[Federal Register: March 16, 2004 (Volume 69, Number 51)]
[Rules and Regulations]               
[Page 12278-12290]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI69

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; notice of availability.


SUMMARY: We, the Fish and Wildlife Service (Service), designate 
critical habitat for Yermo xanthocephalus (desert yellowhead) pursuant 
to the Endangered Species Act (Act) of 1973. Approximately 146 hectares 
(360 acres) in Fremont County, Wyoming, are designated as critical 
habitat for Y. xanthocephalus, which was federally listed as threatened 
throughout its range in central Wyoming in 2002.
    Section 4 of the Act requires us to consider economic and other 
relevant impacts of specifying any particular area as critical habitat. 
Section 7 of the Act prohibits destruction or adverse modification of 
critical habitat by any activity funded, authorized, or carried out by 
any Federal agency.
    This publication also provides notice of the availability of the 
Final Economic Analysis of Critical Habitat Designation for the Desert 
Yellowhead (Final Economic Analysis) and the Final Environmental 
Assessment for Designation of Critical Habitat for the Desert 
Yellowhead (Final EA) for this final rule.

DATES: This final rule is effective April 15, 2004.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Wyoming Field Office, U.S. Fish and Wildlife Service, 4000 Airport 
Parkway, Cheyenne, Wyoming, 82001. You may obtain copies of this final 
rule and the Final EA and Final Economic Analysis from the field office 
address above or by calling 307-772-2374.

FOR FURTHER INFORMATION CONTACT: Brian T. Kelly, 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: 


Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Endangered Species Act (Act) of 
1973, as amended (16 U.S.C. 1531 et seq.), the Service has found that 
the designation of statutory critical habitat provides little 
additional protection to most listed species, while consuming 
significant amounts of conservation resources. The Service's present 
system for designating critical habitat has evolved since its original 
statutory prescription into a process that provides little real 
conservation benefit, is driven by litigation and the courts rather 
than biology, limits our ability to fully evaluate the science 
involved, consumes enormous agency resources, and imposes huge social 
and economic costs. The Service believes that additional agency 
discretion would allow our focus to return to those actions that 
provide the greatest benefit to the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 306 species, or 25 percent 
of the 1,211 listed species in the United States under jurisdiction of 
the Service, have designated critical habitat. We address the habitat 
needs of all 1,211 listed species through conservation mechanisms such 
as listing, section 7 consultations, the section 4 recovery planning 
process, the section 9 protective prohibitions of unauthorized take, 
section 6 funding to the States, and the section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent to sue relative to critical habitat, and to comply 
with the growing number of

[[Page 12279]]

adverse court orders. As a result, listing petition responses, the 
Service's own proposals to list critically imperiled species, and final 
listing determinations on existing proposals are all significantly 
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for additional public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the critical habitat designation include 
legal costs, the cost of preparation and publication of the 
designation, the analysis of the economic effects and the cost of 
requesting and responding to public comment, and in some cases the 
costs of compliance with the National Environmental Policy Act (NEPA). 
None of these costs result in any benefit to the species that is not 
already afforded by the protections of the Act enumerated earlier, and 
they directly reduce the funds available for direct and tangible 
conservation actions.


    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 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 
(attached to the top of each seed) 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).
    Yermo xanthocephalus 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, Y. 
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 soils 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 Stipa hymenoides (Indian ricegrass). 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 hectares (ha) (50 acres 
(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 Bureau of 
Land Management (BLM) (Dorn 1991). However, this was a visual estimate, 
likely weighted toward flowering plants, and is not considered an 
actual estimate of the population size and should not be considered 
when assessing population trends over time.
    A permanent survey grid is now in place, and has facilitated an 
annual census of all known individuals. The total population size has 
varied from 9,293 to 13,244 individuals during the time the census has 
been conducted (1995-2003) (R. Scott, Central Wyoming College 
Herbarium, in litt. 2004 ). Scott has hypothesized that some of the 
changes in population numbers censused could be 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

[[Page 12280]]

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 from 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 a chance event 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 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 also could impact the known Yermo xanthocephalus population. 
Uranium and zeolites are found in the Beaver Rim area (BLM 1986). The 
latter is a locatable mineral with properties useful in water 
softening, manufacturing of catalysts, pollution control, and removal 
of radioactive products from radioactive waste. 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 Y. xanthocephalus 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 hunters or other 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 
    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 (RMP), which covers 
the area designated as critical habitat for Yermo xanthocephalus, was 
approved in 1987, 3 years prior to the species' discovery. Therefore, 
the Lander RMP does not specifically mention Y. xanthocephalus. In 
response to the proposal listing of the species, the BLM developed a 
draft conservation agreement, assessment, and strategy for Y. 
xanthocephalus (BLM 1998) in order to promote its conservation and 
recovery on BLM lands. However, the document was never finalized or 
    Since complete population counts were started in 1995, the Yermo 
xanthocephalus population has appeared stable (Heidel 2002; R. Scott, 
Central Wyoming College Herbarium, in litt. 2004). 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 outcompete Y. xanthocephalus for water and 

Previous Federal Action

    On March 14, 2003, we published the proposed rule to designate 
critical habitat for Yermo xanthocephalus (68 FR 12326). In that 
proposed rule (beginning on page 12328), we included a detailed summary 
of the previous Federal actions completed prior to publication of the 
proposal. On January 27, 2004, the Service announced the availability 
of the Draft Economic Analysis of Critical Habitat Designation for the 
Desert Yellowhead (Draft Economic Analysis) and the Draft Environmental 
Assessment for Designation of Critical Habitat for the Desert 
Yellowhead (Draft EA) (69 FR 3871), and opened the comment period on 
all three documents through February 26, 2004.

Summary of Comments and Recommendations

    In the March 14, 2003, proposed rule, we requested that all 
interested parties submit comments or information concerning the 
designation of critical habitat for Yermo xanthocephalus. A 60-day 
comment period closed on May 13, 2003. We contacted interested parties 
(including elected officials, media outlets, local jurisdictions, and 
interest groups) through a press release and related faxes, mailed 
announcements, telephone calls, and e-mails. On January 27, 2004, the 
Service opened a 30-day comment period on the Draft Economic Analysis, 
Draft EA, and Proposed Rule (69 FR 3871). We received three comments 
from the State of Wyoming and eight comments from the public. Of the 
public comments, five comments opposed designation or favored reduced 
designation, one comment supported designation or favored expanded 
designation, and two were deemed neutral regarding critical habitat. 
Relatively minor editing changes suggested by commenters have been 
incorporated into this final rule as appropriate.
    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we seek the expert opinions of at least three appropriate 
independent specialists regarding proposed rules. The purpose of such 
review is to ensure that decisions are based on scientifically sound 
data, assumptions, and analyses. We solicited opinions of four 
independent experts to peer-review the proposed critical habitat 
designation. All four peer reviewers provided comments.

Peer Review Comments

    Comment 1: One reviewer recommended decreasing the size of the 
critical habitat and identified specific areas he believed could be 
considered for removal. However, the reviewer specifically deferred to 
the opinion of another reviewer.

[[Page 12281]]

    Our Response: We reviewed the suggested removals from the critical 
habitat designation. We remain convinced that these areas are essential 
to the conservation of the species and may require special management. 
We believe the areas contain one or more of the Primary Constituent 
Elements (PCEs) identified in this rule. In fact, one area suggested 
for removal actually contains individual Yermo xanthocephalus plants. 
Additionally, we believe these areas are important because they contain 
the topographic features/relief and physical processes that maintain 
the habitat and hydrology upon which Y. xanthocephalus depends. 
Furthermore, the reviewer to whom this reviewer deferred was one of two 
reviewers to suggest that the designated critical habitat be made 
    Comment 2: Two reviewers recommended enlarging the designated 
critical habitat. One reviewer provided specific suggestions for areas 
that should be included in the critical habitat designation and thought 
the enlarged area would provide a slightly greater buffer. The other 
peer reviewer suggested that the rarity of Yermo xanthocephalus 
warrants extra caution that would be provided by enlargement of the 
designated critical habitat.
    Our Response: By definition under section 3(5)(A) of the Act, 
critical habitat includes areas known to be essential to conserve the 
species. While the areas suggested for addition to critical habitat 
appear to have one or more of the PCEs identified in this rule, we do 
not believe they are essential to the conservation of the species. 
These areas are outside of the area containing the topographic features 
necessary to maintain the habitat and hydrology for the known 
population of Yermo xanthocephalus. While some of the areas appear to 
contain the appropriate soils and plant communities to support Y. 
xanthocephalus, these areas appear to be outside of the areas in which 
the plant typically is found. We understand that, in recent years, the 
plant's distribution has been static, even on a relatively fine scale. 
We further understand that individual plants that might appear to be 
colonizing new habitat and becoming established further from the 
general population location tend to be short-lived and never truly 
establish an extension of the population. Even so, we believe the 
critical habitat designation encompasses these areas Y. xanthocephalus 
temporarily colonized in the past to provide for the future possibility 
of a slight expansion of the population.
    We share the reviewers' concerns regarding the vulnerability of 
Yermo xanthocephalus due to its rare nature and small distribution. It 
is vulnerable to impacts from activities within and outside of 
designated critical habitat. Yet, the definition of critical habitat 
does not include areas that are not deemed essential to the 
conservation of the species. However, section 7(a)(2) of the Act 
requires each Federal agency to ensure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. In considering the effects 
of a proposed action, the Federal agency looks at the direct and 
indirect effects of an action on the species or critical habitat. 
Indirect effects are caused by the proposed action, are later in time, 
and are reasonably certain to occur. They may occur outside of the area 
directly affected by the action. Therefore, actions occurring outside 
of the critical habitat boundaries, but possibly affecting Y. 
xanthocephalus or its critical habitat, will still be reviewed for 
their effect and modified if necessary. Because the designated critical 
habitat is completely surrounded by Federal land, this requirement of 
the Act effectively provides the same level of protection for Y. 
    Comment 3: One reviewer was critical of the manner in which the 
Service used Dorn's initial visual estimate of the Yermo xanthocephalus 
population size (Dorn 1991), indicating that the estimate should not be 
used in conjunction with the quantitative data, particularly to 
speculate regarding population changes over time. The reviewer also 
provided more current census information for the population.
    Our Response: We have revised the background section of this rule 
to better reflect the nature of Dorn's estimate, and have incorporated 
the current census data.
    Comment 4: Several peer reviewers commented on various threats to 
the critical habitat area (such as invasive weeds), as well as needed 
management within critical habitat. Two reviewers specifically 
expressed concern regarding the existing system of two track roads in 
the area, with one reviewer citing recent resource and plant damage. 
That reviewer suggested that closure, obliteration, and restoration of 
some roads is appropriate.
    Our Response: In the proposed rule, the Service acknowledged the 
potential for several activities to destroy or adversely modify 
critical habitat. Management of the critical habitat area will be 
addressed through consultation between the Service and the BLM. The 
Service and BLM were unaware of recent plant damage associated with the 
road system and have begun coordination to evaluate and address the 
    Comment 5: Two reviewers stressed the importance of continued 
monitoring of Yermo xanthocephalus. One reviewer emphasized that the 
importance of monitoring has increased, because publication of maps and 
information has increased the vulnerability of this rare plant.
    Our Response: We agree. The Service will support monitoring efforts 
as resources allow. Monitoring needs also will be addressed during 
recovery planning.
    Comment 6: One reviewer commented that more detailed maps and other 
information would have been valuable in evaluating the adequacy of the 
critical habitat proposal.
    Our Response: We agree. However, even the more detailed maps in our 
office do not provide the location of all the two-track roads, 
livestock trails, livestock water tanks, and other details of interest 
to this reviewer.

State Agencies

    We received comments from the Office of the Governor (Governor), 
Wyoming Game and Fish Department (WGFD), and the Wyoming Department of 
Agriculture (WDA). Issues raised by the State agencies are addressed 
    State Comment 1: The Governor indicated that the State is opposed 
to designation of critical habitat for Yermo xanthocephalus based on 
the potential modification of existing land uses in this area.
    Our Response: Section 4(a)(3) of the Act, as amended, and 
implementing regulations (50 CFR 424.12) require that, to the maximum 
extent prudent and determinable, the Secretary designate critical 
habitat at the time the species is determined to be endangered or 
threatened. 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 
anticipate only minor changes to existing land uses in the area, 
although we acknowledge that some costs are associated with section 7 
consultation due to the listing of Yermo xanthocephalus or designation 
of critical habitat. Those costs are identified in the Final Economic 

[[Page 12282]]

    State Comment 2: The Governor commented that existing land uses 
including livestock grazing appear favorable to the plant and expressed 
the State's concern that any changes to the existing habitat could be 
detrimental to this plant and its nurturing habitat. The WDA also 
commented on the importance of maintaining the current grazing use and 
avoiding the use of protective fencing.
    Our Response: As indicated in our proposed rule, we agree with the 
Governor. Yermo xanthocephalus appears to be stable and we do not 
propose any changes to land use that would result in changes to the 
habitat. There has been general agreement among the Service, BLM, and 
species experts that grazing at the current levels does not appear to 
be adversely affecting the species, and that fencing the site may cause 
significant adverse changes to the area.
    State Comment 3: The Governor expressed the State's belief that the 
proposed critical habitat is too expansive and will have an adverse 
impact on locatable minerals mining or liquid mineral surface 
    Our Response: We believe the entire area designated as critical 
habitat is essential to the conservation of the species (see our 
response to Peer Review Comment 1). We understand the Governor's 
concern that critical habitat designation could potentially have an 
adverse impact on locatable minerals mining or liquid mineral surface 
occupancy. However, we believe that these impacts will be minor.
    Although the BLM is pursuing withdrawal of the critical habitat 
designation from locatable mineral development, it appears the uranium 
and zeolite resources at the site have only marginal commercial value. 
This is supported by the fact that there are no active load or placer 
claims on the critical habitat designation and the extraction of 
potential uranium and zeolite resources is not economical in the 
current price environment.
    The critical habitat designation is located within the BLM's Beaver 
Creek Management Unit, which is rated as having a low potential for oil 
and gas. There are two leases encompassing the critical habitat unit. 
From 1952 to the present, four wells have been drilled in the general 
vicinity of the designated critical habitat, and all have resulted in 
dry holes, further supporting the low potential for oil and gas. 
Currently, the BLM's Lander RMP prohibits surface occupancy when 
necessary within a 200-meter (656-foot) buffer of the plants. The BLM 
plans to continue implementing the buffer area until the existing 
leases expire. At that time, BLM plans to exclude the designated 
critical habitat area from drilling activities, necessitating the use 
of directional drilling by new lease holders. We acknowledge that these 
project modifications result in an impact to the operators. The 
estimated costs to the oil and gas industry of critical habitat 
designation are around $460,000 over 10 years and are more fully 
described in the Final Economic Analysis.

Public Comments

    We reviewed all comments received for substantive issues and new 
data regarding critical habitat and Yermo xanthocephalus, the Draft 
Economic Analysis, and the Draft EA. In the following summary of issues 
we address comments received on all documents during the public comment 
periods. No comments were received regarding the Draft EA. Comments of 
a similar nature are grouped into issues.
    Comment 1: Several commenters, including county government, 
indicated the designation was either unnecessary or excessive, and 
recommended removing areas generally at the north end of the 
    Our Response: We believe the entire area designated as critical 
habitat is essential to the conservation of the species (see our 
response to Peer Review Comment 1). We remain convinced that 
the northern portion of the critical habitat is essential to maintain 
the habitat and hydrology that support Yermo xanthocephalus.
    Comment 2: One commenter stated that the critical habitat should be 
expanded in all directions. The commenter was concerned that 
hydrological and other physical processes, occurring on the land to the 
east of the critical habitat would not be protected. The commenter was 
also concerned that the plant would be impacted by various activities, 
such as motorized vehicle use and oil and gas activities, occurring 
outside critical habitat to the north, south, and west.
    Our Response: We do not agree that expansion of the critical 
habitat is necessary. See our response to Peer Review Comment 2.
    Comment 3: Several commenters expressed concerns regarding the 
potential for critical habitat designation to impact various activities 
occurring in the area, such as grazing, public access, mining, and oil 
and gas development. Several commenters expressed concerns that fencing 
the area to restrict grazing would actually cause harm to Yermo 
    Our Response: See our response to State Comments 2 and 3.
    Comment 4: More surveys for other populations of Yermo 
xanthocephalus are needed before designating critical habitat.
    Our Response: As required by section 4(b)(2) of the Act, we have 
designated critical habitat on the basis of the best scientific and 
commercial information available. Extensive surveys of nearby suitable 
habitat have found it to be unoccupied by Yermo xanthocephalus. It is 
unlikely other populations of this plant exist. However, in the 
unlikely event additional populations are discovered in the future, we 
will evaluate their importance to the conservation of this species and 
take appropriate action.
    Comment 5: The observations of Dr. Dick Scott should form the basis 
for the designation, as he is the species expert.
    Our Response: Dr. Scott reviewed our proposed rule and provided 
    Comment 6: A recovery plan crafted in close consultation with 
Federal agencies and State and local governments should be finalized.
    Our Response: We agree and intend to begin the recovery planning 
process as soon as resources allow.
    Comment 7: One commenter criticized the lack of detail provided on 
the map accompanying the critical habitat proposal. The map should have 
included all two-track roads, topographic features, and other 
    Our Response: See our response to Peer Review Comment 6. Regulation 
50 CFR 424.12(c) requires us to define critical habitat according to 
``specific limits using reference points and lines as found on standard 
topographic maps of the area.'' We have done this by basing the 
critical habitat legal description on section lines associated with the 
Public Land Survey System. In addition to the legal descriptions, we 
also published maps providing an overview of the critical habitat 
boundaries in the proposed rule. The Federal Register maps are only 
intended for illustrative purposes. The proposed rule references the 
U.S. Geological Survey (USGS) 7.5'' quadrangle maps Dishpan Butte and 
Sweetwater Station, Wyoming. These maps would provide the topographic 
detail and possibly more information regarding locations of two-track 
roads, although many two-tracks do not show on the 7.5'' quadrangle 
    Prior to publication of the proposed rule, several interested 
parties expressed concern regarding increased knowledge of the precise 
location of Yermo xanthocephalus population and the potential for 
vandalism of the population. The Service tried to balance

[[Page 12283]]

their concerns with the need to publish a map along with the proposed 
    Comment 8: Nearby unoccupied areas of suitable habitat should be 
included in the designation of critical habitat.
    Our Response: Based upon data collected during nine years of annual 
census, the population of Yermo xanthocephalus appears stable. 
Extensive surveys of nearby suitable habitat have found it to be 
unoccupied by Y. xanthocephalus. There is no evidence that the plant 
has ever occurred outside of the area currently occupied. While we 
agree that there could be additional security against extinction for 
the species if there were multiple populations, there appears to be no 
foundation upon which to make a determination that the conservation 
needs of Y. xanthocephalus require designation of critical habitat 
outside of the geographic area occupied by the species.
    Comment 9: One commenter asked that we consider ecosystem services, 
species recovery, and passive values when developing the economic 
analysis of this critical habitat designation.
    Our Response: Our Draft and Final Economic Analyses address those 
    Comment 10: One commenter expressed concerns having to do with the 
status of section 7 consultation between BLM and the Service regarding 
Yermo xanthocephalus.
    Our Response: We encourage the commenter to contact the Service's 
Wyoming Field Office (see ADDRESSES section) to discuss the status of 
the consultation.

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 of 
critical habitat with regard to actions authorized, funded, or carried 
out by a Federal agency. Section 7 of the Act also requires conferences 
on Federal actions that are likely to result in the destruction or 
adverse modification of proposed critical habitat. 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. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation would not afford any 
additional regulatory protections under the Act against such 
    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 
    Habitat must also require special management or protection to be 
included in critical habitat. Critical habitat identifies those areas 
that need alternation or protection to provide for the recovery of the 
species. We do not include areas where existing management is 
sufficient to conserve the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the 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, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, impacts to national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
We may exclude areas from critical habitat designation when the 
benefits of exclusion outweigh the benefits of including the areas 
within critical habitat, provided the exclusion will not result in 
extinction of 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 decisions made by the Service 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 
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant to Yermo xanthocephalus. 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.


    In determining areas that are essential to conserve Yermo 
xanthocephalus, we used the best scientific information 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; March 14, 2002), data 
from research and survey observations at the known population site, 
status reports compiled by the Wyoming Natural Diversity Database, the 
BLM's RMP/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 
    We mapped critical habitat based on USGS 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 

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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.

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, PCEs) 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, and 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 designated as critical 
habitat for Yermo xanthocephalus is within the geographical area 
presently occupied by the species and contains these physical or 
biological features (PCEs) essential for the conservation of the 
    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 course-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 

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 designation of critical 
    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 
PCEs to persist.
    Even though we did not propose sites other than where the 
population is currently known to occur, we do not 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 

Critical Habitat Designation

    The critical habitat areas described below include one or more of 
the primary constituent elements described above and constitute our 
best assessment at this time of the areas needed for the conservation 
of Yermo xanthocephalus. The site includes the only known location 
where the species currently occurs and, as such, is essential.
    The designated 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 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 

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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 
    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 must enter into 
consultation with us. Through this consultation, we would ensure that 
the permitted actions do not destroy or adversely modify critical 
    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 
    Activities on Federal lands that may affect Yermo xanthocephalus or 
its critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or 
any other Federal action (e.g., funding or authorization from the 
Federal Highway Administration), also will be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and actions on non-Federal lands that are not 
federally funded, authorized, or permitted do not require section 7 
    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 
    (2) Alteration of existing hydrology by lowering the groundwater 
table or redirection of sheet flow from areas adjacent to deflation 
    (3) Compaction of soil through the establishment of new trails or 
    (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) Indirect effects that appreciably decrease habitat value or 
quality (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).

Relationship to Section 3(5)(A) and 4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations and protection. As such, for an area to be 
designated as critical habitat for a species, it must meet both 
provisions of the definition. In those cases where a specific area does 
not provide those physical and biological features essential to the 
conservation of the species, it has been our policy to not include the 
area in designated critical habitat. Likewise, if an area determined to 
be biologically essential has an adequate management plan that covers 
the species, then special management and protection are already being 
provided. These areas would not meet the second provision of the 
definition and would not be proposed as critical habitat.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the

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enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule or adequate funding for 
implementing the management plan); and (3) the plan provides assurances 
that the conservation strategies and measures will be effective (i.e., 
it identifies biological goals, has provisions for reporting progress, 
and is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data after taking into consideration the economic impact, 
and any other relevant impact, of specifying any particular area as 
critical habitat. An area may be excluded from critical habit if it is 
determined that the benefits of exclusion outweigh the benefits of 
specifying a particular area as critical habitat, unless the failure to 
designate such an area as critical habitat will result in the 
extinction of the species. Consequently, we may exclude an area from 
critical habitat based on economic impacts, impacts on national 
security, or other relevant impact such as preservation of conservation 
partnerships or military readiness considerations, if we determine that 
the benefits of excluding an area from critical habitat outweigh the 
benefits of including the area in critical habitat, provided the 
exclusion will not result in the extinction of the species.
    In summary, we use both the definitions in section 3(5)(A) and the 
provisions of section 4(b)(2) of the Act to evaluate those specific 
areas that are proposed for designation as critical habitat as well as 
for those areas that are subsequently finalized (i.e., designated as 
critical habitat). On that basis, it has been our policy to not include 
in proposed critical habitat, or exclude from designated critical 
habitat, those areas: (1) Not biologically essential to the 
conservation of a species, (2) covered by an individual (project-
specific) or regional Habitat Conservation Plan (HCP) that covers the 
subject species, (3) covered by a complete and approved Integrated 
Natural Resource Management Plan (INRMP) for specific Department of 
Defense (DOD) installations, or (4) covered by an adequate management 
plan or agreement that protects the primary constituent elements of the 
    We have not excluded any lands from this designation pursuant to 
section 3(5)(A) and 4(b)(2) of the Act. No HCPs that include Yermo 
xanthocephalus are in development or completed, the designation does 
not include any DOD installations, and no management plans that protect 
Y. xanthocephalus have been finalized.

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 based this final 
rule on the best scientific and commercial data available. In order to 
make a final critical habitat designation, we further utilized the 
draft and final Economic Analyses and our analysis of other relevant 
impacts and considered all comments and information submitted during 
the public comment periods. No areas proposed as critical habitat were 
excluded or modified because of economic impacts.
    Our economic analysis estimates the economic impact of compliance 
with the protections derived from the designation of critical habitat 
for Yermo xanthocephalus, including habitat protections that may be 
coextensive with the listing of the species. The measurement of direct 
compliance costs focuses on the implementation of section 7 of the Act. 
Federal agencies are required to consult with the Service under section 
7 of the Act to ensure that any action they authorize, fund, or carry 
out will not likely jeopardize the continued existence of any 
endangered or threatened species or result in the destruction or 
adverse modification of a listed species' habitat. Categories of 
potential cost and benefits considered in the analysis include costs 
associated with: (1) Conducting section 7 consultations associated with 
the listing or with critical habitat; (2) modifications to projects, 
activities, or land uses resulting from section 7 consultations; (3) 
costs related to the uncertainty associated with the outcome of section 
7 consultations; and (4) potential benefits of designating critical 
    Activities potentially affected by this designation of critical 
habitat include oil and gas extraction, geophysical oil and gas 
exploration, cattle grazing, utility right-of-way (ROW), and BLM 
activities. Impacts are defined in terms of both the anticipated number 
and effort level of future consultations as well as any associated 
project modifications taking place under section 7 of the Act.
    In our final economic analysis, we found that total costs that may 
be attributable to future section 7 consultations resulting from the 
listing of Yermo xanthocephalus and the critical habitat designation 
could range from $530,000 to $630,000 over the next ten years. 
Consultations associated with oil and gas extraction activities are 
expected to comprise about 73 percent (approximately $460,000) of the 
total economic impact, and more than 90 percent of these costs 
(approximately $430,000) are expected to stem from the implementation 
of project modifications (i.e., directional well drilling). While the 
BLM estimates two consultations for oil and gas extraction activities 
during the next 10 years, the existing lessee has no plans to drill 
within the lease areas during the remaining terms of each lease. 
Therefore, any future consultations for oil and gas development will 
occur after the current leases expire in 2006 and 2007. In addition to 
oil and gas extraction projects, activities potentially affected by the 
designation of critical habitat for Y. xanthocephalus are: Review and 
revision of BLM's Lander Resource Management Plan (20 percent of total 
expected costs); cattle grazing (two percent); utility ROWs (two 
percent); and geophysical oil and gas exploration (two percent). Of the 
total anticipated costs, four percent will be administrative costs 
borne by the Service (approximately $27,000), and 21 percent will be 
administrative and operational costs borne by the BLM (approximately 
$133,000). The remainder of the cost is expected to be borne by third 
parties (approximately $469,000).
    A copy of the final economic analysis and supporting documents are 
included in our supporting record for this rulemaking, and may be 
obtained by contacting the Wyoming Field Office (see ADDRESSES 

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget (OMB) has determined that this critical habitat designation 
is not a significant regulatory action. This rule will not have an 
annual economic effect of $100 million or more or adversely affect any 
economic sector, productivity, competition, jobs, the environment, or 
other units of government.
    This designation will not create inconsistencies with other 

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actions or otherwise interfere with an action taken or planned by 
another agency. It will not materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients. Finally, this designation will not raise novel legal or 
policy issues. Accordingly, OMB has not reviewed this final critical 
habitat designation.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever a Federal 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 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 RFA 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.
    On the basis of information in our final economic analysis, we have 
determined that a substantial number of small entities are not affected 
by the critical habitat designation for Yermo xanthocephalus. 
Therefore, we are certifying that the designation will not have a 
significant effect on a substantial number of small entities. The 
factual basis for certifying that this rule will not have a significant 
economic impact on a substantial number of small entities is as 
    Small entities include small organizations, such as independent 
nonprofit organizations, and small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents, as well as small businesses. The RFA/SBREFA 
requires that agencies use the Small Business Administration's 
definition of ``small business'' that has been codified at 13 CFR 
121.201. Small businesses include manufacturing and mining concerns 
with fewer than 500 employees, wholesale trade entities with fewer than 
100 employees, retail and service businesses with less than $5 million 
in annual sales, general and heavy construction businesses with less 
than $27.5 million in annual business, special trade contractors doing 
less than $11.5 million in annual business, and agricultural businesses 
with annual sales less than $750,000. The RFA/SBREFA does not 
explicitly define either ``substantial number'' or ``significant 
economic impact.'' Consequently, to assess whether a ``substantial 
number'' of small entities is affected by this designation, this 
analysis considers the relative number of small entities likely to be 
impacted in an area. In addition, Federal courts and Congress have 
indicated that an RFA/SBREFA is properly limited to impacts to entities 
directly subject to the requirements of the regulation (Service 2002). 
Therefore, entities not directly regulated by the listing or critical 
habitat designation are not considered in this section of the analysis. 
The RFA/SBREFA defines ``small governmental jurisdiction'' as the 
government of a city, county, town, school district, or special 
district with a population of less than 50,000. Although certain State 
agencies may be affected by this critical habitat designation, State 
governments are not considered small governments, for the purposes of 
the RFA. SBREFA further defines ``small organization'' as any not-for-
profit enterprise that is independently owned and operated and is not 
dominant in its field.
    The economic analysis identified small businesses in the oil and 
gas extraction, cattle ranching, and geophysical oil and gas 
exploration industries as potentially being affected by section 7 
protection for Yermo xanthocephalus. Because oil and gas extraction and 
geophysical oil and gas exploration companies that operate in Fremont 
County, Wyoming, are typically headquartered outside the State, the 
relevant area of analysis for these two industries is the United 
States. The estimated number of small businesses in these industries 
that will be affected is less than 1 percent for each industry per 
year. The economic analysis estimates that seven ranchers will be 
involved in a single section 7 consultation related to livestock 
grazing during the 10-year period. In relative terms, the analysis 
estimates that 13 percent of small businesses in the cattle industry 
are affected by section 7 consultation for Y. xanthocephalus annually. 
However, the seven ranchers involved in the single consultation will 
share the work and cost of the consultation, and the cost per rancher 
is only about $1,000.
    Even where the requirements of section 7 might apply due to 
critical habitat, based on our experience with section 7 consultations 
for all listed species, virtually all projects, including those that, 
in their initial proposed form, would result in jeopardy or adverse 
modification determinations under section 7, can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures by definition must be economically 
feasible and within the scope of authority of the Federal agency 
involved in the consultation.
    For these reasons, we are certifying that the designation of 
critical habitat for Yermo xanthocephalus will not have a significant 
economic impact on a substantial number of small entities. Therefore, a 
regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et. 

    Under the SBREFA (5 U.S.C. 801 et seq.), this rule is not a major 
rule. Based on the effects identified in the economic analysis, we 
believe that this critical habitat designation will not have an effect 
on the economy of $100 million or more, will not cause a major increase 
in costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Our detailed assessment of the economic 
effects of this designation is described in the economic analysis.

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order (E.O.) 13211, 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This rule is not expected to 
significantly affect energy production, supply, and distribution 
facilities because no such facilities are included within designated 
critical habitat. As described in the economic analysis, Fremont 
County, Wyoming, produces less than ten barrels of crude oil per well 
on a daily basis (based on historic well production records). In the 
worst-case scenario that section 7 consultation causes lessees to 
forego drilling and operating two future production wells in the area 
that will be affected by critical habitat designation, it is extremely 
unlikely that crude oil supply will drop by more than the threshold 
specified in E.O. 13211 (10,000 barrels per day). Thus we do not 
believe that designation of critical habitat for Yermo xanthocephalus 
will significantly affect future energy production. Therefore, this 
action is not

[[Page 12288]]

a significant energy action and no Statement of Energy Effects is 

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

    The Unfunded Mandates Reform Act, UMRA (2 U.S.C. 1501 et seq.) 
requires each agency, unless otherwise prohibited by law, to assess the 
effects of Federal regulatory actions on State, local, and tribal 
governments, and the private sector. Under section 202 of UMRA, we must 
prepare a written statement, including a cost-benefit analysis, for 
significant regulatory actions that include a Federal mandate resulting 
in the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. Even though the economic analysis that was prepared in support of 
this rulemaking fully assesses the effects of this designation on 
Federal, State, local, and tribal governments, and to the private 
sector, the designation of critical habitat will not result in a 
Federal mandate imposing an enforceable duty upon those entities; 
therefore a written statement is not required.


    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property Rights,'' 
March 18, 1988; 53 FR 8859), we have analyzed the potential takings 
implications of the designation of critical habitat for Yermo 
xanthocephalus. The takings implications assessment concludes that this 
final rule does not pose significant takings implications. A copy of 
this assessment can be obtained by contacting the Wyoming Field Office 


    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 PCEs of the habitat necessary to the conservation of 
the species are specifically identified. While making this definition 
and identification does not alter where and what federally sponsored 
activities may occur, it 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 have designated critical habitat in accordance with 
the provisions of the Act. The rule uses standard property descriptions 
and identifies the PCEs 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 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 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 completed a draft EA and made it available for public 
review and comment. A final EA and Finding of No Significant Impact 
have been prepared for this designation and are available from the 
Wyoming Field Office (see ADDRESSES).

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 are 
required to assess the effects of critical habitat designation on 
Tribal lands and Tribal trust resources. We believe that no Tribal 
lands or Tribal trust resources are essential for the conservation of 
Yermo xanthocephalus.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Wyoming Field Office (see ADDRESSES 


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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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


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) * * *

[[Page 12289]]

--------------------------------------------------------    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

                                                                      * * * * * * *

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

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 
    (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 course-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) Critical habitat: 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:

[[Page 12290]]


* * * * *

    Dated: March 8, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-5591 Filed 3-15-04; 8:45 am]