[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Rules and Regulations]
[Pages 49560-49567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23821]


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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; Determination of 
Endangered Status for Astragalus holmgreniorum (Holmgren milk-vetch) 
and Astragalus ampullarioides (Shivwits milk-vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), have determined 
endangered 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. This determination that A. 
holmgreniorum and A. ampullarioides are endangered species implements 
the Federal protections provided by the Act for these plants.

DATES: Effective October 29, 2001.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the 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, 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-
discoverers. Astragalus 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 is 
a stemless herbaceous (non-woody) perennial that produces leaves and 
small purple flowers in the spring, both of which die back to its roots 
after the flowering season. The plant's pinnately compound leaves 
(leaves arranged on opposite side of the stem in a row) 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 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 five petals that include a large petal on top enclosing two 
lateral petals and two 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 when the 
plant's 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 dries 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

[[Page 49561]]

vegetative community dominated by the following perennial shrubs--
Acamptopappus sphaerocephalus (desert goldenhead), Ambrosia dumosa 
(white burrobush), Krameria parvifolia (range ratany), and Lycium 
andersonii (Anderson wolfberry). In addition, plant species associated 
with A. holmgreniorum include several perennial and annual forbs and 
grasses; most significant are the introduced weedy species--Bromus 
rubens (foxtail brome), Erodium cicutarium (storksbill), and Malcolmia 
africana (African mustard) (Stubben 1997; Armstrong and Harper 1991; 
Van Buren 1992; Harper and Van Buren 1998, 2000b).
    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 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 is south of the town of Santa Clara about 8 km (5 mi) west 
of St. George. This population consists of 2 sites whose total numbers 
average about 1,000 individual plants (Stubben 1997; Van Buren 1992; R. 
Bolander, Bureau of Land Management, Salt Lake City, Utah, pers. comm. 
2000). The third population consists of about 30 plants, and is located 
in Purgatory flat approximately 15 km (9 mi) east of St. George 
(Stubben 1997; R. Bolander, pers. comm. 2000). 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 also is threatened by ORV use, 
displacement by exotic weeds, mineral exploration and development 
(Harper 1997, Stubben 1997, Van Buren and Harper 2000b).
    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 also is 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, while A. eremiticus 
stems are solid, and (6) A. ampullarioides plants are highly palatable 
to grazing animals, while 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 also 
is apparent at the genetic level. The DNA analysis of Astragalus 
species have shown significant differences in genetic markers between 
A. ampullarioides and A. eremiticus (Stubben 1997).
    Astragalus ampullarioides grows only on purple clay soils derived 
from the Petrified Forest member of the Chinle geological formation. 
The species is known from 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 72 km (45 mi) near St. 
George, Utah. These 5 populations contain a total of approximately 
1,000 individual plants (R. Van Buren, pers. comm. 1998, 2000). 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). Two other populations occur near Harrisburg Junction on the 
eastern edge of the species range. One of these populations with 4 
disjunct sites occurs on a mixture of State and BLM lands and contains 
about 300 individual plants (L. England, pers. comm. 1999, Utah Natural 
Heritage Program 1999, Van Buren, pers. comm. 2000). The second 
population in the Harrisburg area is located within a rapidly expanding 
commercial, recreational, and residential development. This population 
contained over 1,000 individuals in 1995 (England, pers. comm. 1995) 
and had declined to about 200 individual plants in 1998 (Utah Natural 
Heritage Program 1999). This population declined to less than 50 
individuals in 2000 (England, pers. comm. 2000). Most of its habitat 
has been converted to a golf course. The fifth population occurs in the 
southwest corner of Zion National Park with a population estimated at 
300 to 500 individuals (Harper, pers. comm. 2000; Van Buren, pers. 
comm. 2000). Native plant species normally associated with A. 
ampullarioides include Dichlostemma pulchellum (beautiful bluedicks), 
Lotus humistratus (birdsfoot trefoil), Gutierrezia microcephala 
(snakeweed), Calochortus flexuosus (mariposa lily), and several other 
Mojave Desert plants. Currently the most significant plant species 
associated with A. ampullarioides are the introduced weedy species 
Bromus rubens (foxtail brome), B. tectorum (cheat grass), Erodium 
cicutarium (storksbill), and Malcolmia africana (African mustard) 
(Armstrong and Harper 1991; Van Buren 1992, 1998; Harper and Van Buren 
1998, 2000a).
    Astragalus ampullarioides is threatened by the same activities as 
A. holmgreniorum. In addition, A. ampullarioides 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 (Van Buren 
and Harper 2000a). The populations of both species fluctuate 
significantly year to year primarily due to extreme variations in local 
precipitation. The population numbers cited above reflect the highest 
levels observed since 1992; in an average precipitation year 
populations will be about half of that cited above, while drought-year 
population numbers will be 10 percent or less of the maximum observed 
levels (Van Buren and Harper 1998, 2000a; Van Buren 1999; R. Bolander, 
pers. comm. 2000; J. Anderson, Bureau of Land Management, Phoenix, 
Arizona, pers. comm. 2000).

[[Page 49562]]

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 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 plants and the significant population and 
individual losses of both plants. The petition also requested 
designation of critical habitat concurrent with the listing. Inasmuch 
as A. 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.
    On April 12, 2000, we published a proposed rule to list Astragalus 
holmgreniorum and A. ampullarioides as endangered species in the 
Federal Register (65 FR 19728). The comment period was open until June 
12, 2000. With the publication of this final rule, we now determine 
that A. holmgreniorum and A. ampullarioides are endangered.
    We have updated this rule to reflect any changes in distribution, 
status, and threats since publication of the proposed rule and to 
incorporate information obtained during the public comment period. This 
additional information did not alter our decision to list these 
species.

Summary of Comments and Recommendations

    We have reviewed all written and oral comments received during the 
comment period and have incorporated updated data and information into 
appropriate sections of this rule. We have organized substantive 
comments concerning the proposed rule into specific issues. We grouped 
comments of a similar nature or subject matter into a number of broader 
issues. These issues and our response to each are presented in the 
subsections below.
    In the April 12, 2000, proposed rule in the Federal Register (65 FR 
19728) 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, City and County 
governments, scientific organizations, and other interested parties. We 
published newspaper notices requesting public comment on the proposed 
rule in the following newspapers--the Salt Lake Tribune and the Deseret 
News, both published in Salt Lake City, Utah, with general circulation 
throughout Utah, on May 6, 2000; The Spectrum, published in St. George, 
Utah, with circulation in Washington County, Utah, on April 28, 2000; 
and The Kingman Daily Miner, published in Kingman, Arizona, with 
circulation in Mohave County, Arizona, on May 9, 2000. No public 
hearing requests were made pursuant to the April 12, 2000, proposed 
rule. However, at the invitation of the Shivwits Band of the Paiute 
Tribe, the Washington County Commission, and the St. George Area 
Chamber of Commerce, we met with those groups respectively on May 3, 
2000, May 18, 2000, and June 7, 2000, and answered and addressed the 
questions and concerns of those groups concerning the impact of the 
proposed listing on regional land use and urban development plans in 
the St. George area.
    We received a total of five comments (one from private 
organization, two from a Federal agency, one from a State agency, and 
one from a local government) during the proposed rule's open comment 
period from April 12, 2000 to June 12, 2000. Three comments were in 
general agreement with and supportive of our proposal. One of these 
provided additional information on the status of the species and made 
suggestions to clarify our proposed rule. One comment was a request for 
continued consultation on their actions affecting one of these species. 
One comment raised a series of issues related to the listing of 
Astragalus holmgreniorum and A. ampullarioides and is discussed below. 
A summary of comments received in response to the proposed rule 
follows.
    Issue 1. Will actions affecting unoccupied potential habitat of 
Astragalus holmgreniorum and A. ampullarioides invoke the need for 
formal interagency consultation under the provisions of section 7 of 
the Act?
    Response--We do not consult on projects that do not affect listed 
species or their critical habitat. We have not yet delineated critical 
habitat for Astragalus holmgreniorum and A. ampullarioides. Actions 
affecting only unoccupied, potential habitat for the species will not 
trigger formal consultation unless such areas are ultimately designated 
as critical habitat.
    Issue 2. How will land exchanges for the Red Cliffs Desert Reserve 
(Mojave desert tortoise) impact these two species? Can BLM proceed with 
the exchanges? Is the land exchange subject

[[Page 49563]]

to formal consultation? Will the exchange be halted completely?
    Response--The statement in the proposed rule concerning the impact 
of the Red Cliffs Desert Reserve on Astragalus holmgreniorum and A. 
ampullarioides referred to urban development in the local area in 
general. The presence of the tortoise reserve, established as the 
primary mitigation measure under the Washington County Habitat 
Conservation Plan, approved in 1996, will accelerate development in a 
southern direction from St. George and other surrounding cities. Thus, 
the reserve may hasten development in habitat occupied by both of these 
plant species. However, some land acquisition and protection associated 
with the reserve will improve recovery prospects for A. ampullarioides. 
Land exchanges are one mechanism used by the BLM to acquire tortoise 
habitat within the reserve. All administrative land exchanges are 
subject to section 7 interagency consultation under the Act. Land 
exchanges that could result in loss of habitat for either plant species 
will be evaluated, and neither the Service nor the BLM will approve any 
exchanges that jeopardize the future existence of either species. 
Currently, the BLM, as a matter of policy, does not exchange lands 
occupied by either A. holmgreniorum and A. ampullarioides for private 
or State lands within the boundaries of the Reserve. Land exchanges 
that do not adversely affect A. holmgreniorum and A. ampullarioides 
will proceed as normal.
    Issue 3. Habitat conditions favorable to the growth of Astragalus 
holmgreniorum and A. ampullarioides are more widespread than the actual 
known populations. Listing should be delayed until the true extent of 
the populations is determined.
    Response--There have been extensive surveys for both species within 
and far beyond their known habitat. While these species may occupy 
other currently unknown sites, it is unlikely that unknown sites would 
be of significant size to materially change the current status of 
either species.

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994 (59 FR 34270), we solicited the expert opinion of four 
appropriate and independent specialists regarding pertinent scientific 
or commercial data and assumptions relating to the supportive 
biological and ecological information for Astragalus holmgreniorum and 
A. ampullarioides. The purpose of this review is to ensure that listing 
decisions are based on scientifically sound data, assumptions, and 
analyses, including input from appropriate experts and specialists. 
Three specialists responded to our request for peer review of this 
listing action and supported the listing and our analysis of the 
biological and ecological situation facing these species. In addition, 
two reviewers provided additional biological, ecological, and 
demographic information concerning these species. That information was 
incorporated into this final rule.

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 city. The 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. The 
construction of residential housing, commercial buildings, and 
recreational facilities has destroyed occupied and potential habitat of 
both species during the last 5 years (Harper 1997; Stubben 1997; R. Van 
Buren, pers. comm. 1998, 2000; K. Harper, pers. comm. 2000). The 
continued demand for land for urban expansion of Washington County 
communities threatens all populations of A. holmgreniorum and the 
central 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 on 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). The 
Utah Army National Guard conducts military training on State of Utah 
lands within the occupied habitat of A. holmgreniorum between the 
current urbanized center of St. George and the Utah-Arizona border (D. 
Johnson, Utah Army National Guard, pers. comm. 2000). This activity has 
destroyed individual A. holmgreniorum plants and has degraded the 
species' habitat (Van Buren, pers. comm. 2000).
    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 Astragalus 
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.
    The presence of the tortoise reserve, established as the primary 
mitigation measure under the Washington County Habitat Conservation 
Plan approved in 1996, will accelerate development in a southern 
direction from St. George and other surrounding cities. Thus, the 
reserve may hasten development in habitat occupied by both plant 
species (E. Owens, U.S. Fish and Wildlife Service, Salt Lake City, 
Utah, pers. comm. 2000).
    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

[[Page 49564]]

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 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 significantly 
reduced and has the potential to destroy one of the two central A. 
ampullarioides populations (Rosenberg Associates 1999). Another planned 
community development near Atkinville has significantly impacted the 
main A. holmgreniorum population, and projected community development 
south of Santa Clara has the potential to significantly impact the 
species' northwestern population (R. Bolander, pers. comm. 2000). An 
electric power transmission line is proposed to pass through the two 
western A. ampullarioides populations. A second electric power 
transmission line is proposed to pass through its eastern population. 
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 over collection by botanists 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). In addition, overgrazing over a period of time can 
cause a shift in the plant communities to favor faster growing invasive 
alien plants, which has a negative effect on both A. homgreniorum and 
A. ampullarioides.
    D. The inadequacy of existing regulatory mechanisms. No Federal or 
State laws or regulations directly protect 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'' (Bureau of Land Management 
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, uncertain. 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, Van Buren and Harper 2000a, 2000b). 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, 2000; Van 
Buren 1999). Both species are vulnerable to displacement by introduced 
weeds (Harper 1997; Harper and Van Buren 1998; Stubben 1997; Van Buren 
1999). Concurrent with the establishment of these invasive species is 
further habitat modification and perhaps permanent change of the 
vegetative community caused by the introduction of fire into the Mojave 
Desert ecosystem. Cheatgrass and foxtail brome grow in densities and 
dry up sufficiently to carry fire over large areas. The native Mojave 
Desert vegetation is not adapted to a frequent fire regimen (R. 
Bolander, pers. comm. 2000).
    Pollination of both Astragalus holmgreniorum and A. ampullarioides 
is a long-term concern. Both species are pollinated by native solitary 
ground-dwelling bees (V. Tepidendo, U.S. Agricultural Research Service, 
Bee Biology Laboratory, Utah State University, Logan, Utah pers. comm. 
2000; R. Bolander, pers. comm. 2000). Fragmented, isolated populations 
restrict pollinator exchange between occupied population sites. This 
situation may cause genetic isolation, which may potentially lead to 
inbreeding and local extirpation of isolated populations. Urban 
expansion and associated impacts may directly and indirectly affect 
pollinators through loss of pollinator habitat and increased pesticide 
use (R. Bolander, pers. comm. 2000).
    Any factor preventing seed set or seed germination, in addition to 
natural abiotic factors (i.e., precipitation and temperature), will 
adversely affect both species' viability (R. Bolander, pers. comm. 
2000). These factors include reduced pollination and weed competition.
    Both species exhibit varying high and low population counts. 
However, trend data show that, even with the highs, the general total 
populations are declining (R. Bolander, pers. comm. 2000). A long-term 
trend study indicates a significant reduction in the population numbers 
of A. holmgreniorum at the BLM's monitoring plot on state land in 
Arizona (J. Anderson, pers. comm. 2000). Both species are relatively 
short-lived (about 4 years for A. holmgreniorum and 6 years for A. 
ampullarioides) and depend on soil seed banks to maintain the long-term 
viability of their populations (R. Bolander pers. comm. 2000; K. Harper 
pers. comm. 2000, R. Van Buren pers. comm. 2000).
    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 finalizing this 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, imperil the

[[Page 49565]]

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, paragraph (5)(A) of the 
Act as the specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features essential to the 
conservation of the species and that may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by a species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary 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.
    Critical habitat designation directly affects only Federal agency 
actions through consultation under section 7(a)(2) of the Act. 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.
    Section 4(a)(3) of the Act, as amended, and our 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 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 the proposed rule, we indicated that designation of critical 
habitat was not prudent for Astragalus holmgreniorum and A. 
ampullarioides because of a concern that publication of precise maps 
and descriptions of critical habitat in the Federal Register could 
increase the vulnerability of these species to incidents of collection 
and vandalism. We also indicated that designation of critical habitat 
was not prudent because we believed it would not provide any additional 
benefit beyond that provided through listing as endangered.
    In the last few years, a series of court decisions have overturned 
Service determinations that designation of critical habitat for a 
variety of species 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 have reexamined the question of whether critical 
habitat for Astragalus holmgreniorum and A. ampullarioides would be 
prudent.
    As with other species we list, we have the concern that 
unrestricted collection, vandalism, or other disturbances could be 
exacerbated by the publication of critical habitat maps and further 
dissemination of locational information. However, we have examined the 
evidence available for Astragalus holmgreniorum and A. ampullarioides 
and have not found specific evidence of taking, vandalism, collection, 
or trade of these 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 these species of taking or other human activity.
    In the absence of a finding that critical habitat would increase 
threats to these species, if any benefits would result from a critical 
habitat designation, then a prudent finding is warranted. In the case 
of both of these species, designation of critical habitat may provide 
some benefits. 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 these 
species would not be likely to change the section 7 consultation 
outcome because an action that destroys or adversely modifies such 
critical habitat also would be likely to result in jeopardy to these 
species, in certain instances, section 7 consultation might be 
triggered only if critical habitat is designated. Examples could 
include some actions in unoccupied habitat or occupied habitat that may 
become unoccupied in the future. Designating critical habitat may 
provide some educational or informational benefits. Therefore, we find 
that critical habitat is prudent for both Astragalus holmgreniorum and 
A. ampullarioides.
    As explained in detail in the Final Listing Priority Guidance for 
Fiscal Year 2000 (64 FR 57114), our listing budget is currently 
insufficient to allow us to immediately complete all of the listing 
actions required by the Act. We focus our efforts on those listing 
actions that provide the most conservation benefit. Deferral of the 
critical habitat designation for these species will allow us to 
concentrate our limited resources on higher priority critical habitat 
and other listing actions, without delaying the final listing decision 
for both Astragalus holmgreniorum and A. ampullarioides. We will 
develop a proposal to designate critical habitat for Astragalus 
holmgreniorum and A. ampullarioides as soon as feasible, considering 
our workload priorities and available funding. 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 due and overdue final listing determinations.

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 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 proposed or

[[Page 49566]]

designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(1) 
of the Act requires Federal agencies to use their authorities to 
further the purposes of the Act by carrying out programs for listed 
species. 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 designated critical habitat. If a Federal action 
may affect a listed species or its designated 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 ensuring 
that all activities and actions on lands that they manage are not 
likely to jeopardize the continued existence of A. holmgreniorum and A. 
ampullarioides. Such activities include grazing, mining, and 
recreational management on Federal lands. Proposed highway and power 
line projects within the habitat of both species will require Federal 
permits from the Federal Highway Administration and Federal Energy 
Regulatory Commission. These agencies, also, must ensure 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 use 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, will 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 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 likely 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. Conducting 
commerce with this species is also prohibited.
    Questions regarding whether specific activities, such as changes in 
land use, 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.

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. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid control number. For additional information concerning 
permit and associated requirements for endangered species, see 50 CFR 
17.22.

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. Van Buren. 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. 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

[[Page 49567]]

Management, Richfield, Utah. 17 pp + appendix.
Van Buren, R., and K.T. Harper. 2000a. Status Report 1999 Astragalus 
ampullarioides (Shivwits Locoweed). Unpublished report on file with 
the U.S. Fish and Wildlife Service, Salt Lake City, Utah. 5 pp + 
appendix.
Van Buren, R., and K.T. Harper. 2000b. Status Report 1999 Astragalus 
holmgreniorum (Holmgren Locoweed). Unpublished report on file with 
the Bureau of Land Management, Richfield, Utah. 7 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 (Leguminosae): Nomenclatural Proposals 
and New Taxa. Great Basin Naturalist. Brigham Young University, 
Provo, Utah. 58:45-53.
Welsh S.L., N.D. Atwood, S. Goodrich, and L.C. Higgins. 1993. A Utah 
Flora. Brigham Young University Press, Provo, Utah. 986 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, and Transportation.

Regulation Promulgation

    For the reasons given in the preamble, we 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 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       Special
          Scientific name                  Common name                                                                             listed        rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Astragalus ampullarioides..........  Shivwits milk-vetch...  U.S.A. (UT)..........  Fabaceae.............  E                            711           NA
 
                   *                  *                  *                  *                  *                  *                  *
Astragalus holmgreniorum...........  Holmgren milk-vetch...  U.S.A. (AZ, UT)......  Fabaceae.............  E                            711           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: September 17, 2001.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 01-23821 Filed 9-27-01; 8:45 am]
BILLING CODE 4310-55-P