17910 RULES AND REGULATIONS

[4310-551 possible qualification for determina- 1977, FEDERALREGISTER (42 FR 10461) tion as Endangered or Threatened spe- for the implementation of the Conven- I' Title %-Wildlife and Fisheries cies under provisions of the Act. tion on International Trade in Endan- Twelve of the 13 included gered Species of Wild Fauna and CHAPTER I-UNITED STATES FISH herein, and a variety of the Rconitum, Flora. Many of the comments received AND WHOLIFE SERVICE, DEPART- were among the 3,187 plants reviewed. discussed more than one of the re- MENT OF THE INTERIOR On June 7. 1976, the Service pub- views or proposed rulemakings. Includ- lished procedural rules in the FEDERAL ed in those comments were about 425 REGISTER(41 FR 22915) proposing pro- which specifically addressed the pro- PART I7-ENDANGERED AND hibitions on certain uses of Endan- posed Endangered status for the 1,783 THREATENED WILDLIFE AND gered .or Threatened plants, permits PhUltS. PLANTS for exceptions to such prohibitions, The following is a quantitative sum- and related items. The final rulemak- mary and general discussion of these Determination that 11 Taxo are ing was published in the June 24.1977, comments received. About 200 letters FEXI~RALREGISTER (42 FR 32373). were received from citizens (including and 2 Plant In addition. on June 16. 1976. the professional biologists), 53 from com- Taxa are Threatened Species Service published in the FI&RAI~REG- mercial enterprises and associations, ISTER (41 FR 245231 a proposal that 46 from conservation groups, 63 from AGENCY: Fish and Wildlife Service, 1,783 vascular plants known to occur garden clubs, 31 from Federal agen- Interior. in the United States were Endangered cies, and 37 from State and local agen- ACTION: Final rule. species ss provided by the Act. The 13 cies. Three professional botanists, four SUMMARY: The Service determines plants in this final rule were among State representatives and one repre- 11 plant taxa to be Endangered spe- the 1,783 proposed. That proposal sentative of a commercial business cies, and two plant taxa to be Threat- briefly summarized the factors submitted testimony directly relevant ened species. This action is being thought to be contributing to the like- to the listing of the-l,783 plants at the taken primarily because of threats to lihood that the species would become four public hearings. Some of this tes- the plants from . extinct within the foreseeable future; timony was supplemented by written Twelve States are involved: California, specified the prohibitions which would statements. Excerpts of testimony Georaia. Hawaii. Iowa. . New be applicable if such a determination from the public hearings were fea- York: dhio, South Carolina, Texas, were to become final; and solicited rel- tured in the September 1976 issue of Utah. Virginia. and Wisconsin. as well evant, written comments, and other the Service’s Endangen;d Species ss N&w Brunswick, Canada. documents from interested persons. Technical Bulletin and are incorporat- Critical Habit.at was proposed for ed herein. DATES: This rule becomes effective the Antioch Dunes evening:primrose The deadline for written comments on May 27.1978. (Oenothera deltoides asp. howellii), on the proposed listing wss August 16, FOR FURTHER INFORMATION Contra Costa wallflower (Erysimum 1976; however, additional comments CON-I-ACT: capitatum var. angustatum), and six received-by March 18, 1977, were con- butterflies in the -February 8, 1977, sidered. Any further comments. data Mr. Keith M. Schreiner, Associate FIZD~RALREGISTBZR (42 FR 79721. or questions concerning these plants Director for Federal Assistance. Fish In the July 2, 1976, FEDERALRxors- should be addressed to the Office of and Wildlife Service, U.S. Depart- TER (41 FR 27381) the Service an- Endangered Species, U.S. Fish and ment of the Interior, Washington, nounced that four public hearings Wildlife Service, Washington, D.C. D.C. 20240,202-343-4646. would be held concerning the various 20240. SUPPLEMEXI’ARY INFORMATION: proposals and reviews for plants. The The Service responded to many com- public was invited to present their ments received and those responses BACKGROVND opinions either oraliv or in writing at often resulted in additional communi- On April 21, 1975, the United States the public hearings. - cations. Efforts made by the Service to Fish and Wildlife Service (hereinafter, This rulemaking determining 13 elicit information from the public in- the Service) published a notice of plants to be Endangered or Threat- cluded the dispersal of over 6,000 review for four U.S. and Canadian ened species is the second final rule- copies of the proposal, announcements plants in the FEDERAL REGISTER (40 F’R making which the Service has issued in the July and September 1976 issues 17812) advising that sufficient evi- based on the proposal of 1,783 plants of the Endangered Species Technical dence was on file to warrant a status ss Endangered. The first such rule- Bulletin, and presentations by Service review of the species with regard to making included four plants from San botanists to professional and amateur their possible qualification for deter- Clemente Island, Calif.. and w&s pub- organizations. Among the numerous mination as Endangered or Threat- lished in the August 11, 1977, FEDERAL newspaper articles published concem- ened species under provisions of the REGISTER(42 FR 40682). An additional ing the proposal were those in the Endangered Species Act of 1973 (16 1,404 native plants remain under June 18. 1976. Washington Post and U.S.C. 1531-1543;.87 Stat. 884; herein- review from the April 21, 1975, and Honolulu Advertiser and the June 19, after, the Act). The Northern wild July 1, 1975, FEDERAL REGISTER notices. 1976, Detroit Free Press. About 400 of the comments received monkshood (Aconitum noveborucensel SUh¶MARYAND Dxscvss~on OF was one of the four plants. colhmENTs supported the conservation of Endan- Subsequently, on July 1, 1975, the gered and Threatened plants. Less Service published a notice of review As has been previously discussed, up than one percent opposed such conser- for 3.187vascular plants in the Fxnxn- to July 1976 the Service published two vation programs. Many comments sup- AL REGISTER(40 FR 278231, advising notices of review and a proposed rule- plied data for those plants covered by that the Service considered the Smith- making concerning the determination the notices of review, for those plants sonian Institution’s “Report on En- of native plants as Endangered or proposed as Endangered, and for other dangered and Threatened Plant Spe- Threatened species, and proposed pro- plants that should possibly be pro- cies of the United States” (House Doc- cedural regulations for plants. In addi- posed ss either Endangered or Threat- ument 94-51) as a “petition” in the tion, the Service published a proposed ened. Comments and hata pertaining context of Section 4(c)(2) of the Act, rulemaking in the June 16. 1976, FED- to specific plants will be discussed and that ample justification had been ERAL REGISTER (41 FR 24367) and a when those plants are included in presented to warrant a review to their final rulemaking in the February 22, final rulemakings.

FEDERAL REGISTER, VOL 42, NO. 61-WEDNESDAY, APRIL 26, 1976 RULES AND REGULATIONS 17911

Data Required to Determine Plants tion of Endangeed species or Threat- to be possibly or probably extinct have as Endangered Species or Threatened ened species. been rediscovered. This is the case Species.-Many comments suggested Inclusion of the 1,783 Plants in the with four of the thirteen plants in this that the plants in the reviews or the Appendices of the Trade Convention.- final rulemaking. - proposals did not have sufficient docu- More than 35 comments have been re- Section 7 of the act-Section 7 of mentation to warrant their designa- ceived suggesting that the Service pro- the Act, which sets forth conservation tion as either Endangered species or pose all of the 1,783 plants for inclu- obligations of Federal agencies, was re- Threatened species. In addition, about sion in the appendices of the Conven- ferred to in 16 comments. Section 7 two dozen comments expressed con- tion on International Trade in Endan- reads as follows: cern about the quality and availability gered Species of Wild Fauna and “The Secretary shall review other pro- of the data. One of the reasons for Flora. Several of these comments grams administered by him and utilize such publishing such reviews and proposals specified Appendix III ss the appendix prosrams in furtherance of the purposes of is to solicit data. Section 4(b)(l) of the under which these taxa should be this Act. All other Federal departments and Act requires that the listing of a spe- listed. The Service anticipates propos- agencies shall, in consultation with and with cies as an Endangered species or a ing those U.S. plants that would bene- the assistance of the Secretary, utilize their Threatened species, or its subsequent fit from such action and that meet es- authorities in furtherance of the purposes delisting, must be based on I‘. . . the tablished criteria, for inclusion in the of this Act by carrying out programs for the best scientific and commercial data appropriate appendices of the Conven- conservation of endangered species and threatened specks listed pursuant to section available. . . .” The compilation and tion. 4 of this Act and by taking such action nec- analysis of data concerning Endan- Comments Concerning the Designa- essary to insure that actions authorized, gered animals and plants must be a tion of Rare Plants, Plants that iave funded, or carried out by them do not Jeop- continuous process to insure the accu- Economic Value, Plants that Produce ardize the continued existence of such en- racy of the list and to promote effi- Hallucinogens and Allergens, and Ex- dangered species and threatened species or cient management practices. The Ser- tinct Plants as Endangered Species result In the destruction or modification of vice has received data that support the and Threatened Species.--Five - com- habitat of such species which is determined designation of some taxa as Endan- ments questioned whether the rarity by the Secretary, after consultation as ap gered species or Threatened species of a plant constituted justification for propriate with the affected States, to be and data that suggests others may not its designation ss an Endangered spe- critical.” qualify for such status. Although most cies or a Threatened species. The Di- Two comments supported section 7 of the 1,783 plants were considered en- rector, U.S. Fish and Wildlife Service, as a good tool for the conservation of dangered by the Smithsonian Institu- may determine a plant as an Endan- Endangered and Threatened plants. tion in their report (House Document gered species or a Threatened species The remaining 14 comments expressed 94-511, at this time their data are not because of the comprehensive factors concern that the protection afforded in a form that can be easily dlstribut- provided in Section 4(a)(l) of the Act. such plants under section 7 would in- ed in their entirety. The Smithsonian If a plant is rare, but is not affected by hibit the utilization of the plants was under contract to the Service any of the factors, then it may not be habitat. One member of a mining or- from July 1976 through June 1977 to considered for such status. ganization noted: “While we recognize consolidate and add to their data and Two comments suggested that only the importance of rare species of these data are available for inspection plants with economic value should be plants, we urge the Fish and Wildlife by interested parties. Also, detailed in- considered for Endangered or Threat- Service to recognize the problems formation is being developed by many ened status. In addition, a few com- being confronted by the United States State groups, in some cases under Ser- ments expressed opposition to consid- in maintaining sn adequate land base vice contracts through our Regional eration of rare plants in general which for the production of vital natural re- offices. include plants that produce hallucino- sources.” Concern and Recommendations for gens and allergens. Section 4(a)(l) of The Service recognizes that in the Plant Conservation-Two comments the Act, which sets forth the criteria future some nrojects and activities expressed concern about the small for listing, does not place any restric- could potentially -be in conflict with number of staff and the modicum of tions on the types of plants or the at- section 7; however, the Service antici- funds available for plant conservation tributes a plant should have before it pates that a large majority of the in the Service’s Office of Endangered can be listed under the Act. It should plants determined as Endangered spe- Species. More than 85 comments sug- be remembered that plants deter- cies or Threatened species can be con- gested that more publicity is necessary mined as Endangered species or served with only minor modifications to educate the public about the identi- Threatened species that are not al- in the use of their habitat, and little ty, habitat, and the conservation of ready of economic or medical impor- expense. Furthermore, the Service Endangered and Threatened plants. tance may prove to have such impor- firmly believes that the vast majority, Included were about 55 letters from tance after their biology is more thor- if not all, of these potential conflicts members of the Garden Club of Amer- oughly understood or with the advent can be avoided through use of the con- ica who felt “the public could be much of new technologies. sultation process under section 7. better informed about endangered One comment questioned the neces- Many such plants can be conserved plants if money available . . . was sity of listing plants under the Act with the simple recognition of their used for color posters showing the en- that are thought to be extinct. In con- existence by persons managing their dangered plant species of every state.” trast, another comment suggested that habitats. Several comments urged the estab- all extinct plants should be listed as Time available for commenk- lishment of Cooperative Agreements Endangered. Concern was expressed Fifty-six comments requested more for plant conservation between the that delays in the listing process time (up to five years) to offer com- Federal and State governments under might result in the destruction of any ments and to provide time for the Section 6 of the Act. Congress did not rediscovered species. study of the status of the 1.783 plants authorize the establishment of Coop- In their report, the Smithsonian In- proposed as Endangered. Six com- erative Agreements for plant conserva- stitution designated 100 plants as ex- ments requested additional hearings. tion under Section 6; however, the Ser- tinct, or possibly or probably extinct. The Service is always interested in re- vice may enter into Section 6 Manage- These plants were among those pro- ceiving additional comments and data ment Agreements with the States for posed as Endangered. Since the publi- that may be useful in better establish- the administration and management cation of the Smithsonian Institute’s ing the status of any plant, in desig- of areas established for the coserva- report, several of the plants thought nating Critical Habitat, or in conserv-

FEDERAL REGISTER, VOL 42, NO. El-WEDNESDAY, APRIL 26, 1978 17912 RULES AND REGULATIONS lng Endangered species or Threatened tion of plant varieties as Endangered often regarded bs lavmen ss repre- species. In light of this policy and the or Threatened. As an example, a bota- senting a trivial -distmction, Benson long time between the proposal and nist from the Smithsonian Institution emphasized (italic supplied): “The bo- subsequent final rulemaklngs, the Ser- supplied a discussion of the botanical tanical variety is not to be confused vice does not feel that an official ex- usage of infraspecific ranks to the Ser- with the horticultural ‘variety.’ which tension of the comment period or the vice, in which he concluded that as the is not a taxon but a minor v-&ant or scheduling of additional hearings is terms have historically been used in- hybrid of economic or aesthetic sig- necessary. terchangeably, they are essentially nificance. The term subspecies is used Need for assessing the impacts of identical. by some authors in exactly the same designating plants as Endangered or In addition, the usage of these infra- sense aa variety. Others emnloy it as a !t’hmatened species.-Ten organisa- specific ranks has been discussed in designation for a group of higher rank tions and two individuals submitted numerous general texts in plant tax- than variety but lower than species. comments in which they suggested onomy. A. S. Hitchcock (1925. Meth- The majority of botanists have not that the environmental or economic ods of Descriptive Systematic Botany. used the term. but it is in common impact of listing plant taxa should be John Wiley and Sons, Inc., New York. usaize in zooloav.” investigated The Service recognizes PP. 11-12.) noted: “The tendency, espe- CT L. Port& (1959. of the concern of those individuals who cially among most American botanists. Flowering Plants. W. H. Freeman and will be affected by conservation of is to recognize among wild plants only Company, San Francisco, p. 61.1 plants under the Act and will fully one subdivision of the species. It is evi- reached a similar conclusion (italic comply with existing law, including dent that the subdivisions may have supplied). “Utiortunately, clear dis- the requirements of the National Envi- very unequal rank, and this inequality tinctions are not always drawn be- ronmental Protection Act of 1969. may be indicated by several categories tween subspecies and varieties and the Designation of plant varieties as En- of minor groups; but from the stand- two categories are used more or less in- dangeted species or Threatened spe- point of convenience in the use of the terchangeably.” tics.-There has been some concern terms and in the designation of In recent years there has been a ten- expressed 8s to whether Congress has groups, the method of having a single dency to use the rank subsuecies to empowered the Service through the category below the species is prefer- designate the major subdivisions of Act to designate plant varieties as well able.” Hitchcock continued by noting plant species. This tendency has been as plant subspecies as Endangered spe- that the rank “. . . variety (or subspe- particularly prevalent in the case of cies or Threatened species. In their cies).” is the rank most used for desig- morphologically distinct, allopatric report (House Document 94-511, the nating the primary subdivisions of populations. The rank variety in turn Smithsonian Institution noted several plant species. h& become more commonly associated inadequacies in the Act for the conser- George H. M. Lawrence (1951. Tax- with individual plants that are mor- vation of plants. The first such inade- onomy of Vascular Plants. MacMillan phologically distinct, but sympatric quacy discussed wss that the term Company, New York, p. 55.) also dis- with other dissimilar members of the “species” as defined in section 3(11) of cussed the synonymy of the ranks va- same species. Such an interpretation was made by the editors of FZom Euro- the Act clearly includes subspecies, riety and subspecies iitalic supplied). paea (1964. Tutin, T. G. et al. Cam- but not varieties. “The variety (Latin. varietasl has bridge University Press. Vol. I. p. xx). Although the International Code of been used as a category to designate as In that work those varieties consid- Botanical Nomenclature (Stafleu. F. many or more concepts as has that of ered to biologically represent subspe- A.. ed. 19’72. AdoDted by the Eleventh subspecies. Horticulturists have used it cies were elevated to the rank of sub- International Botanical Congress, Se- indiscriminately for any variant of the species. attle, August 1909. Regnum Vegetabile species: botanists have considered it to Congress has clearly indicated in 82:1-42&j lists the rank variety below be (1) a morphological variant of the Section 3(11) of the Act defining the the rank subspecies, the Service has species without regard for distribu- term “species” that infra&ecific taxa recognized that there has not been a tion, (2) a morphological variant should be included and conserved. As precise botanical usage of these ranks. having its own geographical distribu- the rank variety has been used by When the Service published the pro- tion, (3) a morphological variant shar- botanists as the major infraspecific posed rulemaking to designate 1,783 ing an area in common with one or subdivision for many plant species. the plants as Endangered species, numer- more other varieties of the same spe- Service considers it appropriate to con- ous plant varieties were included. In cies, and (4) a variant representing sider plant varieties for determination that rulemaking the Service provided only a color or habit phase. From this as Endangered or Threatened. the following discussion: “The Service it is clear that the same plant may be This interpretation has not been recognises that plant taxonomy is not designated a subspecies by one bota- shared by every individual who has ad- an exact science. that the knowledge nist and a variety by another, or that dressed this issue in the comments re- of plants continues to develop, and the variety of one author is placed in ceived by the Service. In a letter dated that scientific nomenclature reflects the category of forma by another August 22, 1975, the Governor of the such understanding. It further recog- author. This lack of unanimity of con- State of Hawaii noted I‘. . . the vari- nixes that the classification and no- cept is disconcerting, but it is a factor etal level is not necessary to protect menclatural rank given to a plant is to be recognized in any appraisal of species nor is it required by the En- subject to opinion, based on the spe- taxonomic literature. In this regard, it dangered Species Act (Section 3( 11)): cialist’s knowledge of the plant in is not especially important that agree- With this letter, the Governor submit- question, and his interpretation of the ment exist if by even diverse modes of ted a list of about 300 Hawaiian plants terms and concepts of plant; taxon- evaluation the same pattern of rela- that he felt should be considered for omy. Consequently, those plants tionship is reached. There is no hls- designation as Endangered species or named as ‘varieties’ in the Smithson- torical basis for priority of usage of Threatened species under the Act. ian Institution report and its revision either the term subspecies or variety.” That list was examined by staff bota- are here considered to be subspecies Lyman Benson (1957. Plant Classifi- nists at the Office of Endangered Spe- and, therefore. ‘species’ as defined in cation. D.C. Heath and Company, cies who discovered numerous in- section 3( 11) of the Act.” Boston. p. 3.1 emphasized the use of stances where the failure to designate The Service feels that there is a ra- the rank variety as the major subdivi- varieties resulted in the inclusion of tional basis for this interpretation, sion of species for plants: “Species are plants that had not been recommend- and has received support from the bo- made up of varieties.” Although the ed as Endangered or Threatened by tanical community for the determlna- term variety in plant toxonomy is the Smithsonian Institution. -

FEDERAL REGISTER, VOL 42, NO. El-WEDNESDAY, APRIL 26, 1978 17913

The Service received several com- noted that this plant grows on sandy a petition to the Service to designate ments that supported the designation soil in pine woods and some mixed the Furbish lousewort and Josselyn’s of plant varieties as Endangered or woodlands in Wayne and Brantley sedge (Care3 josselynii) as Endan- Threatened. The desirability of preci- Counties, Ga. gered. The sedge has not been located sion in the listing process was empha- Virginia round-leaf birch (Betula in any of the recent surveys of the St. sixed in a comment from an oil shale uber) The two comments received con- John River Valley. The New England corporation: “. . . it is necessary that cerning this species contained notes on Coastal Oceanographic Groups (letter action be taken to protect endangered its distribution and an account of its dated December 1, 1976) expressed plants: but the law should be very spe- rediscovery in Smyth County, Va. support for the petition submitted to cific. If even the variety name is omlt- Santa Barbara Island liveforever the Service by the Natural Resources ted. it has a tremendous impact and (Dudlezfa traakiue) The Service did not Council of Maine. changes the. conservation of a rare receive any comments concerning this In addition, the Service received plant to plants that are quite plant by March 18, 1977. The Califor- seven other comments concerning the common.” nia Native Plant Society recently pro- Furbish lousewort. Two of the com- The Service feels its resources would vided an article on the species- from ments supplied data on the present be best appropriated by concentrating the January, 1978, Fremontia. and historical distribution of the on those plants and animals that Contra Costa wallflower (Erg&mum plant. In a letter dated October 8, would most benefit from the provi- cupitatum var. angustatum) and Anti- 1976, the Maine State Planning Office sions in the Act for their conservation. och Dunes evening-primrose ( OenoUL- notified the Service that the Critical As the Service desires to insure that era deltoides ssp. howellii) The Service Areas Program of the State Planning major infrsspecific plant taxa are con- did not receive any comments concem- Office had contracted Maine botanists sidered for designation ss Endangered ing the Elysimum. One comment on to prepare reports on three plants, in- species or Threatened species, we the Oenothera was received that noted cluding the Furbish lousewort. The re- intend to carefully review endangered over the past 30 years the habitat of ports were to be used to aid their in- plant varieties to ascertain which this subspecies (i.e. Antioch Dunes, vestigations to determine whether should be so designated. Contra Costa County, Calif. had been some of the habitat of these three This final rulemaking determines reduced from 500 to 15 acres. plants should be included in their one plant variety. the Contra Costa Eureka evening-primrose ( Oeno thera Critical Areas Program. Several com- wallflower, as an Endangered species. avita ssp. eurekensis~ and Eureka ment-s supported the designation of The Contra Costa wallflower is repre- dune grass (Swallenia alexandrae) the Furbish lousewort as an Endan- sented by a morphologically dist-met The service received numerous letters gered species. In contrast, one individ- population which has unique ecologi- and data before the June 16. 1976, pro- ual noted that although she did not cal requirements. posed rulemaking concerning these like to see the plant become extinct, Comments that pertain directly to two plants and their habitat, the she felt that it should not interfere the plants in this n&making.-North- Eureka Valley, Inyo County, Calif. with plans to construct the Dickey- em wild monkshood. (Aconitum nove- Much of the correspondence expressed Lincoln School Lakes Project. Another borucense). In a petition (dated August concern about the use of the Eureka comment noted that efforts would be 12, 1974) Dr. Hugh H. Iltis. among Dunes and other harts of the Eureka made in the summer of 1977 to look others, requested the Service to desig Valley by off-roadvehicles. The use of for the Furbish lousewort along the nate the Northern wild monkshood the Eureka Dunes for vehicular re- St. John River in Canada. creation was felt to be a serious threat Various articles on this species were and 16 other plants BS Threatened to the unique Eureka Dunes ecosys- under the Act. Subsequently, the Ser- tem. The Eureka Dunes is the major published after March, 1977. The New vice included the Northern wild monk- habitat for the Eureka evening-prim- York Botanical Garden provided the shood in the two notices of review and rose, the Eureka dune grass. and sever- Service with one by Dr. Howard S the proposed rulemaking for 1.783 al other endemic animals and plants. Irwin. from their September/October, plants. In each of these publications The Service did not receive additional 1977, Garden. the Service requested data concerning comments concerning these taxa Persistent trillium (Trillium penis- the subject taxon. during the formal comment period. In tens) One comment was received con- Fifteen comments were received con- December, 1977, a comment reported cerning this species. Notes were in- cerning the Northern wild monkshood recent heavy vehicle use of the dunes. cluded on the taxonomy, ecology, and in response to these requests and to Furbish lousewort ( fur- distribution of the persistent trillium other requests by Service personnel bishiae) In the Bummer of 1978, Dr. in the Tallulah-Tugaloo River System, for data. The Army Corps of Em& Charles E. Richards, University of Rabun and Habersham Counties, Ga., neers submitted, a report prepared by Maine, found several small colonies of and Oconee County, S.C. Robert H. Read on certain Driftless the Furbish lousewort on the banks of Hawaiian wild broad-bean (Vicia Area flora and cliff communities that the St. John River near the town of menziesii) The Service received one lie Primarily within the proposed im- Allagash, Aroostook County, Maine. comment concerning this species. In- poundment area of the G F&e Dam This was the first time that this plant cluded were notes on the distribution north of La Farge, Vernon County. had been seen in the wild in 30 years. and size of the populations of the Ha- Wis. The comments contained data on Dr. Richards made his discovery while waiian wild broad-bean on Mauna Loa. the taxonomy, ecology, and the his- under contract to the Army Corps of Island of Hawaii, and the major torical and present distribution of the Engineers to prepare a report on the threat, feral pigs. Northern wild monkshood. In addi- flora that might be impacted by the Texas wild-rice (Zizania texana) tion, several individuals supplied rel- proposed construction of two dams on One comment wss received which in- evant scientific articles and reports. the St. John River, the Dickey-Lincoln cluded notes on the distribution and Rydberg milk-vetch (Astragulus per- School Lakes Project. This report was size of the populations of Texas wild- ianw) The Service received one com- contracted by the Corps to support rice in the San Marcos River. Relevant ment concerning the locations of two their Environmental Imnact State- scientific reprints were also supplied. populations of this species in Garfield ment for this project. On-October 27, CONCLIJSIONANDS DMXARY OF FACTORS and Piute Counties, Utah. 1976, the Corps submitted the report Hairy rattleweed (Buptisia arachni- prepared by Dr. Richards to the Ser- &FECTINGTIiEsPECIES feral One comment was received with vice. After a thorough review and consid- notes on the range, distribution, and On November 9, 1976, the Natural eration of all the information avail- status of the hairy rattleweed. It was Resources Council of Maine submitted able, the Director has determined the

FEDERAL REGISTER, VOL 42, NO. U-WEDNESDAY, APRIL 26, 1978 17914 RULRS AND REGULATIONS following 11 plants to be Endangered The disjunct distribution probably (3) Both of the populations occur in species: hairy rattleweed. Baptisia dates from the Ice Age when glaciers areas used for grazing sheep. aruchnuenz Duncan: Virginia round- apparently destroyed intervening pop- Hairy rattleweed. (1) This species leaf birch, Bet&a uber (Ashe) Femald: ulations. The Northern wild monk- was first collected in 1942 about ten Santa Barbara Island liveforever. Dud- shood appears to be restricte& to moist miles south of Jesup, Wayne County, Leua tmakiae (Rose) Moran; dontra soil pockets at the bottom of sand- Ga. The plant w&s abundant on low, Costa wallflower, Erysimum capita- stone or limestone cliffs with a.north- sandy ridges in open, pine woods dis- turn (Douglas) Greene var. ang~&a- em or eastern exposure. As such habi- persed over an area about ten miles turn (Greene) G. Rossbach; Eureka tats are usually small in area and iong. from southern Wayne County to evening-primrose, Oenotira avita (W. widely separated, the ability for this northern Brantley County. In the area Klein) W. Klein ssp. eurekensis (Munz wildflower to migrate into similar un- where the hairy rattleweed occurs, & Roes) W. Klein; Antioch Dunes occupied habitats is limited. pines are clear-cut for lumber and evening-prhrose. Oenothera deltoides The restricted habitats of the North- pulp. The hairy rattleweed appears ca- Torres & Fremont SSD. howellii em wild monkshood have also made pable of surviving the cutting prac- UKur& W. Klein: Furbish lousewort. many of its colonies vulnerable to ex- tices; however, the subsequent meth- Pedicularis furbishiae Watson; Eureka tirpation. The New York colony is par- ods for site preparation and the re- dune grass, Swallenia alexandrae alleled by a road. Widening the road planting of the pines have greatly re- (Swallen) Soderstrom & Decker: per- could have an adverse impact on this duced the distribution of this species. sistent trillium, !FriUium persistens population. The Ohio colony is in an Virginia round-leaf birch. (5) This Duncan; Hawaiian wild broad-bean, urban park where it has been sur- birch was first collected south of Rye Vicia men&&i Sprengel; and Texas rounded by construction projects. The Valley Station at 2,800 feet altitude in wild-rice, Zizania texana A. S. Hitch- Jackson County, Iowa, colony is in a Smyth County, Vs., in 1914. Since the cock. The following two plants. are de- private pasture. Three of the nine early collections, several attempts termined to be Threatened species: Wisconsin colonies would be destroyed have been made to relocate this spe- Northern wild monkshood, Aconitum by the normal level of the lake created cies, none of which were successful as noveboracense A. Gray; and Rydberg by the La Farge Dam if that dam is of early 1975 when the Smithsonian milk-vetch, Astragalus Perianus Bar- constructed. At the highest water level Institution published their report. neby. (25~year flood) all but four of the nine Consequently the Smithsonian noted Section 4ta) of the Endangered Spe- colonies (25 percent of the Northern that the Virginia round-leaf birch was cies Act of 1973 states that the Secre- wild monkshoods in Wisconsin) could probably extinct. tary of the Interior may determine a be destroyed. In the summer of 19’75, the Virfzinia species to be an Endangered species. or Several of the known colonies of the round-leaf birch was rediscovered a Threatened species, %ecatie of &y Northern wild monkshood occur in along Cressy Creek in Smyth County. of five factors. These factors are: (1) areas where they should receive some Searches along Cressy Creek revealed the present or threatened destruction, protection. Three of the four Wiscon- 14 mature trees, 1 three-stemmed modification, or curtailment of its sin colonies that would not be impact- shoot and 21 seedlings. Most of the habitat or range; (2) overutilization plants occurred on private land, but for commercial, sporting, scientific, or ed by the La Farge Dam are in such educational purposes; (3) disease or areas. Two colonies are in State scien- two were in the adjacent Jefferson Na- predation (the Service considers graz- tific areas, Parfrey’s Glen and Lodde’s tional Forest. ing under this factor); (4) the inade- Mill Bluff in Sauk County, and one The small population size of the Vir- QU~CY of existing regulatory mecha- colony is in Wildcat Mountain State ginia round-leaf birch makes the con- nisi and (5) other natural or man- Park in Vernon County. The Clayton tinued existence of this species ex- made factors affecting its continued County, Iowa, colony is in Bixby State tremely vulnerable. Before the redis- existence. The plants considered above Park. About 475 individual plants are covery, grazing by cows may have pre- for listing ss either adangered or located in these protected areas. vented some of the seedlings from Threatened species relate to these fac- Rydberg milk-vet&. (1) This milk- reaching maturity. Since the birch was tors as follows (numbers refer to fac- vetch was first collected in the moun- rediscovered, two trees have died, sev- tors above): tains north of Bullion Creek near Mar- eral seedlings have been removed for Northern wild monkshood.( 1) ysvale, Piute County, Utah in 1905. As scientific purposes, several seedlings Historically, this monkshood has been this w&s the only known collection for have been stolen, and all but two of collected in two localities in Chenango about 70 years, the Smithsonian Insti- the remaining seedling have been County, N.Y.; one locality in Orange tution in 1975 noted in their renort damaged by vandals. The private land- County, N.Y.; three localities in Ulster that A. perianus was possibly extinct. owners have erected fences around County, N.Y.; one locality in Sullivan In the summer of 1975 this species wss their trees. County, N.Y.; two localities in Summit collected in Piute and Garfield Coun- Santa Barbara Wand liveforever. (1 County, Ohio; one locality in Portage ties, Utah. The Piute County popula- and 3) this species is endemic to Santa County, Ohio; one locality each in Al- tion tconsisting of about 100 individual Barbara Island, Santa Barbara lamakee. Dubuque, Jackson, and Dela- plants) was found in the same general County, Calif. The native vegetation ware Counties, Iowa; two localities in area as the 1905 collection in the of the island has been largely de- Clayton County, Iowa; one locality in Tushar Mountains at 10.000 feet alti- stroyed by such former practices as Richland County, Wis.: three localities tude, Fish Lake National Forest. This farming, grazing and intentional bum- in Sauk County, Wis.; and seven local- population is in an area subject to ing. In addition, the island has an in- ities in Vernon County, Wis., for a temporary road construction for min- troduced population of European total of 27 locations. eral exploration. Such activities may hares which are a threat to the native The present known distribution of result in the accidental extirpation of plants. In 1975 the Smithsonian Insti- the Northern wild monkshood consists this population. The Garfield County tution noted in their report that the of 14 colonies, including one colony in population is found on Mount Dutton Santa Barbara Island liveforever had Ulster County. N.Y.; one colony in at 10,600 feet altitude, Dixie National not been collected since 1968 and that Summit County, Ohio: one colony Forest. The individual plants occur in is was possibly extinct. each in Allamakee, Clayton, and Jack- an area of about one acre which is bi- In 1975 several plants were discov- son Counties, Iowa; one colony in sected by a road. Maintenance of this ered regenerating from stubs that had Richland County, Wis.; two colonies in road or other activities promoted by been gnawed to the ground by the Sauk County, Wis.; and six colonies in its use may threaten the continued ex- hares. This regeneration can probably Vernon County, Wis. lstence of this population. be attributed to the efforts by the Na-

FEDERAL REGISTER, VOL. 42, NO. RI-WEDNESDAY, APRIL 26, 1978 RULES AND REGULATIONS 17915 tional Park Service to eradicate the Dr. Richards did not find any Furbish aquatic vegetation in Spring Lake and hares. Subsequently, a few hundred louseworts at the localities document- other sections of the San Marcos individual plants were discovered on ed by herbarium specimens at the Uni- River within the park system of the the face of a sea cliff. Although this versity of Maine, he did find six popu- city of San Marcos has been controlled population is protected from the hares lations of the species (about 200 indi- by mowing, and harrowing and by its location on the cliff, the eventu- vidual plants) within the township of ploughing. The debris resulting from al recovery of this species and other Allagash. Further surveys in 1977 by these activities floated downstream plan& on Santa Barbara Island will Dr. Richards and others under con- and entangled in the inflorescences of depend on the continued efforts of the tract to the Corps led to discovery of the Texas wild-rice dragging them National Park Service to control the more louseworts. Presently 880 indi- below water, thus precluding any hare population. viduals in 21 colonies are known from sexual reproduction. Eureka evening-primrose and the St. John River Valley in Maine These activities have been recently Eureka dune grass. (1) The majority of and , Canada. stopped and are no longer threats to the Eureka evening-primroses are re- Dumping, natural landslides, and the wild-rice. stricted to the base of the Eureka construction and lumbering near the In addition, two commercial enter- Dunes in Inyo County, Calif. The banks of the river, represent serious prises have removed wild-rice from the Eureka dune grass is known from threats to the continued existence of river and replaced it with plants used three locations in the Eureka Valley; this species. In addition, 350 individ- in home aquaria. Currently, one enter- however, most of the plants are on the uals in 13 colonies lie within the pro- prise is engaged in this type of activity Eureka Dunes. posed impoundment area of the on a limited basis. In recent years the Eureka Dunes Dickey-Lincoln School Lakes Project. Finally, there has been some sewage have been used for off-road vehicle re- If this project is completed as planned, Pollution in the San Marcos River. creation. The use of the dunes for this 40% of the known individuals of the This pollution may have an adverse kind of recreation constitutes a serious Furbish lousewort will be extirpated. impact on the habitat of Texas wild- threat to the animals and plants of Persistent trillium.. (11 All of the rice. Although most of the threats to the Eureka Dunes ecosystem. Since nonulations of this trillium are found Texas wild-rice in the San Marcos the Eureka dune grass and the Eureka within four miles of each other in the River have been recently abated, the evening-primrose were proposed as En- Tallulah-Tugaloe River System in plants have not reproduced sexually in dangered, the Bureau of Land Man- Rabun and Habersham -Counties, many years. The recovery of the grass agement has posted the dunes and Georgia, and Gconee County, South in the river will depend on the conser- part of the surrounding area closed to Carolina. Most of the individual plants vation of the upper San Marcos River vehicles. Strict enforcement of the re- are found in the Tallulah Gorge and ecosystem and require research to strictions to vehicular access to the surrounding ravines on private land. A identify the factors that are prevent- dunes will be necessary to insure the few individual plants occur in the ad- ing sexual reproduction. continued existence of the Endan- jacent Sumter National Forest. gered species found there. As this species has a restricted distri- EF+FECTOF RVLEXAKING Antioch Dunes evening-primrose and bution, it could be adversely impacted The determination set forth in these the Contra Costa wallower. (1) These by development in the Tallulah Gorge rules makes all 13 species eligible for plants are endemic to the Antioch or the surrounding area. In addition, consideration provided by section 7 of Dunes near Antioch, Contra Costa some silvicultural practices at the the Act. Section 7 has been reprinted County, Calif. In their original state, edges of the Gorge could have an ad- in the Summary and Discussion of the Antioch Dunes covered approxi- verse impact on the persistent trilli- Comments in this final rulemaking. mately 500 acres of the south bank of um’s habitat. Final regulations for section 7 appear the Sacramento-San Joaquin River. Hawaiian wild broad-bean. (3 and 5) in the January 4. 1978, F~DEXALREGIS- Agricultural and industrial activities This will broad-bean has been record- TER(43 Fft 8691. have reduced the original dunes by ed as being present on both Mauna Critical Habitat has only been pro- ninety percent. Dr. Paul Opler, Office Kea and Mauna Loa at about 7,000 to posed for the Antioch Dunes evening- of Endangered Species, U.S. Fish and 8,000 feet altitude on the Island of primrose and the Contra Costa wall- Wildlife Service. found only 28 Contra Hawaii. One population, consisting of flower. The other provisions of section Costa wallflowers when he visited the about six mature vines and a dozen 7 are applicable for all the subject dunes on February 18.19’77. seedlings, is known, from the private nlants. Furbish lozlsewdrt. (1) This species is Kilauea Forest Reserve on the south- Regulations which appear in Part endemic to the St. John River Valley. east slope of Mauna Loa at about 5,200 1’7. Title 50 of the Code of Federal Collection records document that it feet altitude. The major threat to this Regulations, were published in the was found in numerous locations from species appears to be feral animals FEDERALREGISTER of June 24, 1977 (42 Allagash Plantation, Maine to Ando- that use it 8s food. FR 32373) and set forth a series of ver, New Brunswick. Much of the As this species is represented by a general prohibitions and exceptions former habitat suitable for Furbish small population, its continued exis- which apply to plant species. They louseworts below Allagash has been tence is extremely precarious..The few provide for the issuance of permits to modified by farming and construction. individuals that remain may possess carry out otherwise prohibited activi- In 19’75 the Smithsonian Institution deleterious genes that through in- ties concerning Endangered or Threat- noted in their report that the Furbish breeding could express themselves in ened plants under certain circum- lousewort had not been collected since future generations. stances. Permits involving Endangered 1943 and that it was probably extinct. Texas wild-rice. (1 and 51 This plants are available for scientific pur- In 1976 the Army Corps of Engi- aquatic grass is known only from the poses or to enhance the propagation neers contracted Dr. Charles D. Rich- upper San Marcos River, Hays or survival of the species. Permits in- ards, University of Maine, to survey County, Texas. Currently, the grass is volving Threatened species are avail- the St. John River watershed for the restricted to a 2.4 km section of the able for scientific purposes; the en- numerous rare and unusual plants river where it was calculated in 1976 to hancement of the propagation or sur- that are known to occur there. The re- occupy 1,131 square meters. vival of the species; economic hard- sults of his survey were to be used to The primary threat to this species ship; botanical or horticultural exhibi- support the Corps’ Environmental has been that some of the residents of tion; educational purposes; or other Impact Statement for the Dickey-Lin- the San Marcos area consider it to be a purposes consistent with the purposes coln School Lakes Project. Although weed. Growth of the grass and other and policy of the Act.

FEDERAL REGISTER, VOL 42, NO. III-WEDNESDAY, APRIL 26, 1978 17916 RULES AND REGULATIONS

EFFECTth’ON THESTATRS should be’ considered under the Con- This rulemaking was prepared by vention on International Trade in En- Mr. Roger E. McManus, Dr. Raymond The determination that 11 of these dangered Species of Wild Fauna and F. Altevogt, and Dr. Bruce MacBryde, plants are Endangered species and 2 of Flora, the Convention on Nature Pro- Office of Endangered Species, 202- these plants are Threatened species tection and Wildlife Preservation in 343-7814. will enable the States of California, the Western Hemisphere, or other ap- Georgia, Hawaii, Iowa, Maine. New propriate international agreements. York, Ohio, South Carolina, Texas, Nom-The Department of the Interior Utah, Virginia, and Wisconsin to enter has determined that this document does not NATIONAL ENVIRONMXNT AL POLICY Acr contain a major proposal requiring prepara- into Management Agreements pursu- tion of an Economic Impact Statement ant to section 6(b) of the Act, for the An Environmental Assessment has under Executive Order 11949 and OlKB Cir- management of any area established been prepared and is on file in the Ser- cular A-107. for the conservation of these species. vice’s Office of Endangered Species. It In addition, the determination of the addresses this action as it involves all Dated: April 12.1978. Hawaiian wild broad-bean as an En- 13 plants. The assessment and public Lm A. GRERNWALT. dangered species under the Act will comments received on this rulemaking Direct&, automatically include the plant as an are the basis for a decision that these Fish and Wildlife Service. Elndangered species under the Hawaii determinations are not major Federal endangered species law. actions which would significantly Accordingly Part 17, Subpart B of affect the quality of the human envi- Title 50 of the Code of Federal Regu- ronment within the meaning of sec- lations is amended as set forth below: The Furbish lousewort is determined tion 102(2)(C) of the National Envi- 1. Section 17.12 is amended by as Endangered in its entire range, in- ronmental Policy Act of 1989. adding, in alphabetical order by cluding New Brunswick, Canada. In This rulemaking is issued under the faa,v&..nus, and species, the follow- addition to the protection provided by authority contained in the Endan- the Act, the Service will review these gered Species Act of 1973 (16 U.S.C. 13 species to determine whether they 1531-1543; 87 Stat. 884). 0 17.12 Endangered and threatened plants.

SweieS Ranee

scientific name common neme Known distribution Portion endangered statue When Ilet. Slaeclal rule3

family: Bewa uber...... vlrglnla round-leaf U.S.A. tVimlnM ...... Entire ...... E . ..I...... 39 ...... NA blmh. Brasslcaceae-Muetard fsmlly: ENsfmum capitatum Contra Costa wallflower USA. (Ctiornk) ...... do ...... E ...... 39 ...... NA var. angtdatum. Craas~tonecroo famm Dvdleya tnuktae ...... Santa Barbara Island If- ._.... do ._...... do ...... E ...... 39 ...... _... NA reforevex. Faacae-Peaft3mll.r Artragalur pmianua... Rydberg milk-vetch ...... USA. tUtgO ...... ,..... do ...... T ...... _...... 39 ...... s... NA Bardtda amchn@ra Hairs rattleweed ...... U.S.A. K3eorQla) ...... do ...... E . .._...._...... _...... 39 ...... NA Victa ?nenei&i .._...... _ Hawalhn wild broad- lJ.SA. (Hawail) ...... do ...... E ...... 39 ...... NA beam -IsY frmily: Ztittium penidtmr . . . . Persistent trillium ...... U.S.A. (oeorgia. South ...... do ...... E ...... _..... 39 ...... NA carollna). Omuuaccae-Evenlna- Rbfamllg: - Oenothem avita esp. Eureka ever&wprim- USA. California) ...... do ..-...... E ...... 39 ...... NA eu- CknuuIcm debt&d Ai%ih Dunes evening- ...... do ...... do ...... E ...... 39 ...... NA &SD. ho7wafC P-. -rMefamlIy: SwaIJenta alasndrrrc Eureka dune grave .._...... _. .._...do .._...... _...... _do ...... _...... E ...... _...... 39 ...... NA Zbania taana ...... “... Texas wild-rice ._._...... __. U.S.A. (Texas) ...... _.._....._...... _do ...... _...... _...... E . . .._...... 39 ...... NA Ranuneul- Buttercup iunlly: Aconftum nowbcnu- Northern wild monk- U.SA. (Iowa, New York, ...... do ...... T ...... 39 .._...... _._...._..... NA shood. Ohio. Wlecon6ln). t-3CSZZm 8mmlragon familzc R?dicuza?id J%M- Furbish lousewort ...... U.S.A. Odaine): Canada .._... do . . .._...... _...... E ...... 39 ...... NA shine (New Brunswick). CFR Dot. 78-11312 Filed 4-25-78; &I:45 am1

FEDERAL REDISTER, VOL 45, NO. II-WEDNESDAY, APRIL 26,1978