Endangered and Threatened Wildlife and Plants; Final Rule to List Astragalus desereticus (Deseret milk-vetch) as Threatened

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE57

Endangered and Threatened Wildlife and Plants; Final Rule to List

Astragalus desereticus (Deseret milk-vetch) as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine

the plant species, Astragalus desereticus (Deseret milk-vetch), to be a

threatened species under the authority of the Endangered Species Act of

1973, as amended (Act). Astragalus desereticus, considered extinct

until its rediscovery in 1981, exists in one small population in Utah

County, Utah. Threats to the plant include residential development,

highway widening, livestock grazing and trampling, and other impacts to

its limited habitat. This plant receives no protection under State or

local laws or regulations. This rule implements Federal protection

provided by the Act for this plant.

EFFECTIVE DATE: November 19, 1999.

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

inspection, by appointment, during normal business hours at the Utah

Ecological Services Field Office, U.S. Fish and Wildlife Service,

Lincoln Plaza Suite 404, 145 East 1300 South, Salt Lake City, Utah

84115.

FOR FURTHER INFORMATION CONTACT: John L. England at the above address

(telephone: 801/524-5001).

SUPPLEMENTARY INFORMATION:

Background

Marcus E. Jones collected a distinctive Astragalus from ``below

Indianola,'' a town in Sanpete County, Utah, on June 2, 1893. This same

plant was again collected by Ivar Tidestrom from ``near Indianola'' on

June 17, 1909. Specimens from these two collections laid in obscurity

in various herbaria until Rupert Barneby recognized their uniqueness

and described them as Astragalus desereticus (Barneby 1964). Efforts to

relocate the species'

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population were initially fruitless (Barneby 1964, Welsh 1978a, 1978c)

leading to a presumption of extinction (Ripley 1975, Welsh 1975,

1978b). However, on May 27, 1981, Elizabeth Neese discovered a

population of A. desereticus on a sandstone outcrop above the town of

Birdseye, Utah County, Utah, less than 6.2 kilometers (km) (10 miles

(mi)) from Indianola (Welsh and Chatterley 1985). This population

remains the only known occurrence of the species (Franklin 1990, 1991,

Service 1991). It is possible that this population is the one from

which Jones and/or Tidestrom made their collections more than 70 years

earlier (Franklin 1990, 1991, Welsh and Chatterley 1985).

Astragalus desereticus is a perennial, herbaceous, sub-acaulescent

(almost stemless) plant in the bean family (Fabaceae). Individual

plants are approximately 4-15 centimeters (cm) (2-6 inches (in)) in

height, and arise from a caudex (the persistent base of an otherwise

annual herbaceous stem). Stems are about 6 cm (2 in) tall. The

pinnately compound leaves (feather-like arrangement with leaflets

displayed on a central stalk) are 4-11 cm (2-4 in) long with 11-17

leaflets. The leaflets are elliptic to ovate in shape, with a dense

silvery gray pubescence (short hairs) on both sides. The species'

flowers are of the characteristic papilionaceous form common to the

bean family, 1.8-2.2 cm (0.7-0.9 in) long, white in color with a purple

tip on the keel, and borne on a stalk of 5-10 flowers. The seed pods

are 1 to 2 cm (0.4-0.8 in) long, densely covered with lustrous hairs,

and bear 14-16 ovules (a minute rudimentary structure from which a

plant seed develops after fertilization). Detailed descriptions of A.

desereticus can be found in Barneby (1964, Barneby in Cronquist et al.

1989), and in Welsh (1978c, Welsh et al. 1987, 1993).

The only known population of Astragalus desereticus occurs

primarily on steep south- and west-facing slopes. The plant grows on

soils derived from a specific and unusual portion of the geologic

Moroni Formation. This geologic feature is characterized by coarse,

crudely bedded conglomerate (Franklin 1990). The plant community in

which A. desereticus occurs is dominated by pinon pine (Pinus edulis)

and Utah juniper (Juniperus osteosperma). Other associated plant

species include: sagebrush (Artemisia tridentata), scrub oak (Quercus

gambelii), wild buckwheat (Eriogonum brevicaule), Indian ricegrass

(Stipa hymenoides), needle and thread grass (Stipa comata), bitter

brush (Purshia tridentata), and plateau beardtongue (Penstemon

scariosus) (Franklin 1990).

The sole population of Astragalus desereticus consists of between

5,000 and 10,000 individuals that grow on an area of less than 120

hectares (ha) (300 acres (ac)) (Franklin 1990, Stone 1992). The

species' total range is approximately 2.6 km (1.6 (mi)) long, and 0.5

(km) (0.3 mi) across. Extensive searches of similar habitat in Utah and

Sanpete Counties, Utah, have failed to identify any other populations

(Franklin 1991, Larry England, Service, pers. comm. 1997). The land

upon which A. desereticus grows is owned by the State of Utah and three

private land owners (Franklin 1990, 1991; Chris Montague, The Nature

Conservancy, 1992, 1997 pers. comm.). Astragalus desereticus is

threatened by grazing and trampling by ungulates, alteration of its

habitat due to residential development and road widening, and natural

events, such as fire, due to its limited distribution.

Previous Federal Action

Section 12 of the Act (16 U.S.C. 1531 et seq.) directed the

Secretary of the Smithsonian Institution to prepare a report on those

plants considered to be endangered, threatened, or extinct. The

Secretary presented this report, designated as House Document No. 94-

51, to Congress on January 9, 1975. On July 1, 1975, we published a

notice in the Federal Register (40 FR 27823) accepting the report as a

petition to list those taxa named therein under section 4(c)(2) of the

Act (petition acceptance is now governed by section 4(b)(3) of the

Act), and its intention to review the status of those plants.

Astragalus desereticus was included in the July 1, 1975, notice on list

``C,'' indicating that the species was probably extinct.

On June 16, 1976, we published a proposed rule in the Federal

Register (41 FR 24523) to designate approximately 1,700 vascular plant

species, including Astragalus desereticus, as endangered pursuant to

section 4 of the Act. The Smithsonian Institution and the Service

assembled this list of 1,700 plant species on the basis of comments and

data received in response to House Document No. 94-51 and the July 1,

1975, Federal Register publication. In the proposed rule, we also

designated A. desereticus as a species about which we were particularly

interested in obtaining any new information on living specimens and

extant populations. General comments received in relation to the 1976

proposal are summarized in an April 26, 1978, Federal Register

publication (43 FR 17909). The 1978 amendments to the Act required that

all proposals over 2 years old be withdrawn, although proposals

published before the 1978 amendments' enactment could not be withdrawn

before the end of a 1-year grace period beginning on the enactment

date. On December 10, 1979, we published a notice of withdrawal (44 FR

70796) of that portion of the June 16, 1976, proposal that had not been

made final, which included A. desereticus.

On December 15, 1980, we published a revised notice of review for

native plants in the Federal Register (45 FR 82480) designating

Astragalus desereticus a category 1 species. At that time, we defined

category 1 candidates as those taxa for which we had on file sufficient

information on biological vulnerability and threats to support

preparation of listing proposals. In addition, A. desereticus was

identified as a species that may have recently become extinct. In 1981,

a population of A. desereticus was discovered. On November 28, 1983, we

published a revised notice of review in the Federal Register (48 FR

53640) in which A. desereticus was included as a category 2 candidate

species. Category 2 candidates were formally defined as taxa for which

data on biological vulnerability and threats indicated that listing was

possibly appropriate, but for which data were not sufficient to support

issuance of listing proposals. In preparing the 1983 notice, we deemed

it appropriate to acquire additional information on the distribution

and abundance of A. desereticus before proposing the species for

listing. We maintained A. desereticus as a category 2 species in

updated notices of review published in the Federal Register on

September 27, 1985 (50 FR 39526), and February 21, 1990 (55 FR 6184).

As a result of additional information obtained in 1990 and 1991 status

surveys (Franklin 1990 and Service 1991), we reclassified A.

desereticus as a category 1 candidate in the September 30, 1993, notice

of review (58 FR 51144). Upon publication of the February 28, 1996,

Notice of Review, (61 FR 7596), we ceased using category designations

and included A. desereticus as a candidate species. Candidate species

are those for which the Service has on file sufficient information on

biological vulnerability and threats to support proposals to list the

species as threatened or endangered. We maintained Astragalus

desereticus as a candidate in the September 19, 1997, Notice of Review

(62 FR 49398).

Section 4(b)(3)(B) of the Act's 1982 amendments required the

Secretary of the Interior to make findings on certain petitions within

1 year of their receipt.

[[Page 56592]]

Section 2(b)(1) of the Act's 1982 amendments further required that all

petitions pending as of October 13, 1982, be treated as having been

newly submitted on that date. Because we accepted the 1975 Smithsonian

report and the Service's notices as petitions, we treated all the taxa

contained in those notices, including Astragalus desereticus, as having

been newly petitioned on October 13, 1982. The deadline for a finding

on such petitions, including that for A. desereticus, was October 13,

1983. Since that date, we made successive 1-year findings that listing

A. desereticus was warranted, but precluded by other listing actions of

higher priority. Our proposal to list A. desereticus as threatened on

January 28, 1998 (63 FR 4207), constituted the warranted 12-month

finding for this species.

The processing of this final rule conforms to our Listing Priority

Guidance for Fiscal Years 1998 and 1999 published in the Federal

Register on May 8, 1998 (63 FR 25502). The guidance clarifies the order

in which we will process rulemakings. Highest priority is processing

emergency listing rules for any species determined to be facing a

significant and imminent risk to its well being (Tier 1). Second

priority (Tier 2) is processing final determinations on proposed

additions species to the lists of endangered and threatened wildlife

and plants; the processing of new proposals to add species to the

lists; the processing of administrative petition findings to add

species to the lists, delist species, or reclassify listed species

(petitions filed under section 4 of the Act); and a limited number of

proposed or final rules to delist or reclassify species. Third priority

(Tier 3) is processing proposed or final rules designating critical

habitat. The processing of this final rule is a Tier 2 action. We have

updated this rule to reflect any changes in information concerning

distribution, status, and threats since the publication of the proposed

rule.

Summary of Comments and Recommendations

In the January 28, 1998, 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 and requested comments from all appropriate

Federal and State agencies, County governments, scientific

organizations, and other interested parties. We published newspaper

notices requesting public comment on the proposed rule in The Salt Lake

Tribune and the Deseret News on February 10, 1998, and the Daily Herald

on February 11, 1998.

In accordance with our policy published in the Federal Register on

July 1, 1994 (59 FR 34270), we solicited the expert opinion of three

appropriate and independent specialists regarding pertinent scientific

or commercial data and assumptions relating to the supportive

biological and ecological information for Astragalus desereticus. The

purpose of this review is to ensure that listing decisions are based on

scientifically sound data, assumptions, and analyses, including input

of appropriate experts and specialists. One specialist responded in

writing agreeing with our analysis and supporting the proposed action,

while two others responded verbally agreeing with our analysis.

During the comment period we reviewed a total of three written

comments. We did not receive any comments on the issues raised in our

discussion of the biology or threats to the species. Two commenters,

including the respondent peer reviewer, concurred with our proposal to

list Astragalus desereticus as threatened. The third commenter stated

that the Service should not list A. desereticus because it has no

authority under the Act to list or regulate species that are not

involved in interstate commerce.

We believe that the application of the Act to Astragalus

desereticus does not exceed Congress's Commerce Clause authority under

the U.S. Constitution for the reasons given in Judge Wald's opinion and

Judge Henderson's concurring opinion in National Association of Home

Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185

S. Ct. 2340 (1998). That case involved a challenge to application of

the Act's prohibitions to protect the listed Delhi Sands flower-loving

fly. As with A. desereticus, the Delhi Sands flower-loving fly is

endemic to only one state. Judge Wald held that application of the

Act's prohibitions against taking of endangered species to this fly was

a proper exercise of Commerce Clause power to regulate: (1) Use of

channels of interstate commerce; and (2) activities substantially

affecting interstate commerce because it prevented loss of biodiversity

and destructive interstate competition. Judge Henderson upheld

protection of the fly because doing so prevents harm to the development

that is part of interstate commerce. See Gibbs v. Babbitt, 31 F.Supp.2d

531 (E.D.N.C. 1998).

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, we have determined that Astragalus desereticus should be

classified as a threatened species. In making this determination we

have followed the procedures set forth in section 4(a)(1) of the Act

and regulations implementing the listing provisions of the Act (50 CFR

part 424). We may determine a species to be an endangered or threatened

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

4(a)(1). These factors and their application to Astragalus desereticus

Barneby (Deseret milk-vetch) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range

Astragalus desereticus is known from one small population of about

5,000 reproducing individuals and several thousand immature plants on

less than 120 ha (300 ac) (Franklin 1990, Stone 1992). This species is

endemic to one unusual narrow geologic strata characterized by coarse,

poorly sorted conglomerate. Any conversion or destruction of A.

desereticus habitat has the potential to jeopardize the species'

limited population. Urban development of the Wasatch Front metropolitan

area is rapidly spreading into the surrounding agricultural lands,

especially small communities in the drainages of the Provo, Spanish

Fork, and Weber Rivers (Quality Growth Efficiency Tools Technical

Committee 1997 (QETTC)). The population growth of this metropolitan

area is expected to double by the year 2020. In addition, conversion of

agricultural land to urban use is expected to double in the same time

period (QGETTC 1997). Highly accessible rural areas, such as Birdseye,

may grow in population at an even more rapid rate. Since the species'

rediscovery, one landowner has built a private residence within the

species' occupied habitat. Prior to 1998, the town of Birdseye

contained about 20 homes. Since the publication of the proposed rule, a

70-unit residential subdivision began construction adjacent to the

south side of the species' population. The entire A. desereticus

population is within 300 meters (m) (1,000 feet (ft)) of U.S. Highway

89. The nearest plants are within a few meters of the road. U.S.

Highway 89 is currently a two-lane rural highway. With increasing human

population in the general area of southern Utah County and northern

Sanpete County, it

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is likely that this road will be expanded to four lanes. Such a highway

widening could destroy a significant portion of the species population

(QGETTC 1997).

Astragalus desereticus is located on highly accessible public and

private land that is currently used for cattle grazing and wildlife

management (Franklin 1991, Stone 1992). The land managed by the Utah

Division of Wildlife Resources is a wildlife management area that also

is used for cattle grazing (Franklin 1991). Cattle are used by the Utah

Division of Wildlife Resources (DWR) in spring to encourage plant

growth for big game forage in the winter. This grazing occurs within

the habitat of A. desereticus (Stone 1992). The cattle tend to

concentrate primarily on the upslope areas where forage production is

greater (Stone 1992). Erosion in these areas is exacerbated by cattle

grazing and game trails. In addition to the effects of erosion,

trampling threatens A. desereticus particularly at the southern end of

the population (Franklin 1991). As cattle and wildlife graze the

habitat of A. desereticus, the animals are likely to trample plants.

Although mule deer numbers have stabilized in recent years, Rocky

Mountain elk populations are increasing. Although currently DWR has no

specific plans for the conservation of A. desereticus, they are

interested in developing guidelines for the conservation of Deseret

milkvetch to work in concert with their primary goal of enhancing big

game winter range. The DWR is interested in acquiring property

interests in additional winter range lands also occupied by A.

desereticus.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Overutilization is not known to be a threat to Astragalus

desereticus.

C. Disease or Predation

In contrast to many species of Astragalus, A. desereticus appears

to be palatable to cattle. The genus Astragalus has the largest number

of species in the Intermountain west, many of which are poisonous to

grazing animals. Three types of poisonous compounds are found within

the genus. Some species within the genus concentrate the toxic element

selenium in their tissues; these species are called selenophytes (Stone

1992). The fact that A. desereticus does not produce a ``snake-like''

odor typical of other ``snakeweeds,'' as selenophytes are sometimes

called, and the fact that no other selenophytes occur in the area,

indicate that A. desereticus is not a selenophyte (Stone 1992). Other

Astragalus species produce poisonous alkaloids as metabolic byproducts.

The known alkaloid producers as well as the selenium accumulators are

not closely related to A. desereticus. The third type of poison found

within Astragalus are various nitrotoxins. Ruminants in particular are

highly susceptible to nitrotoxin poisoning. Some species closely

related to A. desereticus contain nitrotoxins (Barneby 1989). While A.

desereticus may not be preferred forage for cattle or native ungulates,

it is palatable and may be inadvertently taken along with preferred

forage in the area.

In surveys of habitat similar to that occupied by Astragalus

desereticus in Utah County, our personnel observed that overgrazing by

domestic ungulates has almost completely denuded the landscape (Service

1991). Similar grazing pressure is known from the current habitat of A.

desereticus; therefore, the effects of grazing, particularly

overgrazing, constitute a likely threat. This species is much less

abundant in the more heavily grazed southern portion of its habitat

(Franklin 1990, 1991), indicating that grazing may be a significant

threat. Cattle grazing may be particularly harmful because it occurs

during a critical period for A. desereticus reproduction (i.e.,

flowering) (Stone 1992).

There are no known insect parasites or disease organisms that

significantly affect this species.

D. The Inadequacy of Existing Regulatory Mechanisms

Astragalus desereticus receives no protection or consideration

under any Federal, State, or local law or regulation other than that

provided by the Act.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

By virtue of the limited number of individuals and range of the

remaining population of Astragalus desereticus, this species is

threatened with extinction from naturally occurring events. The

probability that a natural event such as fire, drought, or disease will

cause extinction is greater for species having a small population and

highly restricted range (Stone 1992). Rare species in the genus

Astragalus have exhibited low levels of genetic diversity when compared

to other more widespread, closely related species (Stone 1992). Low

genetic variability makes it difficult for a species to respond to

changes in the environment thus making them more vulnerable to

extinction.

The original locality description for Astragalus desereticus at

Indianola is thought to be over-generalized and perhaps this

contributed to the species' presumed extinction (Welsh 1985, Franklin

1990). Indianola, Utah, and the species' current known population near

Birdseye, Utah, are about 4.4 km (7 mi) apart. The specific geological

characteristics of A. desereticus habitat are uncommon within the

Moroni Formation, though the formation is exposed for a much larger

area in southern Utah County and northern Sanpete County, Utah.

Although it is thought that some additional populations of A.

desereticus were present at or near Indianola as reported by Jones in

1893 and Tidestrom in 1909, there are no known populations existing in

that location today. Other unknown factors may affect the current

distribution and vitality of A. desereticus populations.

A potential threat to Astragalus desereticus is related to the

populations of ungulates in the area and their effect on pollinators.

Other species in the genus Astragalus suffer from low numbers of

pollinators due to the indirect effect that ungulates can have on the

pollinator's nest sites (Stone 1992). Bumblebees (Bombus spp.), which

nest in abandoned rodent burrows, are likely the primary pollinators of

A. desereticus. Land use practices that increase grazing pressure may

cause burrows to collapse, destroying bumblebee nests (Stone 1992).

Since bees have a low fecundity (low capability of producing

offspring), their populations may not recover for many years,

particularly if grazing by large ungulates is maintained. An absence of

effective pollinators would probably reduce the fecundity of A.

desereticus.

In preparing this final rule we have carefully reviewed the best

scientific and commercial information available regarding the past,

present, and future threats faced by Astragalus desereticus. Based on

this evaluation, the preferred action is to list A. desereticus as

threatened. Threatened status reflects the vulnerability of this

species to factors that may negatively affect the species and its

extremely limited habitat. While not in immediate danger of extinction,

A. desereticus is likely to become an endangered species in the

foreseeable future if present threats continue or increase. We have

contacted the current land owners and although many are receptive in

the near-term to providing for passive protection, having no immediate

plans for development, in the long-term they continue to have

expectations for the future use and development of their properties.

[[Page 56594]]

Critical Habitat

Section 4(a)(3) of the Act 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

determined to be endangered or threatened. 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 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. We have determined that the designation of

critical habitat for A. desereticus is not prudent due to the lack of

benefit 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,

designations 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 listed 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 have similar

standards and thus similar thresholds for violation of section 7 of the

Act. In fact, biological opinions that conclude that a Federal agency

action is likely to adversely modify critical habitat but not

jeopardize the species for which the critical habitat has been

designated are extremely rare. Also, the designation of critical

habitat for the purpose of informing Federal agencies of the location

of A. desereticus habitat is not necessary because we can inform

Federal agencies through other means. For these reasons, the

designation of critical habitat for A. desereticus would provide no

additional benefit to the species beyond that conferred by listing,

and, therefore, such designation is not prudent.

Astragalus desereticus has an extremely narrow distribution in a

sandstone outcrop, totaling about 120 ha (300 ac) in one population. At

the present time, no other site is known to be occupied or suitable for

this plant. The private land owners at Birdseye are aware of the

plant's presence and extremely limited habitat, as are the DWR managers

and others involved in the management of the area. Therefore,

designation of critical habitat would provide no benefit with respect

to notification. In addition, given the species' narrow distribution

and precarious status, virtually any conceivable adverse affect to the

species' habitat would very likely jeopardize its continued existence.

Designation of critical habitat for A. desereticus would, therefore,

provide no benefit to the species apart from the protection afforded by

listing the plant as threatened.

Protection of the habitat of A. desereticus will be addressed

through the section 4 recovery process and the section 7 consultation

process. Although this plant occurs only on private and State land, it

may be affected by projects with Federal connections, including

potential Federal Highway Administration funding of road widening. We

believe that activities involving a Federal action which may affect A.

desereticus can be identified without designation of critical habitat,

by providing Federal agencies with information on the location of

occupied habitat and information on the kinds of activities which could

affect the species. For the reasons discussed above, we find that the

designation of critical habitat for A. desereticus is not prudent.

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 private agencies, groups

and individuals. The Act provides for possible land acquisition and

cooperation with the State, and requires that recovery actions be

carried out for all listed species. Such actions are initiated by the

Service following listing. 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, 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) requires Federal agencies to ensure that activities

they authorize, fund, or carry out are not likely to jeopardize the

continued existence of such a species or 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.

The single known population of Astragalus desereticus is on State

and privately owned land. However, highway widening, which may

adversely affect A. desereticus, due to the proximity of the plants to

a major highway project, may in part be funded by the Federal Highway

Administration and involve consultation under section 7 of the Act.

The Act and its implementing regulations set forth a series of

general trade 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 for threatened plants, 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 the course of a

commercial activity, sell or offer for sale this species 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,

damaging, or destruction of such plants in knowing violation of any

State law or regulation, or in the course of a violation of State

criminal trespass law. 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 such 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

species under certain circumstances. Such permits are available for

scientific purposes and to enhance the propagation or survival of the

species. For threatened plants, permits are also available for

botanical and horticultural exhibition, educational purposes, or

special reasons consistent with the Act's purposes. With respect to

Astragalus desereticus, it is anticipated that few, if any, trade

permits would be sought or issued since the species is not common in

the wild

[[Page 56595]]

and is unknown in cultivation. Requests for copies of the regulations

regarding listed species and inquiries about prohibitions and permits

may be addressed to: Regional Director, U.S. Fish and Wildlife Service,

P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225.

It is our policy, published in the Federal Register 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 if the species is listed. 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. This species is not known

to be located on areas under Federal jurisdiction. We believe the

actions listed below would not result in a violation of section 9:

(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 projects (e.g., fences, power lines,

pipelines, utility lines) when such activities are conducted according

to all reasonable and prudent measures provided by the Service under

section 7 of the Act;

(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; however, possible violations are not limited to these

actions alone:

(1) Unauthorized collecting of the species on Federal Lands;

(2) Application of herbicides in violation of label restrictions;

(3) Interstate or foreign commerce and import/export without

previously obtaining an appropriate permit. Permits to conduct

activities are available for scientific purposes, the enhancement of

the propagation or survival, economic hardship, botanical or

horticultural exhibition, educational purposes, or other activities

consistent with the purposes and policy of the Act.

Questions regarding whether specific activities, such as changes in

land use, would constitute a violation of section 9 should be directed

to the Utah Ecological Services Field Office (see ADDRESSES section).

National Environmental Policy Act

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 in connection

with regulations adopted pursuant to section 4(a) of the Act. A notice

outlining the basis for this determination was published in the Federal

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

Required Determinations

This rule does not contain collections of information that require

Office of Management and Budget approval under the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. An information collection related to the

rule pertaining to permits for endangered and threatened species has

OMB approval and is assigned clearance number 1018-0094. This rule does

not alter that information collection requirement. For additional

information concerning permits and associated requirements for

threatened plants, see 50 CFR 17.72.

References Cited

Barneby, R.C. 1964. Atlas of North American Astragalus. Mem. of The New

York Botanical Gardens 13(II):597-1188.

Barneby, R.C. in A. Cronquist, A.H. Holmgren, N.H. Holmgren, J.L.

Reveal, and P.K. Holmgren. 1989. Intermountain Flora, Volume 3, Part B.

Fabales. Columbia University Press, New York, New York. 279 pp.

Franklin, M.A. 1990. Report for 1990 Challenge Cost Share Project,

Manti-LaSal National Forest. Target Species: Astragalus desereticus.

Unpublished report prepared by the Utah Natural Heritage Program, Salt

Lake City, Utah. 5 pp + xiv.

Franklin, M.A. 1991. Deseret Milkvetch. Sego Lily, Newsletter of the

Utah Native Plant Society 15(2):6-8.

Quality Growth Efficiency Tools Technical Committee. 1997. Baseline

Scenario. Report on file with the Utah Governors Office of Planning and

Budget. 58 pp.

Ripley, S.D. 1975. Report on Endangered and Threatened Species of the

United States. House Document 94-51. 200 pp. Reprinted in Federal

Register 40(127): 27824-27924.

Stone, R.D. 1992. Element Stewardship Abstract for Astragalus

desereticus. Unpublished report prepared for The Nature Conservancy.

Salt Lake City, Utah. 18 pp.

Welsh, S.L. 1978a. Status Report Astragalus desereticus. Unpublished

report prepared for the U.S. Fish and Wildlife Service. Denver,

Colorado. 5 pp.

Welsh, S.L. 1978b. Endangered and Threatened Plants of Utah: A

Reevaluation. Great Basin Naturalist 38(1)1-18.

Welsh, S.L. 1978c. Utah Flora: Fabaceae (Leguminosae). Great Basin

Naturalist 38(3):225-367.

Welsh, S.L., N.D. Atwood, and J.L. Reveal. 1975. Endangered,

Threatened, Extinct, Endemic, and Rare or Restricted Utah Vascular

Plants. Great Basin Naturalist 35(4):327-376.

Welsh, S.L., N.D. Atwood, L.C. Higgins, and S. Goodrich. 1987. A Utah

Flora. Great Basin Naturalist Mem. No. 9, 1-897.

Welsh, S.L., and L.M. Chatterley. 1985. Utah's Rare Plants Revisited.

Great Basin Naturalist 45:173-236.

U.S. Fish and Wildlife Service. 1991. Astragalus desereticus:

Supplemental Status Report. Salt Lake City, Utah. 4 pp.

Author: The primary author of this proposed rule is John L. England

(see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, 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 section 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) * * *

[[Page 56596]]

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Species

------------------------------------------------------------------ Historic range Status When listed Critical Special

Scientific name Common name habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

Flowering Plants

* * * * * * *

Astragalus desereticus................ Deseret milk-vetch....... U.S.A. (UT).............. T 668 NA NA

* * * * * * *

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Dated: September 30, 1999.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 99-27187 Filed 10-19-99; 8:45 am]

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