Endangered and Threatened Wildlife and Plants; Reclassification of Mirabilis Macfarlanei (MacFarlane's Four-O'clock) From Endangered to Threatened Status

[[Page 10693]]

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB97

Endangered and Threatened Wildlife and Plants; Reclassification

of Mirabilis Macfarlanei (MacFarlane's Four-O'clock) From Endangered to

Threatened Status

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) makes a final

determination to reclassify the plant Mirabilis macfarlanei

(MacFarlane's four-o'clock) to threatened status. The species was

listed as an endangered species in 1979. This action is due to

improvement in the status of the species and the discovery of

additional populations. Mirabilis macfarlanei now occurs in three

geographically isolated units occupying approximately 163 acres in

Idaho and Oregon. The Snake River unit has approximately 4,752 plants

occupying about 25 acres. The Salmon River unit has approximately 1,660

plants occupying 68 acres. The recently discovered Imnaha River unit

has approximately 800 plants on 70 acres. In addition, the species

meets the minimum goals for reclassification identified in the

Mirabilis macfarlanei Recovery Plan approved in 1985. The determination

made under the Endangered Species Act of 1973 (Act), as amended, is

based on a review of all information currently available for the

species. The change in classification reflects an improvement in the

species' status. Reclassification will not significantly alter the

protection afforded this species under the Act.

EFFECTIVE DATE: April 15, 1996.

ADDRESSES: The complete file for this rule is available for public

inspection, by appointment, during normal business hours at the U.S.

Fish and Wildlife Service, 4696 Overland Road, Room 576, Boise, Idaho

83705.

FOR FURTHER INFORMATION CONTACT: Dr. Robert L. Parenti, Botanist, at

the above Boise address (208) 334-1931.

SUPPLEMENTARY INFORMATION:

Background

Mirabilis macfarlanei is a member of the four-o'clock family

(Nyctaginaceae). It is a perennial plant with a stout, deep-seated

taproot. The stems are freely branched, swollen at the nodes so that

the plant forms hemispherical clumps 6 to 12 decimeters (24 to 47

inches (in.)) in diameter. The leaves are opposite, somewhat succulent,

green above and glaucescent (with a whitish or bluish cast) below.

Lower leaves are orbicular or ovate-deltoid in shape and become

progressively smaller toward the top of the stem. The inflorescence is

a four- to seven-flowered cluster subtended by an involucre. The

flowers are striking due to their large size, up to 25 millimeters (mm)

(1 in.) long and 25 mm (1 in.) wide, and showy magenta color. They are

funnel-form in shape with a widely expanding limb. The flower is five-

merous, with five stamens (male reproductive structures) generally

exerted. Flowering is from early May to early June, with mid-May

usually being the peak flowering period. Mirabilis macfarlanei is most

closely related to M. greenei Wats. of the Klamath (Siskiyou) region of

California and Oregon (Constance and Rollins 1936).

Mirabilis macfarlanei was named for Ed MacFarlane, a boatman on the

Snake River, who pointed out the plant along the Oregon side of the

Snake River to Rollins and Constance in 1936. These botanists described

the species later that year (Constance and Rollins 1936). Records

indicate MacFarlane's four-o'clock was collected along the Snake River

(Hells Canyon area) in 1939. In 1947, a second population was

discovered near the confluence of Skookumchuck Creek and the Salmon

River in Idaho by R.J. Davis. The Salmon River plants are

geographically isolated from the Snake River plants. Futile searches

for M. macfarlanei from 1947 to the mid-1970's led botanists to

consider that the species was possibly extinct. In May 1977, two plants

were found within the Snake River unit along the Snake River near

Cottonwood Landing on the Oregon side of the river. Within the Salmon

River unit, 25 plants were rediscovered in 1979 on 10 acres of Bureau

of Land Management (Bureau) land (Heidel 1979) at Skookumchuck and 700

plants were discovered in 1980 on 45 acres of Bureau land in the Long

Gulch area above the Salmon River, Idaho County, Idaho.

Since 1983, 6,485 additional plants have been located on

approximately 108 acres, bringing the total number to 7,212 plants

inhabiting approximately 163 acres in three disjunct areas. The Snake

River unit has about 4,752 plants occupying about 25 acres of habitat

that occurs along 6 miles of Hells Canyon on the banks and canyonland

slopes above the Snake River, Idaho County, Idaho and Wallowa County,

Oregon. Known localities within the Snake River unit include Cottonwood

Landing, Island Gulch, Kurry Creek, Kurry Creek-West Creek divide, Mine

Gulch, Tyron Bar, and West Creek. The Salmon River unit has about 1,660

plants occupying approximately 68 acres along 18 miles of banks and

canyonland slopes above the Salmon River, Idaho County, Idaho. Known

localities within the Salmon River unit include Coddy Draw, Henry's

Gulch, John Day Creek, Long Gulch, Lucas Draw, Lucile Caves,

Skookumchuck Creek, and Slicker Bar. The third unit, the Imnaha, was

discovered in 1983 and has approximately 800 plants on 70 acres of

habitat along 3 miles of canyonland slopes above the Imnaha River,

Wallowa County, Oregon. Within the Imnaha unit, only two localities,

Fence Creek and Buck Creek, have been documented. The plants generally

occur on talus slopes within canyonland corridors above the three

rivers.

Within the Snake River unit, all of the plants occur on Nez Perce

and Wallowa/Whitman National Forests lands. A majority of the plants

along the Snake River are within the Hells Canyon National Recreation

Area. Within the Salmon River unit, 935 plants (56 percent) inhabit 13

acres of private lands with the remaining plants and 55 acres of

habitat managed by the Bureau (Coeur d'Alene District). Within the

Imnaha unit, approximately 300 plants (37 percent) are located on 10

acres of private lands. The remaining 500 plants occur on 60 acres of

Wallowa/Whitman National Forest lands above Fence Creek, Wallowa

County, Oregon.

No other species of Mirabilis occurs in Hells Canyon and no member

of the regional flora resembles MacFarlane's four-o'clock. This large

plant is easily recognized by its large, green, succulent leaves that

are oppositely arranged on the stem. The cluster of large, magenta

flowers is unlike anything else in the flora of the northwest (Moseley,

Idaho Department of Fish and Game, pers. comm. 1992). The generic name,

Mirabilis, in Latin means wondrous.

Mirabilis taxa in the United States are mainly restricted to the

southwest. It is unusual for Mirabilis macfarlanei to exist as far

north as west-central Idaho and northeast Oregon. It is conjectured

that the genus expanded northward during a period of warmer climate. As

regional climates cooled, the species or its predecessor was, in

essence, ``trapped'' (Stebbins 1979). The Salmon River and Snake River

canyonland areas in northeastern Oregon and west-central Idaho provide

some of the longest growing seasons and mildest winter conditions of

the intermountainous region east of the Oregon Cascades. Mirabilis

macfarlanei is found on talus slopes in canyonland corridors where

[[Page 10694]]

the climate is regionally warm and dry with precipitation occurring

mostly in a winter-to-spring period. If M. macfarlanei originated in

northern areas during a warmer period and its path of retreat with

cooling climate was cut off by less favorable conditions, the warmer

climate (such as near Riggins, Idaho, in the Salmon River Canyon) would

explain the restricted distribution of the species.

Mirabilis macfarlanei generally occurs as scattered plants on open,

steep (50 percent) slopes of sandy soils, generally having west to

southeast aspects. However, during the 1984 season, a locality was

discovered having an east aspect. Talus rock underlies the soil in

which the plants are rooted. There are a variety of soils that support

this plant throughout its range. Sandy soils support some of the Long

Gulch populations of M. macfarlanei and are quite susceptible to

displacement by wind and water erosion.

The plant community is in a transition zone between Agropyron

spicatum-Poa sandbergii and Rhus glabra-Agropyron spicatum, consisting

of Agropyron spicatum (bluebunch wheatgrass), Bromus tectorum

(cheatgrass), Sporobolus cryptandrus (sand dropseed), Phacelia

heterophylla (scorpion weed), Lomatium dissectum (desert parsley),

Celtis reticulata (hackberry), Rhus glabra (smooth sumac), Achillea

millefolium (yarrow), and Chrysothamnus nauseosus (rabbit bush)

(Daubenmire 1970, Franklin and Dyrness 1973). Near Long Gulch, Idaho,

an Agropyron spicatum-Poa sandbergii community existed. The latter

species have, however, been replaced by the alien Bromus tectorum

(Johnson 1984).

From 1936 to 1979, Mirabilis macfarlanei was known only from two

localities with approximately 27 individual plants. Subsequently, M.

macfarlanei was added to the Federal List of Endangered and Threatened

Plants on October 26, 1979 (44 FR 61912), as an endangered species.

At the time Mirabilis macfarlanei was listed as endangered,

estimates of population size (number of plants) were based upon sparse

data. Prior to listing, several professional and amateur botanists

actively searched for the plant in several canyonlands in Idaho and

Oregon without success. Many botanists believed that the plant was

extremely rare and perhaps extirpated from likely habitat in Idaho and

Oregon.

The 1985 Mirabilis macfarlanei Recovery Plan includes the following

primary sub-objective for delisting the species:

Mirabilis macfarlanei may be considered recovered when a total

of 10 colonies (5 colonies, or any combination of 10, in each of 2

geographically distinct and isolated populations) are protected and

managed to assure their continued existence * * *

Specific criteria for reclassifying from endangered to threatened:

Mirabilis macfarlanei may be considered for reclassification to

threatened when four of the colonies in each population meet the

above criteria. The objectives will be reevaluated should new

colonies be discovered.

Recovery objectives have been reevaluated based on additional

information developed since 1985. For example, extant colonies (defined

as localities currently occupied by plants) that are being protected

and managed meet the criteria for reclassification from endangered to

threatened. An updated Recovery Plan will be prepared reflecting data

obtained since the plant was listed in 1979.

Previous Federal Action

Federal action on this plant taxon began as a result of section 12

of the Act, which directed the Secretary of the Smithsonian Institution

to prepare a report on plants considered to be endangered, threatened,

or extinct in the United States. This report, designated as House

Document No. 94-51, was presented to Congress on January 9, 1975. In

that document Mirabilis macfarlanei was considered to be endangered.

On July 1, 1975, the Service published a notice in the Federal

Register (40 FR 27823) of its acceptance of this report as a petition

within the context of section 4(c)(2) (now section 4(b)(3)) of the Act,

and its intention to review the status of the plant taxa named therein.

As a result of that review, on June 16, 1976, the Service published a

proposed rule in the Federal Register (41 FR 24523) to determine

endangered status pursuant to section 4 of the Act for approximately

1,700 vascular plant taxa including Mirabilis macfarlanei. The list of

1,700 species was assembled on the basis of comments and data received

by the Smithsonian Institution and the Service in response to House

Document No. 94-51 and the July 1, 1975, Federal Register publication.

General comments received in relation to the 1976 proposal are

summarized in an April 26, 1978, Federal Register publication (43 FR

17909). On October 26, 1979, the Service published a final rule listing

M. macfarlanei as an endangered species (44 FR 61912). A recovery plan

was developed and approved for M. macfarlanei on March 27, 1985.

Summary of Comments and Recommendations

In the August 26, 1993, proposed rule to reclassify the species

from endangered to threatened (58 FR 45085) and associated

notifications, all interested parties were requested to submit factual

reports or information that might contribute to the development of a

final decision. Appropriate State agencies, county governments, city

governments, Federal agencies, scientific organizations, and other

interested parties were contacted and requested to comment. Newspaper

notices inviting public comments were published in the Idaho Statesman

on October 11, 1993, and in the Portland Oregonian and the Lewiston

Tribune on October 12, 1993.

One written comment was received during the 60-day comment period

following publication of the proposed rule. The comment was submitted

by the U.S. Forest Service. They were in favor of the reclassification

of the species to threatened status and provided information considered

in developing this rule.

Summary of Factors Affecting the Species

After a through review and consideration of all information

available, the Service has determined that Mirabilis macfarlanei should

be reclassified from an endangered to a threatened species. Section 4

of the Endangered Species Act (16 U.S.C. 1533) and regulations (50 CFR

part 424) promulgated to implement the listing provisions of the Act

set forth the procedures for reclassifying species on the Federal

lists. A species may be listed or reclassified as endangered or

threatened species due to one or more of the five factors described in

section 4(a)(1). These factors and their application to Mirabilis

macfarlanei Const. and Roll. (MacFarlane's four-o'clock) are as

follows:

A. The Present or Threatened Destruction, Modification, or

Curtailment of Its Habitat or Range. During a 1991 plant survey,

threats identified in the Hells Canyon National Recreation Area portion

of the Snake River unit included resumed prospecting or mining near the

``Mine Gulch'' population of Mirabilis macfarlanei. Habitat destruction

due to vehicular travel along with surface disturbance associated with

mining could contribute to degradation of M. macfarlanei habitat. For

example, the widening of Road No. 493 in the vicinity of the Kurry

Creek population

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has caused surface disturbance with talus material falling on plants.

Livestock damage was also observed during the 1991 survey, but

appeared to minimally impact the species. There was increased weedy

invasion in many areas because of previous grazing activity (Mancuso

and Moseley 1991). At the present time, all of the populations of

Mirabilis macfarlanei within the Snake River unit are on habitat

managed by the U.S. Forest Service and are directly or indirectly

protected through the section 7 consultation process.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. Increased collecting pressure is a foreseeable

problem if the sites become known. The collection of plant material

could easily cause extirpation from many of the localities, especially

those with small numbers of plants. Other species of Mirabilis are

cultivated and prized as garden ornamentals. Mirabilis macfarlanei is

an attractive plant with a very showy magenta flower. For example,

Hitchcock et al. (1973) recommended that the ``rather attractive''

plants are worth a try in the wild garden. Statements such as this

could invoke actions that place the species in further jeopardy. The

Cottonwood Landing population occurs adjacent to a hiking trail along

the Snake River in Hells Canyon. Although the population is still

unprotected from casual collecting, there has been no apparent decline

of the species at this location. Because Hells Canyon is designated as

a National Recreation Area, there is a potential for increased

recreational use of the river trail and potential collecting.

C. Disease or Predation. Mule deer prefer forbs and some

utilization of Mirabilis macfarlanei has been observed (Johnson 1984).

In the West-Kurry Divide 3 location, some feeding has apparently been

done by deer and rabbits, but the plant population is not particularly

threatened by this use (Mancuso and Moseley 1991).

Studies were conducted by the Bureau between 1981 and 1983 to

determine the effect of domestic grazing on Mirabilis macfarlanei in

the Long Gulch and John Day sites of Idaho (Johnson 1984). The study

included both ``cattle grazing'' and ``no cattle grazing'' treatments.

The no cattle grazing treatment utilized a 45-acre exclosure at Long

Gulch. The grazing treatment was on Bureau land between Long Gulch and

John Day Creek. Both of these areas were historically used for fall and

spring range by sheep and cattle, with the primary grazing period

during spring from late March to early June. This coincides with the

peak flowering time for M. macfarlanei from mid-May to early June.

Bureau studies indicate that M. macfarlanei can be adversely affected

by high grazing pressure and concentrations of livestock (Johnson

1984). However, moderate to light grazing has caused no detrimental

impact to the plant (Johnson, pers. comm. 1992). Tueller and Tower

(1979) observed that exclosure sites previously subjected to heavy

livestock grazing and now provided protection produce high yields of

native forbs and grasses.

During the period of human settlement, much of the Salmon River

area was heavily grazed by domestic livestock, with a decline in

overall range condition and climax vegetation. Within the Salmon River

evolutionary unit, grazing is no longer a threat to populations of

Mirabilis macfarlanei. The Bureau has reduced grazing on Bureau lands

to a point where the plant species is not adversely affected. In the

John Day locale, one private landowner has reduced grazing in a

cooperative effort to protect M. macfarlanei plants and habitat (Riley,

Bureau of Land Management, pers. comm. 1992).

In the Snake River evolutionary unit, the Forest Service has two

grazing allotments in the vicinity where Mirabilis macfarlanei plants

are found. However, one allotment in the Tyron Bar area has not been

grazed for 12 years. The Hells Canyon National Recreation Area is

currently soliciting scoping comments on a proposal to stock portions

of the allotment. The proposal will exclude that habitat in the

vicinity of the Tyron Bar M. macfarlanei populations. In the second

allotment, the area in the vicinity of the West-Kurry Divide 1, 2, and

3, M. macfarlanei populations are not suitable for grazing due to the

lack of water. The Forest Service has also initiated a policy that

requires removing domestic livestock from M. macfarlanei sites before

the plant starts to grow in April (Stein, pers. comm. 1992). Currently,

general range improvement has taken place in the canyonlands in the

Snake River evolutionary unit where M. macfarlanei occurs, due

primarily to improved livestock grazing management.

As described in the 1979 final rule that listed Mirabilis

macfarlanei as an endangered species, at least two species of fungi had

been observed on the vegetative parts of the plants in Idaho. Current

information neither mentions nor references fungi species affecting

plant parts. The fungus identified as a threat in the 1979 listing has

not since been reported.

Insect depredation has also been shown to be detrimental to

Mirabilis macfarlanei. A lepidopteran (Lithariapteryx spp.) has been

discovered feeding on the buds and leaves of M. macfarlanei (Baker

1983). Examination of some of the nearly opened flowers revealed

ovaries, as well as other floral and vegetative parts, eaten away. In

addition, a second group of depredating insects, including at least two

species of spittle bugs, was so abundant on certain plants as to cause

the complete dieback of all emergent plant parts (Baker 1983). In many

cases, there was significant plant stunting where sizeable numbers of

spittle bugs were observed (Baker 1983, 1984). However, these effects

have not been observed at all sites.

D. The inadequacy of existing regulatory mechanisms. Habitat

Management Plans (HMP's) have been developed and implemented for

Mirabilis macfarlanei for three populations on Bureau lands in the

Salmon River unit to provide protection and quality habitat for the

species. The three HMP's are for the Long Gulch, Skookumchuck, and

Lucile Caves areas in Idaho County, Idaho, along the Salmon River. The

Long Gulch HMP area, which includes 45 acres, was fenced in 1981 to

exclude cattle grazing. Monitoring studies that began in 1983 used the

fenced area to evaluate and compare an ungrazed area with nearby grazed

lands. The Skookumchuck HMP, which includes 28 acres located between

Highway 95 and the old highway, was developed primarily as a protection

mechanism against herbicide use in the immediate area. In addition,

seasonal monitoring of M. macfarlanei is conducted within the

Skookumchuck HMP to determine the trends of the small population. The

Lucile Caves HMP was developed to monitor the success of transplanting

plants in the area and for use as a research area. Monitoring of the

Lucile Caves transplant project indicates that the transplanted

population has remained static.

Under the Oregon Endangered Species Act (ORS 564.100-564.135) and

pursuant regulations (OAR 603, Division 73), the Oregon Department of

Agriculture has listed Mirabilis macfarlanei as endangered (OAR 603-73-

070). The Oregon statute contains prohibitions against the ``take'' of

State-listed plants, but there are exceptions and significant

enforcement difficulties. Some private landowners in Idaho and Oregon

have cooperated with the Bureau and the Forest Service to assist in the

conservation of M. macfarlanei.

Currently, Idaho has not passed legislation to protect endangered

or

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threatened plants or developed an official State list of such plants.

E. Other natural or manmade factors affecting its continued

existence. In Bureau studies conducted between 1981 and 1983, no

Mirabilis macfarlanei plants were noted on moderately sloped areas

(less than 20 percent) that were historically used by livestock for

loafing and concentration areas (Johnson 1984). Cattle trampling damage

to plants was observed in the grazed area, but appeared limited. The

presence of livestock trampling the ground and causing soil erosion is

also a potential hazard. However, minimal erosion was noticed in the

Hells Canyon population locales, even though there was some grazing

(Mancuso and Moseley 1991).

Within the Snake River unit, most of the natural communities in the

Pittsburg portion of Hells Canyon have been degraded by the invasion of

alien weedy plant species, many of them annuals. Most of this

degradation has been aggravated by many years of intensive domestic

grazing pressures (Mancuso and Moseley 1991). Undesirable plants,

especially Bromus tectorum, have increased as a result of grazing

(Johnson 1984). Because of alien species invasion, the germination,

growth, and development of native plants are often impeded. Continued

invasion by weedy alien species has been an ongoing problem for

Mirabilis macfarlanei and many other native plant species. As a result,

the inhibition of M. macfarlanei growth and development has been noted

(Baker 1983).

The Service initiated a study to determine the allelopathic

(interference) effects of Bromus tectorum on Mirabilis jalapa (Peruvian

four-o'clock). Preliminary studies indicate that B. tectorum inhibits

the germination, growth, and development of M. jalapa plants. Other

selected plants used in laboratory studies showed inhibition similar to

M. jalapa (Owen 1984). Field studies indicate M. macfarlanei is

adversely affected when growing with dense stands of B. tectorum (Baker

1983; Johnson, pers. comm. 1992). This is especially true during the

earlier stages of growth.

To date, low seed viability for Mirabilis macfarlanei has been

reported; therefore, viable sexual propagation may be very low (Johnson

1984). Low seed viability reduces genetic variability within the

species. Primary reproduction of M. macfarlanei is rhizomatous and

plants are long-lived. Because M. macfarlanei plant populations appear

to be static after 12 years of data collection, ``natural'' increases

are probably very slow or non-existent.

Past indiscriminate herbicide spraying has had adverse effects on

the small number of Mirabilis macfarlanei plants located within the

Salmon River unit downslope from Highway 95. In addition, using

insecticides for insect control is detrimental to many of the known

pollinators of this species, including several genera of bees. Species

of the Bombus genus are apparently the most effective pollinators.

Remaining localities of Mirabilis macfarlanei with small numbers of

plants are subject to elimination from stochastic events. Species that

are reduced to very small numbers may also be subject to the additional

threat of poor genetic viability. Small numbers may reduce the ability

of M. macfarlanei to adapt to environmental changes or events that may

cause their extirpation. However, the smaller populations reported at

several localities in recent surveys have been characterized as

vigorous to extremely vigorous.

In summary, this species has been the focus of a 12-year recovery

program, and has benefitted from management and research

accomplishments. The amount of occupied habitat that has been located

in Idaho and Oregon since listing represents a three-fold increase due

to new discoveries. In addition, the number of known individuals has

increased two hundred sixty-fold from 27 plants, when listed, to

approximately 7,212 plants by 1991.

In 1990 and 1991, permanent plots for monitoring population trends

of Mirabilis macfarlanei were established at Tyron Bar above the Snake

River in Oregon, at Fence Creek on the Imnaha River in Oregon, and West

Creek on the Snake River in Idaho. A population model to determine

population viability will be developed (Kaye et al. 1990). Specific

parameters monitored in Idaho and Oregon include: (1) numbers at each

census plot, (2) cover, (3) average height, (4) flowering plants, (5)

phenology, (6) climatic data, (7) deer-, elk-, and cattle-use days, and

(8) other vegetation trend data. Permanent photo trend plots, belt

transects, and permanent plots have also been established.

Further recovery efforts for Mirabilis macfarlanei will depend on

cooperation with private landowners. The Service is exploring

opportunities for land exchanges to acquire private lands for public

ownership to further protect the species.

The discovery of additional localities on public lands, better

grazing management, and the static condition of existing populations in

both the Salmon River and the Snake River evolutionary units have

reduced the degree of threat to this species. The Service is encouraged

by the discovery of the third Mirabilis macfarlanei unit, with the

possibility of more locales being found within each of these

evolutionary units. The commitment by the Forest Service to monitor and

evaluate M. macfarlanei population trends on their lands has benefited

the species. The Forest Service has revised livestock grazing practices

at locations within the Snake River unit containing M. macfarlanei, so

that the plants can germinate and develop. Continued monitoring,

research, and revised grazing management activities by the Bureau at

locations containing M. macfarlanei in the Salmon River evolutionary

unit has also provided the Service with valuable information on M.

macfarlanei. The cooperation between the land management agencies and

private landowners has also added to the effort to conserve M.

macfarlanei plants and habitat.

In reviewing the progress toward recovery that this species has

made since listing, the Service concludes that Mirabilis macfarlanei is

no longer in danger of extinction throughout all or a significant

portion of its range. However, due to a lack of plant recruitment in

some areas, insect predation, alien plant invaders, and several small

populations, the Service finds that delisting this species is not

warranted at this time. In light of the foregoing threats, M.

macfarlanei may still be likely to become endangered in the foreseeable

future without further site protection and improved recruitment.

The Service has carefully assessed the best scientific and

commercial information available regarding past, present, and future

threats faced by the species in finalizing this rule. Based on this

evaluation, this rule reclassifies Mirabilis macfarlanei from

endangered to threatened status. Critical habitat is not being

designated for reasons discussed in the ``Critical Habitat'' section of

this rule.

Critical Habitat

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

a species is listed. The Service finds that designation of critical

habitat is not prudent for Mirabilis macfarlanei at this time. Service

regulations (50 CFR 424.12(a)(1) state that designation of critical

habitat is not prudent when one or both of the following situations

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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.

As discussed under Factor B above, Mirabilis macfarlanei is

vulnerable to taking and vandalism. Landowners have been alerted to the

presence of the plant without the publication of precise maps and

descriptions of critical habitat in the Federal Register, as required

in a proposal for critical habitat. The publication of such precise

maps and descriptions would increase the vulnerability of these plants

to take or vandalism and, therefore, could contribute to their decline.

As noted previously, M. macfarlanei is an attractive plant with

beautiful magenta flowers. Protection of the species' habitat will

continue to be addressed through the recovery process and through the

section 7 consultation process. Therefore, the Service finds that

designation of critical habitat for M. macfarlanei is not prudent at

this time because such designation would increase the species'

vulnerability to vandalism and collecting and because it is unlikely to

aid in the conservation of the species.

Effects of the Rule

This rule changes the status of Mirabilis macfarlanei from

endangered to threatened and formally recognizes that this species is

no longer in imminent danger of extinction throughout a significant

portion of its range. Reclassification to threatened does not

significantly alter the protection afforded this species under the Act.

Section 7(a) of the Act requires Federal agencies to evaluate their

actions with respect to any listed species. The consultation and other

requirements of section 7 apply equally to endangered and threatened

species. Most populations of Mirabilis macfarlanei occur on Forest

Service or Bureau lands. These agencies have been involved in recovery

and section 7 consultation activities for this species since it was

listed as endangered in 1979 and are likely to remain involved.

Recovery activities are not expected to diminish since the primary

objective of the recovery strategy is delisting of the species. The

recovery plan will be revised to reflect information acquired since the

original plan was approved in 1985.

Certain prohibitions that apply to endangered plants do not apply

to plants listed as threatened. The removal and reduction to possession

of Mirabilis macfarlanei from areas under Federal jurisdiction

continues to be prohibited under section 9 of the Act and 50 CFR 17.71.

However, the malicious damage or destruction of endangered plants on

areas under Federal jurisdiction, and the removal, cutting, digging up

or damage or destruction of endangered species on any other area in

knowing violation of any State law or regulation or in the course of

any violation of a State criminal trespass law will no longer

constitute a violation of section 9. Take of M. macfarlanei will

continue to be prohibited pursuant to the State of Oregon's Endangered

Species Act. The import, export, and interstate and foreign commerce

prohibitions of section 9 continue to apply to M. macfarlanei.

Pursuant to section 10 of the Act and 50 CFR 17.72, permits may be

issued to carry out otherwise prohibited activities involving

threatened plants. Such permits are available for scientific purposes

and to enhance the propagation or survival of endangered and threatened

species. For threatened plants, permits also are available for

botanical or horticultural exhibition, educational purposes, or special

purposes consistent with the purposes and policy of the Act. Requests

for copies of the regulations regarding listed species and inquiries

about prohibitions and permits may be addressed to the U.S. Fish and

Wildlife Service, Ecological Services, Endangered Species Permits, 911

NE. 11th Avenue, Portland, Oregon 97232-4181 (503/231-2063; FAX 503/

231-6243).

This reclassification is not an irreversible commitment on the part

of the Service. Reclassifying Mirabilis macfarlanei to endangered would

be possible should changes occur in management, habitat, or other

factors that alter the present threats to the species' survival and

recovery.

National Environmental Policy Act

The Fish and Wildlife Service has 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 in connection with regulations adopted pursuant to section

4(a) of the Endangered Species Act of 1973, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited herein is available upon

request from the Boise Field Office (See ADDRESSES above).

Author: The primary author of this final rule is Dr. Andrew F.

Robinson Jr., U.S. Fish and Wildlife Service, 2600 SE 98th Avenue,

Suite 100, Portland, Oregon 97266 (503/231-6179).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended 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.

Sec. 17.12 [Amended]

2. Section 17.12(h) is amended by revising the entry in the

``Status'' column for Mirabilis macfarlanei under ``FLOWERING PLANTS''

to ``T'' instead of ``E'', and the entry in the ``When listed'' column

to read ``66,581''.

Dated: November 9, 1995.

Mollie H. Beattie,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 96-6213 Filed 3-14-96; 8:45 am]

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