[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Proposed Rules]
[Pages 30313-30318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13069]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0020]
[MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List Castanea pumila var. ozarkensis

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list Castanea pumila var. ozarkensis 
(Ozark chinquapin), a tree, as endangered or threatened under the 
Endangered Species Act of 1973, as amended (Act). Based on our review, 
we find that the petition presents substantial scientific or commercial 
information indicating that listing this species may be warranted. 
Therefore, with the publication of this notice, we are initiating a 
status review of the species to determine if listing Castanea pumila 
var. ozarkensis is warranted. To ensure that the review is 
comprehensive, we are requesting scientific and commercial data and 
other information regarding this species. Based on the status review, 
we will issue a 12 month finding on the petition, which will address 
whether the petitioned action is warranted, as provided in section 
4(b)(3)(B) of the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before August 2, 2010. Please note 
that if you are using the Federal eRulemaking Portal (see ``ADDRESSES'' 
section, below), the deadline for submitting an electronic comment is 
11:59 p.m. Eastern Daylight Savings Time on this date.
    After August 2, 2010, you must submit information directly to the 
Field Office (see FOR FURTHER INFORMATION CONTACT section below). 
Please note that we might not be able to address or incorporate 
information that we receive after the above requested date.

ADDRESSES: You may submit information by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. In 
the box that reads ``Enter Keyword or ID,'' enter the Docket number for 
this finding, which is FWS-R4-ES-2009-0020. Check the box that reads 
``Open for Comment/Submission,'' and click the Search button. You 
should then see an icon that reads ``Submit a Comment.'' Please ensure 
that you have found the correct rulemaking before submitting your 
comment.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R4-ES-2009-0020; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information we receive on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Request for Information 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Mark Sattelberg, Field Supervisor, 
Arkansas Ecological Services Field Office, 110 South Amity Road, Suite 
300, Conway, AR 72032; by telephone (501-513-4470); or by facsimile 
(501-513-4480). If you use a telecommunications device for the deaf 
(TDD), please call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on 
Castanea pumila var. ozarkensis from governmental agencies, Native 
American Tribes, the scientific community, industry, and any other 
interested parties. We seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which 
are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) The potential effects of climate change on this species and its 
habitat.
    If, after the status review, we determine that listing Castanea 
pumila var. ozarkensis is warranted, we will propose critical habitat 
(see definition in section 3(5)(A) of the Act), in accordance with 
section 4 of the Act, to the maximum extent prudent and determinable at 
the time we propose to list the species. Therefore, within the 
geographical range currently occupied by Castanea pumila var. 
ozarkensis, we request data and information on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species,''
    (2) Where these features are currently found, and
    (3) Whether any of these features may require special management 
considerations or protection.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential to the conservation of the species.'' Please provide 
specific comments and information as to what, if any, critical habitat 
you think we should propose for designation if the species is proposed 
for listing, and why such habitat meets the requirements of section 4 
of the Act.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the

[[Page 30314]]

Act directs that determinations as to whether any species is an 
endangered or threatened species must be made ``solely on the basis of 
the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
website. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding, will be available for you to review at 
http://www.regulations.gov, or you may make an appointment during 
normal business hours at the U.S. Fish and Wildlife Service, Arkansas 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. We 
are to base this finding on information provided in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files. To the maximum extent practicable, we 
are to make this finding within 90 days of our receipt of the petition 
and publish our notice of the finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly review the status of the species, which is subsequently 
summarized in our 12-month finding.

Petition History

    On January 6, 2004, we received a petition, dated December 28, 
2003, from Mr. Joe Glenn of Hodgen, Oklahoma, requesting that the 
Castanea pumila var. ozarkensis (Ozark chinquapin) be listed under the 
Act as a candidate species. The petition clearly identified itself as 
such and included the requisite identification information for the 
petitioner(s), as required by 50 CFR 424.14(a). The petition contained 
supporting information regarding the species' ecology, threats to the 
species, and survey and occurrence data for a portion of the Ouachita 
Highlands in southeastern Oklahoma. We acknowledged receipt of the 
petition in a February 2, 2004, letter to Mr. Glenn. In that letter, we 
advised the petitioner that, due to a significant number of court 
orders and settlement agreements in Fiscal Year 2004, we would not be 
able to address the petitioned request at that time.

Previous Federal Action

    On July 1, 1975 (40 FR 27924), Castanea pumila var. ozarkensis was 
included as one of the 3000 plant species under status review. It was 
proposed or reviewed by the Service for federal listing as an 
endangered species under the Act in 1976 (41 FR 17 24524). We, however, 
did not finalize that proposed rule (U.S. Fish and Wildlife Service 
1988). Castanea pumila var. ozarkensis became a category 2 candidate on 
December 15, 1980 (45 FR 82480 82569). It was again advertised as a 
category 2 candidate on September 27, 1985 (50 FR 53640 53670). The 
status changed on February 21, 1990 (55 FR 6184 6229) to a category 1 
candidate species . On September 30, 1993 (58 FR 51144 51190) the 
status changed back to a category 2 candidate species for listing.

Species Information

    Castanea pumila var. ozarkensis was first identified as a separate 
species (Castanea ozarkensis) by Ashe (1923, p. 60). Ashe described the 
range of the species as ``common north of the Arkansas River and 
westward from Center Ridge, Arkansas, northward to southwestern 
Missouri and westward to the Valley of the White River'' (Tucker 1983, 
p. 2). Ashe (1923, p. 361) also described a second species, Castanea 
arkansana, in Arkansas. Ashe (1924, p. 45) reduced Castanea arkansana 
to varietal status as Castanea ozarkensis var. arkansana. Little (1953, 
p. 2, in Tucker 1983) reduced Castanea arkansana to synonymy with 
Castanea ozarkensis. Tucker (1975, p. 2, in Tucker 1983) reduced 
Castanea ozarkensis to a variety of the more common Castanea pumila 
(Castanea pumila var. ozarkensis (Ashe) Tucker) and concurred with 
Little's (1953) treatment of Castanea arkansana. Johnson (1988, p. 43) 
published a revision of Castanea sect. Balanocastanion concurring with 
Tucker's reduction of Castanea ozarkensis to a variety of Castanea 
pumila. Tucker's reduction is further supported in Smith's (1994, p. 
54) Keys to the Flora of Arkansas.
    Castanea pumila var. ozarkensis is a tree in the beech family 
(Fagaceae). Castanea pumila var. ozarkensis has leaves 10 to 25 
centimeters (4 to 10 inches (in)) long, broadly lanceolate to 
elliptical, with coarse teeth that are 2.5 to 9 millimeters (mm) (0.1 
to 0.35 in) long with whitish or yellowish-cream stellate (star-shaped) 
hairs on the lower surfaces. The bark is light brown to reddish brown 
or grayish, with broad flat ridges that break into loose plate-like 
scales. The fruits are subglobose to ovoid nuts up to approximately 20 
mm (0.8 in) long enclosed in a spiny burr with burrs being solitary or 
in groups of two or three. The subspecies is distinguished from 
Castanea pumila var. pumila (Allegheny chinquapin) by the larger leaf 
size, larger teeth, and larger fruit, which also have hairs (Steyermark 
1963, p. 531; Smith 1994, p. 54).
    Castanea pumila var. ozarkensis was historically a medium-sized 
tree species that once grew to 20 meters (m) (65 feet (ft)), although 
usually much shorter, but now rarely reaches heights of more than 9 m 
(30 ft). Trunks develop from stump sprouts as well as from seeds, but 
in recent years, new growth is generally from sprouts. Trees reaching 
the age to produce fruit (4 to 5 years; Paillet 1993, p. 262) are 
increasingly rare due to the fungus parasite (Cryphonectria parasitica) 
that is responsible for the chestnut blight disease, which has 
adversely affected many Castanea spp. populations in the United States 
(Tucker 1983, pp. 8-9; Steyermark 1963, p. 531). Paillet (1991, p. 10; 
1993, pp. 261-262) noted an area on the Ozark National Forest that was 
cut 4-5 years previously that was full of broad chinquapin crowns and 
the ground littered with burs from the summer's nut crop. Based on 
Paillet's observation nearly 20 years ago, it is plausible to assume 
that Castanea pumila var. ozarkensis may produce fruit prior to 
succumbing to the blight at some localities. However, Paillet (1993, p. 
262) reported that these sites were increasingly rare in the early 
1990's.
    Castanea pumila var. ozarkensis has been described as historically 
common in thin woods, edges of woods, and mid-successional woods 
(Tucker 1983, pp. 8-9). This tree historically occupied

[[Page 30315]]

canopy and subcanopy positions on a variety of habitats, including dry 
upland deciduous or mixed hardwood-pine communities on acid soils of 
ridge-tops, upper slopes adjacent to ravines and gorges, and the tops 
of sandstone bluffs (C. McDonald 1987, personal communication (pers. 
comm.)). Associated trees in these habitats include Quercus alba (white 
oak), Quercus stellata (post oak), Quercus rubra (northern red oak), 
Nyssa sylvatica (black gum), Pinus echinata (short-leaf pine), Morus 
rubra (mulberry), Carya spp. (hickories), Ulmus americana (American 
elm), and Ostrya virginiana (ironwood) (Steyermark 1963, p. 531; G. 
Tucker 1976, pers. comm.). Soil conditions typically are acid and 
sandstone-derived, and moisture conditions vary from mesic to dry; 
shade is variable (G. Tucker 1976, pers. comm.; C. McDonald 1987, pers. 
comm.).
    Castanea pumila var. ozarkensis is generally fire tolerant, but 
sprouts may be damaged by fire (Kral 1983, p. 287). Due to blight, dead 
sprouts and dead stump wood may act as a fuel for fire and affect the 
remaining live sprouts.

Distribution and Status

    Castanea pumila var. ozarkensis is located throughout the Interior 
Highlands in Arkansas (34 counties), Missouri (9 counties), and 
Oklahoma (8 counties)(Kratesz 1994). Castanea pumila var. ozarkensis 
currently remains widespread within the Interior Highlands of Arkansas 
and is less common and widespread within the uplands of southwestern 
Missouri and eastern Oklahoma. Localities with seed- producing trees 
are greatly diminished from pre-blight era. However, asexually 
reproducing populations still occur throughout the tree's historic 
distribution. Herbarium specimens are all that remains to support the 
existence of Castanea pumila var. ozarkensis in Alabama (four 
localities in the Appalachian Mountains). Data to support the abundance 
and distribution of Castanea pumila var. ozarkensis in the Appalachian 
Mountains is lacking, and researchers have been unable to find extant 
populations in this region. The Interior Highlands contain the only 
known extant populations of Castanea pumila var. ozarkensis at this 
time (Johnson 1988, pp. 43-45).
    At present, there are greater than 300 element occurrences in the 
Interior Highlands. Individual site records commonly report multiple 
Castanea pumila var. ozarkensis sprout clumps. These vary from tens to 
hundreds of individual sprout clumps at an element occurrence record 
site (Kratesz 1994). At present, Castanea pumila var. ozarkensis 
occurrence and status is tracked by all of the State heritage programs 
and the U.S. Department Agriculture's Forest Service within the tree's 
range.

Evaluation of Information for this Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding a species 
to, or removing a species from, the Federal Lists of Endangered and 
Threatened Wildlife and Plants. 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) of the Act:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the Castanea pumila var. ozarkensis, as presented 
in the petition and other information available in our files, is 
substantial, thereby indicating that the petitioned action may be 
warranted. Our evaluation of this information is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Habitat or Range

Information Provided in the Petition
    The petition cites several factors regarding the destruction and 
modification of Castanea pumila var. ozarkensis habitat, including:
    (1) The range of Castanea pumila var. ozarkensis has been reduced 
over past times (geologic time scale) because it once could have 
occupied the entire Lower Mississippi Valley. Based on the petitioner's 
personal observations, several million acres of suitable habitat in the 
Interior Highlands on both public (particularly on national forest 
lands in the region) and private lands have been lost since the 1960s, 
mostly due to anthropogenic (human) disturbance.
    (2) Late successional habitats have been reduced through ``pine 
plantation style'' forest management, which has reduced habitat quality 
through prescribed burning (including the fact that vigorous Castanea 
pumila var. ozarkensis growth did not occur at prescribed burn sites 
studied by the petitioner in Oklahoma).
    (3) Castanea pumila var. ozarkensis is a late successional obligate 
as it relates to seedling establishment.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    With regard to the amount of habitat modification and alteration 
that has occurred within the range of Castanea pumila var. ozarkensis, 
we generally find that the information presented by the petition is 
speculative and not substantial. Further, no supporting information was 
presented to verify the petition's claim that Castanea pumila var. 
ozarkensis could have once occupied the entire Lower Mississippi 
Valley. Information provided in the petition and available in our files 
includes references to records from Louisiana, Mississippi, and 
Alabama. Johnson (1988, pp. 41-45) recognized Castanea pumila var. 
ozarkensis records from the Interior Highlands and Appalachian 
Mountains. While there is support for an Appalachian-Ozarkian floristic 
relationship, floristic relationships to the lower Mississippi Valley 
and Gulf Coastal Plain can only be considered speculative at this time 
(Johnson 1988, p. 47).
    The habitat loss claims in the petition are not supported in 
available, peer- reviewed literature and are contrary to other existing 
information in our files. The Ozark-Ouachita Highlands Assessment 
(OOHA) 1999 Terrestrial Vegetation and Wildlife Report, prepared by a 
collaborative team of natural resource specialists and research 
scientists, examined historic and existing forest conditions throughout 
the Interior Highlands of Arkansas, Missouri, and Oklahoma (U.S. Forest 
Service 1999, section 5). The area of analysis overlaps much of the 
range of Castanea pumila var. ozarkensis. OOHA descriptions of 
vegetation cover or silvicultural practices do not indicate significant 
reductions in suitable habitat for Castanea pumila var. ozarkensis. 
Oak-hickory and oak-pine forest types continue to be common forest 
types in the Interior Highlands. The upland oak-hickory forest type 
provided the dominant cover within the region at the time of the OOHA. 
It covered 15 million acres (6.1 million hectares) or about 36 percent 
of the area. The oak-pine forest type provided the second most 
extensive cover. It covered 4.4 million acres (1.8 million hectares) or 
11 percent of the area.
    Ashe (1923) described the range of the species as ``common north of 
the Arkansas River and westward from

[[Page 30316]]

Center Ridge, Arkansas, northward to southwestern Missouri and westward 
to the Valley of the White River.'' Steyermark (1963, p. 531) states 
that Louisiana and Mississippi are sometimes included as part of the 
Castanea pumila var. ozarkensis range, but specimens examined from 
those States have been proven not to be Castanea pumila var. 
ozarkensis. This is contrary to the statements made by the petitioner 
which states that the species occurs in Louisiana and Mississippi.
    With regard to the reduction of late successional habitats, the 
OOHA recognized Castanea pumila var. ozarkensis as a species of 
viability concern, the habitat description being ``woodland, fire 
maintained'' (U.S. Forest Service 1999, p. 137). Loss of natural fire 
regimes is recognized as a threat to the health and sustainability of 
oak-hickory and oak-pine ecosystems in which Castanea pumila var. 
ozarkensis occurs (Spetich 2004, pp. 49-50 and 65-66). However, given 
the understanding of fire as it relates to ecosystem health and 
sustainability within most of the habitats where Castanea pumila var. 
ozarkensis is known to occur, we cannot conclude that prescribed 
burning is negatively influencing the species, even with the knowledge 
that individual sprout clumps may be top-killed during prescribed 
burns. Prescribed fire reduces fuel availability in the forest, which 
reduces the threat of catastrophic wildfires that are likely a greater 
threat to Castanea pumila var. ozarkensis than prescribed fire.
    The petition claims, based on the petitioner's personal 
observations, that the species is dependent on mesic conditions for 
seedling establishment and growth. The petition also states that 
Castanea pumila var. ozarkensis occurs in areas with abrupt changes in 
topography, including talus flow margins, drainage margins, steep upper 
slopes, rocky outcrops, and ridge tops; he also quoted a historical 
reference (Palmer 1923) that stated a similar array of habitat types. 
These descriptions tend to be more indicative of drier type areas and 
not of mesic, closed canopy forest. While the species is known to occur 
on mesic sites, mesic site obligation is not in alignment with widely 
accepted ecological descriptions and dynamics known to sustain most of 
the forested ecosystems where this species is currently found. Castanea 
pumila var. ozarkensis is common in dry deciduous or mixed hardwood-
pine communities. Turner (1937) said of Castanea pumila var. 
ozarkensis, ``Although it grows better in soils fairly well supplied 
with moisture, it also grows on rocky, rather dry slopes and 
hilltops.'' It is most common on upland slopes and ridges, cliff 
margins, and talus slopes, where it is found on soils derived from 
sandstone, limestone, or on chert-rich, clayey soils.
    The petition also states that Castanea pumila var. ozarkensis is a 
late seral obligate and that excessive shading contributes to branch 
mortality and crown retardation. These characteristics would not be 
expected in a species that needs late successional forest conditions 
for optimal growth. Tucker (1983, p. 15) stated that Castanea pumila 
var. ozarkensis formerly was a member of the climax community, but 
presently is one of the first species to regenerate following a 
disturbance (e.g., clear-cut, prescribed fire). Paillet (1991, p. 10; 
1993, pp. 261-262) noted an area on the Ozark National Forest that was 
cut 4 to- 5 years previously that was full of broad chinquapin crowns 
and the ground littered with burs from the summer's nut crop. The 
species requires sunlight to establish seedlings, which, again, is not 
characteristic of late successional forest conditions that were fire-
maintained. Information in our files does not support the petitioner's 
claim that this species is a late seral obligate. The species is found 
on a variety of aspects and forest community types on the Ouachita and 
Ozark National Forests. Information in our files indicates that 
Castanea pumila var. ozarkensis prefers forests at an early seral 
stage.
Summary of Factor A
    The information in our files does not support the petition's claim 
that Castanea pumila var. ozarkensis has suffered a significant range 
reduction. While there is support for an Appalachian-Ozarkian floristic 
relationship, floristic relationships to the lower Mississippi Valley 
and Gulf Coastal Plain can only be considered speculative at this time 
(Johnson 1988, p. 47). Castanea pumila var. ozarkensis is still 
widespread and abundant throughout the majority of its extant range in 
the Interior Highlands, particularly on public lands.
    The information in our files also does not support the petition's 
claim that Castanea pumila var. ozarkensis habitat has been reduced due 
to prescribed burning. The habitat description for Castanea pumila var. 
ozarkensis is described as ``woodland, fire maintained'' (U.S. Forest 
Service 1999, p. 137). Loss of natural fire regimes is recognized as a 
threat to the health and sustainability of oak-hickory and oak-pine 
ecosystems in which Castanea pumila var. ozarkensis occurs (Spetich 
2004, pp. 49-50 and 65-66).
    In addition, information in our files does not support the 
petition's claim that Castanea pumila var. ozarkensis habitat and 
seedling establishment have been reduced due to a reduction in late 
successional and mesic habitat. Tucker (1983, p. 15) stated that 
Castanea pumila var. ozarkensis formerly was a member of the climax 
community, but presently is one of the first species to regenerate 
following a disturbance (e.g., clear-cut, prescribed fire). Paillet 
(1991, p. 10; 1993, pp. 261-262) noted an area on the Ozark National 
Forest that was cut 4 to 5 years previously that was full of broad 
chinquapin crowns and the ground littered with burs from the summer's 
nut crop.
    In summary, we find that the information provided in the petition, 
as well as other information in our files, does not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted due the present or threatened destruction, 
modification, or curtailment of habitat or range. However, we will 
further investigate the potential threat of the present or threatened 
destruction, modification, or curtailment of habitat or range in our 
status review for this species.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    No information was presented in the petition, or is available in 
our files, to indicate that Castanea pumila var. ozarkensis may warrant 
listing due to overutilization for commercial, recreational, 
scientific, or educational purposes.

C. Disease or Predation

Information Provided in the Petition
    The petition cites two diseases that threaten Castanea pumila var. 
ozarkensis populations:
    (1) Ink disease, caused by Phytopthora cinnamomi, is known to 
attack the root systems of all North American Castanea species. 
Phytopthora cinnamomi spores spread through groundwater, and thus is 
most prevalent in low-lying areas. The petition did not identify it as 
an immediate threat because the current range of Castanea pumila var. 
ozarkensis is restricted to upland areas of the Interior Highlands. 
Phytopthora cinnamomi is prevalent in many areas of the Gulf Coastal 
Plain, and the petitioner believes that this portion of Castanea pumila 
var. ozarkensis' historic range is presently unsuitable for

[[Page 30317]]

occupation due to the disease infestation.
    (2) Chestnut blight, caused by the fungal parasite Cryphonectria 
parasitica, attacks the stems of all North American Castanea species 
but is not directly pathogenic to the root system. Since its 
introduction, chestnut blight has severely impacted Castanea pumila 
var. ozarkensis throughout the Interior Highlands by causing the loss 
of the majority of mature stems. The species continues to survive 
because the root systems have remained intact and continue to sprout 
new stems that are eventually killed by the chestnut blight.
    An unpublished, non-peer-reviewed report written by the petitioner 
described personal observations of Castanea pumila var. ozarkensis on a 
portion of the Ouachita National Forest in LeFlore County, Oklahoma. 
The report described the petitioner's assessments of the life 
expectancy of blight-affected sprout clumps of various sizes with 
assumptions of varying degrees of blight resistance. The report 
concluded that based on observations, environmental factors also had 
contributed to the decline of the species. The report also describes 
the petitioner's assessment that factors such as genetic resistance and 
early maturity of stems have not halted seed production of Castanea 
pumila var. ozarkensis, at the evaluated sites. The petitioner 
indicates that chestnut blight may not present an insurmountable threat 
to the survival of the species.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We are not aware of any information to indicate that ink disease 
poses a significant threat to Castanea pumila var. ozarkensis at this 
time. On the other hand, information provided in the petition and in 
our files does indicate that chestnut blight is widely recognized as 
the dominant threat to Castanea pumila var. ozarkensis. Chestnut blight 
was first noticed in American chestnut trees (Castanea dentata) in New 
York City in 1904. Over a period of about 20 years, the blight spread 
throughout the range of the American chestnut, reducing this important 
forest tree to a multiple-stemmed shrub. The fungus enters wounds in 
the bark and grows under the bark, eventually killing the cambium all 
the way around the infected area. This results in the death of most of 
the above-ground portion of the tree. After top-kill, sprouts develop 
at the base of the tree from dormant buds. These sprouts grow, become 
infected, and die, and the process is repeated (Anagnostakis 2000, p. 
1). The blight affects all North American Castanea species, and its 
effect on Castanea pumila var. ozarkensis was noted beginning in the 
1940s.
    Castanea pumila var. ozarkensis, like the American chestnut 
(Castanea dentata), has sprout clumps that are capable of persisting in 
the understory of established woodlands for many years without seed 
production. Castanea pumila var. ozarkensis sprouts are released when 
seed production is suppressed. In one Arkansas locality, the sprouts 
experience rapid growth and produced seeds within a few years of 
release (Paillet, 1993, p. 267). However, localities with fruit 
production were increasingly rare by the 1970's (Tucker, 1983, pp. 9, 
16). Tucker (1983, pp. 9, 16) could locate only two sexually 
reproducing populations out of several hundred localities investigated 
in the Interior Highlands from 1967 - 1983.
    Castanea pumila var. ozarkensis also responds favorably to forest 
thinning. Paillet (2002, pp. 1522, 1523) observed Castanea pumila var. 
ozarkensis sprouts dominating the biomass of recent clear-cuts in the 
Ozark Mountains of northern Arkansas. In the absence of competition, 
Castanea pumila var. ozarkensis is often able to survive several years 
until it becomes infected with the blight. It persists despite the 
blight, mainly because of its ability to sprout new stems asexually as 
opposed to sexual reproduction through fruit production. Sexually 
reproducing stands were increasingly rare by the early 1970's (Tucker, 
1983, pp. 9, 16), and it is plausible to conclude that even fewer 
stands may persist via sexual reproduction two decades later.
    Despite the shift in reproductive strategy and a shorter life span 
for the stems, chestnut blight has not affected the distribution and 
abundance of Castanea pumila var. ozarkensis in the Interior Highlands 
of Arkansas, Missouri, and Oklahoma. Information in our files indicates 
that Castanea pumila var. ozarkensis has degenerated to stands 
consisting mostly of stump sprouts. There have been some isolated 
localities in which sprouts have survived 5 or more years and produced 
fruit post-blight infection but indications are that these sites have 
become increasingly rare since the early 1990's. Tucker (1983, p. 25) 
states that chestnut blight is responsible for the mortality of extant 
sexually reproducing populations, reducing populations to primarily 
asexual reproduction, and that sexually reproductive populations may 
become extirpated.
    We do not have sufficient information to substantiate the current 
distribution and status of sexually reproductive populations to 
determine whether blight infestation in Castanea pumila var. ozarkensis 
will result in the extirpation of these populations, which would limit 
all remaining populations to asexual reproduction. There also is no 
data in the Service's files to predict what effect the loss of sexually 
reproducing Castanea pumila var. ozarkensis would have on the survival 
of the species. Therefore, we rely on data in our files related to 
other Castanea species to use as a surrogate for comparison. Stillwell 
et al. (2003, pp. 3-4) discuss several effects to Castanea dentata as a 
consequence of chestnut blight, including from ecological changes and 
the diminished importance of sexual reproduction on the amount and 
distribution of genetic diversity in the species. First, the chestnut 
blight significantly alters the ecology of Castanea species, which may 
reduce the overall level of genetic diversity. Secondly, chestnut 
blight may affect the distribution of genetic variance within and among 
populations. This could occur by genetic drift from the reduced 
population size or from the vegetative expansion of root collars, both 
of which would tend to diminish genetic variance within patches.
    Knowles and Grant (1981, p. 4, in Stillwell et al. 2003) and Mitton 
and Grant (1980, p. 4, in Stillwell et al. 2003) present contrasting 
information on long-lived trees and the general perception that more 
heterozygous individuals are less variable and better adapted in 
fluctuating environments. Many long-lived tree species show an excess 
of heterozygosity suggesting that selection favoring heterozygotes is 
relatively subtle and hence is more likely to have an effect over the 
course of a long lifespan. Subtle differences in the performance of 
genotypes may be magnified in importance as Castanea clones have aged 
over the last 70 plus years and even relatively small fitness effects 
may accumulate to have conspicuous effects on the genetics of 
populations (Stillwell et al. 2003, p. 4).
    The results of Stillwell et al. (2003, pp. 9-11) suggest that the 
chestnut blight has had significant effects on the genetics of Castanea 
dentata populations. They found that a slight growth advantage for 
heterozygous genotypes has resulted in a profound excess of 
heterozygotes within populations. Studies of different age classes 
(seeds, seedlings, and stands of differing age) show an increase in 
heterozygosity with increasing age within other tree species. The 
difference observed by Stillwell et al. (2003, pp. 9-11) is that all 
extant Castanea dentata

[[Page 30318]]

genotypes are more than 70 years old and many that succumbed to the 
blight as mature canopy trees are much older. Therefore, as selection 
favors a population of heterozygous individuals, there are no new 
recruits to restore the population toward Hardy-Weinberg equilibrium (a 
constant state of genetic variation in a population from one generation 
to the next in the absence of disturbance). Prolonged absence of sexual 
reproduction in Castanea dentata has resulted in a change in population 
genetics.
    The high mortality of Castanea dentata stems in conjunction with 
near total elimination of sexual reproduction could have resulted in 
the loss of some (mostly rare) alleles (Loveless and Hamrick 1984; 
Leberg 1992 in Stillwell et al). It is not clear, however, whether this 
slightly lower genetic diversity is a result of the blight 
epidemic...Huang et al 1998 suggested that the low genetic diversity of 
the American chestnut resulted in the high susceptibility to attack by 
blight, rather than that the low genetic diversity was a direct 
consequence of the blight pandemic, and that other Castanea species 
with more diverse allozyme variation are less susceptible to epidemics. 
In the absence of pre-blight genetic population structure, it is 
difficult to make any definitive statement on changes in genetic 
diversity due to the chestnut blight pandemic (Stillwell et al. 2003, 
p. 10).
Summary to Factor C
    Information provided by the petitioner and in our files indicates 
that ink disease does not pose a significant threat now or in the 
foreseeable future to the continued existence of extant Castanea pumila 
var. ozarkensis populations. Information in our files supports the 
petition's assertion that chestnut blight may pose a substantial threat 
to the species and that chestnut blight is the greatest threat to the 
continued existence of Castanea pumila var. ozarkensis.
    While the personal observations cited by the petitioner of Castanea 
pumila var. ozarkensis described on a portion of the Ouachita National 
Forest are informative and useful in understanding the extent of 
chestnut blight occurrence in the western extreme of the species' 
range, the information does not indicate any overall change in the 
species' range, distribution, or abundance in spite of the continued 
existence of disease threats that have been acknowledged in the past 
and continue at present. However, information in our files indicates 
that chestnut blight has adversely affected the biology (sexually 
reproductive populations are greatly diminished from pre-blight status) 
of Castanea pumila var. ozarkensis and other Castanea species in the 
past 70 years since infestation occurred and may threaten the 
reproductive status and genetic diversity of extant populations. While 
the overall level of genetic diversity within and among populations of 
Castanea pumila var. ozarkensis is not well understood, there is 
genetic information on other Castanea species to suggest that 
ecological changes and the diminished prevalence of sexual reproduction 
may reduce the amount and distribution of genetic diversity.
    In summary, the chestnut blight has disrupted the life cycle of 
Castanea pumila var. ozarkensis by reducing the sexual reproduction to 
isolated areas, forcing the species to survive mainly by asexual 
reproduction. The blight has threatened the reproductive status and may 
threaten the genetic diversity of extant populations. We find that the 
information provided in the petition, as well as other information in 
our files, presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted due to disease 
from chestnut blight.

D. Inadequacy of Existing Regulatory Mechanisms

    No information was presented in the petition, or is available in 
our files, to indicate that Castanea pumila var. ozarkensis may warrant 
listing due to the inadequacy of existing regulatory mechanisms.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    No information was presented in the petition, or is available in 
our files, to indicate that Castanea pumila var. ozarkensis may warrant 
listing due to other natural or manmade factors affecting the species' 
continued existence.

Finding

    On the basis of our evaluation of the information presented under 
section 4(b)(3)(A) of the Act, we have determined that the petition 
presents substantial scientific or commercial information indicating 
that listing Castanea pumila var. ozarkensis throughout its entire 
range may be warranted due to disease or predation (Factor C). 
Following a review of the information presented in the petition and 
readily available in our files, we have determined that substantial 
information was not presented or available that suggests listing may be 
warranted due to the present or threatened destruction, modification or 
curtailment of habitat or range (Factor A). The petition did not 
include any information related to Factors B, D, and E. Because we have 
found that the petition presents substantial information indicating 
that listing Castanea pumila var. ozarkensis may be warranted, we are 
initiating a status review to determine whether listing Castanea pumila 
var. ozarkensis under the Act is warranted.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Arkansas 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this notice are the staff members of the 
Arkansas Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: May 19, 2010.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-13069 Filed 5-28-10; 8:45 am]
BILLING CODE 4310-55-S