[Federal Register Volume 66, Number 66 (Thursday, April 5, 2001)]
[Proposed Rules]
[Pages 18062-18068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8344]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH32


Endangered and Threatened Wildlife and Plants; Determination of 
Whether Designation of Critical Habitat Is Prudent for the Rock Gnome 
Lichen

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of proposed finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
reconsidered our findings concerning whether designating critical 
habitat for the rock gnome lichen (Gymnoderma lineare) would be 
prudent. The rock gnome lichen was listed as an endangered species 
under the Endangered Species Act of 1973, as amended (Act), on January 
18, 1995. At the time the plant was listed, we determined that 
designation of critical habitat was not prudent because designation 
would increase the degree of threat to the species and/or would not 
benefit the species.
    We repropose that the designation of critical habitat is not 
prudent for the rock gnome lichen, because it would likely increase the 
threat from collection, vandalism, or habitat degradation and 
destruction, both direct and inadvertent.
    We solicit data and comments from the public on all aspects of this 
proposed finding. We may revise this proposed finding to incorporate or 
address comments and new information received during the comment 
period.

DATES: We will consider comments received by June 4, 2001.

ADDRESSES: If you wish to comment, you may submit your comments by any 
one of several methods:
    1. You may submit written comments and information to the State 
Supervisor, Asheville Field Office, U.S. Fish and Wildlife Service, 160 
Zillicoa Street, Asheville, North Carolina 28801.
    2. You may hand-deliver written comments to our Asheville Field 
Office, at the above address or fax your comments to 828/258-5330.
    3. You may send comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic filing 
of comments, see the ``Public Comments Solicited'' section.
    Comments and materials received, as well as supporting 
documentation used in preparation of this proposed finding, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Nora A. Murdock, Fish and Wildlife 
Biologist, (828)258-3939.

SUPPLEMENTARY INFORMATION:

Background

Taxonomy and Description

    Gymnoderma lineare, first described by Evans (1947) as Cladonia 
linearis from material collected in Tennessee, is a squamulose lichen 
in the reindeer moss family. This species is the only member of its 
genus occurring in North America (Yoshimura and Sharp 1968). Gymnoderma 
was considered a monotypic genus for over a century, until its revision 
by Yoshimura and Sharp (1968). These authors reclassified Evans' (1947) 
Cladonia linearis as

[[Page 18063]]

Gymnoderma lineare on the basis of its short and solid podetia (hollow 
upright structures) that lack symbiotic algae (algae that live 
cooperatively with a fungus). Gymnoderma lineare occurs in rather dense 
colonies of narrow straps (squamules). The only similar lichens are the 
squamulose species of the genus Cladonia. Gymnoderma lineare has 
terminal portions of the strap-like individual lobes that are blue-grey 
on the upper surface and generally shiny-white on the lower surface; 
near the base they grade to black (unlike squamulose Cladonia, which 
are never blackened toward the base) (Weakley 1988, Hale 1979). Hale's 
(1979) description of the species reads as follows: ``Squamules dark 
greenish mineral grey; lower surface white to brownish toward the tips, 
weakly corticated; podetia lacking but small clustered apothecia common 
on low tips.'' Weakley (1988) further describes the species as having 
squamules about 1 millimeter (mm) (0.04 inches (in)) across near the 
tip, tapering to the blackened base, sparingly branched, and generally 
about 1 to 2 centimeters (cm) (0.39 to 0.79 in) long (though they can 
be longer or shorter, depending upon environmental factors). The 
squamules are nearly parallel to the rock surface, but the tips curl 
away from the rock, approaching or reaching a perpendicular orientation 
to the rock surface. The fruiting bodies (apothecia) are borne at the 
tips of the squamules and are black (contrasting to the brown or red 
apothecia of Cladonia spp.) (Weakley 1988). The apothecia are borne 
singly or in clusters, usually at the tips of the squamules but 
occasionally along the sides; these have been found from July through 
September (Evans 1947, North Carolina Natural Heritage Program records 
1991). The apothecia are either sessile or borne on short podetia 1 to 
2 mm (0.04 to 0.08 in) in height, and the largest of these have a 
diameter of about 1 mm (0.04 in), with most being much smaller. The 
apothecia are cylindrical in shape and radial in symmetry (Evans 1947). 
The primary means of propagation of this lichen appears to be asexual, 
with colonies spreading clonally.

Distribution, Habitat, and Life History

    Gymnoderma lineare (Evans) Yoshimura and Sharp is endemic (native 
to a particular region) to the Southern Appalachian Mountains of North 
Carolina, Tennessee, South Carolina, and Georgia, and occurs only in 
areas of high humidity, either on high-elevation cliffs, where it is 
frequently bathed in fog, or in deep river gorges at lower elevations. 
It is primarily limited to vertical rock faces, where seepage water 
from forest soils above flows at (and only at) very wet times, and 
large stream side boulders, where it receives a moderate amount of 
light but not high-intensity solar radiation. It is almost always found 
growing with the moss Andreaea in these vertical intermittent seeps. 
This association makes it rather easy to search for, due to the 
distinctive reddish-brown color of Andreaea that can be observed from a 
considerable distance (Weakley 1988). Most populations occur above 
1,524 meters (5,000 feet) elevation. In Tennessee, it is apparently 
limited to the Great Smoky Mountains and one other mountain on the 
North Carolina-Tennessee state line. Very little specific information 
is known on the life history and population biology of the rock gnome 
lichen. Other common species found growing with or near this species 
include Huperzia selago, Stereocaulon sp., Scirpus cespitosus, Carex 
misera, Rhododendron spp., Saxifraga michauxii, Krigia montana, 
Heuchera villosa, Geum radiatum, and sometimes Juncus trifidus. The 
high-elevation coniferous forests adjacent to the rock outcrops and 
cliffs most often occupied by the species are dominated by red spruce 
(Picea rubens) and Fraser fir (Abies fraseri).
    Forty populations of Gymnoderma lineare have been reported 
historically; thirty-five remain in existence. The remaining 
populations are in Mitchell (two), Jackson (five), Yancey (four), Swain 
(one), Transylvania (four), Buncombe (four), Avery (two), Ashe (two), 
Haywood (one) and Rutherford (one) Counties, North Carolina; Greenville 
County (one), South Carolina; Rabun County (one), Georgia; and Sevier 
(seven) and Carter (part of this population is on the State line with 
Mitchell County, North Carolina) counties, Tennessee.

Threats

    Five populations of rock gnome lichen are known to have been 
completely extirpated. The reasons for the disappearance of the species 
at most of these sites are undocumented; however, one population is 
believed to have been destroyed by highway construction. The 
explanation for the disappearance of the other four is a mystery. Among 
the other populations that still survive, one has been vandalized, and 
portions of two others are known to have been illegally collected. 
Although these acts of vandalism and collection did not completely 
eliminate the species at those latter sites, they did seriously reduce 
the population sizes, and may well have adversely affected the species' 
chances of long-term survival at those places. Most of the formerly 
occupied sites are subjected to heavy recreational use by hikers, 
climbers, and sightseers, which can be highly destructive to the 
fragile plant communities that occupy vertical rock faces.
    The majority of the high-elevation spruce-fir forests of the 
Southeast have suffered extensive changes and declines in extent and/or 
vigor during the past century as a result of several factors, including 
site deterioration due to the logging and burning practices of the 
early 1900's, possibly atmospheric pollution, exposure shock, and other 
factors not yet fully understood (Dull et al., 1988; White 1984). 
However, the greatest threat to the high-elevation Fraser fir forests, 
by far, is infestation by the balsam wooly adelgid (Adelges picea 
(Ratzeburg) (Homoptera, Adelgidae)). The balsam wooly adelgid is a 
nonnative insect pest believed to have been introduced into the 
Northeastern United States from Europe around 1900 (Eagar 1984). The 
adelgid was first detected in North Carolina on Mount Mitchell in 1957 
(Hoffard et al., 1995), though it may have been established at that 
site as early as 1940. From Mount Mitchell, the adelgid spread to 
Fraser fir stands throughout the Southern Appalachians (Eager 1984). 
All ages of fir trees are attacked by the adelgid, but effects are 
generally not lethal until the trees reach maturity, at around 30 years 
of age (Hoffard et al. 1995). Most mature Fraser firs are easily killed 
by the adelgid, with death occurring within 2 to 7 years of the initial 
infestation (Eagar 1984). The death of the fir trees and the resultant 
opening of the forest canopy causes the remaining trees (including the 
red spruce) to be more susceptible to wind and other storm damage. The 
adelgid is transported and spread primarily by the wind but may also be 
spread by contaminated nursery stock; on the fur or feathers of animals 
and birds; or by humans on contaminated clothes, equipment, or vehicles 
(Eagar 1984). All efforts to control the spread of the adelgid have 
failed thus far. The death of the forests above the rock faces occupied 
by the rock gnome lichen has resulted in locally drastic changes in 
microclimate, including desiccation and increased temperatures which 
can prove lethal to this species.
    The continued existence of this species is threatened by trampling 
and associated soil erosion and compaction, other forms of habitat 
disturbance due to heavy recreational use of some inhabited areas by 
hikers, climbers, and

[[Page 18064]]

sightseers, as well as by development for commercial recreational 
facilities and residential purposes. It is also threatened by 
collectors and vandals, and is potentially threatened by logging, and 
possibly by air pollution. In addition, the extremely limited and 
restricted range of each of the rock gnome lichen populations makes 
them extremely vulnerable to extirpation from a single event. 
Currently, no one has succeeded in propagating the rock gnome lichen.
    Only 7 of the remaining 35 populations cover an area larger than 2 
square meters (m\2\) (2.4 square yards (yd\2\). Most are 1 m\2\ (9 
square feet (ft\2\) or less in size. It is unknown what constitutes a 
genetic individual in this species, and it is possible that each of 
these small colonies or patches consists of only a single clone 
(Weakley 1988). Over the past decade several of the currently extant 
populations have undergone significant declines (Paula DePriest, 
Smithsonian Institution, personal communication, 1992; Karin Heiman, 
Environmental Consultant, personal communication, 1992), some within as 
little as 1 year (Alan Smith, Environmental Consultant, personal 
communication, 1992). Although most of the remaining populations are in 
public ownership, they continue to be impacted by collectors, 
recreational use, and unknown environmental factors.
    In a recent study funded cooperatively by the Service and the U.S. 
Forest Service, experts in lichenology and air pollution attempted to 
determine if air pollution constituted a significant threat to the rock 
gnome lichen, as it does to many lichen species. The study could not 
conclusively link documented declines with atmospheric pollutants. 
Heavy metal concentrations did not exceed toxic levels. However, the 
lowest sulfur concentrations were measured in the colonies having the 
best health status, and the highest in colonies with the worst health 
conditions. The authors of the study warned that future increases in 
sulfur compound deposition might cause damage to rock gnome lichen, 
especially where it occurs on substrates with low buffering capacity. 
The results of the study were further complicated by the discovery of 
parasitic algae and lichens that were found to be attacking the rock 
gnome lichen in several populations. The relationship between these 
parasitic organisms and environmental factors such as sedimentation, 
and accumulation of sulfur and phosphorus requires further study 
(Martin et al 1996).

Previous Federal Actions

    Federal Government actions on Gymnoderma lineare began with the 
1990 publication in the Federal Register of a revised notice of review 
of plant taxa for listing as endangered or threatened species (55 FR 
6184); Gymnoderma lineare was included in that notice as a category 2 
species. Prior to 1996, a category 2 species was one that we were 
considering for possible addition to the Federal List of Endangered and 
Threatened Wildlife and Plants, but for which conclusive data on 
biological vulnerability and threats were not available to support a 
proposed rule. We discontinued designation of category 2 species in the 
February 28, 1996, Notice of Review (61 FR 7956).
    Subsequent to the 1990 notice, the Service received additional 
information from the North Carolina Natural Heritage Program (Alan 
Weakley, North Carolina Natural Heritage Program, personal 
communication, 1991) and the Smithsonian Institution (Paula DePriest, 
personal communication, 1992); this information and additional field 
data gathered by us, the North Carolina Natural Heritage Program, and 
the National Park Service (Keith Langdon and Janet Rock, Great Smoky 
Mountains National Park, personal communication, 1992; Bambi Teague, 
Blue Ridge Parkway, personal communication, 1991) indicated that the 
addition of Gymnoderma lineare to the Federal Candidate List of 
endangered or threatened plants was warranted. A candidate species is a 
species for which we have on file sufficient information to propose it 
for protection under the Act.
    The Service approved this species for elevation to category 1 
status on August 30, 1993, and proposed it for listing as endangered on 
December 28, 1993 (58 FR 68623). The proposal provided information on 
the species' range, biology, status, and threats to its continued 
existence. The proposal included a proposed determination that 
designation of critical habitat was not prudent for the species because 
such designation would not be beneficial and could further threaten the 
rock gnome lichen. Through associated notifications, we invited 
comments on the proposal and factual reports or information that might 
contribute to the development of a final rule. We contacted and 
requested comments from appropriate Federal and State agencies, county 
governments, scientific organizations, individuals knowledgeable about 
the species or its habitat, and other interested parties. We published 
legal notices, which invited public comment, in newspapers covering the 
range of the rock gnome lichen. We received 15 written comments. Eleven 
of these expressed strong support for the proposal, as presented, 
without critical habitat. One commenter presented additional 
information without stating a position. One additional respondent took 
no position on the proposal but expressed a negative view toward the 
potential designation of critical habitat. Two respondents opposed the 
proposal: one stated no reason for opposition; the other expressed the 
opinion that logging was not a potential threat to the lichen and that 
extinction is a natural process. One of those on record as supporting 
the proposal with no critical habitat designation was the Southern 
Appalachian Biodiversity Project (plaintiff in the current settlement 
discussed below against the Service for non-designation of critical 
habitat for this species).
    Following our review of all the comments and information received 
throughout the listing process, by final rule (60 FR 3557) dated 
January 18, 1995, we listed the rock gnome lichen as endangered. We 
addressed all the comments received throughout the listing process and/
or incorporated changes into the final rule as appropriate. That 
decision included a determination that the designation of critical 
habitat was not prudent for the rock gnome lichen because, after a 
review of all the available information, we determined that such 
designation would not be beneficial to the species and that designation 
of critical habitat could further threaten the lichen (see ``Prudency 
Determination'' section).
    On June 30, 1999, the Southern Appalachian Biodiversity Project and 
the Foundation for Global Sustainability filed a lawsuit in United 
States District Court for the District of Columbia against the Service, 
the Director of the Service, and the Secretary of the Department of the 
Interior, challenging the not prudent critical habitat determinations 
for four species in North Carolina--the spruce-fir moss spider 
(Microhexura montivaga), Appalachian elktoe (Alasmidonta raveneliana), 
Carolina heelsplitter (Lasmigona decorata), and rock gnome lichen. On 
February 29, 2000, the U.S. Department of Justice entered into a 
settlement agreement with the plaintiffs in which we agreed to 
reexamine our prudency determination for the rock gnome lichen and 
submit a new proposed prudency determination to the Federal Register, 
by April 1, 2001. If prudent, we also agreed to submit by that same 
date a new proposed critical habitat

[[Page 18065]]

determination. If, upon consideration of all available information and 
comments, we determine that designating critical habitat is not prudent 
for the rock gnome lichen, we have agreed to submit a final notice of 
that finding to the Federal Register by October 1, 2001. If we 
determine that designation of critical habitat is prudent for the rock 
gnome lichen, we have agreed to send a final rule of this finding to 
the Federal Register by January 1, 2002.
    This proposed finding is the product of our reexamination of our 
prudency determination for the rock gnome lichen and reflects our 
interpretation of the recent judicial opinions on critical habitat 
designation and the standards placed on us for making a ``not prudent'' 
determination. If additional information becomes available on the 
species' biology, distribution, and threats, we may reevaluate this 
proposed finding.

Prudency Determination

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. Regulations under 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 activity and the 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. 
In our January 18, 1995, final rule, we determined that both situations 
applied to the rock gnome lichen.
    The regulations that provide protection for critical habitat come 
into play through section 7 of the Act. Requirements under section 7 of 
the Act apply only to Federal actions and activities. They require 
Federal agencies to ensure, in consultation with us, that activities 
they fund, authorize, or carry out are not likely to jeopardize the 
continued existence of listed species or result in the destruction or 
adverse modification of designated critical habitat. Regulations for 
the implementation of section 7 of the Act (50 CFR 402.2) provide for 
both a ``jeopardy'' standard and an ``adverse modification or 
destruction of critical habitat'' standard.
    Because of the extremely restricted range and limited amount of 
suitable habitat available to the rock gnome lichen, we determined in 
the January 18, 1995, final rule that any action that would likely 
result in the destruction or adverse modification of the species' 
habitat would also likely jeopardize the species' continued existence. 
Since Federal actions resulting in jeopardy are also prohibited by 
section 7, we determined that designation of critical habitat would not 
provide any additional protection benefitting the species beyond that 
provided by the jeopardy standard.
    Further, we have documented evidence that collecting and other 
human disturbance have already detrimentally affected this species. 
Concern that the species would be over-collected by lichenologists led 
Mason Hale to state emphatically in his 1979 book, How To Know the 
Lichens, which is the standard reference for lichen identification for 
amateurs and professionals alike; ``This [rock gnome lichen] is one of 
the most unusual endemic lichens in North America and should not be 
collected by individuals.'' Nevertheless, populations of rock gnome 
lichen have been decimated by scientific collectors. Paula DePriest 
(Smithsonian Institution, personal communication, 1992) observed that 
the type locality for rock gnome lichen was virtually wiped out by 
lichenologists who collected them during a field trip, in spite of the 
fact that this collection within a national park was not permitted. 
After the species was listed, another illegal collection occurred at a 
different location within a national park. Another population outside 
the park was vandalized for unknown reasons (the lichens were scraped 
off the rock to form graffiti). Illegal collection and/or vandalism is 
difficult to document, but is suspected as a possible cause for the 
precipitous declines in some of the other populations that are close to 
trails or roads. Some of these populations have been reduced in 
coverage by as much as 90 percent in a single year. A state park in 
South Carolina, upon discovering a small population of this species 
close to an existing trail, relocated the trail away from the rock face 
to deter potential collectors.
    The National Park Service, which developed the recovery plan for 
this species in cooperation with the Service, requested that we remove 
any mention of particular mountains from the recovery plan because they 
feared that this would give enough information to knowledgeable 
collectors to allow them to find the lichen and collect it. Park 
Service personnel believe that divulging locations or producing maps of 
rock gnome lichen habitat would greatly compromise their ability to 
protect the species within the national parks where it occurs (K. 
Langdon, J. Rock, National Park Service, personal communication, 1999).
    Three internationally recognized lichen experts are on record as 
being opposed to making public the specific locations of rare lichens 
because of the danger from collectors (P. DePriest, Smithsonian 
Institution, personal communication, 2000; J. Dey, Illinois Wesleyan 
University, personal communication, 2000; J. Martin, Eurouniversity, 
Estonia, personal communication, 2000). Dr. Paula DePriest, Associate 
Curator in Charge of Lichen Collections at the National Museum of 
Natural History, Smithsonian Institution, emphasized that the 
Smithsonian deliberately deletes location data for rare lichens from 
its publically disseminated database. She further related several 
incidents of damaging collections of rare lichens in areas within the 
range of rock gnome lichen. In at least one instance, this collecting 
was done on a field trip led by professional lichenologists who had 
forewarned the participants that no collecting of rare species would be 
tolerated; the rarest species were collected anyway when the field trip 
leaders were not looking. Dr. Juri Martin, Rector of Estonia's 
Eurouniversity, further emphasized the danger of making public the 
locations of rare lichen species. In Estonia, as well as in Italy, 
Switzerland, and other European countries, databases with specific 
location data for rare lichen species are kept in guarded locations 
where only a few professionals have access to them. They are never made 
public because of the danger of collecting. Dr. Martin emphasized that 
in these countries, even though there are regulations prohibiting the 
collection of these rare species, those laws have been found to be 
ineffective; the only real protection for those lichens is the 
safeguarding of specific location data and maps. Nothing more specific 
than county or forest distribution is ever made public. Dr. Martin 
recommended that rock gnome lichen be included on the World Red List of 
Endangered Lichens. Dr. Jon Dey, eminent lichenologist at Illinois 
Wesleyan University, further emphasized that he believed it would be 
inadvisable to publish specific location data for endangered lichen 
species, since the general public and hobbyists could, as a result, 
inadvertently or even purposely damage them. He further stated his 
belief that, although it might be necessary to allow legitimate 
professionals access to a single closely monitored population for the 
purposes of observation and research, that even

[[Page 18066]]

scientists should not be able to collect endangered lichens from the 
wild.
    The Great Smoky Mountains National Park has recently undertaken an 
All Taxa Biodiversity Inventory; in the process of this comprehensive 
survey, experts on different taxa from all over the world are being 
brought into this half-million acre park to inventory and document 
occurrences of all species within its boundaries. In the process of 
this ambitious inventory, several watersheds within the Park were 
identified by experts as having internationally significant 
concentrations of rare bryophytes and lichens, and the guest scientists 
petitioned the Park Service to formally designate these areas as 
lichen/ bryophyte sanctuaries (K. Langdon, pers. com. 2000). The Park 
Service declined because of their fear of attracting collectors to the 
areas; not only collectors of rare species, but indiscriminate moss 
collectors who routinely ravage the Park and the adjacent National 
Forests for ``log moss'' to sell in mass quantities (truck loads have 
been confiscated from poachers in the Great Smokies) in the commercial 
florist trade.
    Rock gnome lichen is extremely fragile and is easily scraped off 
its rocky substrate; denuded habitat is not re-colonized quickly, if at 
all. Because this species occupies such limited areas (with most of the 
populations being less than a square meter in size), even a single 
person climbing on a rock face could cause significant damage to the 
species and its habitat that could lead to the extirpation of an entire 
population. Increased visits to population locations stimulated by 
critical habitat designation, even without deliberate collecting, could 
adversely affect the species due to the associated increase in 
trampling of its fragile habitat. We believe that the designation of 
critical habitat and the required public dissemination of maps and 
descriptions of occupied sites could result in the demise or severe 
diminishment of this species. The moss collectors or poachers (referred 
to above) that the Park Service is trying to combat have been caught 
leaving the Great Smoky Mountains National Park (Park) with dump truck 
loads full of moss and anything that looks like moss including lichens, 
liverworts, and other bryophytes. Many species of moss and lichens are 
superficially similar in appearance and are similarly decorative in 
floral arrangements. Earlier, we mentioned that the rock gnome lichen 
is almost always found growing with the moss Andreaea. These collectors 
or poachers are indiscriminate, stripping everything moss-like from 
logs, rocks, and trees within entire coves and watersheds. This 
includes essentially anything they think can be sold in the commercial 
florist trade. The largest and best remaining populations of rock gnome 
lichen are located within the Great Smoky Mountains National Park, 
where they are more accessible and therefore more susceptible to 
intentional or inadvertent collection. Therefore, the Park Service has 
expressed concerns that attracting moss collectors to watersheds 
designated as sanctuaries and occupied by the endangered lichen could 
result in devastating incidental collection of the listed species.
    The Park Service has expressed definite concerns about any plans to 
designate critical habitat for the rock gnome lichen because of the 
collection danger to this species' tiny, vulnerable populations. In 
fact, legislation has recently been enacted that gives the Park Service 
the authority to withhold from the public any specific locality data 
for endangered, threatened, rare, or commercially valuable resources 
within a park (Thomas Bill, Section 207, 16 U.S.C. 5937).
    Given the very small size of most colonies and the slow growth rate 
of this species, extirpation by collecting, vandalism, and habitat 
degradation by curiosity seekers is a distinct possibility (Weakley 
1988; personal observation). Many of the populations are easily 
accessible, being close to trails or roads, but they are currently 
unadvertised and therefore mostly unnoticed by the general public. 
Publicity could generate an increased demand and intensify collecting 
pressure, or facilitate opportunities for further vandalism. This 
species has already been subjected to excessive collecting by 
scientific collectors at several sites. Increased publicity and a 
provision of specific location information associated with critical 
habitat designation could result in increased collection from the 
remaining wild populations. Although taking of endangered plants from 
lands under Federal jurisdiction and reduction to possession is 
prohibited by the Act, these taking provisions are difficult to 
enforce. We believe publication of critical habitat descriptions would 
make rock gnome lichen more vulnerable to collectors and curiosity-
seekers, and would increase enforcement problems for the U.S. Forest 
Service and the National Park Service. Also, the populations on private 
lands would be more vulnerable to taking, where they receive little or 
no protection under the Act.
    Our fears of increased human threats to the species from 
publication of maps of the occupied sites is based upon specific 
experience, not on conjecture. Another federally listed North Carolina 
mountain plant for which critical habitat was designated was severely 
impacted by collectors immediately after the maps were published. This 
collection happened even though this plant was not previously known to 
be desired by rare plant collectors and had never been offered for sale 
in commercial trade. Some of the collectors appeared in the local 
Forest Service district offices, with the critical habitat map from the 
local newspaper in their hands, asking directions to the site. Such 
incidents are extremely difficult to document. The only reason we were 
able to do so in this case was because, for this very rare and 
restricted plant, every individual was mapped. When plants vanished 
from our permanent plots, we were able to find the carefully covered 
excavations where they had been removed. Otherwise, we would have only 
observed a precipitous crash in the populations without knowing that 
the cause was directly attributable to collection apparently stimulated 
by publication of specific critical habitat maps.
    Increased visits to population locations stimulated by critical 
habitat designation, even without collection of the species, could 
adversely affect rock gnome lichen due to the associated increase in 
trampling of the fragile habitat it occupies. This might not be as 
serious a concern in other parts of the country where there is 
relatively little recreational pressure, but the Great Smoky Mountains 
National Park has more visitors annually than any other park in the 
United States. Even if just a small percentage of those people visited 
the sites occupied by the lichen, the potential adverse effects to the 
species could be tremendous and irreparable.
    Another concern for this species is the fact that, despite attempts 
by lichenologists and tissue culture experts, no one has been able to 
propagate rock gnome lichen. If populations are vandalized or collected 
to the point of extirpation, it is not possible to restore them. 
Similarly, restoration of devastated populations of other lichens has 
often not been successful (Science News, August 2000). We believe that 
anything that increases the chances of losing additional populations, 
such as publicizing locations of remaining sites, represents an 
unconscionable risk to the species' chance of survival and recovery.
    In addition, we believe that designation would not provide 
significant benefits that would outweigh these increased risks. A 
majority of the

[[Page 18067]]

remaining populations are on public lands, primarily under the 
jurisdiction of the United States Forest Service and National Park 
Service. These agencies are cooperating with us to protect the species 
from trampling and inappropriate collection, as well as to monitor the 
effects of air pollution. We are also working with the North Carolina 
and Tennessee Heritage Programs, the North Carolina Plant Conservation 
Program, and The Nature Conservancy to determine protection priorities 
for the remaining populations. The Nature Conservancy has recently 
secured a conservation easement for one of the most significant 
privately owned sites. We, along with all of these agencies, work to 
inform the public about the lichen and its importance, while at the 
same time ensuring the protection of the species and its habitat from 
potential threats. Within the National Parks, there is no commercial 
logging. Occupied sites outside the Parks are almost exclusively on 
steep rock faces and cliffs where no federal projects are likely to 
occur. In cases where excessive degradation of the lichen's cliff 
habitat has resulted from recreational overuse, both the National Park 
Service and the U.S. Forest Service have acted to close those sensitive 
areas to the public. No greater protection would be afforded by 
critical habitat designation.
    The Service has always recognized the value of habitat to the 
conservation of endangered and threatened species, and continues to 
work with other agencies and non-federal land managers to accomplish 
the most effective protection and management of lands critical to the 
survival of listed species. The Federal and State agencies and 
landowners involved in managing the habitat of this species have been 
informed of the species' locations and of the importance of protection. 
In addition, we are working with several private landowners of 
significant sites to protect the populations on their lands. Although 
we have not yet been able to definitively link population declines in 
rock gnome lichen to air pollution, we remain concerned that air 
quality may be an important factor for this species, as it is for many 
other lichens. The largest and best remaining populations of rock gnome 
lichen are within the Great Smoky Mountain National Park, which is 
designated by the Environmental Protection Agency as a Class I Air 
Quality Area, where no degradation of air quality is allowed. 
Therefore, designation of areas of the Park as critical habitat for 
this species would offer no additional protection of the species from 
air quality problems if these are determined to be a critical factor 
for this species' continued existence.
    For species like rock gnome lichen, that have extremely small 
populations (most are less than 1 m\2\ [approx. 9 ft\2\]) and a very 
small, restricted range, the triggers for ``jeopardy'' and ``adverse 
modification'' of critical habitat under section 7 of the Act are 
essentially identical. Because the triggers for ``jeopardy'' and 
``destruction or adverse modification'' of critical habitat both 
require that the Service find that a Federal action is likely to have 
an appreciable effect on both the survival and recovery of the species, 
we have determined that because of the precarious status of the 
species, the small size of the surviving populations, the restricted 
range of the species, and the limited amount of suitable habitat 
available to the species, any Federal action with the potential to 
trigger the standard for destruction or adverse modification of 
critical habitat would also jeopardize the species' continued existence 
(the jeopardy standard without critical habitat). Therefore, no 
additional protection would be provided to this species through 
designation of critical habitat that would not already be provided 
through the jeopardy standard. We acknowledge that critical habitat 
designation in some situations may provide some value to the species, 
for example, by identifying areas important for conservation. However 
for the rock gnome lichen, we have weighed the potential benefits of 
designating critical habitat against the significant risks of doing so, 
and find that the minor benefits of designating critical habitat do not 
outweigh the potential increased threats from collection, vandalism, 
and inadvertent habitat degradation caused by curiosity-seekers. 
Therefore, we propose that designation of critical habitat for the rock 
gnome lichen is not prudent.

Secretarial Order 3206: American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities and the Endangered Species Act

    In accordance with the Presidential Memorandum of April 29, 1994, 
and Executive Order 13175, we are required to assess the effects of 
determinations on tribal land and tribal trust resources. We propose 
that designation of critical habitat for the rock gnome lichen is not 
prudent. Therefore, we do not anticipate any effects on tribal trust 
resources if this proposed finding is made final.

Public Comments Solicited

    We intend that any final action resulting from this proposed 
finding will be as accurate and as effective as possible. Therefore, we 
solicit comments or suggestions from the public, other concerned 
governmental agencies, Native American tribes, the scientific 
community, industry, or any other interested party concerning this 
proposed finding. We particularly seek comments concerning whether 
designating critical habitat for the rock gnome lichen is prudent, and 
the possible risks and benefits of such designation.
    Please submit comments as an ASCII file format and avoid the use of 
special characters and encryption. Please also include ``Attn: [1018-
AH32]'' and your name and return address in your e-mail message. If you 
do not receive a confirmation from the system that we have received 
your e-mail message, contact us directly by calling our Asheville Field 
Office (see Addresses section).
    Our practice is to make all comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish for us to withhold your name and/or address, you must 
state this prominently at the beginning of your comments. However, we 
will not consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed finding. The 
purpose of such review is to ensure that listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
these peer reviewers copies of this proposed finding immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment, during the public comment period, on the 
specific assumptions and conclusions regarding the proposed non-
designation of critical habitat.

[[Page 18068]]

    We will consider all comments and information received during the 
60-day comment period on this proposed finding during preparation of a 
final finding. Accordingly, the final decision may differ from this 
proposed finding.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this document easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the document clearly 
stated? (2) Does the document contain unnecessary technical language or 
jargon that interferes with the clarity? (3) Does the format of the 
proposed finding (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Is the description 
of the notice in the Supplementary Information section of the preamble 
helpful in understanding the notice? (5) What else could we do to make 
the notice easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
[email protected].

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

    This proposed finding does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under 44 U.S.C. 3501 et seq. This proposed finding will 
not impose new record-keeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).

References Cited

    A complete list of all references cited in this proposed finding is 
available upon request from the Asheville Field Office (see Addresses 
section).

Author

    The primary author of this document is Nora Murdock (see Addresses 
section).

    Dated: March 29, 2001.
Marshall P. Jones, Jr.,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 01-8344 Filed 4-4-01; 8:45 am]
BILLING CODE 4310-55-U