[Federal Register Volume 65, Number 71 (Wednesday, April 12, 2000)]
[Proposed Rules]
[Pages 19728-19734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9070]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG02


Endangered and Threatened Wildlife and Plants; Proposed 
Determination of Endangered Status for Astragalus Holmgreniorum 
(Holmgren Milk-Vetch) and Astragalus Ampullarioides (Shivwits Milk-
Vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to 
determine endangered species status under the Endangered Species Act 
(Act) of 1973, as amended, for two perennial herbs, Astragalus 
holmgreniorum (Holmgren milk-vetch) and Astragalus ampullarioides 
(Shivwits milk-vetch). Three small populations of A. holmgreniorum 
exist in Washington County, Utah and adjacent Mohave County, Arizona. 
Five small populations of A. ampullarioides exist in Washington County, 
Utah. Significant portions of the habitat of both species are subject 
to disturbance from urban development, off-road vehicles (ORVs), 
grazing, displacement by exotic weeds, and mineral development. A 
determination that A. holmgreniorum and A. ampullarioides are 
endangered species would implement the Federal protections provided by 
the Act for these plants.

DATES: Comments from all interested parties must be received by June 
12, 2000. Public hearing requests must be received by May 30, 2000.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, U.S. Fish and Wildlife Service, Lincoln 
Plaza, Suite 404, 145 East 1300 South, Salt Lake City, Utah 84115. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: John L. England, Botanist, Utah Field 
Office, at the address listed above (telephone: 801/524-5001).

SUPPLEMENTARY INFORMATION:

Background

    Astragalus holmgreniorum (Holmgren milk-vetch) was first collected 
as a scientific specimen in 1941 by Melvin Ogden. Rupert Barneby and 
Noel and Patricia Holmgren rediscovered the species in 1979. Barneby 
(1980) recognized the species as a unique taxon occurring in a 
localized area on the Arizona-Utah border, and named it for its co-
discovers. A. ampullarioides (Shivwits milk-vetch) was first collected 
near Shem in Washington County, Utah by Duane Atwood in 1976. The 
species was originally described by Stanley Welsh (1986) as a variety 
of A. eremiticus. Barneby (1989) questioned the taxonomic significance 
of the species and submerged A. eremiticus var. ampullarioides within 
typical A. eremiticus. Later research work by Harper and Van Buren 
(1998), and Stubben (1997) demonstrated significant genetic and 
ecological differences between typical A. eremiticus and A. eremiticus 
var. ampullarioides. Welsh (1998) revised the species' taxonomy 
elevating the taxon to full species status as A. ampullarioides. Both 
species are narrowly distributed Mojave Desert endemics restricted to 
the immediate vicinity of St. George, Utah.
    A member of the pea family (Fabaceae), Astragalus holmgreniorum 
grows close to the ground and is a herbaceous (non-woody) perennial 
that produces small purple flowers in the spring, and dies back to its 
root crown (base of the stalk where roots begin) after the flowering 
season. The plant's pinnately compound (arranged on opposite sides of 
the stem in a row) leaves arise directly from the root crown. The 
leaves are pressed close to the ground, and are 4 to 13 centimeters 
(cm) (1.5 to 5.1 inches (in)) long, and have 9 to 15 leaflets. The 
leaflets are 0.8 to 1.6 cm (0.3 to 0.6 in) long and are broadly obovate 
(oval with the narrow end towards the base of the leaf) in shape. The 
flowers of A. holmgreniorum are purple, 1.8 to 2.4 cm (0.7 to 0.9 in) 
long, and 0.6 to 0.9 cm (0.2 to 0.4 in) wide and have the distinctive 
papilionaceous flower shape of a legume (pea-like flower with 5 petals 
that include a large petal on top enclosing 2 lateral petals and 2 
smaller lower petals). The flowers are borne in a raceme inflorescence 
(flowers occur along a stalk), commonly with 6 to 16 flowers. The 
peduncle (flower stalk) is 2 to 8.5 cm (0.8 to 3.6 in) long and arises 
directly from the root crown. The peduncle is erect during anthesis 
(period the flower is open) and is prostrate, with the plant's leaves 
in fruit (Barneby 1980; 1989; Welsh, et al. 1987; Stubben 1997). The 
fruits are pods 3 to 5 cm (1 to 2 in) long and 0.6 to 0.9 cm (0.2 to 
0.4 in) across. The pods retain seeds even after the pods fully open up 
along the margin. With age, each pod eventually drys out and opens up 
at both the top and bottom ends (Barneby 1989; Stubben 1997).
    Astragalus holmgreniorum grows on the shallow, sparsely vegetated 
soils derived primarily from the Virgin limestone member of the 
Moenkopi Formation. The species is a principal member of a warm-desert 
shrub vegetative community dominated by the following perennial shrubs: 
desert goldenhead (Acamptopappus sphaerocephalus), white burrobush 
(Ambrosia dumosa), range ratany (Krameria parvifolia), and Anderson 
wolfberry (Lycium andersonii). In addition, plant species associated 
with A. holmgreniorum include several perennial and annual forbs and 
grasses; most significant are the introduced

[[Page 19729]]

weedy species foxtail brome (Bromus rubens), storksbill (Erodium 
cicutarium), and African mustard (Malcolmia africana) (Stubben 1997; 
Armstrong and Harper 1991; Van Buren 1992; Harper and Van Buren 1998).
    Only three populations of Astragalus holmgreniorum are known. The 
species' primary population exists on the Arizona (Mohave County) and 
Utah (Washington County) border approximately 11 kilometers (km) (7 
miles (mi)) south of the center of St. George, Utah (Stubben 1997). 
This population is fragmented by Interstate Highway 15, areas of urban 
development, and spotty natural habitat occurrences. The number of 
individual plants in all the species' populations varies considerably 
from year to year. This population averages from 4,000 to 5,000 plants 
in an average year to about 9,000 to 10,000 plants in years with wet 
winters (Stubben 1997; R. Van Buren, Utah Valley State College, Orem, 
Utah, pers. comm. 1998). The second population of about 1,000 plants is 
approximately 8 km (5 mi) west of St. George (Stubben 1997; Van Buren 
1992). The third population consist of about 300 plants, and is located 
approximately 15 km (9 mi) east of St. George (Stubben 1997). The small 
number of populations and restricted habitat of this species make it 
vulnerable to human-caused and natural environmental disturbances. 
Urban expansion of St. George and highway and power line construction 
have destroyed significant portions of the species' potential habitat 
and threaten additional occupied habitat. The species is also 
threatened by ORV use, displacement by exotic weeds, mineral 
exploration and development (Harper 1997; Stubben 1997).
    Astragalus ampullarioides (Shivwits milk-vetch) is a perennial, 
herbaceous plant that is considered a tall member of the pea family, 
although some plants appear shorter because of grazing impacts. Stems 
may grow along the ground or to a height of 20 to 50 cm (8 to 20 in). 
However, ungrazed flowering stems may attain a height of 1 meter (40 
in). Its leaves are pinnately compound, 4 to 18 cm (1.6 to 7.1 in) 
long, and have 11 to 23 elliptical leaflets. Each plant produces about 
45 small cream-colored flowers about 2 cm (0.8 in) long on a single 
stalk in the spring. Seeds are produced in small pods, and the plant 
dies back to its root crown after the flowering season. The fruit is a 
short, broad pod between 0.8 and 1.5 cm (0.3 to 0.6 in) in length and 
0.6 to 1.2 cm (0.2 to 0.5 in) in width (Barneby 1989; Welsh 1986, 1998; 
Welsh, et al. 1987).
    Differences between Astragalus ampullarioides and typical A. 
eremiticus, which is also found in Washington County, Utah, are 
apparent from the following morphological and ecological 
characteristics: (1) A. ampullarioides has more flowers in each 
inflorescence, (2) A. ampullarioides has more elongated flower stalks, 
(3) A. ampullarioides has wider pods, (4) A. ampullarioides has taller 
plants, (5) A. ampullarioides has hollow stems, A. eremiticus stems are 
solid, and (6) A. ampullarioides plants are highly palatable to grazing 
animals, whereas typical A. eremiticus is seldom if ever eaten (Barneby 
1989; Welsh 1986, 1998; Welsh, et al. 1987; Van Buren 1992; Harper and 
Van Buren 1998). The variation between the two species is also apparent 
at the genetic level. DNA analysis of Astragalus species, have shown 
significant differences in genetic markers between A. ampullarioides 
and A. eremiticus (Stubben 1997).
    Astragalus ampullarioides grows on the Chinle geological formation 
at five separate sites in Washington County, Utah. These sites are 
distributed on a narrow band of the exposed Chinle formation over a 
distance of about 40 km (25 mi) near the City of St. George, Utah. 
These 5 populations contain about 1,000 individual plants (R. Van 
Buren, pers. comm. 1998). Two of the five populations occur near 
Shivwits on the western edge of the species' range. One population 
occurs on the Shivwits Indian Reservation and contains about 50 
individual plants (L. England, pers. comm. 1999); the other population 
occurs on Bureau of Land Management (BLM) land and contains about 135 
individual plants (Utah Natural Heritage Program 1999). Three other 
populations occur near Harrisburg Junction on the eastern edge of the 
species' range. One of these populations occurs on a mixture of State 
and BLM lands and contains about 300 individual plants (L. England, 
pers. comm. 1999). Another population occurs on BLM lands and contains 
four plants (Utah Natural Heritage Program 1999). The third population 
is located within commercial and residential development and contains 
about 200 individual plants (Utah Natural Heritage Program 1999). 
Native plant species normally associated with A. ampullarioides 
include: beautiful bluedicks (Dichlostemma pulchellum), birdsfoot 
trefoil (Lotus humistratus ), snakeweed (Gutierrezia microcephala), 
mariposa lily (Calochortus flexuosus), and several other Mojave Desert 
plants. Currently the most significant plant species associated with A. 
ampullarioides are the introduced weedy species foxtail brome (Bromus 
rubens), cheat grass (B. tectorum), storksbill (Erodium cicutarium), 
and African mustard (Malcolmia africana) (Armstrong and Harper 1991; 
Van Buren 1992, 1998; Harper and Van Buren 1998).
    Astragalus ampullarioides is threatened by the same activities as 
A. holmgreniorum. In addition, A. ampullarioides also is heavily grazed 
by most wild and domestic herbivores, and one of its five populations 
is threatened by activities associated with clay quarry mining and 
unauthorized waste disposal (Harper 1997). A. ampullarioides is 
restricted to clay soils derived from outcrops of the Chinle formation 
which naturally limits its potential habitat and population (R. Van 
Buren pers. comm. 1998).

Previous Federal Action

    Section 12 of the Act (16 U.S.C. 1533 et seq.) directed the 
Secretary of the Smithsonian Institution to prepare a report on those 
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. We published a notice in the 
July 1, 1975, Federal Register (40 FR 27823) announcing our decision to 
treat the Smithsonian report as a petition within the context of 
section 4(c)(2) now section 4(b)(3) of the Act), and our intention to 
review the status of those plants.
    The July 1975 notice was updated by a notice in the Federal 
Register on December 15, 1980 (45 FR 82480). On November 28, 1983, we 
amended the 1980 notice (48 FR 53640) and added Astragalus 
holmgreniorum as a category 2 candidate species. Category 2 candidates 
were defined as taxa for which information indicated that proposing to 
list the taxa as endangered or threatened was possibly appropriate but 
substantial data on biological vulnerability and threats were not 
currently known or on file to support a listing proposal. A later 
Notice of Review published on February 21, 1990 (55 FR 6185), 
maintained A. holmgreniorum as a category 2 species and included A. 
eremiticus var. ampullarioides (a synonym of A. ampullarioides) as a 
category 2 species.
    Based on new biological and threat information (Armstrong and 
Harper 1991; Van Buren 1992) we identified Astragalus holmgreniorum as 
a category 1 candidate in the 1993 plant Notice of Review (58 FR 
51133). At that time, category 1 candidates comprised taxa for which we 
had significant biological

[[Page 19730]]

information to propose the species as endangered or threatened.
    In the February 28, 1996, Notice of Review (61 FR 7596), we ceased 
using the category designations for candidates and included both 
Astragalus holmgreniorum and A. ampullarioides (A. eremiticus var. 
ampullarioides) as candidate species. Candidate species are those for 
which we have on file sufficient information on biological 
vulnerability and threats to support proposals to list the species as 
threatened or endangered.
    On June 2, 1999, we received a petition from Peter Galvin of the 
Southwest Center for Biological Diversity, Tucson, Arizona to list both 
Astragalus holmgreniorum and A. ampullarioides as endangered species 
under the Act. The petition specified endangered status because of the 
rarity of the plant and the significant population and individual 
losses of both plants. The petition also requested designation of 
critical habitat concurrent with the listing. Inasmuch as Astragalus 
holmgreniorum and A. ampullarioides are currently designated candidate 
species with assigned listing priorities of two and three, 
respectively, we consider them already under petition and covered by a 
warranted but precluded finding. We responded to this petition on June 
14, 1999, notifying the petitioner that our Endangered Species Petition 
Management Guidance issued in July 1996 considers a petition for a 
candidate species as redundant, and as such will be treated as a second 
petition. We also notified the petitioner that preparation of a 
proposed rule for listing of A. holmgreniorum and A. ampullarioides was 
ongoing and would be published in the Federal Register in the near 
future.
    The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and imminent 
risk to its well-being (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of critical habitat 
determinations (prudency and determinability decisions) and proposed or 
final designations of critical habitat will no longer be subject to 
prioritization under the Listing Priority Guidance. This proposed rule 
for Astragalus holmgreniorum and A. ampullarioides is a Priority 3 
action and is being completed in accordance with the current Listing 
Priority Guidance. If it is determined that an emergency situation 
exists for either or both species, the species will be elevated to 
Priority 1.

Peer Review

    In accordance with interagency policy published on July 1, 1994 (59 
FR 34270), upon publication of this proposed rule in the Federal 
Register we will solicit expert reviews by at least three specialists 
regarding pertinent scientific or commercial data and assumptions 
relating to the taxonomic, biological, and ecological information for 
Ambrosia pumila. The purpose of such a review is to ensure that listing 
decisions are based on scientifically sound data, assumptions, and 
analyses, including the input of appropriate experts.

Summary of Factors Affecting the Species

    Section 4(a)(1) 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 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 ampullarioides (Welsh) Welsh 
(Shivwits milk-vetch) and A. holmgreniorum Barneby (Holmgren milk-
vetch) are as follows:

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

    The entire population of Astragalus holmgreniorum and most of the 
population of A. ampullarioides are vulnerable to habitat loss and 
extirpation due to urban growth and development in the St. George area 
of Washington County, Utah. St. George is a rapidly growing ``sun-
belt'' city. The human population of the St. George area has grown from 
about 48,000 in 1990 to over 75,000 in 1999, and is projected to double 
within the next 20 years. Construction of residential housing destroyed 
occupied and potential habitat of both species during the last 5 years 
(Harper 1997; Stubben 1997; R. Van Buren, pers. comm. 1998). The 
continued demand for land for urban expansion of Washington County 
communities threatens all populations of A. holmgreniorum and the 
eastern populations of A. ampullarioides (Harper 1997; Stubben 1997). 
Residential and commercial development, along with associated 
construction of new roads, highways, electric power transmission lines, 
pipelines, airports, residential and commercial buildings, recreational 
facilities such as golf courses, and maintenance of existing roads will 
encroach and threaten the habitat of both species.
    Habitat degradation from ORV use is increasing within both species' 
habitats. Both Astragalus holmgreniorum and A. ampullarioides are in 
the same general area as the listed plant species Arctomecon humilis 
(dwarf bear-poppy), which has been severely impacted by ORV use and 
urban development (Harper 1997; R. Van Buren, pers. comm. 1998). 
Conservation measures to protect the recently listed Mohave Desert 
tortoise (Gopherus agassizii) population from development may have 
caused a change in urbanization patterns that may lead to an increase 
in urban development and encroachment into the habitat of A. 
holmgreniorum and A. ampullarioides (Stubben 1997; Harper 1997; D. 
Pietrzak, BLM, St. George, Utah, pers. comm. 1993). Patterns of urban, 
commercial, and residential expansion north of St. George City were 
affected by conservation efforts for the Desert tortoise including the 
Washington County Habitat Conservation Plan. Significant areas of 
potential community growth in the St. George area, especially between 
the city and the Arizona border, are within the occupied habitat of A. 
holmgreniorum and A. ampullarioides.
    In Utah, occupied Astragalus holmgreniorum and A. ampullarioides 
habitat occurs on Federal (BLM), State of Utah, Tribal (Shivwits Band 
of the Paiute Tribe) and private land. In Arizona, A. holmgreniorum is 
restricted to State of Arizona lands immediately adjacent to the Utah 
border. Private and State lands may be subject to land use changes such 
as an increase in urban development. Federal lands with populations of 
A. holmgreniorum may be subject to exchange or sale to the States or 
private parties. The State of Utah had proposed to the BLM to acquire 
lands that harbor the largest portion of the A. holmgreniorum 
population in exchange for occupied desert tortoise habitat north of 
St. George in Washington County (Stubben 1997; D. Pietrzak, pers. comm. 
1993). A private land developer has proposed to develop much of the 
Utah portion of the

[[Page 19731]]

A. holmgreniorum habitat for a planned residential community. A major 
highway is proposed for construction through the A. holmgreniorum 
habitat between St. George and the Arizona border. A proposed planned 
community development near Harrisburg Junction has the potential to 
destroy one of the three eastern A. ampullarioides populations 
(Rosenberg Associates 1999). An electric power transmission line is 
proposed to pass through the two western A. ampullarioides populations. 
Gypsum mining operations occur adjacent to occupied A. holmgreniorum 
habitat south of St. George. An existing clay pit now being used as an 
unauthorized waste disposal area occurs adjacent to occupied A. 
ampullarioides habitat east of St. George. Both of these mining-related 
activities have the potential to destroy both A. holmgreniorum and A. 
ampullarioides habitat.

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

    Astragalus holmgreniorum and A. ampullarioides have no known 
commercial, recreational, or scientific use at this time. There is no 
evidence of overcollection by botanists and/or horticulturists at this 
time.

C. Disease or Predation

    We have no information to indicate that diseases threaten the 
continued survival of either Astragalus holmgreniorum or A. 
ampullarioides.
    Astragalus ampullarioides is extremely palatable to both wildlife 
and domestic livestock, but A. holmgreniorum is not. The two western A. 
ampullarioides populations currently are overgrazed, often to the point 
that reproduction is forgone due to the loss of the entire flower and 
fruit of virtually every plant in the population (Harper 1997; Harper 
and Van Buren 1998).

D. The Inadequacy of Existing Regulatory Mechanisms

    There are no Federal or State laws or regulations directly 
protecting Astragalus holmgreniorum and A. ampullarioides or their 
habitat. However, the BLM Manual 6840 states that ``The BLM shall carry 
out management, consistent with multiple use, for the conservation of 
candidate species and their habitats and shall ensure that actions 
authorized, funded, or carried out do not contribute to the need to 
list any of these species as Threatened or Endangered.'' The BLM has 
incorporated its intent to conserve these species into the Dixie 
Resource Area Proposed Management Plan and Final Environmental Impact 
Statement (BLM 1998). However, the location of these species in areas 
valued for future urban expansion makes the long term security of their 
habitat, even on Federal lands, questionable. Listing the species under 
the Act will reinforce the BLM'S ability to conserve habitat on Federal 
lands. There is no legal protection for either species on State of 
Arizona or State of Utah lands or on private property.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Past habitat disturbance has caused the proliferation of introduced 
annual weeds into both species' occupied habitat (Harper 1997). Foxtail 
brome, cheatgrass, storksbill, and African mustard are now the dominant 
species within the plant communities of both Astragalus holmgreniorum 
and A. ampullarioides (Stubben 1997; Harper and Van Buren 1998; Van 
Buren 1999). Both species are vulnerable to displacement by introduced 
weeds (Harper 1997; Harper and Van Buren 1998; Stubben 1997; Van Buren 
1999).
    Because of the low numbers of individuals, low number of 
populations, and restricted habitats of both Astragalus holmgreniorum 
and A. ampullarioides, these plants are vulnerable to human 
disturbances, which may increase the negative impacts of natural 
disturbances to populations of these species. The numbers of 
individuals and populations are sufficiently low that future losses may 
result in the loss of population viability. The extremely small and 
disjunct populations of A. ampullarioides may be vulnerable to a loss 
of genetic viability (Harper 1997; Harper and Van Buren 1998).
    We have carefully assessed the best scientific and commercial 
information available concerning the past, present, and future threats 
faced by these species in making this proposed rule. Threats to 
Astragalus holmgreniorum and A. ampullarioides, including development 
of land for residential and urban use, habitat modification from human 
disturbances, competition with non-native plant species, and impacts 
from mining and grazing activities, imperil the continued existence of 
these species. Much of the habitat where these species occur is 
suitable for development and for modification by mining and grazing, 
and is unprotected from these threats. Because of the high potential of 
these threats to result in the extinction of both species, the 
preferred action is to list A. holmgreniorum and A. ampullarioides as 
endangered. The Act defines an endangered species as one in danger of 
extinction throughout all or a significant portion of its range. 
Endangered status reflects the vulnerability of these species to 
factors that may adversely affect these species and their extremely 
limited habitat.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by the 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, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that the designation of critical habitat is not 
prudent when one or both of the following situations exist--(1) The 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states that the processing of critical habitat determinations (prudency 
and determinability decisions) and proposed or final designations of 
critical habitat will no longer be subject to prioritization under the 
Listing Priority Guidance. Critical habitat determinations, which were 
previously included in final listing rules published in the Federal 
Register, may now be processed separately, in which case stand-alone 
critical habitat determinations will be published as notices in the 
Federal Register. We will undertake critical habitat determinations and 
designations during FY 2000 and FY 2001 as allowed by our funding 
allocation for that year. As explained in detail in the Listing 
Priority Guidance, our listing budget is currently insufficient to 
allow us to immediately complete all of the listing

[[Page 19732]]

actions required by the Act. Deferral of the critical habitat 
designation for Astragalus holmgreniorum and A. ampullarioides will 
allow us to concentrate our limited resources on higher priority 
critical habitat and other listing actions, while allowing us to put in 
place protections needed for the conservation of these species without 
further delay.
    We propose that critical habitat is prudent for Astragalus 
holmgreniorum and A. ampullarioides. In the last few years, a series of 
court decisions have overturned Service determinations regarding a 
variety of species that designation of critical habitat would not be 
prudent (e.g., Natural Resources Defense Council v. U.S. Department of 
the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for 
Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the 
standards applied in those judicial opinions, we believe that 
designation of critical habitat for A. holmgreniorum and A. 
ampullarioides would be prudent.
    Due to the small number of populations, both Astragalus 
holmgreniorum and A. ampullarioides are vulnerable to unrestricted 
collection, vandalism, or other disturbance. We are concerned that 
these threats might be exacerbated by the publication of critical 
habitat maps and further dissemination of locational information. 
However, at this time we do not have specific evidence for either A. 
holmgreniorum or A. ampullarioides of taking, vandalism, collection, or 
trade of this species or any similarly situated species. Consequently, 
consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and 
recent case law, we do not expect that the identification of critical 
habitat will increase the degree of threat to this species of taking or 
other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a species, if there are any benefits to critical habitat 
designation, then a prudent finding is warranted. In the case of these 
species, there may be some benefits to designation of critical habitat. 
The primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies refrain from taking any action that 
destroys or adversely modifies critical habitat. While a critical 
habitat designation for habitat currently occupied by this species 
would not be likely to change the section 7 consultation outcome 
because an action that destroys or adversely modifies such critical 
habitat would also be likely to result in jeopardy to the species, 
there may be instances where section 7 consultation would be triggered 
only if critical habitat is designated. Examples could include 
unoccupied habitat or occupied habitat that may become unoccupied in 
the future. There may also be some educational or informational 
benefits to designating critical habitat. Therefore, we propose that 
critical habitat is prudent for Astragalus holmgreniorum and A. 
ampullarioides.
    We plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to these 
species, and the magnitude and immediacy of those threats. We will make 
the final critical habitat determination with the final listing 
determination for Astragalus holmgreniorum and A. ampullarioides. If 
this final critical habitat determination is prudent, we will develop a 
proposal to designate critical habitat for A. holmgreniorum and A. 
ampullarioides as soon as feasible, considering our workload 
priorities. Unfortunately, for the immediate future, most of Region 6's 
listing budget must be directed to complying with numerous court orders 
and settlement agreements, as well as final listing determinations with 
statutory deadlines.

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 can encourage and result in 
public awareness and conservation actions by Federal, State, Tribal 
(Shivwits Band of the Paiute Tribe), and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States, and requires that recovery 
actions be carried out for all listed species. Funding may be available 
through section 6 of the Act for the States to conduct recovery 
activities. The protection required by Federal agencies and 
prohibitions against certain activities involving listed plants are 
discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is 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 with us on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of a listed 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.
    Considerable portions of the habitat of both Astragalus 
holmgreniorum and A. ampullarioides are on lands under Federal 
jurisdiction managed by the BLM. The BLM is responsible for insuring 
that all activities and actions on lands that they manage are not 
likely to jeopardize the continued existence of A. holmgreniorum and A. 
ampullarioides. Proposed highway and power line projects within the 
habitat of both species would require Federal permits from the Federal 
Highway Administration and Federal Energy Regulatory Commission. These 
agencies, also, must insure that actions which they permit are not 
likely to jeopardize the continued existence of both species. In 
addition, sections 2(c)(1) and 7(a)(1) of the Act require Federal 
agencies to utilize their authorities in furtherance of the purposes of 
the Act to carry out conservation programs for endangered and 
threatened species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All trade prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 for endangered plants, would 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 
these species 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. Certain exceptions to the 
prohibitions apply to

[[Page 19733]]

our agents and agents of State conservation agencies.
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered and threatened plant species under certain circumstances. 
Such permits are available for scientific purposes and to enhance the 
propagation or survival of the species. We anticipate that few trade 
permits would be sought or issued for Astragalus holmgreniorum and A. 
ampullarioides because these species are not common in the wild and are 
unknown in cultivation.
    It is our policy, published in the Federal Register (59 FR 34272) 
on July 1, 1994, to identify to the maximum extent practicable those 
activities that would or would not be likely to constitute a violation 
of section 9 of the Act if a species is listed. The intent of this 
policy is to increase public awareness of the effect of the species' 
listing on proposed and ongoing activities within its range. Collection 
of listed plants or activities that would damage or destroy listed 
plants on Federal lands are prohibited without a Federal endangered 
species permit. Such activities on non-Federal lands would constitute a 
violation of section 9 of the Act if they were conducted in knowing 
violation of State law or regulation, or in the course of violation of 
State criminal trespass law. Otherwise such activities would not 
constitute a violation of the Act on non-Federal lands.
    Questions regarding whether specific activities, such as changes in 
land use, will constitute a violation of section 9 should be directed 
to the Utah Field Office (see ADDRESSES section). 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 80225-0486.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. In particular, comments are sought 
concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to these species;
    (2) The location of any additional population of these species and 
the reasons why any habitat should or should not be determined to be 
critical habitat pursuant to section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population of these species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on these species.
    Final promulgation of the regulation on these species will take 
into consideration the comments and any additional information we 
receive, 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 be addressed to the Field Supervisor, Utah Field 
Office (see ADDRESSES section).

National Environmental Policy Act

    We have determined that an environmental assessment, 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, as amended. We published a notice outlining 
our reasons for this determination in the Federal Register on October 
25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any collections of information that 
require Office of Management and Budget (OMB) 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 endangered plant species, see 50 CFR 17.62 
and 17.63.

References Cited

Armstrong V. and K.T. Harper. 1991. Astragalus holmgreniorum and 
Astragalus ampullarioides status report. Unpublished report on file 
with the Bureau of Land Management, Salt Lake City, Utah. 13 pp + 
appendices.
Barneby, R.C. 1980. Dragma Hippomanicum V: Two New Astragali from 
the Intermountain United States. Brittonia 32:24-29.
Barneby, R.C. 1989. in A. Cronquist, A.H. Holmgren, N.H., Holmgren, 
J.L. Reveal, and P.K. Holmgren, eds. Intermountain Flora, Vol. 3, 
Part B. Fabales. Columbia University Press, New York. 279 pp.
Bureau of Land Management. 1998. Dixie Resource Area Proposed 
Management Plan and Final Environmental Impact Statement. Salt Lake 
City, Utah. 248 pp + appendices.
Harper, K.T. 1997. Status of Knowledge of Astragalus holmgreniorum 
and Astragalus eremiticus var. ampullarioides. Sego Lily 20(2), News 
Letter of the Utah Native Plant Society. 5 pp.
Harper, K. and R. VanBuren. 1998. Field Report--1996, Rare Loco 
Weeds of Washington County, Utah. Unpublished report on file with 
the Bureau of Land Management, Salt Lake City, Utah. 32 pp.
Rosenberg Associates. 1999. Coral Canyon Land Use Master Plan. St. 
George, Utah. 1 map.
Stubben, C. 1997. Habitat Characteristics of Astragalus 
holmgreniorum Barneby and Genetic Variation Among Two Rare 
Milkvetches in Southwestern Utah. Master of Science Thesis, Brigham 
Young University, Provo, Utah. 59 pp.
Utah Natural Heritage Program. October, 1999. Element Occurrence 
Database. Utah Division of Wildlife Resource, Salt Lake City, Utah.
Van Buren, R. 1992. Astragalus Species, Field Report 1992. 
Unpublished report on file with the Bureau of Land Management, Salt 
Lake City, Utah. 11 pp + appendix.
Van Buren, R. 1999. 1998 Final Report Monitoring Astragalus 
ampullarioides and Astragalus holmgreniorum. Unpublished report on 
file with the Bureau of Land Management, Richfield, Utah. 17 pp + 
appendix.
Welsh, S.L. 1986. New Taxa in Miscellaneous Families from Utah. 
Great Basin Naturalist. Brigham Young University, Provo, Utah. 
46:261-264.
Welsh S.L. 1998. Astragalus (Leguninosae): Nomenclatural Proposals 
and New Taxa. Great Basin Naturalist. Brigham Young University, 
Provo, Utah. 58:45-53.
Welsh S.L., N.D. Atwood, L.C. Higgins, and S. Goodrich. 1987. A Utah 
Flora. Great Basin Naturalist Memoirs. Brigham Young University, 
Provo, Utah. No. 9. 1-897.

Author

    The primary author of this proposed rule is John L. England, U.S. 
Fish and Wildlife Service, Utah Ecological Services Field Office, Salt 
Lake City, Utah (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reason given in the preamble, we propose to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

[[Page 19734]]

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1561-1407; 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) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
                  *                  *                  *                  *                  *                  *                    *
Astragalus ampullarioides........  Shivwits milk-vetch.  U.S.A. (UT)........  Fabaceae...........  E               ...........           NA           NA
Astragalus holmgreniorum.........  Holmgren milk-vetch.  U.S.A. (AZ, UT)....  Fabaceae...........  E               ...........           NA           NA
                   *                  *                  *                  *                  *                  *                    *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: March 29, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-9070 Filed 4-11-00; 8:45 am]
BILLING CODE 4310-55-P