32824 Federal Register I Vol. 53, No. 166 / Friday, August 26, 1988 / Rules and Regulations

DEPARTMENT OF THE INTERIOR Hinckley oak is a localized cmoponent o.e population occurs on State of Texas of the middle elevation Chihuahuan lad administered by the Texas General Fish and Wildlife Service Desert vegetation occurring on dry Land Office. Formerly, all the limestone slopes at about 1370 meters populations were thought to be on 50 CFR Part 17 (4,500 feet) in elevation. The surrow~dfng private land, but a survey by U.S. Fish Endangered and Threatened Wildlife desertscrub community is dominated by and Wildlife Service and Texas Parks and Plants; Determination of Agave lecheguila (lechuguilla). Acacki and Wildlife botanists in the spring of constricta (whitethorn acacia), and 1988, determined that the type locality in Threatened Status for Quercus Parthenium incanum (mariola). The ares hinckleyi (Hinckley Oak) The Solitario has been mapped averages 25 centimeters (10 inches) of incorrectly. The correct locality, about AGENCY: Fish and Wildlife Service, rain per year and has a frost-free season 300 meters (330 yards) south of the old Interior. of 260 days. ane, Is within a state-owned section of There are presently four documented ACTION: Final rule. land leased to the surrounding private populations of Hinckley oak. Three of ranch for grazing. The State land is not SUMMARY; The Service has determined the populations occur within 1.9 fenced. that a plant, Quercus hinckleyi kilometers (1.2 miles) of each other in Federal action involving this species (Hinckley oak), is a threatened species. The Solitario, which is a circular beganwith section 12 of the Endangered Hinckley oak is known from four laccolith approximately 13 kilometers (8 Species Act of 1973, which directed the documented localities inPresidio miles) indiameter in southeastern Secretary of the Smithsonian Institution County of western Texas. The plants are Presidio and southwestern Brewster to prepare a report on those plants threatened by possible changes in Counties, Texas. The Solitarfo censidered to be endangered, grazing practices, road improvements, populations, all in Presidio County. threatened, or extinct.This report, wildlife predation, disease, include the population at the type designated as House Document No. 94— hybridization with other oak species, locality estimated at 30-40 plants, a 51, was presented to Congress on and taking. The determination of population discovered in 1984 by l&. january 9, 1975. On July 1, 1975, the threatened status for Quercus hinckleyi JeffClark, a former graduate student at Service published a notice in the Federal implements the full protection provided Sul Ross University estimated at 12—15 Register (40 FR 27823) of its acceptance by the Endangered Species Act of 1973 plants, and a population discovered in of this report as a petition within the (Act), as amended. 1988 by U.S. Fish and Wildlife Service context of section 4(c)(2), now section and Texas Parks and Wildlife EFFECTIVE DATE: September 26, 1988. 4(b)(3)(A), of the Act and of its intention Department botanists estimated at 300— thereby to review the status of those ADDRESS The complete file for this rule 500 plants. The fourth population pknts. On June 16, 1976, the Service is available for inspection, by in the vicinity of Shafterin south-central published a proposed rule In the Federal appointment, during normal business Presidio County. This populatkm was Register (41 FR 24523) to determine hours at the Service’s Regional Office of discovered by Barton H. Warnockin approximately 1,700 vascular plant Endangered Species, 500 Gold Avenue 1963 and is estimated at 30—40 plants. SW., Room 4000, Albuquerque, New Because of the clonal nature of Hinckley species to be endangered species ~ to section 4 of the Act.This list Mexico. oak,, these population estimates are very oIl.790plant species was assembled on FOR FURTHER INFORMATiON CONTACT: subjective, and mostly should be seedI~ the ba~of comments and data Charles McDonald, Botanist, compare the rel~ivesizes of tbe four received by the Smithsonian Institution Endangered Species Office, P.O. Box kncnvn populaticu~s. Two other Hinckley oak sitesinthe and the Service in response to House 1306, Albuquerque.NewMexico 87103 Decument 94—51 and the July 1, 1975, (505/768—3972 or FTS 474—3972). Shafter area have not beenrelocated~ although the area has been searchedby Federal Register publication. Quercus SUPPLEMENTARY INFORMATION Dr. A.M. Powellof Sul Ross Uni’versi~ Mnckieyi was included in the July 1, 19V5, notice and the June 16, 1976, Background (Miller and Powell1982). Searches have been conducted butno populatims of penposal. General comments received in Quervus hinckleyi (Hinckleyoak) was HIndd~iyoak have beenfound hrlikely relation to the 1976 proposal were first collected byDr. LC. Hiuckley in habitat In the Mexican State of Coebull. ~marlzed in the April 28, 1978, The Solitarlo,Presidio County, Texas, ~h8Ier 1951).hfr. Mike Fleming, ~t~g Federal Register (43 FR 17909). near Solitario Peak in June 1950. Bend, NationalPerk has speculated that The Endangered Species Act Hinckley and Dr. C.H. Muller collected HincIJey oak may occur within the Park Amendments of 1978 required that all additional specimens a month laterand In the DeadHorse Mountains (per.. proposals over2 years old be Muller (1951) subsequently named the comm., 19863. Although no occurre~ ‘withhdrawn. A one-year grace period species in honor of his colleague. of Hinckley oak in the Dead Home was gi~vanto proposals already over 2 Hinckley oak is a shrubby evergreen Mountains have beendocunien~ years old. In the December 10, 1979, sometimes occurring as single stems but Fleming’s beliefis supported by the F,d.J Register (44 FR 70796), the more often growing as clonal groups that presence of suitable habitat ai4 Service publisheda notice of form dense thickets. Plants reach a evidence from fossil packrat mI.LL~~ withdrawal of the June 16, 1976, maximum height of 1.2 meters (4 feet). that Hincidey oak was more wicin~ peoposal, along with4 other proposals The species can be recognized at a distributed in southwesternTexas. pefar that had expired. distance by its gray-green leaves that to the area’s desertification aboat$1X On December 15, 1980 (45 FR 82480), lend a smokey appearance to the years ago (Van Devender et aL 1978). and September 27, 1985 (50 FR 39526), compact intricately branchedplants. The warming and drying trend peobaldy the Servicepublished updated notices The leaves are only about 15 millimeters precipitated the decline of Hinciky .á, reviewing the native plants being (.6 inch) long, glabrous, and have spine- and may In part explain the sped~ ~isi~d for classification as tipped margins. Acorns are produced present limited distribution. ~ea&e..d or endnagered. Quercus annually, occur singly or paired on the Three of the known Hincidey o.k was included in these notices branches, and mature in the fall. populations occur on private laud and aaa category I species. Category 1 ‘1

Federal Register / Vol. 53, No. 166 / Friday, August 26, 1988 / Rules and Regulations 32825 comprises taxa foi which the Service agencies and individuals over time. classified as a threatened species. has sufficientbiological information to Response:The Serviceagrees these Procedures found at section 4(a)(1) of support proposing them as endangered problems may make recovery difficult, the Endangered Species Act (16 U.S.C. or threatened, but feels the problems can all be 1531 et seq.) and regulations (50CFR Section 4(b)(3)(B) of the Endangered overcome. In addition, none of the Part 424) promulgated to implement the Species Act, as amended in 1982, Hinckley oak populations appear to be listing provisions of the Act were requires the Secretary to make findings in immediate danger of destruction and followed. A species may be determined on pending petitions within one year of this is the principal reason for listing the tobe an endangered or threatened their receipt. Section 2(b)(1) of the Act’s species as threatened rather than species due to one or more of the five Amendments of 1982 further requires endangered. If declines in the species factors described in section 4(a)(1). that all petitions pending on October 12, occur after listing, then Hinckley oak These factors and their application to 1982, be treated as having been newly will be reclassified as endangered. Quercushinckleyi Muller (Hinckley submitted on that date. Because the 1980 The recovery team members had oak) are as follows: notice of review was accepted as a several other comments. Comment: The A. The present or threatened petition, all of the taxa containedin the benefit of collecting acorns for destruction, modification, or curtailment notice, including Quercus hinckleyi, population establishment projects ofits habitat or range. In 1986, Texas were treated as being newly petitioned should be weighed again~possible highway 87 was expanded and the road on October 12, 1982. On October 13, damage from the loss of ~otential is n~wclose to the Hinckley oak 1983, and on or about that date every recruits to the population. Response:If population near Shafter (Poole, Texas year thereafter through 1986, the Service acorns are collected for propagation or Natural Heritage Program Biologist. made one-year findings that the petition population establishment, care will be pers. comm., 1986). Further expansion or to list Quercus hinckieyiwas warranted takento collect only a small fraction of a realignment of the highway may but precluded by other listing actions of any year’s seed crop. Comment:Past eliminate all or part of the population. higher priority. Biological data, supplied and present population counts should be Any change ingrazing practices is a by Miller and Powell (1982), fully taken lightly because of the highly potential threat to the three populations support a listing of Quercushinckieyi as subjective nature ofcounting plants that in The Solitario. The land presently is threatened. The September 16, 1987, grow in clonal groups. Response:The used for cattle grazing and at current proposal (52FR 34966) to list Quercus reference to population counts as stocking levels it is unlikely the plants hinckieyi is threatened was based evidence for a decline in one of the will be damaged. However, nothing primarily on Miller and Powell’s populations has been deleted from the prevents the landowner from increasing biological data and constituted the final final rule. Also, a statement has been cattle numbers or introducing other finding requirement of Section 4(b)(3)(B) included warningthat the population domestic livestock, such as goats, that of the Act for the petition on this counts included in the rule are highly could easily reachand browse Hinckley species. subjective estimates. Comment:The oaks. Development of this area as an type locality population may be exotic game ranch is another possible Summary of Comments and suffering from disease or insect Recommendations grazing change and some species of predation. Response:The information exotic game could severely damage In the September 16, 1987, proposed has been included in the “Summary of Hinckley oak. Exotic game ranching has rule and associated notifications, all Factors” section of this final rule. become a profitable alternative to interestedparties were requested to Comment:Informationconcerning the raising cattle or sheep in other parts of submit factual reportsor information discovery of the population near Shafter that might contribute to the development is incorrect. Response:The final rule has Texas, and west Texas ranchers are of a final rule. Appropriate State beencorrected. Comment: More effort also considering this potential income agencies, county governments, Federal should be expended searching for source. agencies, scientific organizations, and Hincidey oak within the range B. Overutilization for commercial. other interested parties were contacted represented by late Pleistocene fossil recreational, scientific, oreducational and requested to comment. A evidence. Response:Additional purposes. The attractive Hinckley oak newspaper notice was published in the searches for undiscovered populations has potential as a cultivar. Propagation Alpine Avalanche on October 8, 1987. will be part of the recovery program for research was conducted several years Three comments were received. this species. ago (B.J. Simpson, TexasA&M Research Comments by the two botanists who The other comment letter was and Extension Center, Dallas, Texas, represent the TexasParks and Wildlife received from a professional botanist pers. comm., 1987), but the work was Department on the U.S.Fish and with many years experience studying discontinued when the seedlings being Wildlife Service’s Texas Plant Recovery the botany of the Texas Trans-Pecos grown were determined tobe hybrids. Team, supported the listing but region. The botanist neither supported Although plantsare grown easily from indicated their feeling that Hinckley oak nor opposed the listing, but made acorns, some people wanting plants to should be listed as endangered rather several corrections to the collecting sellor to continue propagation research than threatened. They questioned the history of the species and provided may want to take whole plants. Only Service’s assertion in the proposal that other additional information.Response: one population is easily accessible and Hinckley oak has good recovery The corrections and appropriate this population likely would receive the potential mentioning such problems as additional information have been most collecting pressure. This the need for a better understanding of included in the final rule. population is already small and any loss the species’ habitat preferences, of plantswould be detrimentaL There potential problems with hybridization Summary of Factors Affecting the have been several reported instances of and genetic contamination inany Species acorns being illegally taken from this projects dealing withre-introduction or After a thorough review and population, but the actualimpact of population augmentation. and the consideration of all information acorn collecting is unknown. difficulty of maintaining recovery available, the Service has determined C. Disease orpredation. Native deer, cooperation and coordination with that Quercushinckleyi should be small mammals, and birds all eat the 32828 Federal Register / Vol. 53, No. 166 / Friday, August 26, 1988 / Rules and Regulations acorns of Hinckley oak. In a desert plants from lands under Federal forth a series of general trade environment where f6od sources are jurisdiction. Publication of critical prohibitions and exceptions that apply often scarce, most of the annual acorn habitat descriptions would make this to all threatened plants. All trade crop likely is consumed by predators. species even more vulnerable and prohibitions of section 9(a}(2) of the Act, The potential value of predators as increase enforcementproblems. All implemented by 50 CFR 17.71, apply. agents of seed dispersal has not been involved parties and landowers have These prohibitions, in part, make it assessed. As mentioned in Factor A, the beennotified of the location of Quercus illegal for any person subject to the introduction of non-native animal hinckieyi and the importance of jurisdiction of the United States to predators remains a potential threat. protecting its habitat. Protection of this import or export any threatened plant, There is evidence of disease or insect species’ habitat will be addressed predation at the type locality population. through the recoveryprocess and transport it in interstate or foreign The leaf epidermis of green leaves through section 7 of the Act. commerce inthe course of a commercial disintegrates and webs are found on the activity, sell or offer it for sale in leaves and branches. The frequency and Available Conservation Measures interstate or foreign commerce, or severity of this infestation is unknown. Conservation measures provided to remove it from areas under Federal D. The inadequacy ofexisting specieslisted as endangered or jurisdiction and reduce it to possession. regulatory mechanisms. Hinckley oak is threatened under the Endangered Seeds from cultivated specimens of not currently protected by Federal or Species Act include recognition. threatened plant species are exempt State law. recovery actions,requirements for from these prohibitions provided that a E. Other natural ormanmadefactors Federalprotection, and prohibitions statement of “cultivated origin” appears affecting its continued existence. against certain practices. Recognition on their containers. Certain exceptions Genetic swamping of small Hinckley through listing encourages and results in canapply to agents of the Service and oak populations is possiblewhenever conservation actions by Federal, State, State conservationagencies. The Act Hinckley oaks grow near more abundant and private agencies, groups, and and 50 CFR 17.72 also provide for the oak species with which they can individuals. The Endangered Species issuance of permits to carry out hybridize. Simpson (pers. comm., 1987) Act provides for po8sibleland otherwiseprohibited activities involving reports that Quercuspungens var. acquisition and cooperation with the threatened species under certain vaseyona (Vasey oak) is a States and requires that recovery circumstances. With respect to Quercus contaminating pollinatorthat regularly actions be carried out for all listed hinckleyi, it is anticipated that few trade causes hybrid seed production at one species. Such actions are initiated by the permits would ever be sought or issued Hinckley oak population. Service at the earliest opportunity. because although Hinckley oak is The Servicehas carefully assessed the Actions that may benefit Hincidey oak presently cultivated to a limited extent, best scientific and commercial include fencingand continued it is not common in cultivation or in the information available regarding the past, propagationstudies for possible present, and future threats faced by this introduction of plants back into native wild. Requests for copies of the regulations on plants and inquiries species in determining to makethis final habitat. The protectionrequired of rule. Based on this evaluation, the Federal agencies and the prohibitions regarding them may be addressed to the preferred action i8 to list Quercus against taking are discussed, in part. Permit Branch, Office of Management hinckieyi as threatened. This action below. Authority, US. Fish and Wildlife seems appropriate because although this Section 7(a) of the Act, as amended, Service, Wa~hingten.DC 20240 (703/ species has a small population size and requires Federal agnuciasto evaluate 343—4955}. limited distribution, none of the their actions with respect to any specie. National Environmental Policy Act populations are in imminent danger of that is proposedor listed as endangered destruction. However, Quercus or threatened and with respect to its The Fish and Wildlife Service has hinckleyi is not currently protected by critical habitat. if any is being determinedthat an Environmental I-i w and if protective measures are not designated. Regulations implementing Assessment, as defined under the taken, the speciescould become this interagency cooperation provision authority of the National Environmental endangered in the foreseeable future. of the Act are codified at 50 CFRPart Policy Act of 1989, need not be prepared The reasons for not designating critical 402. Section 7(a)(2} requires Federal in connection with regulations adopted habitat are discussed below. agencies to ensure that activities they pursuant to section 4(a) of the Critical Habitat authorize, fund, or carry out are not Endangered Species Act of 1973, as likelyto jeopardize the continued amended. A noticeoutlining the Section 4(a)(3) of the Act,as amended, existence of a listed speciesor to Service’s reasonsfor this determination requires that to the maximum extent destroy or adversely incdify its critical was published in the Federal Register on prudent and determinable, the Secretary habitat. if a Federal action may affect a October 25, 1983 (48 FR49244). designate critical habitat at the time the listed species or its critical habitat, the species is determinedto be endangered responsible Federal agency must enter Referunms Cited or threatened. The Service finds that into formalconsultation with the Miller, D.J., and A.M. Powell. 1982. Status designation of critical habitat is not Service. The usual result of a section 7 report on Quercus hinckleyi. U.S. Fish and prudent for this species at this time. As consultation, if jeopardyis found, is Wildlife Service, Endangered Species discussed under Factor B in the modification and notcancellation of a Office, Albuquerque, NM. Bpp. “Summaryof Factors Affecting the proposed action. The only possible Muller, C.H. 1961. The oaks ofTexas. Species,” Quercus hincldeyi is Federal activity involving Quercus Contributions from the TexasResearch threatened by taking, an activity hinckleyi is FederalHighway Foundalkm 140-41. difficult to control and not regulated by Administration funding of any Van Devender, T.R., CL Freemen, and RI). the Endangered Species Act with maintenance or widening activities for Worththgtea~IWS. Full-glacial and recent respect to plants, except for a Texas highway 87. vegetation of Livingston Hills, Presido prohibition against removal and The Act and its implementing County, Texas. Southwestern Naturalist reduction to possession of endangered regulations found at 50 CFR 17.71 set 23:289-3m. I

Federal Register / Vol. 53, No. 166 / Friday, August 26, 1988 / Rules and Regulations 32827

Author List of Subjects in 5 CFR Part17 Authority: Pub. L 93-205,87 Stat. 884; Pub. L. 94—359,90 Stat. 911; Pub. L 95—632,92 Stat. The primary author of this final rule is Endangered and threatened wildlife, 3751; Pub. L. 96-159,93 Stat. 1225; Pub. L 97~. Charles McDonald, Endangered Species Fish, Marine mammals, Plants 304, 96 Stat. 1411 (16 U.S.C. 1531 et seq.); Pub. Office, U.S. Fish and Wildlife Service, (agriculture). L. 99-625. 100 Stat. 3500 (1986), unless P.O. Box 1308, Albuquerque, New Regulation Promulgation otherwise noted. Mexico 87103 (505/766—3972 or FTS 474— 3972). Status information was provided Accordingly, Part 17, Subchapter B of 2. Amend § 17.12(h) by adding the by Dennis j. Miller, Chihuahuan Desert Chapter I, Title 50 of the Code of Federal following, in alphabetical order under the family Fagaceae, to the List of Research Institute, Alpine, Texas, and Regulations, i8 amended, as set forth A. Michael Powell, Sul Ross University, below: Endangered and Threatened Plants: Alpine, Texas. § 17.12 Endangered and threatened PART 17—[AMENDEDJ plants. 1. The authority citation for Part 17 * * * * * continues to read as follows: (h) * * *

Species to~~ CrOcal Special st~t~wten es Scientific name Common ~

Fagaceae—Oak family: Ouercus hinckleyi -. HinctUey oak .. (LSA. (T~_____. I • 318 NA NA

Dated: Auguit 11. 1988. Susan Recce, Assistant Secretary forFish and Wildlife am Parks. [FR Doc. 68-19488 Filed 8-Zb-~~46 sa — ‘. ______