts to 
its limited habitat. This plant receives no protection under State or 
local laws or regulations. This rule implements Federal protection 
provided by the Act for this plant.

EFFECTIVE DATE: November 19, 1999.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the Utah 
Ecological Services Field Office, U.S. Fish and Wildlife Service, 
Lincoln Plaza Suite 404, 145 East 1300 South, Salt Lake City, Utah 
84115.

FOR FURTHER INFORMATION CONTACT: John L. England at the above address 
(telephone: 801/524-5001).

SUPPLEMENTARY INFORMATION:

Background

    Marcus E. Jones collected a distinctive Astragalus from ``below 
Indianola,'' a town in Sanpete County, Utah, on June 2, 1893. This same 
plant was again collected by Ivar Tidestrom from ``near Indianola'' on 
June 17, 1909. Specimens from these two collections laid in obscurity 
in various herbaria until Rupert Barneby recognized their uniqueness 
and described them as Astragalus desereticus (Barneby 1964). Efforts to 
relocate the species'

[[Page 56591]]

population were initially fruitless (Barneby 1964, Welsh 1978a, 1978c) 
leading to a presumption of extinction (Ripley 1975, Welsh 1975, 
1978b). However, on May 27, 1981, Elizabeth Neese discovered a 
population of A. desereticus on a sandstone outcrop above the town of 
Birdseye, Utah County, Utah, less than 6.2 kilometers (km) (10 miles 
(mi)) from Indianola (Welsh and Chatterley 1985). This population 
remains the only known occurrence of the species (Franklin 1990, 1991, 
Service 1991). It is possible that this population is the one from 
which Jones and/or Tidestrom made their collections more than 70 years 
earlier (Franklin 1990, 1991, Welsh and Chatterley 1985).
    Astragalus desereticus is a perennial, herbaceous, sub-acaulescent 
(almost stemless) plant in the bean family (Fabaceae). Individual 
plants are approximately 4-15 centimeters (cm) (2-6 inches (in)) in 
height, and arise from a caudex (the persistent base of an otherwise 
annual herbaceous stem). Stems are about 6 cm (2 in) tall. The 
pinnately compound leaves (feather-like arrangement with leaflets 
displayed on a central stalk) are 4-11 cm (2-4 in) long with 11-17 
leaflets. The leaflets are elliptic to ovate in shape, with a dense 
silvery gray pubescence (short hairs) on both sides. The species' 
flowers are of the characteristic papilionaceous form common to the 
bean family, 1.8-2.2 cm (0.7-0.9 in) long, white in color with a purple 
tip on the keel, and borne on a stalk of 5-10 flowers. The seed pods 
are 1 to 2 cm (0.4-0.8 in) long, densely covered with lustrous hairs, 
and bear 14-16 ovules (a minute rudimentary structure from which a 
plant seed develops after fertilization). Detailed descriptions of A. 
desereticus can be found in Barneby (1964, Barneby in Cronquist et al. 
1989), and in Welsh (1978c, Welsh et al. 1987, 1993).
    The only known population of Astragalus desereticus occurs 
primarily on steep south- and west-facing slopes. The plant grows on 
soils derived from a specific and unusual portion of the geologic 
Moroni Formation. This geologic feature is characterized by coarse, 
crudely bedded conglomerate (Franklin 1990). The plant community in 
which A. desereticus occurs is dominated by pinon pine (Pinus edulis) 
and Utah juniper (Juniperus osteosperma). Other associated plant 
species include: sagebrush (Artemisia tridentata), scrub oak (Quercus 
gambelii), wild buckwheat (Eriogonum brevicaule), Indian ricegrass 
(Stipa hymenoides), needle and thread grass (Stipa comata), bitter 
brush (Purshia tridentata), and plateau beardtongue (Penstemon 
scariosus) (Franklin 1990).
    The sole population of Astragalus desereticus consists of between 
5,000 and 10,000 individuals that grow on an area of less than 120 
hectares (ha) (300 acres (ac)) (Franklin 1990, Stone 1992). The 
species' total range is approximately 2.6 km (1.6 (mi)) long, and 0.5 
(km) (0.3 mi) across. Extensive searches of similar habitat in Utah and 
Sanpete Counties, Utah, have failed to identify any other populations 
(Franklin 1991, Larry England, Service, pers. comm. 1997). The land 
upon which A. desereticus grows is owned by the State of Utah and three 
private land owners (Franklin 1990, 1991; Chris Montague, The Nature 
Conservancy, 1992, 1997 pers. comm.). Astragalus desereticus is 
threatened by grazing and trampling by ungulates, alteration of its 
habitat due to residential development and road widening, and natural 
events, such as fire, due to its limited distribution.

Previous Federal Action

    Section 12 of the Act (16 U.S.C. 1531 et seq.) directed the 
Secretary of the Smithsonian Institution to prepare a report on those 
plants considered to be endangered, threatened, or extinct. The 
Secretary presented this report, designated as House Document No. 94-
51, to Congress on January 9, 1975. On July 1, 1975, we published a 
notice in the Federal Register (40 FR 27823) accepting the report as a 
petition to list those taxa named therein under section 4(c)(2) of the 
Act (petition acceptance is now governed by section 4(b)(3) of the 
Act), and its intention to review the status of those plants. 
Astragalus desereticus was included in the July 1, 1975, notice on list 
``C,'' indicating that the species was probably extinct.
    On June 16, 1976, we published a proposed rule in the Federal 
Register (41 FR 24523) to designate approximately 1,700 vascular plant 
species, including Astragalus desereticus, as endangered pursuant to 
section 4 of the Act. The Smithsonian Institution and the Service 
assembled this list of 1,700 plant species on the basis of comments and 
data received in response to House Document No. 94-51 and the July 1, 
1975, Federal Register publication. In the proposed rule, we also 
designated A. desereticus as a species about which we were particularly 
interested in obtaining any new information on living specimens and 
extant populations. General comments received in relation to the 1976 
proposal are summarized in an April 26, 1978, Federal Register 
publication (43 FR 17909). The 1978 amendments to the Act required that 
all proposals over 2 years old be withdrawn, although proposals 
published before the 1978 amendments' enactment could not be withdrawn 
before the end of a 1-year grace period beginning on the enactment 
date. On December 10, 1979, we published a notice of withdrawal (44 FR 
70796) of that portion of the June 16, 1976, proposal that had not been 
made final, which included A. desereticus.
    On December 15, 1980, we published a revised notice of review for 
native plants in the Federal Register (45 FR 82480) designating 
Astragalus desereticus a category 1 species. At that time, we defined 
category 1 candidates as those taxa for which we had on file sufficient 
information on biological vulnerability and threats to support 
preparation of listing proposals. In addition, A. desereticus was 
identified as a species that may have recently become extinct. In 1981, 
a population of A. desereticus was discovered. On November 28, 1983, we 
published a revised notice of review in the Federal Register (48 FR 
53640) in which A. desereticus was included as a category 2 candidate 
species. Category 2 candidates were formally defined as taxa for which 
data on biological vulnerability and threats indicated that listing was 
possibly appropriate, but for which data were not sufficient to support 
issuance of listing proposals. In preparing the 1983 notice, we deemed 
it appropriate to acquire additional information on the distribution 
and abundance of A. desereticus before proposing the species for 
listing. We maintained A. desereticus as a category 2 species in 
updated notices of review published in the Federal Register on 
September 27, 1985 (50 FR 39526), and February 21, 1990 (55 FR 6184). 
As a result of additional information obtained in 1990 and 1991 status 
surveys (Franklin 1990 and Service 1991), we reclassified A. 
desereticus as a category 1 candidate in the September 30, 1993, notice 
of review (58 FR 51144). Upon publication of the February 28, 1996, 
Notice of Review, (61 FR 7596), we ceased using category designations 
and included A. desereticus as a candidate species. Candidate species 
are those for which the Service has on file sufficient information on 
biological vulnerability and threats to support proposals to list the 
species as threatened or endangered. We maintained Astragalus 
desereticus as a candidate in the September 19, 1997, Notice of Review 
(62 FR 49398).
    Section 4(b)(3)(B) of the Act's 1982 amendments required the 
Secretary of the Interior to make findings on certain petitions within 
1 year of their receipt.

[[Page 56592]]

Section 2(b)(1) of the Act's 1982 amendments further required that all 
petitions pending as of October 13, 1982, be treated as having been 
newly submitted on that date. Because we accepted the 1975 Smithsonian 
report and the Service's notices as petitions, we treated all the taxa 
contained in those notices, including Astragalus desereticus, as having 
been newly petitioned on October 13, 1982. The deadline for a finding 
on such petitions, including that for A. desereticus, was October 13, 
1983. Since that date, we made successive 1-year findings that listing 
A. desereticus was warranted, but precluded by other listing actions of 
higher priority. Our proposal to list A. desereticus as threatened on 
January 28, 1998 (63 FR 4207), constituted the warranted 12-month 
finding for this species.
    The processing of this final rule conforms to our Listing Priority 
Guidance for Fiscal Years 1998 and 1999 published in the Federal 
Register on May 8, 1998 (63 FR 25502). The guidance clarifies the order 
in which we will process rulemakings. Highest priority is processing 
emergency listing rules for any species determined to be facing a 
significant and imminent risk to its well being (Tier 1). Second 
priority (Tier 2) is processing final determinations on proposed 
additions species to the lists of endangered and threatened wildlife 
and plants; the processing of new proposals to add species to the 
lists; the processing of administrative petition findings to add 
species to the lists, delist species, or reclassify listed species 
(petitions filed under section 4 of the Act); and a limited number of 
proposed or final rules to delist or reclassify species. Third priority 
(Tier 3) is processing proposed or final rules designating critical 
habitat. The processing of this final rule is a Tier 2 action. We have 
updated this rule to reflect any changes in information concerning 
distribution, status, and threats since the publication of the proposed 
rule.

Summary of Comments and Recommendations

    In the January 28, 1998, proposed rule and associated 
notifications, we requested all interested parties to submit factual 
reports or information that might contribute to the development of a 
final rule. We contacted and requested comments from all appropriate 
Federal and State agencies, County governments, scientific 
organizations, and other interested parties. We published newspaper 
notices requesting public comment on the proposed rule in The Salt Lake 
Tribune and the Deseret News on February 10, 1998, and the Daily Herald 
on February 11, 1998.
    In accordance with our policy published in the Federal Register on 
July 1, 1994 (59 FR 34270), we solicited the expert opinion of three 
appropriate and independent specialists regarding pertinent scientific 
or commercial data and assumptions relating to the supportive 
biological and ecological information for Astragalus desereticus. The 
purpose of this review is to ensure that listing decisions are based on 
scientifically sound data, assumptions, and analyses, including input 
of appropriate experts and specialists. One specialist responded in 
writing agreeing with our analysis and supporting the proposed action, 
while two others responded verbally agreeing with our analysis.
    During the comment period we reviewed a total of three written 
comments. We did not receive any comments on the issues raised in our 
discussion of the biology or threats to the species. Two commenters, 
including the respondent peer reviewer, concurred with our proposal to 
list Astragalus desereticus as threatened. The third commenter stated 
that the Service should not list A. desereticus because it has no 
authority under the Act to list or regulate species that are not 
involved in interstate commerce.
    We believe that the application of the Act to Astragalus 
desereticus does not exceed Congress's Commerce Clause authority under 
the U.S. Constitution for the reasons given in Judge Wald's opinion and 
Judge Henderson's concurring opinion in National Association of Home 
Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 
S. Ct. 2340 (1998). That case involved a challenge to application of 
the Act's prohibitions to protect the listed Delhi Sands flower-loving 
fly. As with A. desereticus, the Delhi Sands flower-loving fly is 
endemic to only one state. Judge Wald held that application of the 
Act's prohibitions against taking of endangered species to this fly was 
a proper exercise of Commerce Clause power to regulate: (1) Use of 
channels of interstate commerce; and (2) activities substantially 
affecting interstate commerce because it prevented loss of biodiversity 
and destructive interstate competition. Judge Henderson upheld 
protection of the fly because doing so prevents harm to the development 
that is part of interstate commerce. See Gibbs v. Babbitt, 31 F.Supp.2d 
531 (E.D.N.C. 1998).

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that Astragalus desereticus should be 
classified as a threatened species. In making this determination we 
have followed the procedures set forth in section 4(a)(1) of the Act 
and regulations implementing the listing provisions of the Act (50 CFR 
part 424). We may determine a species to be an 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 Astragalus desereticus 
Barneby (Deseret milk-vetch) are as follows:

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

    Astragalus desereticus is known from one small population of about 
5,000 reproducing individuals and several thousand immature plants on 
less than 120 ha (300 ac) (Franklin 1990, Stone 1992). This species is 
endemic to one unusual narrow geologic strata characterized by coarse, 
poorly sorted conglomerate. Any conversion or destruction of A. 
desereticus habitat has the potential to jeopardize the species' 
limited population. Urban development of the Wasatch Front metropolitan 
area is rapidly spreading into the surrounding agricultural lands, 
especially small communities in the drainages of the Provo, Spanish 
Fork, and Weber Rivers (Quality Growth Efficiency Tools Technical 
Committee 1997 (QETTC)). The population growth of this metropolitan 
area is expected to double by the year 2020. In addition, conversion of 
agricultural land to urban use is expected to double in the same time 
period (QGETTC 1997). Highly accessible rural areas, such as Birdseye, 
may grow in population at an even more rapid rate. Since the species' 
rediscovery, one landowner has built a private residence within the 
species' occupied habitat. Prior to 1998, the town of Birdseye 
contained about 20 homes. Since the publication of the proposed rule, a 
70-unit residential subdivision began construction adjacent to the 
south side of the species' population. The entire A. desereticus 
population is within 300 meters (m) (1,000 feet (ft)) of U.S. Highway 
89. The nearest plants are within a few meters of the road. U.S. 
Highway 89 is currently a two-lane rural highway. With increasing human 
population in the general area of southern Utah County and northern 
Sanpete County, it

[[Page 56593]]

is likely that this road will be expanded to four lanes. Such a highway 
widening could destroy a significant portion of the species population 
(QGETTC 1997).
    Astragalus desereticus is located on highly accessible public and 
private land that is currently used for cattle grazing and wildlife 
management (Franklin 1991, Stone 1992). The land managed by the Utah 
Division of Wildlife Resources is a wildlife management area that also 
is used for cattle grazing (Franklin 1991). Cattle are used by the Utah 
Division of Wildlife Resources (DWR) in spring to encourage plant 
growth for big game forage in the winter. This grazing occurs within 
the habitat of A. desereticus (Stone 1992). The cattle tend to 
concentrate primarily on the upslope areas where forage production is 
greater (Stone 1992). Erosion in these areas is exacerbated by cattle 
grazing and game trails. In addition to the effects of erosion, 
trampling threatens A. desereticus particularly at the southern end of 
the population (Franklin 1991). As cattle and wildlife graze the 
habitat of A. desereticus, the animals are likely to trample plants. 
Although mule deer numbers have stabilized in recent years, Rocky 
Mountain elk populations are increasing. Although currently DWR has no 
specific plans for the conservation of A. desereticus, they are 
interested in developing guidelines for the conservation of Deseret 
milkvetch to work in concert with their primary goal of enhancing big 
game winter range. The DWR is interested in acquiring property 
interests in additional winter range lands also occupied by A. 
desereticus.

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

    Overutilization is not known to be a threat to Astragalus 
desereticus.

C. Disease or Predation

    In contrast to many species of Astragalus, A. desereticus appears 
to be palatable to cattle. The genus Astragalus has the largest number 
of species in the Intermountain west, many of which are poisonous to 
grazing animals. Three types of poisonous compounds are found within 
the genus. Some species within the genus concentrate the toxic element 
selenium in their tissues; these species are called selenophytes (Stone 
1992). The fact that A. desereticus does not produce a ``snake-like'' 
odor typical of other ``snakeweeds,'' as selenophytes are sometimes 
called, and the fact that no other selenophytes occur in the area, 
indicate that A. desereticus is not a selenophyte (Stone 1992). Other 
Astragalus species produce poisonous alkaloids as metabolic byproducts. 
The known alkaloid producers as well as the selenium accumulators are 
not closely related to A. desereticus. The third type of poison found 
within Astragalus are various nitrotoxins. Ruminants in particular are 
highly susceptible to nitrotoxin poisoning. Some species closely 
related to A. desereticus contain nitrotoxins (Barneby 1989). While A. 
desereticus may not be preferred forage for cattle or native ungulates, 
it is palatable and may be inadvertently taken along with preferred 
forage in the area.
    In surveys of habitat similar to that occupied by Astragalus 
desereticus in Utah County, our personnel observed that overgrazing by 
domestic ungulates has almost completely denuded the landscape (Service 
1991). Similar grazing pressure is known from the current habitat of A. 
desereticus; therefore, the effects of grazing, particularly 
overgrazing, constitute a likely threat. This species is much less 
abundant in the more heavily grazed southern portion of its habitat 
(Franklin 1990, 1991), indicating that grazing may be a significant 
threat. Cattle grazing may be particularly harmful because it occurs 
during a critical period for A. desereticus reproduction (i.e., 
flowering) (Stone 1992).
    There are no known insect parasites or disease organisms that 
significantly affect this species.

D. The Inadequacy of Existing Regulatory Mechanisms

    Astragalus desereticus receives no protection or consideration 
under any Federal, State, or local law or regulation other than that 
provided by the Act.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    By virtue of the limited number of individuals and range of the 
remaining population of Astragalus desereticus, this species is 
threatened with extinction from naturally occurring events. The 
probability that a natural event such as fire, drought, or disease will 
cause extinction is greater for species having a small population and 
highly restricted range (Stone 1992). Rare species in the genus 
Astragalus have exhibited low levels of genetic diversity when compared 
to other more widespread, closely related species (Stone 1992). Low 
genetic variability makes it difficult for a species to respond to 
changes in the environment thus making them more vulnerable to 
extinction.
    The original locality description for Astragalus desereticus at 
Indianola is thought to be over-generalized and perhaps this 
contributed to the species' presumed extinction (Welsh 1985, Franklin 
1990). Indianola, Utah, and the species' current known population near 
Birdseye, Utah, are about 4.4 km (7 mi) apart. The specific geological 
characteristics of A. desereticus habitat are uncommon within the 
Moroni Formation, though the formation is exposed for a much larger 
area in southern Utah County and northern Sanpete County, Utah. 
Although it is thought that some additional populations of A. 
desereticus were present at or near Indianola as reported by Jones in 
1893 and Tidestrom in 1909, there are no known populations existing in 
that location today. Other unknown factors may affect the current 
distribution and vitality of A. desereticus populations.
    A potential threat to Astragalus desereticus is related to the 
populations of ungulates in the area and their effect on pollinators. 
Other species in the genus Astragalus suffer from low numbers of 
pollinators due to the indirect effect that ungulates can have on the 
pollinator's nest sites (Stone 1992). Bumblebees (Bombus spp.), which 
nest in abandoned rodent burrows, are likely the primary pollinators of 
A. desereticus. Land use practices that increase grazing pressure may 
cause burrows to collapse, destroying bumblebee nests (Stone 1992). 
Since bees have a low fecundity (low capability of producing 
offspring), their populations may not recover for many years, 
particularly if grazing by large ungulates is maintained. An absence of 
effective pollinators would probably reduce the fecundity of A. 
desereticus.
    In preparing this final rule we have carefully reviewed the best 
scientific and commercial information available regarding the past, 
present, and future threats faced by Astragalus desereticus. Based on 
this evaluation, the preferred action is to list A. desereticus as 
threatened. Threatened status reflects the vulnerability of this 
species to factors that may negatively affect the species and its 
extremely limited habitat. While not in immediate danger of extinction, 
A. desereticus is likely to become an endangered species in the 
foreseeable future if present threats continue or increase. We have 
contacted the current land owners and although many are receptive in 
the near-term to providing for passive protection, having no immediate 
plans for development, in the long-term they continue to have 
expectations for the future use and development of their properties.

[[Page 56594]]

Critical Habitat

    Section 4(a)(3) of the Act 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 
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 have determined that the designation of 
critical habitat for A. desereticus is not prudent due to the lack of 
benefit to the species.
    Critical habitat receives consideration under section 7 of the Act 
with regard to actions carried out, authorized, or funded by a Federal 
agency (see ``Available Conservation Measures'' section). As such, 
designations 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 listed 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. Also, the designation of critical 
habitat for the purpose of informing Federal agencies of the location 
of A. desereticus habitat is not necessary because we can inform 
Federal agencies through other means. For these reasons, the 
designation of critical habitat for A. desereticus would provide no 
additional benefit to the species beyond that conferred by listing, 
and, therefore, such designation is not prudent.
    Astragalus desereticus has an extremely narrow distribution in a 
sandstone outcrop, totaling about 120 ha (300 ac) in one population. At 
the present time, no other site is known to be occupied or suitable for 
this plant. The private land owners at Birdseye are aware of the 
plant's presence and extremely limited habitat, as are the DWR managers 
and others involved in the management of the area. Therefore, 
designation of critical habitat would provide no benefit with respect 
to notification. In addition, given the species' narrow distribution 
and precarious status, virtually any conceivable adverse affect to the 
species' habitat would very likely jeopardize its continued existence. 
Designation of critical habitat for A. desereticus would, therefore, 
provide no benefit to the species apart from the protection afforded by 
listing the plant as threatened.
    Protection of the habitat of A. desereticus will be addressed 
through the section 4 recovery process and the section 7 consultation 
process. Although this plant occurs only on private and State land, it 
may be affected by projects with Federal connections, including 
potential Federal Highway Administration funding of road widening. We 
believe that activities involving a Federal action which may affect A. 
desereticus can be identified without designation of critical habitat, 
by providing Federal agencies with information on the location of 
occupied habitat and information on the kinds of activities which could 
affect the species. For the reasons discussed above, we find that the 
designation of critical habitat for A. desereticus is not prudent.

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 encourages and results in 
conservation actions by Federal, State, and private agencies, groups 
and individuals. The Act provides for possible land acquisition and 
cooperation with the State, and requires that recovery actions be 
carried out for all listed species. Such actions are initiated by the 
Service following listing. 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, 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 being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
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 a species or 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.
    The single known population of Astragalus desereticus is on State 
and privately owned land. However, highway widening, which may 
adversely affect A. desereticus, due to the proximity of the plants to 
a major highway project, may in part be funded by the Federal Highway 
Administration and involve consultation under section 7 of the Act.
    The Act and its implementing regulations set forth a series of 
general trade 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 for threatened plants, 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 the course of a 
commercial activity, sell or offer for sale this species 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, 
damaging, or destruction of such plants in knowing violation of any 
State law or regulation, or in the course of a violation of 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 such 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 
species under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
species. For threatened plants, permits are also available for 
botanical and horticultural exhibition, educational purposes, or 
special reasons consistent with the Act's purposes. With respect to 
Astragalus desereticus, it is anticipated that few, if any, trade 
permits would be sought or issued since the species is not common in 
the wild

[[Page 56595]]

and is unknown in cultivation. Requests for copies of the regulations 
regarding listed species and inquiries about prohibitions and permits 
may be addressed to: Regional Director, U.S. Fish and Wildlife Service, 
P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify to the maximum extent practicable those 
activities that would or would not constitute a violation of section 9 
of the Act if the species is listed. 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. This species is not known 
to be located on areas under Federal jurisdiction. We believe the 
actions listed below would not result in a violation of section 9:
    (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 projects (e.g., fences, power lines, 
pipelines, utility lines) when such activities are conducted according 
to all reasonable and prudent measures provided by the Service 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) Application of herbicides in violation of label restrictions;
    (3) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits to conduct 
activities are available for scientific purposes, the enhancement of 
the propagation or survival, economic hardship, botanical or 
horticultural exhibition, educational purposes, or other activities 
consistent with the purposes and policy of the Act.
    Questions regarding whether specific activities, such as changes in 
land use, would constitute a violation of section 9 should be directed 
to the Utah Ecological Services Field Office (see ADDRESSES section).

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. A notice 
outlining the basis for this determination was published in the Federal 
Register on October 25, 1983 (48 FR 49244).

Required Determinations

    This rule does not contain collections of information that require 
Office of Management and Budget approval under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. An information collection related to the 
rule pertaining to permits for endangered and threatened species has 
OMB approval and is assigned clearance number 1018-0094. This rule does 
not alter that information collection requirement. For additional 
information concerning permits and associated requirements for 
threatened plants, see 50 CFR 17.72.

References Cited

Barneby, R.C. 1964. Atlas of North American Astragalus. Mem. of The New 
York Botanical Gardens 13(II):597-1188.
Barneby, R.C. in A. Cronquist, A.H. Holmgren, N.H. Holmgren, J.L. 
Reveal, and P.K. Holmgren. 1989. Intermountain Flora, Volume 3, Part B. 
Fabales. Columbia University Press, New York, New York. 279 pp.
Franklin, M.A. 1990. Report for 1990 Challenge Cost Share Project, 
Manti-LaSal National Forest. Target Species: Astragalus desereticus. 
Unpublished report prepared by the Utah Natural Heritage Program, Salt 
Lake City, Utah. 5 pp + xiv.
Franklin, M.A. 1991. Deseret Milkvetch. Sego Lily, Newsletter of the 
Utah Native Plant Society 15(2):6-8.
Quality Growth Efficiency Tools Technical Committee. 1997. Baseline 
Scenario. Report on file with the Utah Governors Office of Planning and 
Budget. 58 pp.
Ripley, S.D. 1975. Report on Endangered and Threatened Species of the 
United States. House Document 94-51. 200 pp. Reprinted in Federal 
Register 40(127): 27824-27924.
Stone, R.D. 1992. Element Stewardship Abstract for Astragalus 
desereticus. Unpublished report prepared for The Nature Conservancy. 
Salt Lake City, Utah. 18 pp.
Welsh, S.L. 1978a. Status Report Astragalus desereticus. Unpublished 
report prepared for the U.S. Fish and Wildlife Service. Denver, 
Colorado. 5 pp.
Welsh, S.L. 1978b. Endangered and Threatened Plants of Utah: A 
Reevaluation. Great Basin Naturalist 38(1)1-18.
Welsh, S.L. 1978c. Utah Flora: Fabaceae (Leguminosae). Great Basin 
Naturalist 38(3):225-367.
Welsh, S.L., N.D. Atwood, and J.L. Reveal. 1975. Endangered, 
Threatened, Extinct, Endemic, and Rare or Restricted Utah Vascular 
Plants. Great Basin Naturalist 35(4):327-376.
Welsh, S.L., N.D. Atwood, L.C. Higgins, and S. Goodrich. 1987. A Utah 
Flora. Great Basin Naturalist Mem. No. 9, 1-897.
Welsh, S.L., and L.M. Chatterley. 1985. Utah's Rare Plants Revisited. 
Great Basin Naturalist 45:173-236.
U.S. Fish and Wildlife Service. 1991. Astragalus desereticus: 
Supplemental Status Report. Salt Lake City, Utah. 4 pp.

    Author: The primary author of this proposed rule is John L. England 
(see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, 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 section 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) * * *

[[Page 56596]]



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                             Species
------------------------------------------------------------------       Historic range              Status        When listed    Critical     Special
            Scientific name                    Common name                                                                        habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Astragalus desereticus................  Deseret milk-vetch.......  U.S.A. (UT)..............  T                            668           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: September 30, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 99-27187 Filed 10-19-99; 8:45 am]
BILLING CODE 4310-55-P