[Federal Register Volume 67, Number 15 (Wednesday, January 23, 2002)]
[Rules and Regulations]
[Pages 3120-3126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1630]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF68


Endangered and Threatened Wildlife and Plants; Endangered Status 
for Carex lutea (Golden Sedge)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), determine 
endangered status for Carex lutea (golden sedge) under the authority of 
the Endangered Species Act of 1973, as amended (Act). This rare plant 
is presently known from only eight populations (one population is made 
up of two subpopulations) in Pender and Onslow Counties, North 
Carolina. Carex lutea is endangered throughout its range because of 
habitat alteration; conversion of its limited habitat for residential, 
commercial, or industrial development; mining; drainage activities 
associated with silviculture and agriculture; and suppression of fire. 
In addition, herbicide use, particularly along utility or road rights-
of-way, may also be a threat. This action extends the protection of the 
Act to C. lutea.

DATES: This rule is effective February 22, 2002.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at U.S. Fish and Wildlife 
Service, 160 Zillicoa Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Mr. Allen Ratzlaff at the above 
address (828/258-3939, extension 229).

SUPPLEMENTARY INFORMATION:

Background

    Carex lutea (LeBlond) is a perennial member of the sedge family 
(Cyperaceae) known only from North Carolina. Fertile culms (stems) may 
reach one meter (39 inches (in)) or more in height. The yellowish green 
leaves are grasslike, with those of the culm mostly basal and up to 28 
centimeters (cm) (11 in) long, while those of the vegetative shoots 
reach a length of 65 cm (26 in). Fertile culms produce two to four 
flowering spikes (multiple flowering structure with flowers attached to 
the stem), with the terminal (end) spike being male and the one to 
three (usually two) lateral spikes being female. Lateral spikes are 
subtended by leaflike bracts (a much-reduced leaf). The male spike is 
about 2 to 4 cm (0.8 to 1.6 in) long, 1.5 to 2.5 millimeters (mm) (0.06 
to 0.12 in) wide, with a peduncle (stalk) about 1 to 6 cm (0.4 to 2.4 
in) long. Female spikes are round to elliptic, about 1 to 1.5 cm (0.4 
to 0.6 in) long and 1 cm (0.4 in) wide. The upper female spike is 
sessile (not stalked; sitting), while lower female spikes, if present, 
have peduncles typically 0.5 to 4.5 cm (0.2 to 1.8 in) long. When two 
to three female spikes are present, each is separated from the next, 
along the culm, by 4.5 to 18 cm (1.8 to 7.1 in). The inflated perigynia 
(sac that encloses the ovary) are bright yellow at flowering and about 
4 to 5 mm (0.16 to 0.20 in) long; the perigynia beaks (point) are out-
curved and spreading, with the lowermost in a spike strongly reflexed 
(turned downward). Carex lutea is most readily identified from mid-
April to mid-June during flowering and fruiting. It is distinguished 
from other Carex species that occur in the same habitat by its bright 
yellow color (particularly the pistillate (female) spikes), by its 
height and slenderness, and especially by the out-curved beaks of the 
crowded perigynia, the lowermost of which are reflexed (LeBlond et al. 
1994).
    LeBlond et al. described Carex lutea in 1994 from specimens 
collected in 1992 in Pender County, North Carolina. It is the only 
member of the Carex section Ceratocystis found in the southeastern 
United States.
    Carex lutea grows in sandy soils overlying coquina limestone 
deposits, where the soil pH is unusually high for this region, 
typically between 5.5 and 7.2 (Glover 1994). Soils supporting the 
species are very wet to periodically shallowly inundated. The species 
prefers the ecotone (narrow transition zone between two diverse 
ecological communities) between the pine savanna and adjacent wet 
hardwood or hardwood/conifer forest (LeBlond 1996; Schafale and Weakley 
1990). Most plants occur in the partially shaded savanna/swamp where 
occasional to frequent fires favor an herbaceous ground layer and 
suppress shrub dominance. Other species with which this sedge grows 
include tulip poplar (Liriodendron tulipifera), pond cypress (Taxodium 
ascendens), red maple (Acer rubrum var. trilobum), wax myrtle (Myrica 
cerifera var. cerifera), colic root (Aletris farinosa), and several 
species of beakrush (Rhynchospora spp.). At most sites, C. lutea shares 
its habitat with Cooley's meadowrue (Thalictrum cooleyi), federally 
listed as endangered, and with Thorne's beakrush (Rhynchospora 
thornei), a species of management concern. All known populations are in 
the northeast Cape Fear River watershed in Pender and Onslow Counties, 
North Carolina. As stated by LeBlond (1996):

    * * * localities where Carex lutea have been found are 
ecologically highly unusual * * * The combination of fairly open 
conditions underlain by a calcareous substrate is very rare on the 
Atlantic coastal plain. Many rare plant species are associated with 
these localities, and several have very restricted distributions, 
either being endemic to a small area or with a few highly scattered 
occurrences. The affinities of these taxa are variable, but include 
connections to the calcareous savannas of the Gulf Coast States; 
alkaline marshes of the Atlantic tidewater; calcareous glades, 
barrens, and prairies of the Appalachian region and the ridge and 
valley province of Georgia and Alabama; and pinelands of the 
Carolinas and southern New Jersey.

    These rare savannas, underlain by calcareous deposits, support 
unusual assemblages of plants, including several species known from 
less than a dozen sites worldwide (Schafale 1994). LeBlond (1996) 
characterizes these habitats as ``a small archipelago of 
phytogeographic islands'' that form a refuge for these rare and unique 
species. Despite extensive searches of the Gulf Coast in northern 
Florida and southern Alabama, and Atlantic Coast sites in South 
Carolina, Georgia, and Florida, no other populations of Carex lutea 
were found outside the North Carolina coastal plain. The species 
appears to be a very rare endemic, narrowly restricted to an area 
within a 3.2 kilometer (2-mile) radius of the Onslow/Pender County line 
in southeastern North Carolina (LeBlond 1996). It is listed as 
endangered by the State of North Carolina (Amoroso and Weakley 1995; M. 
Boyer, North Carolina Department of Agriculture, personal 
communication, 1998).

[[Page 3121]]

Previous Federal Activities

    Federal Government actions on this species have only recently begun 
because the species was unknown to science before 1991 and its official 
description was not published until 1994. In 1995, we funded a survey 
to determine the status of Carex lutea throughout its known and 
potential range; we accepted the final report on this survey in 1997. A 
1998 status report confirmed the species' precarious status (LeBlond 
1998). We elevated C. lutea to candidate status (species for which we 
have sufficient information on status and threats to propose the taxon 
for listing as endangered or threatened) on October 16, 1998. On August 
16, 1999, we proposed the species for listing as endangered (64 FR 
44470).
    Our final rule would have been due on August 16, 2000. However, we 
were forced to cease our work on the rule because compliance with 
outstanding court orders, judicially approved settlement agreements, 
and litigation related activities required all remaining fiscal year 
2000 funds and exhausted the entire fiscal year 2001 budget that 
Congress appropriated for completing listings and critical habitat 
designations pursuant to section 4 of the Act. The Director of the 
Service issued a memo on November 17, 2000, directing all Regions to 
immediately halt listing actions not under court order or settlement 
agreement.
    The Service and several conservation organizations have reached an 
agreement that will enable us to complete work on evaluations of 
numerous species proposed for listing under the Act. This final rule is 
made in accordance with a judicially approved settlement agreement, 
which requires us to submit for publication in the Federal Register a 
final listing determination for the golden sedge on or before January 
26, 2002.

Peer Review

    In conformance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we provided copies of the proposed rule to five 
independent specialists in order to solicit comments on the scientific 
or commercial data and assumptions relating to the supportive 
biological and ecological information for Carex lutea. The purpose of 
such review is to ensure that the listing decision is based on the best 
scientific and commercial information available, as well as to ensure 
that reviews by appropriate experts and specialists are included into 
the review process of rulemakings. Although solicited, none of the five 
reviewers provided comments on the proposed rule.

Summary of Comments and Recommendations

    In the August 16, 1999, proposed rule and associated notifications, 
we requested all interested parties to submit factual reports or 
information that might contribute to the development of a final rule. 
We contacted appropriate State agencies, county governments, Federal 
agencies, scientific organizations, and other interested parties and 
requested them to comment. We published a newspaper notice inviting 
public comment in the Wilmington Journal (North Carolina) on August 26, 
1999.
    We received one comment, from the North Carolina Department of 
Environment and Natural Resources, that expressed support for listing, 
and concurred with our conclusion in the proposed rule that designation 
of critical habitat would not be beneficial for golden sedge because of 
the plant's extreme rarity.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that Carex lutea should be classified as 
an endangered species. We followed procedures found in section 4 of the 
Act and the accompanying regulations (50 CFR part 424). 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) of the Act. These 
factors and their application to C. lutea are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Seven of the eight known 
populations of Carex lutea are on privately owned land and are 
threatened with the destruction or adverse modification of their 
habitat from residential, commercial, or industrial development; clay 
mining; drainage activities associated with silviculture and 
agriculture; and suppression of fire. The eighth population, on land 
now owned by the North Carolina Department of Transportation (NCDOT), 
was severely disturbed in the 1980s by clearcutting, ditching, and 
draining prior to NCDOT ownership. This site has been purchased by the 
NCDOT as a mitigation site and is currently under study for the 
restoration of natural communities and protection and enhancement of 
rare species populations. At least some of the original C. lutea plants 
survived the previous damage to the site, and the remaining population 
appears stable.
    As described in the ``Background'' section, the habitat upon which 
this species depends is extremely rare. Most of the remaining 
populations are very small, with five of the eight occupying a combined 
total area of less than 58 square meters (624 square feet). Three of 
the sites have populations composed of fewer than 50 individuals. 
Although little is known about natural population fluctuations in this 
species, severe population declines (exceeding 83 percent) were noted 
between 1992 and 1996 at three of the eight remaining sites. The exact 
causes for these losses are unknown. One population is on a roadside, 
and all of one population and part of another are on power line rights-
of-way, where they are exceptionally vulnerable to destruction from 
highway expansion or improvement or herbicide application. All the 
known sites have been damaged to some degree in the past by ditching 
and drainage, mining, logging, bulldozing, right-of-way maintenance, or 
road building. Because the species was only recently discovered, 
knowing exactly what its historic distribution and population numbers 
might have been is not possible. However, LeBlond (1996) states: ``It 
is probable that drainage ditches (that lower the water table over a 
large area) have reduced, perhaps greatly, the amount of suitable 
habitat available for Carex lutea and other rare species at these 
sites.''
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. There is no known commercial trade in Carex lutea 
at this time. However, because of its small and easily accessible 
populations, it is vulnerable to taking and vandalism that could result 
from increased publicity. Most populations are too small to support 
even the limited collection of plants for scientific or other purposes.
    C. Disease or predation. Disease and predation are not known to be 
factors affecting the continued existence of the species at this time.
    D. The inadequacy of existing regulatory mechanisms. Carex lutea is 
listed by the State of North Carolina as endangered. As such, it is 
afforded legal protection within the State by North Carolina General 
Statutes, Secs. 106-202.12 to 106-202.19 (Cum. Supp. 1985), which 
provide for protection from intrastate trade (without a permit) and for 
the monitoring and management of State-listed species and prohibit the 
taking of plants without a permit and written permission from the 
landowner. However, State prohibitions against

[[Page 3122]]

taking are difficult to enforce and do not cover adverse alterations of 
habitats, such as disruption of drainage patterns and water tables or 
exclusion of fire. Two of the sites are somewhat protected by registry 
agreements between the landowner and the North Carolina Natural 
Heritage Program. These agreements are strictly voluntary, however, and 
may be canceled by the landowner at any time. Although part of another 
population is owned by The Nature Conservancy (TNC), this population is 
adjacent to a quarry. Activities in the quarry may alter the hydrology 
of the area occupied by C. lutea and thus pose a threat to this 
population. Portions of the population not owned by TNC are also 
vulnerable to destruction by timber harvesting and fire suppression.
    Section 404 of the Clean Water Act represents the primary Federal 
law that may provide some regulation of the species' wetland habitats. 
However, the Clean Water Act by itself does not provide adequate 
protection for the species. Although the objective of the Clean Water 
Act is to ``restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters'' (33 U.S.C. 1251), no specific 
provisions exist that address the need to conserve rare species. The 
Army Corps of Engineers (Corps) is the Federal agency responsible for 
administering the section 404 program. Under section 404, the Corps may 
issue nationwide permits for certain activities that are considered to 
have minimal impacts. However, the Corps seldom withholds authorization 
of an activity under nationwide permits unless the existence of a 
listed threatened or endangered species would be jeopardized. The Corps 
may also authorize activities by an individual or regional general 
permit when the project does not qualify for authorization under a 
nationwide permit. These projects include those that would result in 
more than minimal adverse environmental effects, either individually or 
cumulatively, and are typically subject to more extensive review. 
Whatever the type of permit deemed necessary under section 404, rare 
species such as Carex lutea may receive no special consideration 
regarding conservation or protection unless they are listed under the 
Act.
    E. Other natural or manmade factors affecting its continued 
existence. As mentioned in the ``Background'' section of this final 
rule, most of the remaining populations are small in numbers of 
individuals and in area covered by the plants. This may suggest low 
genetic variability within populations, making it more important to 
maintain as much habitat and as many remaining colonies as possible.
    Little is known about the life history of this species or about its 
specific environmental requirements. However, its apparent restriction 
to wet pine savannas is a strong indication that it is adapted to the 
pyric (associated with burning) and hydrological conditions associated 
with this community type. Such habitats were historically exposed to 
wildfires approximately every 3 to 5 years, usually during the growing 
season, which maintained the open habitats favored by Carex lutea and 
dozens of other fire-adapted species. During winter and spring, the 
soils where C. lutea grows are often shallowly flooded. At other times 
of the year these sites are very wet to saturated. Such high water 
tables also serve to control woody growth in undisturbed savanna 
habitats. However, without regular fire, which has been intensively 
suppressed on the Atlantic coastal plain for half a century, and with 
the lowering of water tables due to ditching, the open savannas are 
rapidly changing to dense thickets dominated by the trees and shrubs of 
the adjacent uplands. As a result, the extraordinary plant diversity 
characteristic of the savannas is being eliminated, and species such as 
C. lutea are disappearing from the landscape. Even where such habitat 
is owned by an organization that is able to manage the land with 
prescribed fire, like TNC, increasingly restrictive smoke management 
regulations make burning very difficult.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this species in making this determination. Based on this 
evaluation, we find it appropriate to list Carex lutea as an endangered 
species. Endangered status is more appropriate than threatened status 
because of the following factors--this species occurs in only 2 
counties; only 8 populations survive, all of which have already been 
damaged to some degree; most of the remaining populations are very 
small, with five of the eight occupying a combined total area of less 
than 58 square meters (624 square feet); three of the remaining 
populations are composed of fewer than 50 individuals; there are 
documented severe population declines (exceeding 83 percent) between 
1992 and 1996 at three of the eight remaining sites; and all of the 
remaining populations are currently threatened by fire suppression, 
highway expansion, right-of-way management with herbicides, drainage 
ditching, or a combination thereof.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
needed to bring the species to the point at which listing under the Act 
is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate any critical habitat at the 
time the species is listed as endangered or threatened. Our regulations 
(50 CFR 424.12(a)(1)) state that the designation of critical habitat is 
not prudent when one or both of the following situations exist--(1) The 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    The designation of critical habitat does not, in itself, restrict 
State or private activities within the area or mandate any specific 
management or recovery actions. A critical habitat designation 
contributes to species conservation primarily by identifying important 
areas and describing the features within those areas that are essential 
to the species, thus alerting public and private entities to the 
importance of the area. Under the Act, the only regulatory impact of a 
critical habitat designation is through the provisions of section 7. 
Section 7 applies only to actions with Federal involvement (e.g., 
activities authorized, funded, or conducted by a Federal agency) and 
does not affect exclusively State or private activities.
    Under the Act's section 7 provisions, a designation of critical 
habitat would require Federal agencies to ensure that any action they 
authorize, fund, or carry out is not likely to destroy or adversely 
modify the designated critical habitat. Activities that destroy or 
adversely modify critical habitat are defined as those actions that 
``appreciably diminish the value of critical habitat for

[[Page 3123]]

both the survival and recovery'' of the species (50 CFR 402.02). 
Whether or not there is a critical habitat designation, Federal 
agencies must ensure that their actions are not likely to jeopardize 
the continued existence of the listed species. Activities that 
jeopardize a species are defined as those actions that ``reasonably 
would be expected, directly or indirectly, to reduce appreciably the 
likelihood of both the survival and recovery'' of the species (50 CFR 
402.02). Using these definitions, activities that are likely to destroy 
or adversely modify critical habitat would also be likely to jeopardize 
the species. Therefore, the protection provided by a critical habitat 
designation generally duplicates the protection provided under the 
section 7 jeopardy provision. Critical habitat may provide additional 
benefits to a species in cases where areas outside the species' 
currently occupied range have been designated. In these cases, Federal 
agencies are required to consult with us (50 CFR 402.14(a)) when these 
designated areas may be affected by their actions. The effects of these 
actions on designated areas may not have been recognized but for the 
critical habitat designation.
    Theoretically, a designation of critical habitat provides Federal 
agencies with a clearer indication as to when consultation under 
section 7 is required, particularly in cases where the action would not 
result in direct mortality, injury, or harm to individuals of a listed 
species (e.g., an action occurring within the critical habitat area 
when or where golden sedge is not present). The critical habitat 
designation, in describing the essential features of the habitat, also 
helps determine which activities conducted outside the designated area 
are subject to section 7 consultation requirements (i.e., activities 
that may affect essential features of the designated area). For 
example, a project some distance away that depleted the groundwater in 
the aquifers that feed the wetland habitat of golden sedge, or 
otherwise affected an essential feature of the designated habitat, 
would be subject to the provisions of section 7 of the Act.
    In the proposed rule, we found that designation of critical habitat 
for Carex lutea was not prudent because of the increased risks to the 
species associated with disclosing specific locations, and because such 
a designation would not be beneficial to the species. As to increased 
risks, we determined that because most populations of this species were 
small, the loss of even a few individuals to activities such as 
collection for scientific purposes could extirpate the species from 
some locations. Although taking without a permit is prohibited by the 
Act from locations under Federal jurisdiction, none of the known 
populations are located on Federal land. Therefore, we believed that 
publication of critical habitat descriptions and maps would increase 
the vulnerability of the species to collection, but would not increase 
its protection under the Act. In fact, the contractor we hired to 
conduct the rangewide status survey declined to include directions to 
the occupied sites in his report, stating: ``Due to the extreme rarity 
of Carex lutea and its vulnerability to extinction, a description of 
site boundaries or precise directions to population micro sites cannot 
be provided here'' (LeBlond 1996).
    In determining in the proposed rule that designation of critical 
habitat would not benefit the golden sedge, we first noted that all but 
one of the remaining populations of golden sedge occur on land that is 
in private ownership, with the other site owned by the NCDOT. In other 
words, none of the populations occur on Federal land. We realized that 
Federal involvement with this species may occur through Federal funding 
for power line construction, maintenance, and improvement; highway 
construction, maintenance and improvement; drainage alterations; and 
permits for mineral exploration and mining on non-Federal lands, and 
that the use of such funding for projects affecting occupied habitat 
for this species would be subject to review under section 7(a)(2) of 
the Act. However, this would be true whether or not critical habitat 
was designated. Furthermore, the precarious status of Carex lutea is 
such that any adverse modification or destruction of its occupied 
habitat would also jeopardize its continued existence. Thus, the only 
potential benefit that would result from critical habitat designation 
would be notification to Federal, State and local government agencies 
and private landowners. However, during the listing process, and after 
a species is listed, we conduct public outreach in affected local 
communities and with government agencies, so that the owners and 
managers of all the known populations of C. lutea were made aware of 
the plant's location and how important it is to protect the plant and 
its habitat. For these reasons, we concluded that designation of 
currently occupied habitat as critical habitat would not result in any 
additional benefit to the species.
    Finally, because this species occupies an extremely rare habitat 
type, little of which remains in an unaltered, functional state, we did 
not expect that reintroduction to currently unoccupied habitat would be 
essential for recovery efforts. Therefore, we also concluded that 
designation of currently unoccupied habitat as critical habitat would 
not result in any additional benefit to the species.
    We received only one comment on our prudency determination. The 
North Carolina Department of Environment and Natural Resources, in its 
comments on the proposed rule, concurred that designation of critical 
habitat for this species would not be beneficial.
    However, recent court decisions (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)) have forced us to reevaluate our ``not prudent'' 
finding. The Conservation Council ruling is particularly relevant to 
our determination. In that case, the court held that in order to 
conclude that designation would increase the risk to the species, the 
Service must have evidence of specific threats (such as instances of 
collection and vandalism) that would be increased by designation of 
critical habitat. The court said that without species-specific 
evidence, the fact that there are few plants and that even a single 
taking could cause the species to become extinct was not sufficient 
justification for a ``not prudent'' finding based on increased threat.
    We remain concerned that publication of precise maps and 
descriptions of critical habitat in the Federal Register and local 
newspapers could increase the vulnerability of this plant to incidents 
of collection, general vandalism, and trampling by curiosity-seekers. 
Due to the low numbers of individuals, the small area covered by the 
eight remaining populations, and the inherent transportability of 
plants, golden sedge is vulnerable to collection and other disturbance. 
However, at this time we have no specific evidence of taking, 
vandalism, illegal collection, or trade of this species. This may be 
due to its recent description as a new species to science and to the 
locations of the populations being known by only a few individuals. 
Also, it is very difficult to monitor such losses on scattered private 
lands. Nonetheless, in the absence of specific evidence, we cannot 
conclude that designation would not be prudent based on increased 
threat.
    Without a finding that critical habitat would increase threats to a 
species, then designation would be prudent if it would provide any 
benefits to the species. As to benefits of designation, the 
Conservation Council court held that the mere absence of a species from

[[Page 3124]]

nonfederal land did not mean that there were no benefits to designating 
that land as critical habitat, as there could be Federal activity on 
that land in the future. As to Federal land, the court held that if 
even as a general rule an action that would adversely modify critical 
habitat was likely to jeopardize the continued existence of the 
species, the Service must consider the adverse modification/jeopardy 
relationship for each species individually. Finally, the court ruled 
that designation of critical habitat on any type of land serves to 
educate the public and government officials that this habitat is 
essential to the protection of the species.
    With this taxon, designation of critical habitat may provide some 
minor benefits to the species. Although the remaining populations of 
golden sedge are located exclusively on non-Federal lands, there may be 
Federal actions affecting these lands in the future. Furthermore, the 
primary regulatory effect of critical habitat designation is to require 
Federal agencies to consult before taking any action that could destroy 
or adversely modify critical habitat. While a critical habitat 
designation for habitat currently occupied by this species would not be 
likely to change the section 7 consultation outcome because an action 
that destroys or adversely modifies such critical habitat would also be 
likely to result in jeopardy to the species, there may be instances 
where section 7 consultation would be triggered only if critical 
habitat is designated. Examples could include unoccupied habitat or 
occupied habitat that may become unoccupied in the future. No such 
habitat is known at this time, but some may be found in the future. 
Finally, there will be educational or informational benefits from 
designating critical habitat.
    Reevaluating our prudency determination under the standards 
mandated by court decisions, we must find that designation of critical 
habitat for the golden sedge is prudent. However, we are deferring our 
critical habitat determination due to budgetary constraints associated 
with the listing program. Our entire FY 2002 budget for listing actions 
has been consumed due to required compliance with outstanding court 
orders, settlement agreements, meeting statutory deadlines, and 
litigation related activities. This final rule is made in accordance 
with a judicially approved settlement agreement that requires us to 
submit for publication in the Federal Register a final listing 
determination for the golden sedge on or before January 26, 2002. Funds 
are insufficient to also allow us to propose critical habitat with this 
final determination. Critical habitat designations are costly, 
requiring mapping, economic analysis, and often public hearings and 
meetings that are costs above those incurred for listing the species. 
We will develop a proposal to designate critical habitat for this 
species as soon as feasible, considering our budget and workload 
priorities.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and 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. The protection required 
of Federal agencies and the prohibitions against certain activities 
involving listed plants are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) of the Act 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 to 
destroy or adversely modify its designated critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with us.
    Federal activities that could impact Carex lutea and its habitat in 
the future include, but are not limited to, the following--power line 
construction, maintenance, and improvement; highway construction, 
maintenance, and improvement; drainage alterations; and permits for 
mineral exploration and mining. We will work with the involved agencies 
to secure protection and proper management of C. lutea while 
accommodating agency activities to the extent possible.
    Now that the species has been added to the Federal List of 
Endangered and Threatened Wildlife and Plants, additional protection 
from taking is provided when the taking is in violation of any State 
law, including State trespass laws. The listing also provides 
protection from inappropriate commercial trade and encourages active 
management for Carex lutea. Specifically, the Act and its implementing 
regulations set forth a series of general prohibitions and exceptions 
that apply to all endangered plants. All prohibitions of section 
9(a)(2) of the Act, implemented by 50 CFR 17.61, apply. These 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to import or export, transport in 
interstate or foreign commerce in the course of a commercial activity, 
sell or offer for sale in interstate or foreign commerce, or remove and 
reduce the species to possession from areas under Federal jurisdiction. 
In addition, for plants listed as endangered, the Act prohibits the 
malicious damage or destruction on areas under Federal jurisdiction and 
the removal, cutting, digging up, or damaging or destroying of such 
plants in knowing violation of any State law or regulation, including 
State criminal trespass law. Certain exceptions to the prohibitions 
apply to our agents and to 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 plants 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 
ever be sought or issued, because the species is not common in 
cultivation or in the wild. You may request copies of the regulations 
on plants from and direct inquiries about prohibitions and permits to 
the U.S. Fish and Wildlife Service, 1875 Century Boulevard, Atlanta, 
Georgia (telephone 404/679-4176).
    It is our policy, published on July 1, 1994 (59 FR 34272), to 
identify, to the maximum extent practicable, those activities that 
would or would not constitute a violation of section 9 of the Act at 
the time of listing. The intent of this policy is to increase public 
awareness of the effect of the listing on proposed and ongoing 
activities within a species' range. The eight remaining populations of 
Carex lutea occur on non-Federal land. We believe that, based upon the 
best available information, you can take the following actions without 
resulting in a violation of section 9 of the Act, only if these 
activities are carried out in accordance with existing regulations and 
permit requirements:

[[Page 3125]]

    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., wetland modification; power line construction, 
maintenance, and improvement; highway construction, maintenance, and 
improvement; and permits for mineral exploration and mining) when such 
activity is conducted in accordance with any biological opinion issued 
by us under section 7 of the Act;
    (2) Normal agricultural and silvicultural practices, including 
pesticide and herbicide use, that are carried out in accordance with 
any existing regulations, permit and label requirements, and best 
management practices; and
    (3) Normal landscape activities around personal residences.
    We believe that the following might potentially result in a 
violation of section 9; however, possible violations are not limited to 
these actions alone:
    (1) Removal, cutting, digging up, damaging, or destroying 
endangered plants on non-Federal land if conducted in knowing violation 
of State law or regulation or in violation of State criminal trespass 
law. North Carolina prohibits the intrastate trade and take of C. lutea 
without a State permit and written permission from the landowner; and
    (2) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit.

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 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).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
control number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to a collection of information, 
unless it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
endangered species, see 50 CFR 17.62.

References Cited

Amoroso, J., and A. Weakley. 1995. Natural Heritage Program list of the 
rare plant species of North Carolina. Natural Heritage Program, 
Division of Parks and Recreation, North Carolina Department of 
Environment, Health, and Natural Resources, Raleigh.
Glover, L. 1994. Carex lutea: alive and well in Pender County, North 
Carolina. Report prepared by the North Carolina Chapter of The Nature 
Conservancy, Durham.
LeBlond, R. 1998. Supplement to the status survey for Carex lutea. 
Unpublished report submitted to the Asheville Field Office, U.S. Fish 
and Wildlife Service, Asheville, NC.
    --1996. Status survey for Carex lutea LeBlond. Unpublished report 
submitted to the Asheville Field Office, U.S. Fish and Wildlife 
Service, Asheville, NC.
LeBlond, R., A. Weakley, A. Reznicek, and W. Crins. 1994. Carex lutea 
(Cyperaceae), a rare new coastal plain endemic from North Carolina. 
SIDA 16:153-161.
Schafale, M. 1994. Inventory of longleaf pine natural communities in 
North Carolina. Natural Heritage Program, Division of Parks and 
Recreation, North Carolina Department of Environment, Health, and 
Natural Resources, Raleigh.
Schafale, M., and A. Weakley. 1990. Classification of the natural 
communities of North Carolina (third approximation). Natural Heritage 
Program, Division of Parks and Recreation, North Carolina Department of 
Environment, Health, and Natural Resources, Raleigh.

Author

    The primary author of this document is Mr. Allen Ratzlaff (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

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


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Carex lutea......................  Golden sedge........  U.S.A. (NC)........  Cyperaceae.........  E                       721           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------



[[Page 3126]]

    Dated: January 15, 2002.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 02-1630 Filed 1-22-02; 8:45 am]
BILLING CODE 4310-55-P