2003 Federal Register, 68 FR 12326; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: March 14, 2003 (Volume 68, Number 50)]
[Proposed Rules]
[Page 12326-12336]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14mr03-16]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI69

Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Yermo xanthocephalus (Desert
Yellowhead)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to
designate critical habitat for Yermo xanthocephalus (desert yellowhead)
pursuant to the Endangered Species Act (Act) of 1973. Y. xanthocephalus
was federally listed as threatened throughout its range in central
Wyoming in 2002. Approximately 146 hectares (ha) (360 acres (ac)) in
Fremont County, Wyoming, are proposed for designation as critical
habitat for Y. xanthocephalus. The proposed critical habitat occurs
entirely on land managed by the Bureau of Land Management (BLM).
If this proposal is made final, section 7 of the Act requires
Federal agencies to ensure that actions they fund, authorize, or carry
out do not destroy or adversely modify critical habitat to the extent
that the action appreciably diminishes the value of the critical
habitat for the survival and recovery of the species. Section 4 of the
Act requires us to consider economic and other impacts of specifying
any particular area as critical habitat.

DATES: We will accept comments until the close of business on May 13,
2003. Public hearing requests must be received by April 28, 2003.

ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
(1) You may submit written comments and information to the Field
Supervisor, Wyoming Field Office, U.S. Fish and Wildlife Service, 4000
Airport Parkway, Cheyenne, Wyoming 82001.
(2) You may hand-deliver written comments to our Wyoming Field
Office at the address given above.
(3) You may send comments by electronic mail (e-mail) to fw6--
desertyellowhead@fws.gov. See the Public Comments Solicited section

below for file format and other information about electronic filing.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Jodi Bush, Assistant Field Supervisor,
Wyoming Field Office, U.S. Fish and Wildlife Service, at the above
address (telephone: 307-772-2374; facsimile: 307-772-2358; e-mail:
Jodi--Bush@fws.gov).

SUPPLEMENTARY INFORMATION:

Background

Wyoming botanist Robert Dorn discovered Yermo xanthocephalus
(desert yellowhead) while conducting field work in the Beaver Rim area
of central Wyoming in 1990. Dorn discovered a small population of an
unusual species of Composite (Asteraceae). Dorn's closer examination
revealed that the species was unknown

[[Page 12327]]

to science and represented a new genus. Dorn (1991) named his discovery
Y. xanthocephalus, or literally ``desert yellowhead.''
Yermo xanthocephalus is a tap-rooted, glabrous (hairless) perennial
herb with leafy stems to 30 centimeters (cm) (12 inches (in)) high. The
leathery leaves are alternate, lance-shaped to oval, 4 to 25 cm (1.5 to
10 in) long and often folded along the midvein. Leaf edges are smooth
or toothed. Flower heads are many (25 to 180) and crowded at the top of
the stem. Each head contains four to six yellow disk flowers (ray
flowers are absent) surrounded by five yellow, keeled involucre
(whorled) bracts (small leaves beneath the flower). The pappus (the
outer whorl of flowering parts) consists of many white bristles.
Yermo xanthocephalus flowers from mid-June to August and may flower
a second time in September. The start and end of flowering, as well as
the duration of flowering, vary between years and seem dependent upon
temperature and other climatic variables. Fruits have been observed
from mid-July to early September, but do not persist after the flower
has dried and bracts ruptured (Heidel 2002).
Yermo xanthocephalus appears to be an obligate outcrosser (cannot
self-pollinate) (Heidel 2002) and is likely pollinated by visually-
oriented insects attracted to the yellow flowers (Dorn 1991). Several
Hymenopterans (order including sawflies, ants, bees, and wasps) have
been collected from Y. xanthocephalus heads, and small skipper
butterflies noted on them, although the identity of these potential
pollinators is not currently known (Heidel 2002). No work has been done
to document the status of these potential pollinators in this vicinity.
However, of the skippers known from Fremont County that most likely use
Y. xanthocephalus habitat, all have Nature Conservancy Global Ranks of
G-4 (apparently secure globally) and G-5 (demonstrably secure globally)
with no special conservation or management needs identified by Opler et
al. (1995).
The fruits of Yermo xanthocephalus are single-seeded achenes (dry
fruit) with a parachute-like pappus of slender bristles. At maturity,
the fruits are exposed to the wind, which may disperse the seed over
long distances. However, the clustered distribution pattern of Y.
xanthocephalus, often along colluvial (rock debris) washes, suggests
that dispersal distances are short and perhaps fostered by water
erosion (Heidel 2002).
The species is restricted to shallow deflation hollows in outcrops
of Miocene sandstones of the Split Rock Formation (Love 1961, Van
Houten 1964). These hollows have been shaped by the microscale dynamics
of local winds, as well as erosional processes, in an unstable portion
of the landscape on sites lacking desert pavement and with low
vegetation exposed to strong-wind (Bynum 1993). Within the hollows,
Yermo xanthocephalus occurs on low slopes, rim margins, colluvial fans,
and bottoms at elevations generally ranging from 2,050 to 2,060 meters
(m) (6,720 to 6,760 feet (ft)) (Heidel 2002).
Yermo xanthocephalus grows in recent soils derived from sandstones
and limestones of the Split Rock Formation at its junction with the
White River Formation (Heidel 2002). Bynum (1993) found these are
shallow, loamy soils of the Entisol order that can be classified as a
coarse-loamy over sandy-skeletal mixed Lithic Torriorthent. In
contrast, the surrounding sagebrush community occupies deep sandy loam
of the Aridisol order. The surface stratum is mildly alkaline with
little organic matter, while subsurface layers have no accumulation of
humus, clay, gypsum, salts, or carbonates (Bynum 1993).
The shape and orientation of the wind-excavated hollows may allow
for accumulation of moisture from sheet wash coming off adjacent areas,
so the hollows may be more mesic (moist) than surrounding areas (R.
Scott, Central Wyoming College, pers. comm. 2002). The vegetation of
these sites is typically sparse, with vegetative cover often as low as
10 percent, and consists primarily of low-cushion plants and scattered
clumps of Indian ricegrass (Stipa hymenoides). Species common to these
communities include Arenaria hookeri (Hooker's sandwort), Astragalus
kentrophyta (thistle milkvetch), Hymenoxys acaulis (stemless hymenoxy),
and Phlox muscoides (squarestem phlox) (Fertig 1995). A more complete
list of frequently associated species can be found in Heidel (2002).
Yermo xanthocephalus is currently known from a single population
with plants widely scattered over an area of 20 ha (50 ac). This
population consists of one large subpopulation at the base of Cedar Rim
and two smaller subpopulations within 0.4 kilometer (km) (0.25 mile
(mi)). Originally, Dorn observed approximately 500 plants within 1 ha
(2.5 ac) in 1990 on Federal land managed by the BLM (Dorn 1991). The
estimate of the plant population's size has increased from 500 in 1990
to 11,967 plants in 2001 (R. Scott, Central Wyoming College, pers.
comm., 2001). However, Dorn's original estimate of 500 plants was an
ocular estimate and did not include two nearby subpopulations, while
Scott has been conducting extensive population censuses in all three
subpopulations using a monitoring grid (Heidel 2002). Therefore, the
difference in estimates may be largely the result of different
techniques used over differing acreages and cannot be assumed to show a
significantly increasing trend in population size between 1990 and
2001. Based upon Scott's data collected from 1995 through 2001, the
actual population count has increased from 9,293 in 1995 to 11,967 in
2001, possibly in response to higher than normal precipitation over the
study period (R. Scott, Central Wyoming College, pers. comm., 2001).
Surveys conducted between 1990 and 1994 failed to locate additional
populations of Yermo xanthocephalus on outcrops of the Split Rock,
White River, Wagon Bed, and Wind River formations in the Cedar Rim and
Beaver Rim areas of southern Fremont County (Fertig 1995). No
additional populations were located during follow-up surveys conducted
during 1997 along Beaver Rim in Fremont and Natrona counties, as well
as in the Shirley Basin in Carbon County (Heidel 2002). Additional
surveys were conducted during 2001 in segments of Cedar Rim and Beaver
Rim and surrounding areas not previously surveyed; however, no new
populations were located (Heidel 2002).
Yermo xanthocephalus is vulnerable to extinction from randomly
occurring, catastrophic events, as well as even small-scale habitat
degradation, due to its small population size and limited geographic
range. As described by Fertig (1995), the species is characterized by a
long-lived perennial growth form, adaptation to severe habitats, and
low annual reproductive output. This low reproductive output would make
the species increasingly vulnerable to extinction due to chance events
if the population size declined, because it is unlikely that the
species would exhibit a high rate of population growth, even if
environmental conditions improved after such an event.
While not known to have impacted Yermo xanthocephalus to date, oil
and gas development could impact the population of Y. xanthocephalus.
The known population is encompassed by, and adjacent to, oil and gas
leases with no specific lease stipulations included to protect the
plant. Construction of well pads, access roads, and pipelines through
occupied habitat, as well as seismic exploration of oil and gas
producing formations, could result in direct destruction or crushing of
plants

[[Page 12328]]

and soil compaction and erosion. Additionally, a network of roads and
well pads in the area would result in more human intrusion into what is
now a relatively remote area.
The presence of locatable minerals in the area and their potential
extraction could also impact the known Yermo xanthocephalus population.
Uranium and zeolites, a locatable mineral with properties useful in
water softening, manufacturing of catalysts, pollution control, and
removal of radioactive products from radioactive waste, are found in
the Beaver Rim area (BLM 1986). Private parties can stake a mining
claim, explore for, and extract locatable minerals in accordance with
the 1872 General Mining Law. Such activity should it occur in the
vicinity of the known population could result in direct destruction of
individual plants and habitat.
Recreational off-road vehicle use threatens to crush Yermo
xanthocephalus plants and compact or erode soil. A two-track, four-
wheel-drive vehicle trail leading to an abandoned oil well bisects the
population and is open to recreationists driving four-wheel-drive
trucks and other smaller all-terrain vehicles.
The Yermo xanthocephalus population is in a grazing allotment
pasture where trampling may occur as cattle casually move along ``cow
trails'' or other tracks while grazing or moving to water. Focused or
prolonged use of the area by cattle could result in damage to the
habitat and individual plants. Scott (2000) noted signs of moderate
wild horse traffic adjacent to the habitat. However, at this time,
grazing has not been documented as impacting the Y. xanthocephalus
population.
Additionally, the invasion of non-native species, particularly
noxious weeds, could accompany many of the activities discussed above.
The resulting changes to the vegetative community could have
significant adverse impacts on the population of Yermo xanthocephalus.
The current BLM Lander Resource Management Plan, which covers the
area proposed for designation as critical habitat for Yermo
xanthocephalus, was approved in 1987, 3 years prior to the species'
discovery. Therefore, the Resource Management Plan does not
specifically mention the plant. In response to the proposed listing of
Y. xanthocephalus, the BLM developed a draft conservation agreement,
assessment, and strategy for the plant (BLM 1998) in order to promote
its conservation and recovery on BLM lands. However, the document was
never finalized or signed.
In the 6 years that complete population counts have been done, the
Yermo xanthocephalus population has appeared stable (Heidel 2002).
Current conditions appear favorable to the species and its habitat.
Even small changes to the habitat, such as protective fencing around
the plant's location, or changes in livestock and wildlife use or
numbers, may have negative impacts by altering water flow patterns and
trails that currently carry water and soil flows. These kinds of
changes also may allow native and non-native plant species to out-
compete Y. xanthocephalus for water and habitat.

Previous Federal Action

In the plant Notice of Review published on September 30, 1993 (58
FR 51144), we designated Yermo xanthocephalus a Category 2 species for
potential listing under the Endangered Species Act (Act) of 1973, as
amended (16 U.S.C. 1531 et seq.). At that time, Category 2 species were
those for which data in our possession indicated listing was possibly
appropriate, but for which substantial data on biological vulnerability
and threats were not currently known or on file to support a proposed
rule. On February 28, 1996, we published a Notice of Review in the
Federal Register (61 FR 7596) that discontinued the designation of
Category 2 species as candidates. At that time, this species was
upgraded to candidate status based upon its small population size, the
failure to locate additional populations in similar habitats during
additional surveys during 1994, and further analysis of threats. A
candidate is a species for which we possess substantial information on
biological vulnerability and threats to support preparation of a
listing proposal.
On November 24, 1997, we received a petition from the Biodiversity
Legal Foundation and Biodiversity Associates alleging that Yermo
xanthocephalus warranted emergency listing. On December 22, 1997, we
notified the petitioners that emergency listing was not appropriate
because BLM regulations provided some conservation measures for the
species, and current exploratory oil and gas activities near the known
occupied habitat of Y. xanthocephalus were being coordinated with our
staff in the Wyoming Field Office. In addition, we notified the
petitioners that petitions for candidate species are considered second
petitions, because candidate species are species for which we have
already decided that listing is warranted. Therefore, no 90-day finding
was required for Biodiversity Legal Foundation's petition.
We published the proposed rule to list Yermo xanthocephalus as
threatened in the Federal Register on December 22, 1998 (63 FR 70745).
In the proposed rule, we found that the designation of critical habitat
was not prudent because the minimal benefits of such designation would
be far outweighed by the increase of threats from over collection or
other human activities. We believed critical habitat designation would
provide no additional benefit to the species beyond that conferred
under sections 7 and 9 of the Act by listing.
In a proposed rule published in the Federal Register on September
5, 2000 (65 FR 53691), we reopened the comment period. In the same
proposed rule, we sought comments regarding a draft conservation
agreement, assessment, and strategy submitted by BLM (BLM 1998) for our
consideration when making the listing decision. The conservation
agreement, assessment, and strategy was never finalized or signed and
was not considered as a firm commitment to perform the actions when
assessing conservation commitments in making the listing decision.
On August 9, 1999, BLM segregated (proposed withdrawal of) 1,521.26
ha (3,759.12 ac) surrounding the population of Yermo xanthocephalus for
2 years from location and entry under the general Mining Act of 1872,
and from settlement, sale, location, and entry under the general land
laws (64 FR 43209). However, this segregation expired on August 9,
2001, with no finalized withdrawal in place.
On November, 12, 2001, Biodiversity Legal Foundation, Biodiversity
Associates, Center for Native Ecosystems, and Wyoming Outdoor Council
filed a complaint in the U.S. District Court of Colorado alleging that
the Service failed to make a timely final listing determination and
critical habitat designation for Yermo xanthocephalus (Biodiversity
Legal Foundation v. Norton, 01-B-2204 District of Colorado). The Court
approved a settlement agreement on February 28, 2002, which included a
March 8, 2003, date for submission of proposed critical habitat for Y.
xanthocephalus to the Federal Register for publication and a March 8,
2004, date for submission of final critical habitat for Y.
xanthocephalus to the Federal Register.
After a review of the best scientific data available and all
comments received in response to the proposed rule, we published a
final rule on March 14, 2002, designating Yermo xanthocephalus as
threatened

[[Page 12329]]

throughout its range (67 FR 11442). We did not designate critical
habitat at that time. However, we reevaluated our prudency
determination under the standards mandated by various court decisions
and found that designation of critical habitat for Y. xanthocephalus
was prudent. We elected to list Y. xanthocephalus as threatened without
designation of critical habitat to allow us to concentrate limited
resources on other listing actions that needed to be addressed, while
allowing us to invoke the protections needed for the conservation of
this species without further delay. We committed to prepare a critical
habitat designation in the future when our available resources and
priorities would allow.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures needed to bring an endangered or threatened species to the
point at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification
with regard to actions carried out, funded, permitted, or authorized by
a Federal agency. Section 7 also requires conferences on Federal
actions that are likely to result in the destruction or adverse
modification of proposed critical habitat. In our regulations at 50 CFR
402.02, we define destruction or adverse modification as ``a direct or
indirect alteration that appreciably diminishes the value of critical
habitat for both the survival and recovery of a listed species. Such
alterations include, but are not limited to: alterations adversely
modifying any of those physical or biological features that were the
basis for determining the habitat to be critical.'' However, in a March
15, 2001, decision of the United States Court of Appeals for the Fifth
Circuit (Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d
434), the Court found our definition of destruction or adverse
modification to be invalid. In response to this decision, we are
reviewing the regulatory definition of adverse modification in relation
to the conservation of the species.
Aside from the added protection that may be provided under section
7, the Act does not provide other forms of protection to lands
designated as critical habitat. However, the designation of critical
habitat provides benefits to the species in other ways. Designation of
critical habitat allows for a better focus of conservation efforts by
identifying those areas that contain the primary constituent elements
(physical and biological features) essential to the conservation of the
species. The designation alerts public land management agencies to the
importance of the area for conservation of the species. Additionally,
designation of critical habitat allows for long-term planning that will
facilitate the conservation needs of the species.
To be included in a critical habitat designation, the habitat must
first be ``essential to the conservation of the species.'' Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas that provide
essential life cycle needs of the species (i.e., areas on which are
found the primary constituent elements, as defined at 50 CFR
424.12(b)).
Within the geographic area occupied by the species, we will
designate only areas currently known to be essential. Essential areas
should already have the features and habitat characteristics that are
necessary to sustain the species. We will not speculate about what
areas might be found to be essential if better information became
available, or what areas may become essential over time. If the
information available at the time of designation does not show that an
area provides essential life cycle needs of the species, then the area
should not be included in the critical habitat designation. Within the
geographic area occupied by the species, we will not designate areas
that do not now have the primary constituent elements, as defined at 50
CFR 424.12(b), that provide essential life cycle needs of the species.
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by a species only when a designation limited to its present range would
be inadequate to ensure the conservation of the species,'' (50 CFR
424.12(e)). Accordingly, unless the best available scientific data do
not demonstrate that the conservation needs of the species require it,
we will not designate critical habitat in areas outside the geographic
area occupied by the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that our decisions represent the best scientific and commercial
data available. It requires Service biologists, to the extent
consistent with the Act, and with the use of the best scientific and
commercial data available, to use primary and original sources of
information as the basis for recommendations to designate critical
habitat. When determining which areas are critical habitat, a primary
source of information should, at a minimum, be the listing package for
the species. Additional information may be obtained from a recovery
plan, articles in peer-reviewed journals, conservation plans developed
by States and counties, scientific status surveys and studies,
biological assessments, unpublished materials, and expert opinion.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include all of the habitat areas that may
eventually be determined to be necessary for the recovery of the
species. For these reasons, all should understand that critical habitat
designations do not signal that habitat outside the designation is
unimportant or may not be required for recovery. Areas outside the
critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1) and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the section 9 take prohibition, as determined on the basis
of the best available information at the time of the action. We
specifically anticipate that federally funded or assisted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.

Methods

In determining areas that are essential to conserve Yermo
xanthocephalus, we used the best scientific information

[[Page 12330]]

available, as required by the Act and regulations (section 4(b)(2) and
50 CFR 424.12). We reviewed available information that pertains to the
habitat requirements of this species, including information from the
final rule listing the species as threatened (67 FR 11442), data from
research and survey observations at the known population site, status
reports compiled by the Wyoming Natural Diversity Database, the BLM's
Resource Management Plan/Environmental Impact Statement for the Lander
Resource Area (1986), Geological Survey Bulletins regarding the geology
of central Wyoming and the Beaver Rim area, data regarding soils at the
known population site, and discussions with botanical experts and BLM
employees.
We mapped critical habitat based on U.S. Geological Survey 7.5''
quadrangle maps (Dishpan Butte and Sweetwater Station, Wyoming). We
included the areas occupied by the subpopulations of Yermo
xanthocephalus based upon existing maps of the subpopulations, as well
as site visits by Service and BLM employees. We included adjacent areas
of suitable soils and vegetative communities to allow for maintenance
of the seed bank and dispersal. Additionally, we identified areas with
topographic features (outcroppings, cliffs, and hills) influencing the
microscale dynamics of local winds, erosional processes, and hydrologic
processes needed to maintain the integrity of the shallow deflation
hollows providing Y. xanthocephalus habitat, as well as the sheet wash
that provides increased moisture to the habitat. We believe these areas
are necessary because of the unstable nature of the landscape (Bynum
1993) and the more mesic nature of the hollows than the surrounding
arid landscape (R. Scott, Central Wyoming College, pers. comm. 2002).
We delineated the boundary of this area using section lines and
quarter-section lines where feasible, in order to facilitate BLM
management and enforcement. This designation will also reduce the
likelihood that extant populations would be identified and vandalized.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we must consider those physical and biological features
(primary constituent elements) that are essential to the conservation
of the species, and that may require special management considerations
or protection. These include, but are not limited to: space for
individual and population growth, and for normal behavior; food, water,
air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction,
rearing of offspring; and habitats that are protected from disturbance
or are representative of the historic geographical and ecological
distributions of a species. The area proposed as critical habitat for
Yermo xanthocephalus is within the geographical area presently occupied
by the species and contains these physical or biological features
(primary constituent elements) essential for the conservation of the
species.
Based on our knowledge to date, the primary constituent elements
for Yermo xanthocephalus consist of, but are not limited to:
(1) Recent soils derived from sandstones and limestones of the
Split Rock Formation at its junction with the White River Formation.
These are shallow, loamy soils of the Entisol order that can be
classified as coarse-loamy over sandy-skeletal, mixed, Lithic
Torriorthent. The surface stratum has little organic matter and
subsurface layers show no accumulation of humus, clay, gypsum, salts,
or carbonates.
(2) Plant communities associated with Yermo xanthocephalus that
include, but may not be limited to, sparsely-vegetated cushion plant
communities with scattered clumps of Oryzopsis hymenoides (Indian
ricegrass) between 2,043 and 2,073 m (6,700 and 6,800 ft) in Fremont
County, Wyoming. Species common to these communities include Arenaria
hookeri (Hooker's sandwort), Astragalus kentrophyta (thistle
milkvetch), Hymenoxys acaulis (stemless hymenoxy), and Phlox muscoides
(squarestem phlox). These cushion-plant communities also contain
natural openings.
(3) Topographic features/relief (outcroppings, cliffs, and hills)
and physical processes, particularly hydrologic processes, that
maintain the shape and orientation of the hollows characteristic of
Yermo xanthocephalus habitat (through microscale dynamics of local
winds and erosion) and maintain moisture below the surface of the
ground (through sheet wash from the adjacent outcroppings, cliffs, and
hills).

Criteria Used To Identify Critical Habitat

We identified critical habitat essential for the conservation of
Yermo xanthocephalus in the only area where it is known to occur. There
are no known historic locations for this species. While we acknowledge
the high degree of threat that arises from chance catastrophic events
given the limited geographic distribution of this species, we find no
compelling evidence that the plant ever existed at other locations. We
believe conservation of the species can be achieved through management
of threats to the population within this proposed critical habitat.
Given the clustered distribution pattern of Yermo xanthocephalus
and our assumption that dispersal distances are short and possibly
fostered by water erosion, a limited amount of critical habitat is
essential for maintenance of the seed bank and dispersal. Additionally,
the persistence of the species requires some surrounding habitat to
maintain the ecological processes that allow the population and the
primary constituent elements to persist.
Even though we did not propose sites other than where the
population is currently known to occur, we do not mean to imply that
habitat outside the designation is unimportant or may not be required
for recovery of the species. Areas that support newly discovered
populations in the future, but are outside the critical habitat
designation, will continue to be subject to conservation actions that
may be implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the prohibitions of section 9 of the Act, as determined on
the basis of best available information at the time an action is
proposed.

Critical Habitat Proposal

The proposed critical habitat area described below constitutes our
best assessment at this time of the area essential for the conservation
of Yermo xanthocephalus. The site includes the only known location
where the species currently occurs and, as such, is essential.
The proposed critical habitat is approximately 146 ha (360 ac) of
Federal lands managed by BLM in the Beaver Rim area approximately 10 km
(6 mi) north of Sweetwater Station in southern Fremont County, Wyoming.
Within this area, Yermo xanthocephalus occurs in sparsely vegetated
cushion-plant communities associated with shallow soils on low slopes,
rim margins, colluvial fans, and bottoms within deflation hollows.
Additionally, as discussed previously, we included areas supporting
topographic features (outcroppings, cliffs, and hills) influencing the
microscale dynamics of local winds, erosional processes, and hydrologic
processes needed to maintain the integrity of the shallow deflation
hollows providing Y. xanthocephalus habitat, as well as the

[[Page 12331]]

sheet wash that provides increased moisture to the habitat. Within the
critical habitat, Y. xanthocephalus occurs in 3 subpopulations with a
total population size of 11,967 plants in 2001 (R. Scott, Central
Wyoming College, pers. comm. 2001). Dispersal from these subpopulations
is limited and frequently occurs along colluvial washes.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out do
not destroy or adversely modify critical habitat to the extent that the
action appreciably diminishes the value of the critical habitat for the
survival and recovery of the species. Individuals, organizations,
States, local governments, and other non-Federal entities are affected
by the designation of critical habitat only if their actions occur on
Federal lands, require a Federal permit, license, or other
authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is designated or proposed. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies
to confer with us on any action that is likely to jeopardize the
continued existence of a proposed species or result in destruction or
adverse modification of proposed critical habitat. Conference reports
provide conservation recommendations to assist the action agency in
eliminating conflicts that may be caused by the proposed action. The
conservation recommendations in a conference report are advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if the species was
listed or critical habitat designated. We may adopt the formal
conference report as the biological opinion when the species is listed
or critical habitat designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)).
If a species is listed or critical habitat is designated, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, we
would ensure that the permitted actions do not destroy or adversely
modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid the destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated, and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Activities on Federal lands that may affect Yermo xanthocephalus or
its critical habitat will require section 7 consultation. Federal
actions not affecting listed species or critical habitat do not require
section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that, when carried out, funded, or authorized
by a Federal agency, may directly or indirectly destroy or adversely
modify critical habitat or may be affected by the designation include,
but are not limited to:
(1) Activities that have the potential to appreciably degrade or
destroy Yermo xanthocephalus habitat (and its PCEs), including mining,
oil and gas exploration and development, herbicide use, intensive
livestock grazing, clearing, discing, farming, residential or
commercial development, off-road vehicle use, and heavy recreational
use;
(2) Alteration of existing hydrology by lowering the groundwater
table or redirection of sheet flow from areas adjacent to deflation
hollows;
(3) Compaction of soil through the establishment of trails or
roads;
(4) Activities that foster the introduction of non-native
vegetation, particularly noxious weeds, or create conditions that
encourage the growth of non-natives. These activities could include,
but are not limited to: irrigation, supplemental feeding of livestock,
and ground disturbance associated with pipelines, roads, and other
soil-disturbing activities; and
(5) Appreciably decreasing habitat value or quality through
indirect effects (e.g., construction of fencing along the perimeter of
the critical habitat leading to cattle congregation at the fence and
resultant focused disturbance, erosion, and changes to drainage
patterns, soil stability, and vegetative community composition).
If you have questions regarding whether specific activities will
constitute adverse modification of critical habitat, contact the Field
Supervisor, Wyoming Field Office, U.S. Fish and Wildlife Service (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife, and inquiries about prohibitions and permits may be addressed
to the U.S. Fish and Wildlife Service, Ecological Services, P.O. Box
25486, DFC, Denver, Colorado 80225-0486 (telephone: 303-236-7400;
facsimile: 303-236-0027).

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available, and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species. We will conduct
an analysis of

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the economic impacts of designating the specific proposed area as
critical habitat prior to a final determination. When completed, we
will announce the availability of the draft economic analysis with a
notice in the Federal Register, and we will open a public comment
period on the draft economic analysis and proposed rule at that time.

Public Comments Solicited

We intend that any final action resulting from this proposal be as
accurate and effective as possible. Therefore, we solicit comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefits of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of Yermo
xanthocephalus habitat, and what habitat is essential to the
conservation of the species and why;
(3) Land use practices and current or planned activities in the
subject area and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families;
(5) Economic and other values associated with designating critical
habitat for Yermo xanthocephalus, such as those derived from non-
consumptive uses (e.g., hiking, camping, bird-watching, enhanced
watershed protection, improved air quality, increased soil retention,
``existence values,'' and reductions in administrative costs); and
(6) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concern and comments.
If you wish to comment on this proposed rule, you may submit your
comments and materials by any one of several methods (see ADDRESSES
section). If submitting comments by electronic format, please submit
them in ASCII file format and avoid the use of special characters and
encryption. Please include your name and return e-mail address in your
e-mail message. Please note that the e-mail address will be closed out
at the termination of the public comment period. If you do not receive
confirmation from the system that we have received your message,
contact us directly by calling our Wyoming Field Office (see FOR
FURTHER INFORMATION CONTACT section).
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address, which we will honor to the extent allowable by law.
In some circumstances, we would withhold from the rulemaking record a
respondent's identity, as allowable by law. If you wish us to withhold
your name and/or address, you must state this request prominently at
the beginning of your comment. However, we will not consider anonymous
comments. To the extent consistent with applicable law, we will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address (see ADDRESSES section).

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we will seek the expert opinions of at least three appropriate
and independent specialists regarding this proposed rule. The purpose
of such review is to ensure that our critical habitat designation is
based on scientifically sound data, assumptions, and analyses. We will
send these peer reviewers copies of this proposed rule immediately
following publication in the Federal Register. We will invite these
peer reviewers to comment, during the public comment period, on the
specific assumptions and conclusions regarding the proposed designation
of critical habitat.
We will consider all comments and information received during the
public comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made at least 15
days prior to the close of the public comment period. We will schedule
public hearings on this proposal, if any are requested, and announce
the dates, times, and places of those hearings in the Federal Register
and local newspapers at least 15 days prior to the first hearing.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical language or jargon that interferes with the clarity? (3) Does
the format of the proposed rule (grouping and order of sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the proposed rule in the SUPPLEMENTARY INFORMATION
section of the preamble helpful in understanding the notice? (5) What
else could we do to make the proposed rule easier to understand?
Send comments that concern how we could make this notice easier to
understand to: Office of Regulatory Affairs, Department of the
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You also
may e-mail your comments to this address: Execsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, the Office of Management
and Budget (OMB) has determined that this document is not a significant
rule and therefore OMB is not required to review it. We are preparing a
draft analysis of this proposed action, which will be available for
public comment, to determine the economic consequences of designating
the specific area as critical habitat. The availability of the draft
economic analysis will be announced in the Federal Register and in
local newspapers so that it is available for public review and
comments.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small

[[Page 12333]]

organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
The area we are proposing as critical habitat is already occupied
by Yermo xanthocephalus. As a result, Federal agencies funding,
permitting, or implementing activities in this area are already
required to consult with us under section 7 of the Act, to avoid
jeopardizing the continued existence of this species. While the
designation of critical habitat will require that agencies ensure,
through section 7 consultation, that their activities do not destroy or
adversely modify critical habitat, we do not believe this will result
in any additional regulatory burden on the Federal agencies or their
applicants. As a result, this proposed rule, if finalized, would not
likely result in a significant economic burden on Federal agencies or
their applicants. However, the economic analysis will provide the
details needed prior to certifying that this proposed rule is not
expected to have a significant adverse impact on a substantial number
of small entities, with no need for a regulatory flexibility analysis.

Energy Supply, Distribution or Use (Executive Order 13211)

On May 18, 2001, the President issued an Executive Order (13211)
which applies to regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Because this proposed rule is not expected to significantly affect
energy supplies, distribution, or use, this action is not a significant
energy action and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we will use the economic analysis to further evaluate this
situation.

Takings

In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. The rule will not increase or decrease current
restrictions on private property concerning Yermo xanthocephalus
because all of the critical habitat designated is on Federal land. Due
to current public knowledge of the species' protection, and the fact
that the plant receives protection through section 9 of the Act both
within and outside of the designated areas, we do not anticipate that
property values will be affected by the critical habitat designation.

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior policy, we
requested information from, and coordinated development of this
critical habitat designation with, appropriate State resource agencies
in Wyoming. The designation of critical habitat within the geographic
range occupied by Yermo xanthocephalus imposes no additional
restrictions to those currently in place and, therefore, has little
additional impact on State and local governments and their activities.
The designation may have some benefit to these governments in that the
area essential to the conservation of the species is more clearly
defined, and the primary constituent elements of the habitat necessary
to the conservation of the species are specifically identified. While
defining the area essential to the conservation of Y. xanthocephalus
and identifying primary constituent elements does not alter where and
what federally sponsored activities may occur, this information may
assist these local governments in long-range planning (rather than
waiting for case-by-case section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We are proposing to designate critical habitat in
accordance with the provisions of the Act. The rule uses standard
property descriptions and identifies the primary constituent elements
within the designated area to assist the public in understanding the
habitat needs of Yermo xanthocephalus.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This proposed rule does not contain any information collection
requirements for which OMB approval under the Paperwork Reduction Act
is required. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a valid OMB Control Number.

National Environmental Policy Act

Our position is that, outside the Tenth Circuit, we do not need to
prepare environmental analyses as defined by the National Environmental
Policy Act (NEPA) in connection with designating critical habitat under
the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F .3d 1495 (Ninth Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996)). However, when the range of the species
includes States within the Tenth Circuit, pursuant to the Tenth Circuit
ruling in Catron County Board of Commissioners v. U.S. Fish and
Wildlife Service, 75 F .3d 1429 (Tenth Cir. 1996), we will complete a
NEPA analysis. The range of Yermo xanthocephalus includes States within
the Tenth Circuit; therefore, we are completing an Environmental
Assessment and will announce its availability in the Federal Register.

Government-to-Government Relationship with Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
readily acknowledge our responsibility to communicate meaningfully with
recognized Federal Tribes on a government-to-government basis. We have
determined that there are no Tribal lands essential for the
conservation of Yermo xanthocephalus because these lands do not support
populations, or provide essential habitat. Therefore, critical habitat
for Y. xanthocephalus has not been proposed on Tribal lands.

References Cited

Bureau of Land Management (BLM). 1986. Final Resource Management Plan/
Environmental Impact Statement for the Lander Resource Area.
Bureau of Land Management (BLM). 1998. Draft Yermo xanthocephalus
(Desert Yellowhead) Conservation Agreement, Assessment and Strategy.
17pp.
Bynum, M. 1993. Soils 5120 Term Project. Unpublished soil survey
prepared for Dr. Larry Munn, University of Wyoming. 7pp.

[[Page 12334]]

Dorn, R.D. 1991. Yermo xanthocephalus (Asteraceae: Senecioneae): A New
genus and Species from Wyoming. Madrono 38(3):198-201.
Fertig, W. 1995. Status Report on Yermo xanthocephalus in central
Wyoming. Wyoming Natural Diversity Database Report to the BLM, Wyoming
State Office and Rawlins District. 46pp.
Heidel, B. 2002. Status Report on Yermo xanthocephalus in Wyoming.
Wyoming Natural Diversity Database Report to the BLM, Wyoming State
Office and Rawlins District. 24pp.

Love, J.D. 1961. Geological Survey Bulletin 112: Split Rock Formation
(Miocene) and moonstone Formation (Pliocene) in central Wyoming.
Contributions to General Geology. 1-I. United States Government
Printing Office, Washington, DC.
Opler, P.A., H. Pavulaan, and R.E. Stanford (coordinators). 1995.
Butterflies of North America. Jamestown, ND: Northern Prairie Wildlife
Research Center Home Page. http://www.npwrc.usgs.gov/resource/distr/
lepid/bflyusa/bflyusa.htm
(Version 26JUN2002).

Scott, R.W. 2000. Field Studies on Yermo xanthocephalus Dorn: BLM
Cooperative Agreement No. KAA000003, Final Report. Department of
Biology, Central Wyoming College. 13pp.
Van Houten, F.B. 1964. Tertiary Geology of the Beaver Rim Area Fremont
and Natrona Counties, Wyoming: Geological Survey Bulletin 1164. United
States Government Printing Office, Washington, DC.

Author

The primary author of this proposed rule is Mary E. Jennings (see
ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.12(h), revise the entry for Yermo xanthocephalus
under ``FLOWERING PLANTS'' to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering plants

* * * * * * *
Yermo xanthocephalus............. Desert yellowhead... U.S.A. (WY)........ Asteraceae--Sunflow T 723 17.96(a) NA
er.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 17.96, amend paragraph (a) by adding an entry for Yermo
xanthocephalus in alphabetical order under Asteraceae to read as
follows:

Sec. 17.96 Critical habitat--plants.

(a) * * *
Family Asteraceae: Yermo xanthocephalus (Desert yellowhead)
(1) Critical habitat unit is depicted for Fremont County, Wyoming,
on the map below.
(2) The primary constituent elements of critical habitat for Yermo
xanthocephalus are those habitat components that are essential for the
primary needs of the species. Based upon our current knowledge of this
species, the primary constituent elements include, but are not limited
to:
(i) Recent soils derived from sandstones and limestones of the
Split Rock Formation at its junction with the White River Formation.
These are shallow, loamy soils of the Entisol order that can be
classified as coarse-loamy over sandy-skeletal, mixed, Lithic
Torriorthent. The surface stratum has little organic matter and
subsurface layers show no accumulation of humus, clay, gypsum, salts,
or carbonates.
(ii) Plant communities associated with Yermo xanthocephalus that
include, but may not be limited to, sparsely vegetated cushion-plant
communities with scattered clumps of Oryzopsis hymenoides (Indian
ricegrass) between 2,043 and 2,073 m (6,700 and 6,800 ft) in Fremont
County, Wyoming. Species common to these communities include Arenaria
hookeri (Hooker's sandwort), Astragalus kentrophyta (thistle
milkvetch), Hymenoxys acaulis (stemless hymenoxy), and Phlox muscoides
(squarestem phlox). These cushion-plant communities also contain
natural openings.
(iii) Topographic features/relief and physical processes,
particularly hydrologic processes, that maintain the shape and
orientation of the hollows characteristic of Yermo xanthocephalus and
maintain moisture below the surface of the ground.
(3) The critical habitat unit occurs entirely in Fremont County,
Wyoming.
(i) From U.S. Geological Survey 7.5'' quadrangle maps Dishpan Butte
and Sweetwater Station, Wyoming. T. 31 N., R. 95 W., SW \1/4\ sec. 27,
NW \1/4\ sec. 34, and W \1/2\ W \1/2\ NE \1/4\ sec. 34.
(ii) Map follows:
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[GRAPHIC] [TIFF OMITTED] TP14MR03.001

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* * * * *

Dated: March 6, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-6131 Filed 3-13-03; 8:45 am]

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