[Federal Register Volume 67, Number 50 (Thursday, March 14, 2002)]
[Rules and Regulations]
[Pages 11442-11449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6134]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI35


Endangered and Threatened Wildlife and Plants: Listing the Desert 
Yellowhead as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), determine Yermo 
xanthocephalus (desert yellowhead) to be threatened under the authority 
of the Endangered Species Act of 1973, as amended. This plant is a 
recently described Wyoming endemic known only from the south end of 
Cedar Rim on the summit of Beaver Rim in southern Fremont County, 
Wyoming. It is known from a single population with plants found 
scattered over an area of 20 hectares (50 acres). The total area 
actually occupied by the population is only 3.37 hectares (8.33 acres) 
within the 20 hectares. In 2001 this population contained 11,967 plants 
and existed entirely on Federal lands. Surface disturbances associated 
with oil and gas development, compaction by vehicles, trampling by 
livestock, and randomly occurring, catastrophic events threaten the 
existing population.

EFFECTIVE DATE: April 15, 2002.

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, 4000 Airport Parkway, Cheyenne, WY 82001.

FOR FURTHER INFORMATION CONTACT: Mike Long, Field Supervisor, Wyoming 
Field Office (see ADDRESSES section), telephone 307/772-2374; facsimile 
(307) 772-2358.

SUPPLEMENTARY INFORMATION:

Background

    Yermo xanthocephalus was discovered by Wyoming botanist Robert Dorn 
while conducting field work in the Beaver Rim area of central Wyoming 
in 1990. Dorn discovered a small population of an unusual species of 
Composite (Asteraceae). Dorn's closer examination revealed that the 
species was unknown to science and represented a new genus. Dorn (1991) 
named his discovery Y. xanthocephalus, or literally ``desert 
yellowhead.''
    Yermo xanthocephalus is a tap-rooted, glabrous (hairless) perennial 
herb with leafy stems to 30 centimeters (cm) (12 inches (in)) high. The 
leathery leaves are alternate, lance-shaped to oval, 4 to 25 cm (1.5 to 
10 in) long and often folded along the midvein. Leaf edges are smooth 
or toothed. Flower heads are many (25 to 180) and crowded at the top of 
the stem. Each head contains four to six yellow disk flowers (ray 
flowers are absent) surrounded by five yellow, keeled involucre 
(whorled) bracts (small leaves beneath the flower). The pappus (the 
outer whorl of flowering parts) consists of many white bristles.
    The species is restricted to shallow deflation hollows in outcrops 
of Miocene sandstones of the Split Rock Formation (Van Houten 1964). 
These wind-excavated hollows accumulate drifting snow and may be more 
mesic (moist) than surrounding areas. The vegetation of these sites is 
typically sparse, consisting primarily of low-cushion plants and 
scattered clumps of Indian ricegrass (Stipa hymenoides).
    Dorn observed approximately 500 plants within 1 hectare (2.5 acres) 
in 1990 on Federal land managed by the Bureau of Land Management (BLM). 
Surveys conducted since 1990 by Richard Scott, Curator of the Central 
Wyoming College Herbarium in Riverton, have failed to locate additional 
populations on outcrops of the White River, Wagon Bed, and Wind River 
formations in the Beaver Rim area. The estimate of the plant 
population's size has increased from 500 in 1990 to 11,967 plants in 
2001. However, Dorn's original estimate of 500 plants was a visual 
estimate and did not include 2 nearby subpopulations, while Scott has 
been counting all plants in all 3 subpopulations using a monitoring 
grid. Therefore, the difference in estimates may be largely the result 
of different techniques used over differing acreages and cannot be 
assumed to show a significantly increasing trend in population size 
between 1990 and 2001. Based upon Scott's data collected from 1995 
through 2001, the actual population count has increased from 9,293 in 
1995 to 11,967 in 2001, possibly in response to higher than normal 
precipitation over the study period (R. Scott, Central Wyoming College, 
pers. comm., 2001).

[[Page 11443]]

Previous Federal Action

    In the plant notice of review published on September 30, 1993 (58 
FR 51144), we designated Yermo xanthocephalus a Category 2 species for 
potential listing under the Endangered Species Act (Act) of 1973, as 
amended (16 U.S.C. 1531 et seq.). At that time, Category 2 species were 
those for which data in our possession indicated listing was possibly 
appropriate, but for which substantial data on biological vulnerability 
and threats were not currently known or on file to support a proposed 
rule. On February 28, 1996, we published a Notice of Review in the 
Federal Register (61 FR 7596) that discontinued the designation of 
Category 2 species as candidates, and this species was upgraded to 
candidate status at that time. A candidate is a species for which we 
possess substantial information on biological vulnerability and threats 
to support preparation of a listing proposal.
    On November 24, 1997, we received a petition from the Biodiversity 
Legal Foundation and Biodiversity Associates alleging that Yermo 
xanthocephalus warranted emergency listing. On December 22, 1997, we 
notified the petitioners that emergency listing was not appropriate 
because BLM regulations provided some conservation measures for the 
species, and current exploratory oil and gas activities near the known 
occupied habitat of Y. xanthocephalus were being coordinated with our 
staff in the Wyoming Field Office. In addition, we notified the 
petitioners that petitions for candidate species are considered second 
petitions, because candidate species are species for which we have 
already decided that listing is warranted. Therefore, no 90-day finding 
was required for Biodiversity Legal Foundation's petition.
    The proposed rule to list Yermo xanthocephalus as threatened was 
published in the Federal Register on December 22, 1998 (63 FR 70745). 
With a Federal Register publication on September 5, 2000 (65 FR 53691), 
we reopened the comment period. In the same publication, we sought 
comments regarding a draft conservation agreement, assessment, and 
strategy submitted by BLM for our consideration when making this 
listing decision. The conservation agreement, assessment, and strategy 
was never finalized or signed and has not been considered as a firm 
commitment to perform the actions when assessing conservation 
commitments in making this listing decision.
    On August 9, 1999, BLM segregated (proposed withdrawal of) 3,759.12 
acres surrounding the population of Yermo xanthocephalus for 2 years 
from location and entry under the General Mining Act of 1872, and from 
settlement, sale, location, and entry under the general land laws (64 
FR 43209). However, this segregation expired on August 9, 2001, with no 
finalized withdrawal in place.
    On November, 12, 2001, Biodiversity Legal Foundation, Biodiversity 
Associates, Center for Native Ecosystems, and Wyoming Outdoor Council 
filed a complaint in the U.S. District Court of Colorado alleging that 
the Service failed to make a timely final listing determination and 
critical habit designation for Yermo xanthocephalus.

Summary of Comments and Recommendations

    In the December 22, 1998, proposed rule (63 FR 70745) we requested 
that all interested parties submit factual reports and information that 
might contribute to the development of this final rule. The comment 
period for the proposed rule was open from December 22, 1998, through 
February 22, 1999. On September 5, 2000, the comment period was 
reopened (65 FR 53691) to accommodate the public notice requirement of 
the Act, consider any new scientific information, and allow for 
comments on the draft conservation agreement submitted by BLM. We 
published legal notices in the ``Casper Star Tribune'' on September 5, 
2000, and in the ``Riverton Ranger'' and the ``Lander Journal'' on 
September 6, 2000. The reopened comment period closed October 5, 2000.
    During the initial comment period, 12 sets of comments were 
received. During the reopened comment period, we received 3 sets of 
comments regarding the proposed listing action. Additionally, 4 sets of 
comments were received by BLM regarding its draft conservation 
agreement, assessment, and strategy. We had no requests for a public 
hearing during either comment period. Of the comments we received, 8 
supported, 3 opposed, and 4 were neutral regarding the proposed 
threatened status for Yermo xanthocephalus.
    We updated the final rule to reflect comments and information we 
received during the comment period. We address opposing comments and 
other substantive comments concerning the rule below.
    Issue 1: Yermo xanthocephalus warrants endangered status, not 
threatened status.
    Response: As mentioned above, the population of Yermo 
xanthocephalus has increased from 9,293 individuals in 1995 to 11,967 
individuals in 2001. The future existence of the species is threatened 
by potential oil and gas development and other factors, including its 
extremely limited range. Although we believe the species is likely to 
become endangered in the foreseeable future if the threats to the 
habitat are realized, the population has shown stability since 1995. 
Additionally, the population occurs on Federal land and BLM is 
cooperating with interested parties to conserve the plant. A monitoring 
and research program is being implemented as well. As a result, Y. 
xanthocephalus does not meet the definition of an endangered species 
under the Act because it is not in imminent danger of extinction in the 
foreseeable future. Therefore, listing as threatened is appropriate.
    Issue 2: Listing of Yermo xanthocephalus is not warranted since the 
population has increased from 500 plants in 1990 to an estimated 15,000 
plants in 1998.
    Response: The proposed rule did indicate that the population 
contained an estimated 15,000 plants. The actual population size (based 
upon counting of all plants) was 11,635. The population has fluctuated 
between 9,293 and 13,244 since 1995, with the 2001 population being 
comprised of 11,927 individual plants. However, a meaningful comparison 
of the recent numbers with Dorn's initial estimate is not possible. The 
1990 estimate of 500 plants made by Dorn was based purely on a visual 
estimate of 1 subpopulation within 1 hectare (2.5 acres). Subsequent 
surveys since 1995 by Dick Scott have involved counting all plants in 
all three subpopulations. It is not possible to make trend estimates 
comparing such different survey methods implemented on disparate 
acreages.
    Issue 3: Listing Yermo xanthocephalus will draw attention to its 
location and increase the risk of harm through vandalism or collection. 
Similarly, critical habitat designation is not prudent because it will 
increase these risks.
    Response: 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. 
However, we do not believe the listing of Yermo xanthocephalus 
increases the likelihood of such activities. The general location of Y. 
xanthocephalus is widely known by

[[Page 11444]]

many citizens. At this time we have no specific evidence of taking, 
vandalism, collection or trade of this species. We do not believe 
listing the species will increase this threat. Additionally, in the 
absence of specific evidence, we cannot conclude that designation of 
critical habitat would not be prudent based on increased threat. See 
the Critical Habitat section below for more detailed discussion of this 
issue.
    Issue 4: Livestock use of the area and associated potential adverse 
effects to Yermo xanthocephalus are not characterized correctly.
    Response: We have adjusted our description of livestock use in the 
area to better reflect information provided during the comment period. 
We acknowledge that livestock grazing may not currently be resulting in 
significant adverse effects to the Yermo xanthocephalus population. 
However, we believe a low level of adverse effect is occurring with the 
potential to become more significant in the future.
    Issue 5: The existing data contain significant gaps and the Service 
should complete studies prior to making a listing determination.
    Response: We thoroughly reviewed all scientific data available on 
Yermo xanthocephalus in preparing the proposed rule. We contacted 
experts and reviewed data collected since intensive population 
monitoring began in 1995. We based our opinion on the best scientific 
and commercial data available, as required by section 4(b)(1) of the 
Act. We have reviewed this information and any new information 
available since the date of the proposed rule in making this final 
listing decision.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we requested the expert opinions of three independent 
specialists regarding pertinent scientific or commercial data and 
assumptions relating to supportive biological and ecological 
information in the proposed rule. The purpose of such review is to 
ensure that the listing decision is based on scientifically sound data, 
assumptions, and analyses, including input of appropriate experts and 
specialists. Two of the specialists responded with comments. We have 
incorporated their comments into the final rule, as appropriate, and 
summarized their observations below.
    One reviewer questioned the adequacy of the Act to appropriately 
protect Yermo xanthocephalus without making it more vulnerable to 
collectors and vandals. Additionally, the reviewer believed that 
certain land use changes (such as restriction of cattle and wildlife 
grazing) might be detrimental to the plant.
    The second reviewer believed the evidence supported listing Yermo 
xanthocephalus as either threatened or endangered. The reviewer 
provided information regarding unsuccessful attempts to locate Y. 
xanthocephalus in other suitable habitat and indicated it is unlikely 
other populations of Y. xanthocephalus will be found. This reviewer 
expressed concerns regarding the likelihood that adequate funding and 
commitment will be provided to implement the BLM conservation strategy 
for the species. Additionally, the reviewer indicated a need for 
captive propagation and establishment of new populations as necessary 
conservation measures that should be implemented.

Summary of Factors Affecting the Species

    Section 4 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 
endangered or threatened due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to 
Yermo xanthocephalus (desert yellowhead) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range: The entire known range of Yermo 
xanthocephalus consists of an area of 20 hectares (50 acres) in 
southern Fremont County, Wyoming. Surveys conducted since 1990 have 
failed to find additional populations, although there are a number of 
sites with similar soils, drainage and plant associations in the area. 
Surveys conducted since 1995 by Dr. Ron Hartman in similar potential 
habitat within the North Platte watershed, Washakie basin, Great Divide 
basin, and Green River basin have proved equally unsuccessful in 
locating additional populations (W. Fertig, University of Wyoming, in 
litt., 1999). The plant is easily recognized during its summer 
flowering season, so it seems likely that surveys would have found 
additional populations if they exist. Therefore, the species is 
vulnerable to extinction from even small-scale habitat degradation due 
to its small population size and limited geographic range.
    The known population is threatened by surface disturbances 
associated with recreation, oil and gas development, mineral 
extraction, trampling by livestock, and soil compaction by vehicles 
(Fertig 1995). Recreational off-road vehicle use presents a threat to 
Yermo xanthocephalus through the crushing of plants and compaction or 
erosion of soil. This threat is greatest in the spring and summer when 
plants are in flower or heavy with fruit. No physical barriers prevent 
vehicle use in the immediate area of the Y. xanthocephalus population. 
The known population is several miles from Wyoming State Highway 135 
and other maintained roads. In 1996, Highway 135 had an estimated daily 
traffic of 360 vehicles (Wyoming Department of Transportation 1996). A 
two-track, four-wheel drive trail leading to an abandoned oil well 
bisects the population, and is open to hunters or other recreationists 
using four-wheel drive trucks and other smaller all-terrain vehicles 
(ATVs). The most common activities that attract users to the area are 
hunting, rock collecting, and searching for human artifacts (such as 
arrowheads). The population is a few miles north of the Sweetwater 
Crossing on the Oregon-California Trail, which is a popular tourist 
attraction. There has been no significant surface disturbance caused by 
vehicles during the past 6 years that the site has been under study (R. 
Scott, Central Wyoming College, pers. comm., 2001). However, Scott 
(2000) has noted light vehicular traffic and fresh tire tracks in the 
site. The BLM Resource Management Plan limits vehicle use to existing 
roads (including established two-tracks), but the potential for habitat 
and plant destruction by ATVs remains a threat.
    Oil and gas development also threaten the known population. In 
1997, BLM leased for oil and gas development a 1,160-acre tract 
(designated WYW140702) that encompasses the Yermo xanthocephalus 
population. An adjacent lease (WYW138846) consisting of 2,080 acres was 
purchased by the same operator in May 1996. Both leases are for a 10-
year period, and no specific lease stipulations were included to 
protect the plant. Construction of well pads, access roads, and 
pipelines through occupied habitat would result in direct destruction 
or crushing of plants and soil compaction and erosion. The 1920 Mineral 
Leasing Act promotes maximum recovery of Federal mineral resources. 
However, the 1987 Amendments to the Mineral Leasing Act (30 U.S.C. 
226(g)) require lessees to have an approved operating plan that 
protects surface resources prior to submitting Applications for 
Permission to Drill. The BLM regulations provide that

[[Page 11445]]

species that are candidates for listing under the Act be afforded 
protection.
    The current lessee is aware that the plant exists in the area, and 
has been very cooperative with BLM staff. The current drilling plan 
proposes exploration in locations that should not pose a threat to 
Yermo xanthocephalus, but the current operator is free to sell its 
leases to other companies that could revise the drilling plan. An 
existing two-track road leading to an abandoned oil well currently 
bisects the only population of Y. xanthocephalus. Redrilling of 
abandoned wells in search of producing formations that may have been 
previously overlooked is a common technique used during oil and gas 
exploration. Permits to drill can be conditioned by BLM to provide some 
protection to sensitive species by requiring a proposed drill pad be 
relocated up to 200 meters (656 feet). Candidate, proposed, and listed 
species can be protected by prohibiting surface occupancy in known 
populations.
    Although the current oil and gas exploratory wells pose no threat 
to Yermo xanthocephalus, the discovery of an oil or gas pool on the 
lease areas would precipitate field developments that would introduce 
new threats to the plant and its habitat. In-field development could 
involve up to eight wells per section, depending on the characteristics 
of the producing formations. This intensified drilling activity would 
result in a new network of additional roads and well pads, and more 
human intrusion into what is now a remote area.
    Seismic explorations for oil and gas producing formations also 
present a threat to Yermo xanthocephalus and its habitat through use of 
explosives, direct trampling, and soil compaction. However, these 
activities were carried out in the lease area during the early 1990s, 
so a permit application for further exploration is not likely. In 
addition, seismic explorations on BLM surface now require environmental 
analysis prior to permitting, and BLM will protect occupied Y. 
xanthocephalus habitat from damage if a request for further exploration 
is received (J. Kelly, BLM, pers. comm., 1998).
    The known Yermo xanthocephalus population is located in an area 
managed by BLM's Lander Field Office, and locatable mineral resources, 
such as gold and uranium, are known to exist in that part of Wyoming. 
Private parties can stake a mining claim, explore for, and extract 
locatable minerals in accordance with the 1872 General Mining Law, and 
such activity could jeopardize the known population of Y. 
xanthocephalus. Uranium and zeolites, a locatable mineral with 
properties useful in water softening, manufacturing of catalysts, and 
pollution control, are found in the Beaver Rim area. Zeolites also may 
have marketability for use in processes to remove radioactive products 
from radioactive wastes (Bureau of Land Management 1986). The BLM's 
authority to regulate mineral claims under the 1872 General Mining Law 
is limited, although mining activities in areas with 5 or more acres of 
surface disturbance of unpatented BLM land are required to have an 
approved operating plan under 43 CFR 3809. Although the staking of 
locatable mineral claims on or near the plant's habitat is not likely, 
official withdrawal of the area from locatable mineral claims would 
remove this threat.
    Livestock grazing also may present a threat to Yermo xanthocephalus 
habitat, which is within an existing grazing allotment. Although Fertig 
(1995) indicated livestock appear to use the Y. xanthocephalus habitat 
primarily as a travel corridor between adjacent sagebrush-grassland 
pastures, the area is actually a large pasture and livestock trampling 
of plants occurs only as cattle casually move along ``cow trails'' or 
two-tracks while grazing or moving to water. Scott (2000) noted signs 
of moderate horse traffic adjacent to the site. There are no existing 
barriers to prevent livestock access to the habitat. Fencing of the 
area would protect the plants from this threat, but also would probably 
result in a change in the associated plant community in the habitat. 
This change could result in unanticipated adverse impacts to the 
survival of Y. xanthocephalus.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes: Yermo xanthocephalus is vulnerable to over-
collecting conducted for scientific or educational purposes because of 
its small extant population size and habitat. The leaves of Y. 
xanthocephalus contain a chemical that produces a mild numbing 
sensation in the human mouth when even tiny portions are tasted (R. 
Scott, pers. comm., 1998). This could indicate potential medicinal 
qualities that could prove attractive to pharmaceutical companies, but 
the potential for this to be a threat to the existing population is 
currently unknown.
    C. Disease or predation: Cattle graze in the immediate vicinity of 
occupied Yermo xanthocephalus habitat, but observation on the site 
indicate that the plant is not palatable to grazers. Tracks reveal that 
domestic and wild animals grazing the area spit out Y. xanthocephalus 
leaves and flowers after tasting (R. Scott, pers. comm., 1998). 
Predation of Y. xanthocephalus fruit by insects does occur, and in 1990 
fruit production appeared low because of insect predation. However, it 
is unknown whether or not the extent of current predation differs from 
historical levels. Therefore, the degree of threat that this factor 
poses to the species is unknown.
    D. The inadequacy of existing regulatory mechanisms: The State of 
Wyoming has no endangered species act or other laws to provide 
protection to plant species. The current BLM Lander Resource Management 
Plan (RMP), which covers the known population of Yermo xanthocephalus, 
was approved in 1987, 3 years prior to the species' discovery. 
Therefore, the plan does not specifically mention the species. The RMP 
protects special status plant species in general across the entire 
Resource Area, and provides no-surface-occupancy restrictions for 
threatened and endangered species impacted by oil and gas development. 
As Y. xanthocephalus is not currently listed, and no specific 
stipulations were included with the current oil and gas leases, 
attempts by BLM to restrict activities by imposing conditions during 
the application to drill stage are appealable by the operator. On April 
9, 2001, BLM approved a list of sensitive species occurring on BLM 
properties in Wyoming. The list is intended to heighten awareness of 
the conservation needs of the species and encourage protective measures 
where possible. However, there are no protective measures mandated for 
the species. Additionally, Y. xanthocephalus is not currently on the 
sensitive species list and would have to be officially added.
    E. Other natural or manmade factors affecting its continued 
existence: Species with small population size and restricted 
distribution are vulnerable to extinction by natural processes and 
human disturbance (Levin et al. 1996). Random events causing population 
fluctuations or population extirpations become a serious concern when 
the number of individuals or the geographic distribution of the species 
is very limited. A single human-caused or natural environmental 
disturbance could destroy the entire population of Yermo 
xanthocephalus.
    This species physically occupies an area of 3.37 hectares (8.33 
acres), and while the total number of plants known to exist through 
actual counting of each plant has increased from 9,293 in 1995 to 
11,967 in 2001 (with a high of 13,244 in 2000), this increase may be 
due to higher than normal precipitation during study years (R. Scott, 
Central Wyoming

[[Page 11446]]

College, pers. comm., 2001). The establishment of this species is 
probably episodic and dependent on suitable spring and summer moisture 
conditions (Fertig 1995). Total fruit production appeared low due to 
heavy herbivory by insects and drought-induced abortion in 1990 (Dorn 
1991). Dorn further speculated that in typical years recruitment of 
seedlings is probably extremely low or nil. However, observations since 
then have not supported that reproduction is necessarily low or that 
heavy herbivory by insects causes low reproduction. Drought-induced 
abortion has not been studied (Bureau of Land Management 1998). A 
decrease in population size from 12,099 plants in 1997 to 11,635 plants 
in 1998 may have been due to overall decreased precipitation (R. Scott, 
Central Wyoming College, pers. comm., 2001). A similar decrease in 
population size from 13,244 plants in 2000 to 11,967 in 2001 was noted 
and seems to have coincided with decreased precipitation. Therefore, a 
series of drought years could result in a severe reduction in 
population size and eventual extinction.
    As described by Fertig (1995), the species is characterized by a 
long-lived perennial growth form, adaptation to severe habitats, and 
low annual reproductive output. This low reproductive output makes the 
species increasingly vulnerable to extinction due to chance events as 
population size declines, because it is unlikely that the species will 
exhibit a high rate of population growth, even if environmental 
conditions improve after such an event.
    In addition to the above factors, threats to Yermo xanthocephalus 
are increased when people use the occupied area for recreational 
purposes. For example, erosion or trampling of plants is possible due 
to hikers or off-road vehicle use. The species occurs on barren sites 
with less than 25 percent total vegetative cover, and may be intolerant 
of competition (Fertig 1995). Competition from plants not native to the 
area would pose a greater threat than competition from species with 
which Y. xanthocephalus has evolved. Non-native plants that might 
outcompete Y. xanthocephalus could be introduced to the area if their 
seeds are carried in on the footwear or clothing of recreationists.
    An additional threat that affects Yermo xanthocephalus is that 
posed by its small population size. Populations of plants that remain 
very small for several generations or that have gone through a past 
episode of rapid population decline may lose much of their previous 
genetic variability (Godt et al. 1996). When a population's genetic 
variability falls to low levels, its long-term persistence may be 
jeopardized because its ability to respond to changing environmental 
conditions is reduced. In addition, the potential for inbreeding 
depression increases, which means that fertility rates and survival 
rates of offspring may decrease. Although environmental and demographic 
factors usually supercede genetic factors in threatening species 
viability, inbreeding depression and the low genetic diversity may 
enhance the probability of extinction of rare plant species (Levin et 
al. 1996).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to Yermo xanthocephalus in determining to issue this final rule. Based 
on this evaluation, the preferred action is to list Y. xanthocephalus 
as threatened. Although the population has increased since 1995, the 
future existence of the species is still threatened by potential oil 
and gas in-field development and by its extremely limited habitat and 
population size. While not in immediate danger of extinction, Y. 
xanthocephalus is likely to become an endangered species in the 
foreseeable future if the threats to the habitat are realized and if 
present threats posed by small population size and limited geographic 
range continue to exist. We have determined that threatened status 
would provide adequate protection from the described threats. As the 
species occurs only on Federal surface, a classification as endangered, 
if warranted, would provide no additional level of protection.

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 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary 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 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.
    Critical habitat receives consideration under section 7 of the Act 
with regard to actions carried out, authorized, or funded by a Federal 
agency (see Available Conservation Measures section). As such, 
designation of critical habitat may affect activities on Federal lands 
and may affect activities on non-Federal lands where such a Federal 
nexus exists. Under section 7 of the Act, Federal agencies are required 
to ensure that their actions do not jeopardize the continued existence 
of a species or result in destruction or adverse modification of 
critical habitat. However, both jeopardizing the continued existence of 
a species and adverse modification of critical habitat often have 
similar standards and thus similar thresholds for violation of section 
7 of the Act.
    Critical habitat designation, in some situations, may provide some 
value to the species by identifying areas important for species 
conservation and calling attention to those areas in special need of 
protection. Critical habitat designation of unoccupied habitat also may 
benefit these species by alerting permitting agencies to potential 
sites for reintroduction and allowing them the opportunity to evaluate 
proposals that may affect those areas.
    In the proposed rule, we found that the designation of critical 
habitat for Yermo xanthocephalus was not prudent because the minimal 
benefits of such designation would be far outweighed by the increase of 
threats from over collection or other human activities. We believed 
critical habitat designation would provide no additional benefit to the 
species beyond that conferred under sections 7 and 9 of the Act by 
listing. We indicated protection of Y. xanthocephalus would be most 
effectively addressed through the recovery process under section 4 of 
the Act and the consultation process under section 7 of the Act, and 
the current interagency coordination processes.
    Given the extremely limited range of Yermo xanthocephalus, we 
believed any case of adverse modification of its habitat also would 
constitute jeopardy

[[Page 11447]]

for the taxon. The designation of critical habitat for the purpose of 
informing Federal agencies of the location of occupied Y. 
xanthocephalus habitat was not thought to be necessary because BLM 
currently permits the surveys and monitoring of the only extant 
population. Yermo xanthocephalus is not known to have previously 
existed on any other sites. If future management actions include 
unoccupied habitat, the Service believed any benefit provided by 
designation of such habitat as critical would be conferred more 
effectively and efficiently through the current coordination process.
    In the proposed rule, we indicated vandalism and unauthorized 
collection of Yermo xanthocephalus could be a significant threat to the 
species' survival and recovery, because of the plant's rarity and the 
fact that it is a monotypic genus. Critical habitat designation would 
require publication of the legal description of the 20 hectares (50 
acres) habitat site in the Federal Register, providing information that 
might encourage collectors.
    We received two comments agreeing with our prudency determination 
based upon possible adverse effects from collecting if the location of 
the plant is disclosed. Two commenters also expressed concern that the 
listing alone may draw attention to the plant's location and possibly 
lead to adverse effects from collection or vandalism.
    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 relatively low numbers of individuals, small area covered by 
the population, and the inherent transportability of plants, Yermo 
xanthocephalus is vulnerable to collection and other disturbance. 
However, at this time we have no specific evidence of taking, 
vandalism, collection or trade of this species. This may be due to its 
fairly recent description as a new species to science and its remote 
location. 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 on Federal land, 
the court ruled in Conservation Council of Hawaii v. Babbitt 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. The court also 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. 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. 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 also would be likely to result in jeopardy to the 
species. However, there may be instances where section 7 consultation 
would be triggered only if critical habitat is designated. Examples 
could include designated 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. Additionally, there will be 
educational or informational benefits from designating critical 
habitat.
    Reevaluating our prudency determination under the standards 
mandated by court decisions, we find that designation of critical 
habitat for Yermo xanthocephalus is prudent. However, our budget for 
listing activities is currently insufficient to allow us to immediately 
complete all the listing actions required by the Act. Listing Y. 
xanthocephalus as threatened without designation of critical habitat 
will allow us to concentrate our limited resources on other listing 
actions that must be addressed, while allowing us to invoke the 
protections needed for the conservation of this species without further 
delay. This is consistent with section 4(b)(6)(C)(i) of the Act, which 
states that final listing decisions may be issued without critical 
habitat designations when it is essential that such determinations be 
promptly published. We will prepare a critical habitat designation in 
the future at such time when our available resources and priorities 
allow.

Available Conservation Measures

    Conservation measures provided to a 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, local and private agencies, 
groups, and individuals. The Act provides for possible land 
acquisition, 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 
impacting listed plants are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened, and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer informally with us on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
listed subsequently, 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 such species or 
to destroy or adversely modify its critical habitat. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with us.
    Thus, the Act will require BLM to evaluate potential impacts to 
Yermo xanthocephalus that may result from activities it authorizes or 
permits, such as oil and gas development, grazing, and

[[Page 11448]]

recreational use. No special land management designations or 
conservation agreements currently exist to provide special protection 
for Y. xanthocephalus. Section 43 U.S.C. 1712(c)(3) allows BLM to 
protect tracts as Areas of Critical Environmental Concern (ACEC). 
Designation of the plant's habitat as an ACEC is a long process and 
would not, in itself, afford the species protection, unless a 
management plan for the ACEC identified the protective measures to be 
put in place. The BLM has prepared a draft conservation agreement, 
assessment, and strategy which outlines management, inventory, and 
monitoring actions to be taken to ensure the conservation of this 
species. However, the draft has not been finalized or signed.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.71, 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. Section 
4(d) of the Act allows for the provision of such protection to 
threatened species through regulation. This protection may apply to 
this species in the future if regulations are promulgated. Seeds from 
cultivated specimens of threatened plants are exempt from these 
prohibitions provided that their containers are marked ``Of Cultivated 
Origin.'' Certain exceptions to the prohibitions apply to agents of the 
Service and State conservation agencies.
    The Act and 50 CFR 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
species. For threatened plants, permits also are available for 
botanical or horticultural exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act. We anticipate that 
few trade permits will ever be sought or issued for Yermo 
xanthocephalus because the species is not in cultivation or common in 
the wild. Requests for copies of the regulations regarding listed 
species and inquiries about prohibitions and permits may be addressed 
to U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal 
Center, Denver, Colorado 80225 (telephone (303) 236-7400, facsimile 
(303) 236-0027).
    We adopted a policy on July 1, 1994 (59 FR 34272), to identify to 
the maximum extent practicable at the time a species is listed those 
activities that would or would not constitute a violation of section 9 
of the Act. The intent of this policy is to increase public awareness 
of the effect of the listing on future and ongoing activities within a 
species' range. We believe that based upon the best available 
information, the actions listed below would not result in a violation 
of section 9 of the Act provided these activities are carried out in 
accordance with existing regulation and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, agricultural conversions, range 
management, rodent control, mineral development, road construction, 
human recreation, pesticide application, controlled burns) and 
construction/maintenance of facilities (e.g., fences, power lines, 
pipelines, utility lines) when such activity is conducted according to 
any reasonable and prudent measures given by the Service in a 
consultation conducted under section 7 of the Act; and
    (2) Casual, dispersed human activities on foot (e.g., bird 
watching, sightseeing, photography, and hiking).
    The actions listed below may potentially result in a violation of 
section 9 of the Act; however, possible violations are not limited to 
these actions alone:
    (1) Unauthorized collecting of the species on Federal Lands;
    (2) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits to conduct 
activities are available for purposes of scientific research and 
enhancement of propagation or survival of the species.
    Questions regarding whether specific activities, such as changes in 
land use, will constitute a violation of section 9 should be directed 
to the Wyoming Field Office (see ADDRESSES section).

Required Determinations

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared concerning 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act of 1973, as amended. A notice outlining our reasons for this 
determination was published in the Federal Register on October 25, 1983 
(48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new requests or requirements for 
collection of information, other than those associated with permits, 
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, which is valid through July 31, 2004. 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 threatened species, see 50 CFR 17.32.

References Cited

Bureau of Land Management. 1986. Final Resource Management Plan/ 
Environmental Impact Statement for the Lander Resource Area.
Bureau of Land Management. 1998. Draft Y. xanthocephalus (Desert 
Yellowhead) Conservation Agreement, Assessment and Strategy. 17 pp.
Dorn, R.D. 1991. Y. xanthocephalus (Asteraceae: Senecioneae): A New 
genus and Species from Wyoming. Madrono 38(3):198-201.
Fertig, W. 1994. Demographic monitoring Data: Y. xanthocephalus (Desert 
yellowhead). Wyoming Natural Diversity Database Report. University of 
Wyoming. Laramie, Wyoming.
Fertig, W. 1995. Status Report on Y. xanthocephalus in central Wyoming. 
Wyoming Natural Diversity Database Report to the BLM, Wyoming State 
Office and Rawlins District. 46 pp.
Godt, M.J.W., B.R. Johnson, and J.L. Hamrick. 1996. Genetic diversity 
and population size in four rare southern Appalachian plant species. 
Conservation Biology 10:796-805.
Levin, D.A., J. Francisco-Ortega, and R.K. Jansen. 1996. Hybridization 
and the extinction of rare plant species. Conservation Biology 10:10-
16.
Love, J.D. 1961. Geological Survey Bulletin 112: Split Rock Formation 
(Miocene) and moonstone Formation (Pliocene) in central Wyoming. 
Contributions to General Geology. 1-I.

[[Page 11449]]

United States Government Printing Office, Washington, D.C.
Scott, R.W. 2000. Field Studies on Y. xanthocephalus Dorn: BLM 
Cooperative Agreement No. KAA000003, Final Report. Department of 
Biology, Central Wyoming College. 13 pp.
Van Houten, F.B. 1964. Tertiary Geology of the Beaver Rim Area Fremont 
and Natrona counties, Wyoming: Geological Survey Bulletin 1164. United 
States Government Printing Office, Washington, D.C.
Wyoming Department of Transportation. 1996. Vehicle Miles. Wyoming 
Department of Transportation, Cheyenne, Wyoming.
Author
    The primary author of this proposed rule is Mary Jennings of the 
Wyoming Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, 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              Status        When listed    Critical     Special
            Scientific name                    Common name                                                                        habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Yermo xanthocephalus..................  Desert yellowhead........  U.S.A. (WY)..............  T                            723           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: March 8, 2002.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 02-6134 Filed 3-13-02; 8:45 am]
BILLING CODE 4310-55-P