56 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

Executive Order 12612 (Federalism

Assessment)

This action has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

the final rule does not have sufficient

federalism implications to warrant the

preparation of a separate Federalism

assessment. This action removes the

requirement that foreign-based motor

carriers conduct controlled substances

testing. It does not place any

requirements on the States and thus

does not limit the policy-making

discretion of States.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.217,

Motor Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation on Federal programs and

activities apply to this program.

Paperwork Reduction Act

This action does not contain a

collection of information requirement

for purposes of the Paperwork

Reduction Act of 1980, 44 U.S.C. 3501–

3520.

National Environmental Policy Act

The agency has analyzed this action

for the purpose of the National

Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.) and has determined

that this action will not have any effect

on the quality of the environment.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.

List of Subjects in 49 CFR Part 391

Controlled substances, Driver

qualifications, Drug abuse, Drug testing,

Highways and roads, Highway safety,

Motor carriers, Motor vehicle safety,

Reporting and recordkeeping

requirements, Safety, Transportation.

Issued on: December 29, 1994.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the

FHWA is amending title 49, Code of

Federal Regulation, subtitle B, chapter

III, part 391 as set forth below:

PART 391—QUALIFICATION OF

DRIVERS

1. The authority citation for part 391

continues to read as follows:

Authority: 49 U.S.C. 504, 31136, and

31502; and 49 CFR 1.48.

Subpart H—Controlled Substances

Testing

2. In § 391.83, paragraph (c) is revised

to read as follows:

§ 391.83 Applicability.

* * * * *

(c) This subpart is not applicable with

respect to any foreign-based employee

of a foreign-domiciled motor carrier.

[FR Doc. 94–32333 Filed 12–30–94; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AC27

Endangered and Threatened Wildlife

and Plants; Determination of

Endangered Status for Arabis

Perstellata

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) determines

endangered status for Arabis perstellata

(rock cress) under the authority of the

Endangered Species Act of 1973, as

amended (Act). The species is made up

of two subspecies occupying distinct

geographic areas. The small rock cress

(Arabis perstellata E. L. Braun var.

perstellata Fernald) is currently known

from 27 populations in Kentucky—24 in

Franklin County, 2 in Owen County,

and 1 in Henry County. The large rock

cress (Arabis perstellata E. L. Braun var.

ampla Rollins) is known from only two

populations in Rutherford County,

Tennessee. Both subspecies are

endangered throughout their range due

to habitat alteration; residential,

commercial, or industrial development;

timber harvesting; grazing and

trampling; and competition with native

and exotic weedy species, especially the

European garlic mustard (Alliaria

petiolata). This action extends Federal

protection under the Act to the rock

cress.

EFFECTIVE DATE: February 2, 1995.

ADDRESSES: The complete file for this

rule is available for public inspection,

by appointment, during normal business

hours at the Asheville Field Office, U.S.

Fish and Wildlife Service, 330

Ridgefield Court, Asheville, North

Carolina 28806.

FOR FURTHER INFORMATION CONTACT:

Mr. J. Allen Ratzlaff at the above address

(704/655–1195, Ext. 229).

SUPPLEMENTARY INFORMATION:

Background

Both varieties of Arabis perstellata

E.L. Braun, (Arabis perstellata E. L.

Braun var. ampla Rollins, large rock

cress, and Arabis perstellata E.L. Braun

var. perstellata Fernald, small rock

cress) are perennial members of the

mustard family (Brassicaceae). The large

rock cress is known from only one

county in Tennessee, and the small rock

cress is known from only three counties

in Kentucky. Both varieties have round

stems and alternate leaves. Their stems

and foliage have a grayish coloration

due to the large quantity of hairs. Their

stems arise from horizontal bases and

grow up to 80 centimeters (cm) (31.5

inches) long, often drooping from rock

ledges. Each year a basal rosette of

leaves is produced, and new flowering

branches emerge from the old rosette of

the previous season. Their lower leaves

vary from 4 to 15 cm (1.6 to 6.0 inches)

long and are obovate to oblanceolate

with slightly toothed and pinnatifid

margins. Their upper leaves are

smaller—up to 3.5 cm (1.4 inches)

long—and are elliptic to oblanceolate,

with coarse teeth along the margin. Both

surfaces of their leaves are stellatepubescent. The inflorescence is an

elongate raceme with numerous flowers.

Their flowers have four petals that are

3 to 4 millimeters (mm) (0.12 to 0.16

inch) long, are white to lavender, and

have four pale green sepals that are 2 to

3 mm (0.08 to 0.12 inch) long. There are

six stamens, with two shorter than the

other four. The ovary is elongate, twochambered, and develops into a silique.

Fruiting stalks are about 1 cm (0.4 inch)

long at maturity; siliques are up to 4 cm

(1.6 inches) long and are covered with

both simple and stellate hairs.

Flowering is from late March to early

May. Fruits mature from mid-May to

early June. Their oblong seeds are

reddish brown; somewhat flattened;

about 1 mm (0.04 inch) long; and, in

places, minutely hairy (Jones 1991).

Arabis perstellata was named by E.L.

Braun from plants collected between

1936 and 1993 on wooded hillsides

along Elkhorn Creek in Franklin County,

Kentucky. Braun (1940) distinguished

the new taxon from the similar Arabis

dentata (Torr.) T. & G. (now called

Arabis shortii (Fern.) Gleason) by its
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 57

perennial habit; grayer, stellate

pubescence of stems and leaves; and

longer pedicels. Fernald (1946) treated

A. shortii as a variety of A. perstellata,

through it is now generally accepted

that they represent two species (Kartesz

and Kartesz 1980). In 1959, plants were

discovered on steep limestone cliffs

above the Stones River in Davidson

County, Tennessee, by Dr. R.B. Channel.

Rollins (1960) described these plants as

Arabis perstellata var. ampla and

distinguished them from the typical

variety by their generally larger size,

thinner and more entire leaves, and

lesser pubescence. Rollins reported the

chromosome number of the Tennessee

plants as n=7. The chromosome number

of the Kentucky plants has yet to be

determined.

Arabis perstellata is typically found

on wooded steep slopes with limestone

outcrops. The outcrops tend to be moist

but not wet; rarely, plants can be found

on seepy outcrops. They also may be

found in protected areas, such as around

the bases of larger trees, or in areas

where there is little competition, such

as around areas regularly scoured by

talus movement or erosion. The plants

have a well-developed system of

rootstocks that allow them to persist in

these inhospitable sites. Sometimes

plants display a weedy tendency,

colonizing recent road cuts or animal

paths through the woodlands. The

plants survive in full shade or filtered

light, but are not found in full sunlight

(Jones 1991).

The distribution of Arabis perstellata

var. perstellata shows a strong

correlation with the Kentucky River and

its tributaries (primarily Elkhorn Creek),

with the majority of sites occurring in

Franklin County. No sites have been

found south of Frankfort along the

Kentucky River, although appropriate

habitat appears to be present.

Historically, Arabis perstellata var.

ampla was also associated with

calcareous bluff habitat of a specific

river—the Stones River. The two extant

populations are somewhat atypical

compared to historic sites because they

occur on rocky knobs about 15 miles

from the Stones River (Jones 1991). The

following is a description of the species’

status within each State where it occurs.

Tennessee. The following information

on Arabis perstellata var. ampla in

Tennessee is primarily from Jones

(1991). All known Arabis perstellata

var. ampla populations in Tennessee are

from the Cumberland River Subsection

of the Central Basin Physiographic

Region. Prior to the status survey

conducted by Jones (1991), there were

three records of large rock cress in

Davidson County and two in Rutherford

County. All three of the sites in

Davidson County have been extirpated,

and one of the sites in Rutherford

County could not be relocated. One

additional population was discovered in

Rutherford County during the status

survey. Of the two remaining

populations, one is small—about 25

plants—and covers about 0.06 acre. The

other population contains several

hundred plants scattered over about 2.2

acres. Both sites are on private land and

are threatened from competition by

weedy invaders.

Kentucky. The following information

on Arabis perstellata var. perstellata in

Kentucky is primarily from Jones (1991).

All known Arabis perstellata var.

perstellata populations in Kentucky are

from the Eden Shale Belt Subsection of

the Blue Grass Physiographic Region.

Prior to the status survey conducted by

Jones (1991), there were three counties

in Kentucky with occurrence records for

the small rock cress—1 in Henry

County, 2 in Owen County, and 26 in

Franklin County. One site in Owen

County and seven sites in Franklin

County have been extirpated. There was

insufficient information to locate four

other historic records (two in Franklin

County and two from unknown

counties). However, 8 new populations

were discovered during the status

survey, and the 27 known small rock

cress sites in Kentucky are distributed

as follows: 1 population from Henry

County, 2 populations from Owen

County, and 24 populations from

Franklin County. Of these 27

populations, 10 have fewer than 100

individual plants and 12 have 20 or

fewer.

The immediate threats to the 27

remaining populations include the

following—(1) 8 are threatened by

weedy competitors, (2) 4 by weedy

competitors and trampling, (3) 2 by

trampling, (4) 1 by logging, and (5) 2 by

road work. One of the largest

populations was severely impacted by

roadwork while the species was

proposed for listing. The remaining 10

populations do not appear to have any

immediate threats but are vulnerable to

the aforementioned threats as well as

other habitat alterations and potential

inbreeding problems as neighboring

populations decline. All of the

Kentucky populations are privately

owned. Three receive limited protection

through their inclusion in State

designated natural areas.

Previous Federal Actions

Federal government actions on this

species began with section 12 of the Act

of 1973 (16 U.S.C. 1531 et seq.), which

directed the Secretary of the

Smithsonian Institution to prepare a

report on those plants considered

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 (40 FR

27823) that formally accepted the

Smithsonian report as a petition within

the context of section 4(c)(2) (now

section 4(b)(3)) of the Act. By accepting

this report as a petition, the Service also

acknowledged its intention to review

the status of those plant taxa named

within the report. Arabis perstellata var.

ampla and Arabis perstellata var.

perstellata were included in the

Smithsonian report and in the July 1,

1975, Notice of Review. On June 16,

1976, the Service published a proposed

rule (41 FR 24523) to determine

approximately 1,700 vascular plant taxa

to be endangered species pursuant to

section 4 of the Act; Arabis perstellata

var. ampla and Arabis perstellata var.

perstellata were included in that

proposal.

The 1978 amendments to the Act

required that all proposals over 2 years

old be withdrawn. On December 10,

1979 (44 FR 70796), the Service

published a notice withdrawing plants

proposed on June 16, 1976. The revised

notice of review for native plants

published on December 15, 1980 (45 FR

82480), included Arabis perstellata var.

ampla and Arabis perstellata var.

perstellata as category 1 species.

Category 1 species are those for which

the Service has on file substantial

information on biological vulnerability

and threats to support the

appropriateness of proposing to list the

taxa as threatened or endangered. These

subspecies were retained in their

respective categories when the notice of

review for native plants was revised in

1983 (48 FR 53640) and 1985 (50 FR

39526), but Arabis perstellata var.

ampla was then thought to be extinct. In

the 1990 notice of review (50 FR 6184),

Arabis perstellata var. ampla was

retained as a category 1 species but was

no longer thought to be extinct (i.e., it

was rediscovered), and Arabis

perstellata var. perstellata was placed in

category 2 because the Service believed

that additional searches of potential

habitat and further identification of

threats were needed before a decision

could be made as to whether a proposed

rule should be prepared to add the

species to the list. (Category 2 species

are those for which the Service has

information indicating that proposing to

list them as endangered or threatened

may be appropriate but for which

substantial data on biological
58 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

vulnerability and threats are not

currently known or on file to support

the preparation of rules.) The Service

funded surveys in 1989 in order to

determine the status of Arabis

perstellata var. perstellata in Kentucky.

The contractors conducting the status

survey for Arabis perstellata var.

perstellata included a review of Arabis

perstellata var. ampla in Tennessee.

Final reports on these surveys were

accepted by the Service in 1991.

All plants included in the

comprehensive plant notices are treated

as under petition. Section 4(b)(3)(B) of

the Act, as amended in 1982, requires

the Secretary to make certain findings

on pending petitions within 12 months

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

1982 amendments further requires that

all petitions pending on October 13,

1982, be treated as having been newly

submitted on that date. This was the

case for Arabis perstellata var. ampla

and Arabis perstellata var. perstellata

because of the acceptance of the 1975

Smithsonian report as a petition. From

1983 through 1990 the Service found

that the petitioned listing of both

varieties was warranted but precluded

by higher priority species. In 1990, it

was determined that listing of Arabis

perstellata var. ampla was not

warranted because data on distribution,

vulnerability, and threats were

incomplete. Status survey information

received by the Service in 1991

completed these informational gaps and

was sufficient and conclusive enough to

support the proposed listing of Arabis

perstellata var. ampla and Arabis

perstellata var. perstellata published in

the Federal Register of January 3, 1994

(59 FR 53). The proposed listing

represented the final petition finding for

the large and small rock cresses.

Summary of Comments and

Recommendations

In the January 3, 1994, proposed rule,

and through associated notifications, all

interested parties were requested to

submit factual reports and information

that might contribute to the

development of a final rule for the rock

cress. Appropriate Federal and State

agencies, county governments, scientific

organizations, and interested parties

were contacted by letters dated January

20, 1994. Legal notices were published

in the ‘‘Frankfort State Journal’’

(Frankfort, Kentucky) on January 23,

1994 and in the ‘‘Daily News Journal’’

(Murfreesboro, Tennessee) on January

21, 1994.

Four written responses were received

on the proposed rule to list rock cress.

One Federal agency, one State agency,

and two individuals provided

comments.

The U.S. Soil Conservation Service,

Nashville, Tennessee, responded by

stating they have ‘‘no projects which

might affect the species proposed for

listing.’’

The Kentucky State Nature Preserves

Commission and one individual from

Kentucky (who owns land that supports

the species), supported the listing of the

typical variety. Neither commented on

the large rock cress.

One individual opposed the listing

because ‘‘The Fish and Wildlife Service

is intruding into an area in which it

certainly has no moral or legal

authority—private property.’’ The

Service response is that the Act does not

allow the Service to use land ownership

as a factor in determining whether a

species should be placed on the

Endangered and Threatened Species

List. The Act requires that a decision to

list a species be based solely on

biological data. Further, listed plants

receive very little formal protection on

private lands. For the most part they are

only protected on Federal lands or

through section 7 of the Act

(consultation with other Federal

Agencies).

The same individual also stated that

‘‘. . . you (the Service) present

hypothetical scenarios of what timber

harvest might do to the resources and

the area subject to timber harvest. All of

your arguments are based on conjecture

and supposition with little or no

scientific data. The areas in question

have undergone severe natural and mancaused changes in biodiversity over the

past 200 years of European occupancy.

Yet, after all that has occurred, the

species under consideration persist.’’

The Service believes that, based on the

biology of the species, timber harvesting

would impact the species. Not only

could the species be affected by direct

impacts such as heavy equipment, but

because we know the species does not

survive in full sunlight, removal of trees

would likely have a detrimental effect.

Further, timber harvest is only one of

several threats to this species (see

‘‘Summary of Factors Affecting the

Species’’ section of this rule). The

Service agrees that the areas in question

have undergone considerable

‘‘biodiversity’’ changes over the past

centuries since European settlement.

However, while it is not possible to say

to what degree this species has become

more or less abundant since that time,

populations are known to have been lost

and remaining populations continue to

be threatened. There are many examples

of species that have been reduced in

number since European settlement,

many of which have become extinct.

The Service believes that without the

protection afforded by the Act, this

species would likely follow the same

course.

The individual further stated that

‘‘The scientific community, and the

Service in particular, need to recognize

that extinction has always been a

continuing process and will continue to

be so.’’ The Service agrees that

extinction is a natural process.

Extinction naturally occurs as species

adapt (evolve) or don’t adapt (become

extinct) to a changing environment.

However, the present rate of extinction,

by some estimates, is as high as 1,000

times the ‘‘normal’’ extinction rate, with

virtually all of the extinction being

attributable to human induced

environmental changes. A species being

eliminated by processes such as road

building or other man-made factors is

far different from a species being unable

to adapt to a naturally changing

environment. Even so, the Act does not

make distinctions in this regard. A

species may be listed due to either

natural or manmade factors that affect

its continued existence.

Summary of Factors Affecting the

Species

After a thorough review and

consideration of all information

available, the Service has determined

that the rock cress should be classified

as an endangered species. Section

4(a)(1) of the Act and regulations (50

CFR part 424) promulgated to

implement the listing provisions of the

Act were followed. 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 Arabis perstellata E.L.

Braun (rock cress) are as follows:

A. The present or threatened

destruction, modification, or

curtailment of its habitat or range

Arabis perstellata var. perstellata—Of

the 27 known populations of small rock

cress, 17 are threatened with destruction

or adverse modification of their habitat.

Eight are threatened by weedy

competitors, four by weedy competitors

and trampling, two by trampling, one by

logging, and two by road work (one

population was severely impacted by

road work during the period the species

was proposed for listing). The remaining

10 populations do not appear to have

any immediate threats but are

vulnerable to the aforementioned threats

as well as other habitat alterations and

potential inbreeding problems as

neighboring populations decline. Active
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 59

management is required to ensure that

the species continues to survive at all

sites.

Arabis perstellata var. ampla—Both of

the remaining large rock cress

populations in Tennessee are threatened

from competition by weedy invaders

and potentially by livestock grazing and

trampling. Also, the smaller site appears

to be made up of older individuals, and

there is little evidence of reproduction

(Jones 1991).

B. Overutilization for commercial,

recreational, scientific, or educational

purposes

At this time there is little or no

commercial trade in Arabis perstellata

var. ampla or Arabis perstellata var.

perstellata. Most populations of this

species are very small and cannot

support the collection of plants for

scientific or other purposes.

Inappropriate collecting for scientific

purposes or as a novelty could be a

threat to the species.

C. Disease or predation

Disease and predation do not appear

to be factors affecting the continued

existence of this species at this time

(Jones 1991).

D. The inadequacy of existing regulatory

mechanisms

The large rock cress is listed as

endangered in Tennessee by Collins et

al. (1978) and Somers (1989).

Endangered species in Tennessee

receive some protection through the

‘‘Rare Plant Protection and Conservation

Act of 1985’’ (Tennessee Department of

Conservation, 1987). The removal of

plants from State properties for

scientific educational, or propagative

purposes is controlled, as is the

disturbance of the species on private

lands without the landowner’s consent.

There is no protection for the species if

its presence conflicts with public works

projects (i.e., road building).

In Kentucky, the small rock cress is

listed as endangered by the Kentucky

Academy of Science and Kentucky State

Nature Preserves Commission (Branson

et al. 1981, Warren et al. 1986). These

lists, however, have no legal standing in

the State. The state of Kentucky

considers plants on the State

endangered species list but provides no

protection for them.

The Act will provide additional

protection to populations that are on

Federal land and to the other

populations when the taking is in

violation of any State law, including

State trespass laws. Protection from

inappropriate interstate commercial

trade will also be provided.

E. Other natural or manmade factors

affecting the species’ continued

existence

Arabis perstellata var. ampla and

Arabis perstellata var. perstellata could

be facing potential inbreeding problems

as neighboring populations decline.

The Service has carefully assessed the

best scientific and commercial

information available regarding the past,

present, and future threats faced by this

species in determining to make this rule

final. Based on this evaluation, the

preferred action is to list the rock cress

as endangered. Arabis perstellata (rock

cress) is made up of two subspecies

occupying distinct geographic areas.

The small rock cress is currently known

from 27 populations in Kentucky—24 in

Franklin County, 2 in Owen County,

and 1 in Henry County. The large rock

cress is known from only two

populations in Rutherford County,

Tennessee. Both subspecies are

endangered throughout their range due

to habitat alteration; residential,

commercial, or industrial development;

timber harvesting; grazing and

trampling; and competition with native

and exotic weedy species, especially the

European garlic mustard (Alliaria

petiolata). Because of their restricted

distributions and both subspecies’

vulnerability to extinction, endangered

status appears to be the most

appropriate classification for this

species. (See ‘‘Critical Habitat’’ section

for a discussion of why critical habitat

is not being proposed for this plant.)

Critical Habitat

Section 4(a)(3) of the Act requires

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. The Service’s 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

activity and the identification of critical

habitat can be expected to increase the

degree of threat to the species or (2) the

designation of critical habitat would not

be beneficial to the species. The Service

finds that designation of critical habitat

is not presently prudent for this species.

Such a determination would result in no

known benefit to this species, and

designation of critical habitat could

further threaten the species.

Section 7(a)(2) and regulations

codified at 50 CFR part 402 require

Federal agencies to ensure, in

consultation with and with the

assistance of the Service, that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of listed species or destroy or

adversely modify its critical habitat, if

designated. 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 proposed species or result

in destruction or adverse modification

of proposed critical habitat. (See

‘‘Available Conservation Measures’’

section for a further discussion of

section 7.) As part of the development

of this rule, Federal and State agencies

were notified of the plants’ general

distribution, and they were requested to

provide data on proposed Federal

actions that might adversely affect the

species. No specific projects were

identified. Should any future projects be

proposed in areas inhabited by this

plant, the involved Federal agency will

already have the general distributional

data needed to determine if the species

may be impacted by their action; and if

needed, more specific distributional

information would be provided.

Regulations promulgated for the

implementation of Section 7 of the Act

provide for both a ‘‘jeopardy’’ standard

and a ‘‘destruction or adverse

modification’’ of critical habitat

standard. Due to the highly precarious

status of the rock cress, any significant

adverse modification or destruction of

the species’ habitat would also likely

jeopardize the species’ continued

existence thereby triggering both

standards. Therefore, no additional

protection for the plant would accrue

from a critical habitat designation that

would not also occur from listing of the

species. Habitat protection for the rock

cress will be accomplished through the

section 7 ‘‘jeopardy’’ standard and

section 9 prohibitions against take.

In addition, the rock cress is very rare,

and taking for scientific purposes and

private collection cold pose a threat if

specific site information was released.

The publication of critical habitat maps

in the Federal Register and local

newspapers and other publicity

accompanying critical habitat

designation could increase the

collection threat and increase the

potential for vandalism during the often

controversial critical habitat designation

process. The locations of populations of

this species have consequently been

described only in general terms in this

final rule. Any existing precise locality

data would be available to appropriate

Federal, State, and local government

agencies from the Service office

described in the ADDRESSES section or

from the Service’s Cookeville Field
60 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

Office, 446 Neal Street, Cookeville,

Tennessee 38501.

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 States 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 taking 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 a listed species or to

destroy or adversely modify any

designated critical habitat. If a Federal

action may adversely affect a listed

species or its critical habitat, the

responsible Federal agency must enter

into formal consultation with the

Service. All Arabis perstellata var.

ampla and Arabis perstellata var.

perstellata populations are on privately

owned land or in road rights-of-way. No

Federal involvement is presently known

or has been identified for the immediate

future.

The Act and its implementing

regulations set forth a series of general

trade 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, would 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

this species in interstate or foreign

commerce, or to remove and reduce to

possession the species from areas under

Federal jurisdiction. In addition, for

plants listed as endangered, the Act

prohibits the malicious damage or

destruction on Federal lands and the

removal, cutting, digging up, or

damaging or destroying of such plants

in knowing violation of any State law or

regulation, including State criminal

trespass law. Certain exceptions 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 threatened species

under certain circumstances. It is

anticipated that few trade permits

would ever be sought or issued because

the species is not common in cultivation

or in the wild.

It is the policy of the Service,

published in the Federal Register on

July 1, 1994, (59 FR 34272), to identify

to the maximum extent practicable at

the time of listing those activities that

would 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. Prohibitions relating to Federal

lands and to trade are not of concern at

present, as none of the Arabis

perstellata populations are known to

occur on Federal lands, and there is no

known current trade in this species.

Collection, damage or destruction on

non-Federal lands is prohibited if in

knowing violation of State law, or in

violation of State criminal trespass law.

This would not affect any activities in

Kentucky, as Kentucky State law

provides no protection for plants. In

Tennessee, Arabis perstellata is

protected under the Rare Plant

Protection and Conservation Act of

1985, which controls the removal of

plants from State properties for

scientific, educational, or propagative

purposes, and the disturbance of the

species on private lands without the

landowner’s consent. 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 Asheville

Office (see ADDRESSES section). Requests

for copies of the regulations on listed

plants and inquiries about prohibitions

and permits should be addressed to the

U.S. Fish and Wildlife Service, Division

of Endangered Species, 1875 Century

Boulevard, Atlanta, Georgia 30345–3301

(404/679–7110; Facsimile 404/679–

7081).

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

Branson, B.A., D.F. Harker, Jr., J.M.

Baskin, M.E. Medley, D.L. Batch, M.L.

Warren, Jr., W.H. Davis, W.C.

Houtcooper, B. Monroe, Jr., L.R.

Phillippe, and P. Cupp. 1981.

Endangered, threatened, and rare

animals and plants of Kentucky.

Transactions of the Kentucky

Academy of Science 42:77–89.

Braun, E.L. 1940. New plants from

Kentucky. Rhodora 42:47–49.

Collins, J.L., H.R. DeSelm, A.M. Evans,

R. Kral, and B.E. Wofford. 1978. The

rare vascular plants of Tennessee.

Journal of the Tennessee Academy of

Science 53:128–133.

Fernald, M.L. 1946. Identification and

reidentification of North American

Plants. Rhodora 48:207–216.

Jones, R.L. 1991. Status Survey Report

on Arabis perstellata var. perstellata.

Unpublished report to the Asheville

Field Office, U.S. Fish and Wildlife

Service, Asheville, North Carolina. 94

pp.

Kartesz, J., and R. Kartesz. 1980. A

synonymized checklist of the vascular

flora of the United States, Canada, and

Greenland. University of North

Carolina Press, Chapel Hill, North

Carolina.

Rollins, R. 1960. Arabis perstellata in

Tennessee. Rhodora 62:242–244.

Somers, P. 1989. Revised list of the rare

plants of Tennessee. Journal of the

Tennessee Academy of Science

64:179–184.

Tennessee Department of Conservation,

Division of Ecological Services. 1987.

The Rare Plant Protection and

Conservation Act of 1985. Nashville,

Tennessee.

Warren, M.L., Jr., W.H. Davis, Branson,

R.R. Hannan, M. Evans, D.L. Batch,

B.D. Anderson, B. Palmer-Hall, Jr., J.R.

MacGregor, R.R. Cicerello, R. Athey,

B.A. Branson, G.J. Fallo, B.M. Burr,

M.E. Medley, and J.M. Baskin. 1986.

Endangered, threatened, and rare

plants and animals of Kentucky.

Transactions of the Kentucky

Academy of Science 47:84–97.
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 61

Author

The primary author of this final rule

is Mr. J. Allen Ratzlaff, Asheville Field

Office, U.S. Fish and Wildlife Service,

330 Ridgefield Court, Asheville, North

Carolina 28806 (704/665–1195, Ext.

229).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

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.

2. Section 17.12(h) is amended 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 name Status When listed Critical

habitat

Special

rules Scientific name Common name

Flowering plants:

* * * * * * *

Arabis

perstellata.

Rock cress ............. U.S.A. (KY, TN) ..... Brassicaceae ......... E 570 NA NA

* * * * * * *

Dated: December 12, 1994.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 94–32267 Filed 12–30–94; 8:45 am]

BILLING CODE 4310–55–M

50 CFR Part 20

RIN 1018–AC66

Migratory Bird Hunting; Decision on

the Conditional Approval of BismuthTin Shot as Nontoxic for the 1994–95

Season

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) is publishing this final

rule to notify the public of the interim

conditional approval of the use of

bismuth-tin for the remainder of the

1994–1995 migratory bird hunting

season. Toxicity studies undertaken by

the Bismuth Cartridge Company and

other pertinent materials indicate that

bismuth-tin shot is nontoxic to

waterfowl when ingested.

EFFECTIVE DATE: This rule becomes

effective January 3, 1995.

FOR FURTHER INFORMATION CONTACT: Paul

R. Schmidt, Chief, or Keith Morehouse,

Staff Specialist, Office of Migratory Bird

Management (MBMO), U.S. Fish and

Wildlife Service, 634 ARLSQ, 1849 C St.

NW, Washington D.C. 20240 (703/358–

1714).

SUPPLEMENTARY INFORMATION: The

Service published a proposed regulation

in the Federal Register on August 22,

1994 (59 FR 43088) to provide for

conditional approval of bismuth-tin shot

(in a mixture of [nominally] 97–3

percents, respectively) as nontoxic for

the taking of waterfowl and coots during

the 1994–1995 hunting season. This

proposed action was in response to a

petition for rulemaking from the

Bismuth Cartridge Company received

June 24, 1994. The petition requested

that the Service modify the provisions

of 50 CFR 20.21(j), to legalize the use of

bismuth-tin shot on an interim,

conditional basis for both the 1994–95

and the 1995–96 seasons. The petition

cited the following reasons in support of

the proposal: (a) bismuth is nontoxic; (b)

the proposed rule is conditional; and (c)

the evidence presented in the record,

i.e., the application from the Bismuth

Cartridge Company. This petition

acknowledged responsibility by the

Bismuth Cartridge Company to

complete all the nontoxic shot approval

tests as outlined in 50 CFR 20.134.

The current petition for rulemaking

follows two previous applications to the

Service for final approval, one dated

October 21, 1993, and the other dated

December 30, 1993. The Service replied

that the applications were deficient

because the bismuth-based shot material

had not been adequately tested.

Preliminary toxicity testing by the

applicants had been with essentiallypure bismuth only. Thus, there was not

adequate scientific data (either available

or provided with the application)

covering toxicity of the material to be

loaded into shotshells. The Service

pledged in both replies, however, to

work with the applicants to process the

applications in as timely a fashion as

possible.

In response to the Bismuth Cartridge

Company’s petition of June 14, 1994, the

Service proposed (59 FR 43088) the

interim conditional approval of

bismuth-tin shot based on what was

known about the toxicity of bismuth

and on the agreement by the Bismuth

Cartridge Company to conduct and

complete the 30-day acute toxicity test

as described in 50 CFR 20.134.

For bismuth, there are three especially

recent and relevant studies that support

this proposal. The three studies include

Sanderson and Anderson (1994),

Ringelman et al. (1992), and Sanderson

et al. (1992). A complete description of

these studies can be found in the

proposed rule (59 FR 43088). In

addition, test results with tin include

those by Grandy et al. (1968) in which

there were no deaths associated with

mallards dosed with tin shot. Positive

results from the acute toxicity test

(Sanderson et al. 1994) (just concluded)

and the other toxicity information (cited

above) suggest that a temporary

conditional approval for bismuth-tin

can be provided without significant risk

to migratory bird resources. The Service

believes it has sufficient flexibility in

the regulations to approach approval of

shot in a step manner.

The toxicity analysis procedures (50

CFR 20.134) consist of three tests which

represent the three major categories of

toxic effects: short-term periodic

exposure, chronic exposure under

adverse environmental conditions, and

the impact of chronic exposure on

reproduction. Tests include both steelshot and lead-shot control groups and

statistical analyses of all data from each

test. Test 1 is a short-term, 30-day acute