Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3301

(e) Exemption criteria. Wildlife

shipments meeting all of the following

criteria are exempt from the designated

port inspection fee or nondesignated

port administrative fee and hourly

minimums:

(1) No permits are required under

parts 16, 17, 18, 21, 22, or 23 of this

subchapter;

(2) The wildlife is imported or

exported between the United States and

Canada or Mexico;

(3) The wildlife shipment consists of

raw fur, raw, salted, or crusted hides or

skins, or separate parts thereof, lawfully

taken from the wild in the United

States, Canada, or Mexico;

(4) The wildlife was taken from the

wild by the importer or exporter of

record or a member of his immediate

family;

(5) The importer or exporter of record

is licensed in accordance with § 14.91;

(6) The wildlife or any part thereof

has not been previously bought or sold;

(7) The shipment does not exceed 100

raw furs, raw, salted, or crusted hides or

skins, or separate parts thereof;

(8) The shipment does not contain

any manufactured products or live

animals.

Donald J. Barry,

Deputy Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 98–1414 Filed 1–21–98; 8:45 am]

BILLING CODE 4310–55–M

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE30

Endangered and Threatened Wildlife

and Plants; Notice of Public Hearing

and Extension of Comment Period on

Proposed Endangered Status for

Rough Popcornflower

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule; notice of public

hearing and reopening and extension of

comment period.

SUMMARY: The Fish and Wildlife Service

(Service), pursuant to the Endangered

Species Act of 1973, as amended (Act),

provides notice of a public hearing on

the proposed endangered status for

Plagiobothrys hirtus (rough

popcornflower). In addition, the Service

has reopened and extended the

comment period to accommodate a

public hearing that was requested by

Mr. Danny Lang of Roseburg, Oregon.

All parties are invited to submit

comments on this proposal.

DATES: The comment period now closes

on February 23, 1998. Any comments

received by the closing date will be

considered in the final decision on this

proposal. The public hearing will be

held on Tuesday, February 10, 1998,

from 6:00 p.m. to 8:00 p.m.

ADDRESSES: The public hearing will be

held at the Holiday Inn Express, 375

West Harvard Boulevard, Roseburg,

Oregon. Comments and materials

concerning this proposal should be sent

to the State Supervisor, U.S. Fish and

Wildlife Service, Oregon State Office,

2600 S.E. 98th Avenue, Suite 100,

Portland, Oregon 97266. Comments and

materials received will be available for

public inspection, by appointment,

during normal business hours at the

above address.

FOR FURTHER INFORMATION CONTACT:

Dr. Andrew F. Robinson Jr. of the

Oregon State Office (see ADDRESSES

section) at (503) 231–6179.

SUPPLEMENTARY INFORMATION:

Background

Plagiobothrys hirtus is an annual herb

on drier sites, or perennial herb on

wetter sites, that is known from only the

interior valley of the Umpqua River in

Douglas County, Oregon. The plant is

threatened by destruction and/or

alteration of habitat by development and

hydrological change (e.g., wetland fills,

draining, construction); spring and

summer grazing by domestic cattle,

horses, and sheep; roadside

maintenance; and competition from

native and non-native species (i.e.,

succession and encroachment).

Comments from the public regarding the

accuracy of this proposed rule are

sought, especially regarding:

(1) Biological, commercial trade, or

other relevant data concerning any

threat (or lack thereof) to the species

listed above;

(2) The location of any additional

populations of the species and the

reasons why any habitat should or

should not be determined to be critical

habitat as provided by section 4 of the

Act;

(3) Additional information concerning

the range, distribution, and population

sizes of the species; and

(4) Current or planned activities in the

subject area and their possible impacts

on the species.

On November 20, 1997, the Service

published a rule proposing endangered

status for Plagiobothrys hirtus in the

Federal Register (62 FR 61953). The

original comment period was to close on

January 20, 1998. Section 4(b)(5)(E) of

the Act (16 U.S.C. 1531 et seq.) requires

that a public hearing be held if it is

requested within 45 days of the

publication of the proposed rule. A

public hearing request from Mr. Danny

Lang of Roseburg, Oregon was received

within the allotted time period. The

Service has scheduled a public hearing

on Tuesday, February 10, 1998, at the

Holiday Inn Express in Roseburg,

Oregon.

Parties wishing to make statements for

the record should bring a copy of their

statements to the hearing. Oral

statements may be limited in length, if

the number of parties present at the

hearing necessitates such a limitation.

There are no limits to the length of

written comments or materials

presented at the hearing or mailed to the

Service. Written comments carry the

same weight as oral comments. The

comment period now closes on

February 23, 1998. Written comments

should be submitted to the Service

Office listed in the ADDRESSES section.

Author

The primary author of this notice is

Dr. Andrew F. Robinson Jr. (see

ADDRESSES section).

Authority

The authority for this action is the

Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.).

Dated: January 7, 1998.

Don Weathers,

Acting Regional Director, Region 1, Portland,

Oregon, Fish and Wildlife Service.

[FR Doc. 98–857 Filed 1–21–98; 8:45 am]

BILLING CODE 4310–55–M

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE54

Endangered and Threatened Wildlife

and Plants; Proposed Rule To List the

Plant Lesquerella Thamnophila (Zapata

Bladderpod) as Endangered

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: The Fish and Wildlife Service

(Service) proposes to list the plant

Lesquerella thamnophila (Zapata

bladderpod) as an endangered species

under the Endangered Species Act of

1973, as amended (Act). Lesquerella

thamnophila is known from four

locations in Zapata and Starr Counties,

Texas. This species is threatened by

increased urban development, highway

construction, increased oil and gas
3302 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules

activities, alteration and conversion of

native plant communities to improved

pastures, overgrazing, and vulnerability

from low population numbers. This

proposal, if made final, will extend the

Act’s protection to Lesquerella

thamnophila. Designation of critical

habitat is not being proposed because

the Service has determined such

designation is not prudent.

DATES: Comments from all interested

parties must be received by March 23,

1998. Public hearing requests must be

received by March 9, 1998.

ADDRESSES: Comments and materials

concerning this proposal should be sent

to the Field Supervisor, U.S. Fish and

Wildlife Service, Ecological Services

Field Office, c/o Texas A&M UniversityCorpus Christi, Campus Box 338, 6300

Ocean Drive, Corpus Christi, Texas

78412. Comments and materials

received will be available for public

inspection, by appointment, during

normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT:

Field Supervisor of the Corpus Christi

Ecological Services Field Office in

Corpus Christi, Texas. (Telephone 512–

994–9005; Facsimile 512–994–8262).

SUPPLEMENTARY INFORMATION:

Background

Lesquerella thamnophila, a member

of the mustard family, was first

collected in Zapata County, Texas by

R.C. Rollins in 1959. The species was

named Lesquerella thamnophila in 1973

by R.C. Rollins and E.A. Shaw in their

work on the genus Lesquerella (Rollins

and Shaw 1973). The few collected

specimens of Lesquerella thamnophila

have all come from Zapata and Starr

Counties in southern Texas.

Lesquerella thamnophila is a

pubescent, somewhat silvery-green

herbaceous perennial plant with

sprawling stems 43–85 centimeters (cm)

(16–32 inches (in)) long. It has narrow

basal leaves 4–12 cm (1.5–4.7 in) long

and 7–15 millimeters (mm) (0.3–0.6 in)

wide, with entire to wavy or slightly

toothed margins. The stem leaves are 3–

4 cm (1–1.5 in) long and 2–8 mm (0.1–

0.3 in) wide, with margins similar to the

basal leaves. The inflorescences, usually

appearing in April but dependent upon

the timing of spring rains, are loose

racemes of yellow-petaled flowers.

Fruits are round and 4.5–6.5 mm (0.2–

0.8 in) in diameter on short downward

curving pedicels (Poole 1989).

Lesquerella thamnophila occurs on

level to sloping terrain in gravelly to

sandy-loam upland terrace or Rio

Grande floodplain soils. Known

locations are associated with three

Eocene-age geologic formations—the

Jackson, Laredo, and Yegua—which

have yielded fossiliferous and

calcareous sandstones and clays. The

Starr County sites for Lesquerella

thamnophila occur within the JimenezQuemado soil association and on

Catarina series soils. Jimenez-Quemado

soils are well-drained, shallow, gravelly

to sandy loams underlain by caliche.

Catarina series soils are clayey, saline

upland soils developed from calcareous,

gypsiferous, or saline clays that usually

contain many drainages and erosional

features. The underlying material of

these soils contains many calcareous

concretions, gypsum crystals, and

marine shell fragments (Thompson, et

al. 1972).

The soils of Zapata County have not

been mapped in detail, but the

bladderpod sites in Zapata County occur

within the Zapata-Maverick soil

association, based upon the general soils

map for the county. Zapata soils are

shallow and well-drained, occurring

over caliche. Maverick soils are upland

clayey soils occurring over caliche with

the underlying calcareous material also

containing shale and gypsum crystals

(Thompson, et al. 1972).

Lesquerella thamnophila occurs as a

herbaceous component of an open

Leucophyllum frutescens (cenizo) shrub

community that grades into an Acacia

rigidula (blackbrush) shrub community.

Both plant communities dominate many

upland habitats on shallow soils near

the Rio Grande (Diamond 1990). Other

common plant species in the cenizo and

blackbrush communities include Acacia

berlandieri (guajillo), Prosopis

glandulosa (mesquite), Celtis pallida

(granjeno), Yucca treculeana (Spanish

dagger), Zizyphus obtusifolia (lotebush),

and Porlieria angustifolia (guayacan).

The aggressively invasive nonnative

Cenchrus ciliaris (buffelgrass) is also

commonly present. These shrublands

are sparsely vegetated due to the

shallow, fast-draining soils and semiarid climate (Poole 1989).

These open brushland communities

are used primarily as rangeland and,

due to the semi-arid environment, are

sensitive to soil erosion and vegetation

changes brought about by long-term

livestock overgrazing (Schlesinger, et al.

1990). As a result, root-plowing of

shrubs and subsequent planting of

buffelgrass are common regional

practices for rangeland improvement.

Cattle reportedly graze on Lesquerella

thamnophila (Poole 1989).

Lesquerella thamnophila occurred

historically in Zapata and Starr counties

in the United States. It has never been

collected in Mexico despite its potential

occurrence there. Recent surveys of

historical locations in Starr County

failed to relocate those populations.

Poole (1989) located three populations,

two in Zapata County and one in Starr

County. In April 1994, Bill Carr and Lee

Elliott of the Texas Parks and Wildlife

Department discovered another

previously unknown Starr County

location (Lee Elliott, pers. comm. 1994).

The number of plants in known

populations appears to fluctuate

dramatically in apparent response to

precipitation (Poole 1989). In 1985,

there were approximately 5,000 plants

at one 4-hectare (ha) (10-acre (ac))

Zapata County site (Tigre Chiquita) and

approximately 1,000 plants at the 15-

acre type locality in Zapata County

(Falcon Lake West). The year 1986 was

dry; only 28 plants were counted at the

Tigre Chiquita site, and none at Falcon

Lake West. Plants were seen at both

Zapata County sites again in 1988, but

no specific population counts were

recorded. No plants have been observed

at the Falcon Lake West site since 1988.

The Texas Parks and Wildlife

Department has established a

management agreement with the Texas

Department of Transportation for the

Tigre Chiquita site. The agreement

requires that the transportation agency

avoid mowing within the highway rightof-way from February to May, while the

plant is actively growing. The Texas

Parks and Wildlife Department annually

monitors the site for population size and

has recorded these numbers: 10

reproductive plants and 3 nonreproductive ones in 1991; no plants in

1992; 7 non-reproductive plants in

1993; one reproductive plant in 1994; 3

non-reproductive plants in 1995; and no

plants in 1996 (probably due to

drought).

In 1986, Poole (1989) found 20 plants

at a 2–ha (5–ac) site in Starr County

(Santa Margarita Ranch). Plants were

again observed at this site in 1994, but

the number of individuals was not

recorded that year (Gena Janssen, Texas

Parks and Wildlife Department, Austin,

Texas, pers. comm. 1994).

Approximately 70 plants were seen in

1997. In 1994, the Texas Parks and

Wildlife Department recorded about 50

plants at a new Starr County site

(Cuellar Tract) located on a tract of the

Lower Rio Grande National Wildlife

Refuge. In 1996, a monitoring plot was

established and a total of 131 plants

were located, 84 of them nonreproductives. In 1997, an extremely

wet year, the estimated number of

individuals increased to several

thousand, all within a 2–3 acre section

of the tract.

Lesquerella thamnophila is a cryptic

annual species and blooms within a set
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3303

period of time following spring rainfall,

creating a short period in which to

survey. These factors may contribute to

the occasional inability to locate these

plants at known sites. Additional

surveys carried out at the most favorable

times to find specimens, and focusing

on associated soil types, are warranted

during the review of this species for

listing as endangered.

Previous Federal Action

Federal action involving this species

began with section 12 of the Endangered

Species Act (Act) of 1973, as amended

(16 U.S.C. 1531 et seq.), which directed

the Secretary of the Smithsonian

Institution to prepare a report on those

plants considered to be endangered,

threatened, or extinct. This report,

designated as House Document No. 94–

51, was presented to Congress on

January 9, 1975. On July 1, 1975, the

Service published a notice in the

Federal Register (40 FR 27823)

accepting the Smithsonian report as a

petition within the context of section

4(c)(2) of the Act, now section

4(b)(3)(A), and announcing that it would

initiate a review of the status of those

plants. Lesquerella thamnophila was

included as threatened in the

Smithsonian report and in the Service

notice.

On June 16, 1976 (41 FR 24523), the

Service published a proposed rule to

determine approximately 1,700 vascular

plants as endangered. Lesquerella

thamnophila was included in this

proposal. However, the 1978

amendments to the Act required the

withdrawal of all proposals over 2 years

old (although a 1 year grace period was

allowed for those proposals already over

2 years old). On December 10, 1979 (44

FR 70796), the Service published a

notice withdrawing that portion of the

June 16, 1976, proposal that had not

been made final.

On December 15, 1980 (45 FR 82823),

the Service published a list of plants

under review for listing as threatened or

endangered, in which Lesquerella

thamnophila was included as a category

2 candidate. Category 2 candidates were

those species for which available

information indicated listing as

threatened or endangered may have

been appropriate, but for which

substantial data were not available to

support preparation of a proposed rule.

Section 4(b)(3)(B) of the Act requires

that findings be made by the Secretary

on pending petitions within 12 months

of their receipt. Section 2(b)(1) of the

1982 amendments to the Act required

that all petitions pending as of October

13, 1982, be treated as having been

submitted on that date. The 1975

Smithsonian report was accepted as a

petition; therefore, all the plants noted

within the report, including Lesquerella

thamnophila, were treated as being

newly petitioned on October 13, 1982.

In each subsequent year, from 1983 to

1993, the Service determined that the

petition to list Lesquerella thamnophila

was warranted, but precluded by other

listing actions of higher priority, and

that additional data on vulnerability and

threats were still being compiled.

A status report on Lesquerella

thamnophila was completed August 8,

1989 (Poole 1989). That report provided

sufficient information on biological

vulnerability and threats to warrant

reassigning the species as a category 1

candidate and supporting preparation of

a proposed rule to list Lesquerella

thamnophila as endangered. ‘‘Category

1 candidates’’ were those for which the

Service had substantial information

indicating that listing under the Act was

warranted.

Notices revising the 1980 list of plants

under review for listing as endangered

or threatened were published in the

Federal Register on September 27, 1985

(50 FR 39626), February 21, 1990 (55 FR

6184), and September 30, 1993 (58 FR

51171). Lesquerella thamnophila was

included in the September 30, 1993

notice as a category 1 candidate.

The 1996 Notice of Review ( 55 FR

6184) included Lesquerella

thamnophila as a candidate. Candidates

are species for which the Service has

sufficient information indicating that a

listing proposal is appropriate. The 1997

Notice of Review (62 FR 49398) also

included Lesquerella thamnophila as a

candidate.

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 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 Lesquerella thamnophila

are as follows:

A. The present or threatened

destruction, modification, or

curtailment of its habitat or range.

Habitat destruction and modification are

the primary threats to Lesquerella

thamnophila. These threats include the

introduction of non-native pasture

grasses such as buffelgrass and

conversion of native rangeland to

improved pasture, overgrazing, urban

development, construction or

improvement of highways and utility

transmission systems necessary to

support urban infrastructures, and oil

and gas exploration and production.

These types of activities have destroyed

or altered more than 95 percent of the

native habitat in south Texas

(Jahrsdoerfer and Leslie 1988).

It is a common practice in south

Texas to improve rangeland for

livestock production by removing the

native shrubs through root-plowing or

aerial herbicide application and then

reseeding the area with non-native

grasses, usually buffelgrass. This

practice potentially destroys Lesquerella

thamnophila habitat. Buffelgrass has

spread beyond the improved pastures

and is now present throughout south

Texas. This invasive non-native grass

out-competes and displaces native

grasses, forbs, and small shrubs.

Potential sites for native plant seedling

establishment are lost due to light and

moisture competition with buffelgrass,

and possibly due to allelopathy.

Much of south Texas was severely

overgrazed in the past, and overgrazing

continues in many areas today.

Vegetation of the semi-arid south Texas

climate is less resilient to the impacts of

long-term grazing than is the vegetation

of wetter climates. This has led to severe

erosion of the often highly erodible

south Texas soils (Schlesinger, et al.

1990). It is impossible to calculate how

much habitat suitable to Lesquerella

thamnophila may have been lost in the

past because of the destructive effects of

overgrazing or the conversion of native

rangeland to improved pasture.

Lesquerella thamnophila is

threatened by potential urban

development. The type locality for this

species has been reduced to a small

vacant lot in a resort subdivision on

Falcon Reservoir in the City of Zapata.

This area is undergoing rapid retirement

home development. Another

Lesquerella thamnophila population

occurs in an abandoned trailer park

adjacent to a major highway. Recent

construction of convenience stores in

the area could stimulate urbanization

that might extirpate the population.

South Texas is undergoing a rapid

increase in highway improvements and

construction to handle increased traffic

stimulated by the North American Free

Trade Agreement. There are Lesquerella

thamnophila populations adjacent to

existing roads that could be proposed

for widening. Additionally, existing

unimproved roads adjacent to

populations could be proposed for

widening and paving.

There are Lesquerella thamnophila

populations adjacent to maintained

highway rights-of-way where herbicides

are used to control vegetation around
3304 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules

bridges, guard rails, signs, and reflector

posts. Herbicides may also be used to

kill woody species encroaching into the

rights-of-way and along fence lines. Any

plants within the rights-of-way are

threatened by maintenance practices

such as blading or disking and reseeding

with erosion control seed mixtures,

which contain primarily non-native

invasive grasses.

South Texas is presently undergoing a

significant increase in oil and gas

exploration and production, especially

in Zapata and Starr counties. All phases

of exploration and production have the

potential to harm Lesquerella

thamnophila populations and habitat.

The seismic vibration method of gas

exploration results in extensive

temporary rights-of-way being cleared to

facilitate equipment traffic. The

construction of well pads, access roads,

electric lines, and oil gathering lines

from wells, if not planned properly, can

all destroy plants and habitat. The

proximity of this species to existing oil

and gas development poses a threat

from an increase in number and

capacity of gathering lines.

B. Overutilization for commercial,

recreational, scientific, or educational

purposes. No commercial trade is

currently known to exist for the species.

However, listed plant species can be

threatened by both collection and

vandalism, activities difficult to prevent

and only regulated on lands under

Federal jurisdiction or in knowing

violation of a State law or regulation.

Listing a plant species can precipitate

commercial and scientific interest in the

species. This interest can threaten the

species through unauthorized and

uncontrolled collection. Federally

listing a species under the Act creates

the potential for vandalism at known

and potential habitat sites. In many

areas, private landowner concern

regarding endangered species is

especially high and may result in the

intentional destruction of endangered

species habitat.

C. Disease or predation. The

populations of Lesquerella thamnophila

have shown no evidence of disease.

However, Poole (1989) reports that

cattle graze the species to the extent that

numbers of plants in populations

subjected to grazing are severely

reduced compared to those in adjacent,

ungrazed lands. Grazing and browsing

are greater threats during drought

conditions when range quality is

reduced and other forage species have

been reduced or removed. This portion

of south Texas is sensitive to

overgrazing during drought conditions

due to the semi-arid environment and

the large area needed per grazing

animal, even under ideal range

conditions.

D. The inadequacy of existing

regulatory mechanisms. The species is

not currently protected by any Federal

or State laws or regulations.

E. Other natural or man-made factors

affecting its continued existence. There

are only four known small Lesquerella

thamnophila populations with widely

fluctuating numbers of plants from year

to year. Low plant numbers during

drought years could cause genetic drift.

This has the effect of lowering genetic

variability and may reduce the species’

ability to cope with environmental

perturbations. The reduced number of

plants during drought years, with

populations in some areas actually

being reduced to zero above-ground

vegetative individuals, also makes the

species vulnerable to extinction from a

prolonged drought. Lesquerella

thamnophila occurs along the Rio

Grande and the effect of past flooding

on creating or maintaining habitat for

the species is unknown. The extreme

rarity of this species makes populations

vulnerable to extirpation and the

species vulnerable to extinction from a

variety of random environmental events.

The Service has carefully assessed the

best scientific and commercial

information available regarding the past,

present, and future threats faced by the

species in determining to propose this

rule. Based on this evaluation, the

preferred action is to list Lesquerella

thamnophila as endangered. The

endangered status is appropriate

because of the species’ limited

distribution, low population numbers,

and imminent threats of habitat

destruction. Threatened status would

not accurately reflect the current status

of this species.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(I) the specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection and; (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures needed

to bring the species to the point at

which listing under the Act is no longer

necessary.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time the 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.

As discussed under Factor B in the

‘‘Summary of Factors Affecting the

Species’’ section of this rule, Lesquerella

thamnophila is threatened by

vandalism, an activity difficult to

prevent and only regulated by the Act

with respect to endangered plants in

cases of (1) removal and reduction to

possession from lands under Federal

jurisdiction, or their malicious damage

or destruction on such lands; and (2)

removal, cutting, digging up, or

damaging or destroying in knowing

violation of any State law or regulation,

including State criminal trespass law.

The limited protection for plants on

private land renders them particularly

vulnerable to vandalism or collection

due to their lack of evasive ability.

Simply listing a plant species can

precipitate commercial and scientific

interest, legal as well as illegal, which

can threaten the species through

unauthorized and uncontrolled

collection for both commercial and

scientific purposes. The designation of

critical habitat involves publication of

habitat descriptions and general

mapped locations of the species, greatly

increasing the likelihood of unwanted

notice by potential collectors and of

successful search and removal

operations at specific sites.

Such information also greatly

exacerbates the potential for vandalism

of endangered or threatened plants at

known and potential habitat sites. The

designation of critical habitat affects

only Federal projects or activities which

they fund, authorize, or carry out. Its

designation does not affect private land

activities conducted by State and local

government activities if the activity does

not involve Federal funds or

authorization. However, this is not

always easily understood by private

landowners whose property boundaries

may be included within a general

description of critical habitat for a

specific species. Identification of

proposed critical habitat for other

species has resulted in widespread

confusion and heightened concern by
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3305

the general public. More importantly,

such action has resulted in the

unnecessary destruction of endangered

species habitat by landowners in order

to avoid the imagined attention of the

Service and perceived prohibitions on

private land.

In the case of Lesquerella

thamnophila, the Service finds that

designation of critical habitat is not

prudent since it is likely to increase the

degree of threat of take of the species.

Publication of critical habitat

descriptions and locations would make

the species especially vulnerable to

collection and vandalism.

The designation of critical habitat for

Lesquerella thamnophila is also not

prudent since it will provide no

additional conservation benefit to the

species. The most severe threats to the

species include the overgrazing of

native range, and conversion of native

rangeland to improved pasture with

nonnative grasses. Designation of

critical habitat will not affect these

threats, since impacts stem from private

land activities. Further protection of

habitat on private or State land will be

addressed through the recovery process

and will involve identifying measures

that can mutually benefit both the

species and landowner.

Section 7 of the Act requires Federal

agencies to ensure that activities they

authorize, fund, or carry out are not

likely to jeopardize the continued

existence of a listed species or cause the

destruction or adverse modification of

its critical habitat. Lesquerella

thamnophila is currently restricted to

four sites ranging from 5 acres to 45

acres in size. Any adverse impact to

sites that would result in destruction or

adverse modification of critical habitat

would likely also jeopardize the

continued existence of Lesquerella

thamnophila. Thus, in the case of this

species, critical habitat would provide

no additional benefit beyond that

provided through listing as endangered.

In summary, the Service finds that

Lesquerella thamnophila is vulnerable

to collection and vandalism, and that

identification of critical habitat would

increase its vulnerability. Further,

adequate protection from adverse

Federal actions is provided through

listing the species as endangered under

the Act, and designation of critical

habitat would provide little additional

protection. Therefore, the Service finds

that designation of critical habitat

would, on balance, be detrimental to the

species. Critical habitat designation is

thus 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 results in

public awareness and conservation

actions by Federal, State, and local

agencies, private organizations, and

individuals. The Act provides for

possible land acquisition and

cooperation with the States and requires

that recovery actions be carried out for

all listed species. The protection

required of Federal agencies and the

prohibitions against certain activities

involving listed plants are discussed, in

part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is proposed or listed as endangered

or threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(4) requires Federal

agencies to confer informally with the

Service on any action that is likely to

jeopardize the continued existence of a

species proposed for listing or result in

destruction or adverse modification of

proposed critical habitat. For listed

species, section 7(a)(2) requires Federal

agencies to ensure that activities they

authorize, fund, or carry out are not

likely to jeopardize the continued

existence of the 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 consultation with the Service.

Federal agency actions that may

require conference and/or consultation

as described in the preceding paragraph

include brush clearing for flood control

in arroyos within the jurisdiction of the

International Boundary and Water

Commission; technical assistance to

landowners by the Natural Resources

Conservation Service (formerly Soil

Conservation Service) for activities

funded by the Consolidated Farm

Service Agency (formerly Agricultural

Stabilization and Conservation Service);

and rangeland herbicide registration by

the Environmental Protection Agency.

The Federal Highway Administration

will need to consider the occurrence of

the species in activities such as

widening existing roadways or

constructing new highways. The U.S.

Department of Housing and Urban

Development will need to consider

these species when water, sewer, and

power services are authorized following

the development of unauthorized

human settlements.

The Act and its implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all endangered plants. All

prohibitions of section 9(a)(2) of the Act,

implemented by 50 CFR 17.61, apply.

These prohibitions, in part, make it

illegal for any person subject to the

jurisdiction of the United States to

import or export, transport in interstate

or foreign commerce in the course of a

commercial activity, sell or offer for sale

in interstate or foreign commerce any

such plant species; or to remove and

reduce the species to possession from

areas under Federal jurisdiction. In

addition, for plants listed as

endangered, the Act prohibits the

removal and malicious damage or

destruction of such plants on areas

under Federal jurisdiction; and the

removal, cutting, digging up, or

damaging or destroying of such plants

in any other area, including non-Federal

lands, in knowing violation of any State

law or regulation, including State

criminal trespass law. Certain

exceptions to the prohibitions apply to

agents of the Service and State

conservation agencies.

The Act and 50 CFR 17.62 and 17.63

also provide for the issuance of permits

to carry out otherwise prohibited

activities involving endangered plants

under certain circumstances. Such

permits are available for scientific

purposes and to enhance the

propagation or survival of the species. It

is anticipated that few trade permits

would ever be sought or issued because

this species is not in cultivation nor

common in the wild.

It is the policy of the Service (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 proposed and

ongoing activities within a species’

range.

One population of the Lesquerella

thamnophila occurs on public land

under the jurisdiction of the Service.

Collection, damage or destruction of this

species on Federal lands is prohibited,

although in appropriate cases a Federal

endangered species permit may be

issued to allow collection. As noted

above, such activities on non-Federal

lands would constitute a violation of

section 9 if conducted in knowing

violation of State law or regulation,

including State criminal trespass law.
3306 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules

Normal residential lawn care and

maintenance and the clearing of small

areas surrounding a residence, which

may be used as a fire break are not

violations of section 9 and will not

constitute take. The Service is not aware

of any otherwise lawful activities being

conducted or proposed by the public

that will be affected by this listing and

result in a violation of section 9.

Questions regarding whether specific

activities will constitute a violation of

section 9 should be directed to the Field

Supervisor of the Service’s Corpus

Christi Office (see ADDRESSES section).

Requests for copies of the regulations

regarding listed plants and inquiries

about prohibitions and permits may be

addressed to U.S. Fish and Wildlife

Service, Branch of Endangered Species/

Permits, P.O. Box 1306, Albuquerque,

New Mexico 87103 (telephone 505/248–

6920; facsimile 505/248–6922).

Public Comments Solicited

The Service intends that any final

action resulting from this proposal will

be as accurate and as effective as

possible. Therefore, comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule are hereby solicited.

Comments particularly are sought

concerning:

(1) Biological, commercial trade, or

other relevant data concerning any

threat (or lack thereof) to this species;

(2) Reasons why any habitat should or

should not be determined to be critical

habitat as provided by section 4 of the

Act;

(3) Additional information concerning

the range, distribution, and population

size of this species;

(4) Current or planned activities in the

subject area and their possible impacts

on this species.

Final promulgation of the regulations

on this species will take into

consideration the comments and any

additional information received by the

Service, and such communications may

lead to a final regulation that differs

from this proposal.

The Endangered Species Act provides

for a public hearing on this proposal, if

requested. Requests must be received

within 45 days of the date of publication

of the proposal. Such requests must be

made in writing and addressed to the

Field Supervisor (see ADDRESSES

section).

Required Determinations

This rule does not contain collections

of information that require approval by

the Office of Management and Budget

under 44 U.S.C. 3501 et seq.

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

Act. 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

Diamond, D. 1990. Plant Communities of

Texas (series level). Texas Parks and

Wildlife Department, Austin, Texas.

Jahrsdoerfer, S.E. and D.M. Leslie, Jr. 1988.

Tamaulipan Brushland of the Lower Rio

Grande Valley of South Texas:

Description, Human Impacts, and

Management Options. U.S. Fish and

Wildlife Service, Biological Report

88(36). 63 pp.

Poole, J. 1989. Status Report on Lesquerella

thamnophila. U.S. Fish and Wildlife

Service, Albuquerque, New Mexico.

Rollins, R.C. and E.A. Shaw. 1973. The

Genus Lesquerella. Harvard University

Press, Cambridge, Massachusetts.

Schlesinger, W.H., J.F. Reynolds, G.L.

Cunningham, L.F. Huenneke, W.M.

Jarrell, R.A. Virginia and W.G. Whitford.

1990. Biological Feedbacks in Global

Desertification. Science 247:1043–1047.

Thompson, C.M., R.R. Sanders, and D.

Williams. 1972. Soil Survey of Starr

County, Texas. U.S. Department of

Agriculture, Soil Conservation Service,

Temple, Texas.

Authors

The primary authors of this document

are Angela Brooks and Kathy Nemec

(see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby

proposes to amend part 17, subchapter

B of chapter I, title 50 of the Code of

Federal Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

2. Amend § 17.12(h) by adding the

following, in alphabetical order under

FLOWERING PLANTS, to the List of

Endangered and Threatened Plants to

read as follows:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When listed Critical

habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

* * * * * * *

Lesquerella

thamnophila.

Zapata bladderpod .. U.S.A. (TX) ............. Brassicaceae .......... E .................... NA NA

* * * * * * *

Dated: December 30, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98–1518 Filed 1–21–98; 8:45 am]

BILLING CODE 4310–55–P