94-32267. Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Arabis Perstellata  

  • [Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
    [Rules and Regulations]
    [Pages 56-61]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-32267]
    
    
    
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    DEPARTMENT OF THE INTERIOR
    
    Fish and Wildlife Service
    
    50 CFR Part 17
    
    RIN 1018-AC27
    
    
    Endangered and Threatened Wildlife and Plants; Determination of 
    Endangered Status for Arabis Perstellata
    
    AGENCY: Fish and Wildlife Service, Interior.
    
    ACTION: Final rule.
    
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    SUMMARY: The U.S. Fish and Wildlife Service (Service) determines 
    endangered status for Arabis perstellata (rock cress) under the 
    authority of the Endangered Species Act of 1973, as amended (Act). The 
    species is made up of two subspecies occupying distinct geographic 
    areas. The small rock cress (Arabis perstellata E. L. Braun var. 
    perstellata Fernald) is currently known from 27 populations in 
    Kentucky--24 in Franklin County, 2 in Owen County, and 1 in Henry 
    County. The large rock cress (Arabis perstellata E. L. Braun var. ampla 
    Rollins) is known from only two populations in Rutherford County, 
    Tennessee. Both subspecies are endangered throughout their range due to 
    habitat alteration; residential, commercial, or industrial development; 
    timber harvesting; grazing and trampling; and competition with native 
    and exotic weedy species, especially the European garlic mustard 
    (Alliaria petiolata). This action extends Federal protection under the 
    Act to the rock cress.
    
    EFFECTIVE DATE: February 2, 1995.
    
    ADDRESSES: The complete file for this rule is available for public 
    inspection, by appointment, during normal business hours at the 
    Asheville Field Office, U.S. Fish and Wildlife Service, 330 Ridgefield 
    Court, Asheville, North Carolina 28806.
    
    FOR FURTHER INFORMATION CONTACT:
    Mr. J. Allen Ratzlaff at the above address (704/655-1195, Ext. 229).
    
    SUPPLEMENTARY INFORMATION: 
    
    Background
    
        Both varieties of Arabis perstellata E.L. Braun, (Arabis 
    perstellata E. L. Braun var. ampla Rollins, large rock cress, and 
    Arabis perstellata E.L. Braun var. perstellata Fernald, small rock 
    cress) are perennial members of the mustard family (Brassicaceae). The 
    large rock cress is known from only one county in Tennessee, and the 
    small rock cress is known from only three counties in Kentucky. Both 
    varieties have round stems and alternate leaves. Their stems and 
    foliage have a grayish coloration due to the large quantity of hairs. 
    Their stems arise from horizontal bases and grow up to 80 centimeters 
    (cm) (31.5 inches) long, often drooping from rock ledges. Each year a 
    basal rosette of leaves is produced, and new flowering branches emerge 
    from the old rosette of the previous season. Their lower leaves vary 
    from 4 to 15 cm (1.6 to 6.0 inches) long and are obovate to 
    oblanceolate with slightly toothed and pinnatifid margins. Their upper 
    leaves are smaller--up to 3.5 cm (1.4 inches) long--and are elliptic to 
    oblanceolate, with coarse teeth along the margin. Both surfaces of 
    their leaves are stellate-pubescent. The inflorescence is an elongate 
    raceme with numerous flowers. Their flowers have four petals that are 3 
    to 4 millimeters (mm) (0.12 to 0.16 inch) long, are white to lavender, 
    and have four pale green sepals that are 2 to 3 mm (0.08 to 0.12 inch) 
    long. There are six stamens, with two shorter than the other four. The 
    ovary is elongate, two-chambered, and develops into a silique. Fruiting 
    stalks are about 1 cm (0.4 inch) long at maturity; siliques are up to 4 
    cm (1.6 inches) long and are covered with both simple and stellate 
    hairs. Flowering is from late March to early May. Fruits mature from 
    mid-May to early June. Their oblong seeds are reddish brown; somewhat 
    flattened; about 1 mm (0.04 inch) long; and, in places, minutely hairy 
    (Jones 1991).
        Arabis perstellata was named by E.L. Braun from plants collected 
    between 1936 and 1993 on wooded hillsides along Elkhorn Creek in 
    Franklin County, Kentucky. Braun (1940) distinguished the new taxon 
    from the similar Arabis dentata (Torr.) T. & G. (now called Arabis 
    shortii (Fern.) Gleason) by its [[Page 57]] perennial habit; grayer, 
    stellate pubescence of stems and leaves; and longer pedicels. Fernald 
    (1946) treated A. shortii as a variety of A. perstellata, through it is 
    now generally accepted that they represent two species (Kartesz and 
    Kartesz 1980). In 1959, plants were discovered on steep limestone 
    cliffs above the Stones River in Davidson County, Tennessee, by Dr. 
    R.B. Channel. Rollins (1960) described these plants as Arabis 
    perstellata var. ampla and distinguished them from the typical variety 
    by their generally larger size, thinner and more entire leaves, and 
    lesser pubescence. Rollins reported the chromosome number of the 
    Tennessee plants as n=7. The chromosome number of the Kentucky plants 
    has yet to be determined.
        Arabis perstellata is typically found on wooded steep slopes with 
    limestone outcrops. The outcrops tend to be moist but not wet; rarely, 
    plants can be found on seepy outcrops. They also may be found in 
    protected areas, such as around the bases of larger trees, or in areas 
    where there is little competition, such as around areas regularly 
    scoured by talus movement or erosion. The plants have a well-developed 
    system of rootstocks that allow them to persist in these inhospitable 
    sites. Sometimes plants display a weedy tendency, colonizing recent 
    road cuts or animal paths through the woodlands. The plants survive in 
    full shade or filtered light, but are not found in full sunlight (Jones 
    1991).
        The distribution of Arabis perstellata var. perstellata shows a 
    strong correlation with the Kentucky River and its tributaries 
    (primarily Elkhorn Creek), with the majority of sites occurring in 
    Franklin County. No sites have been found south of Frankfort along the 
    Kentucky River, although appropriate habitat appears to be present.
        Historically, Arabis perstellata var. ampla was also associated 
    with calcareous bluff habitat of a specific river--the Stones River. 
    The two extant populations are somewhat atypical compared to historic 
    sites because they occur on rocky knobs about 15 miles from the Stones 
    River (Jones 1991). The following is a description of the species' 
    status within each State where it occurs.
        Tennessee. The following information on Arabis perstellata var. 
    ampla in Tennessee is primarily from Jones (1991). All known Arabis 
    perstellata var. ampla populations in Tennessee are from the Cumberland 
    River Subsection of the Central Basin Physiographic Region. Prior to 
    the status survey conducted by Jones (1991), there were three records 
    of large rock cress in Davidson County and two in Rutherford County. 
    All three of the sites in Davidson County have been extirpated, and one 
    of the sites in Rutherford County could not be relocated. One 
    additional population was discovered in Rutherford County during the 
    status survey. Of the two remaining populations, one is small--about 25 
    plants--and covers about 0.06 acre. The other population contains 
    several hundred plants scattered over about 2.2 acres. Both sites are 
    on private land and are threatened from competition by weedy invaders.
        Kentucky. The following information on Arabis perstellata var. 
    perstellata in Kentucky is primarily from Jones (1991). All known 
    Arabis perstellata var. perstellata populations in Kentucky are from 
    the Eden Shale Belt Subsection of the Blue Grass Physiographic Region. 
    Prior to the status survey conducted by Jones (1991), there were three 
    counties in Kentucky with occurrence records for the small rock cress--
    1 in Henry County, 2 in Owen County, and 26 in Franklin County. One 
    site in Owen County and seven sites in Franklin County have been 
    extirpated. There was insufficient information to locate four other 
    historic records (two in Franklin County and two from unknown 
    counties). However, 8 new populations were discovered during the status 
    survey, and the 27 known small rock cress sites in Kentucky are 
    distributed as follows: 1 population from Henry County, 2 populations 
    from Owen County, and 24 populations from Franklin County. Of these 27 
    populations, 10 have fewer than 100 individual plants and 12 have 20 or 
    fewer.
        The immediate threats to the 27 remaining populations include the 
    following--(1) 8 are threatened by weedy competitors, (2) 4 by weedy 
    competitors and trampling, (3) 2 by trampling, (4) 1 by logging, and 
    (5) 2 by road work. One of the largest populations was severely 
    impacted by roadwork while the species was proposed for listing. The 
    remaining 10 populations do not appear to have any immediate threats 
    but are vulnerable to the aforementioned threats as well as other 
    habitat alterations and potential inbreeding problems as neighboring 
    populations decline. All of the Kentucky populations are privately 
    owned. Three receive limited protection through their inclusion in 
    State designated natural areas.
    
    Previous Federal Actions
    
        Federal government actions on this species began with section 12 of 
    the Act of 1973 (16 U.S.C. 1531 et seq.), which directed the Secretary 
    of the Smithsonian Institution to prepare a report on those plants 
    considered endangered, threatened, or extinct. This report, designated 
    as House Document No. 94-51, was presented to Congress on January 9, 
    1975. On July 1, 1975, the Service published a notice (40 FR 27823) 
    that formally accepted the Smithsonian report as a petition within the 
    context of section 4(c)(2) (now section 4(b)(3)) of the Act. By 
    accepting this report as a petition, the Service also acknowledged its 
    intention to review the status of those plant taxa named within the 
    report. Arabis perstellata var. ampla and Arabis perstellata var. 
    perstellata were included in the Smithsonian report and in the July 1, 
    1975, Notice of Review. On June 16, 1976, the Service published a 
    proposed rule (41 FR 24523) to determine approximately 1,700 vascular 
    plant taxa to be endangered species pursuant to section 4 of the Act; 
    Arabis perstellata var. ampla and Arabis perstellata var. perstellata 
    were included in that proposal.
        The 1978 amendments to the Act required that all proposals over 2 
    years old be withdrawn. On December 10, 1979 (44 FR 70796), the Service 
    published a notice withdrawing plants proposed on June 16, 1976. The 
    revised notice of review for native plants published on December 15, 
    1980 (45 FR 82480), included Arabis perstellata var. ampla and Arabis 
    perstellata var. perstellata as category 1 species. Category 1 species 
    are those for which the Service has on file substantial information on 
    biological vulnerability and threats to support the appropriateness of 
    proposing to list the taxa as threatened or endangered. These 
    subspecies were retained in their respective categories when the notice 
    of review for native plants was revised in 1983 (48 FR 53640) and 1985 
    (50 FR 39526), but Arabis perstellata var. ampla was then thought to be 
    extinct. In the 1990 notice of review (50 FR 6184), Arabis perstellata 
    var. ampla was retained as a category 1 species but was no longer 
    thought to be extinct (i.e., it was rediscovered), and Arabis 
    perstellata var. perstellata was placed in category 2 because the 
    Service believed that additional searches of potential habitat and 
    further identification of threats were needed before a decision could 
    be made as to whether a proposed rule should be prepared to add the 
    species to the list. (Category 2 species are those for which the 
    Service has information indicating that proposing to list them as 
    endangered or threatened may be appropriate but for which substantial 
    data on biological [[Page 58]] vulnerability and threats are not 
    currently known or on file to support the preparation of rules.) The 
    Service funded surveys in 1989 in order to determine the status of 
    Arabis perstellata var. perstellata in Kentucky. The contractors 
    conducting the status survey for Arabis perstellata var. perstellata 
    included a review of Arabis perstellata var. ampla in Tennessee. Final 
    reports on these surveys were accepted by the Service in 1991.
        All plants included in the comprehensive plant notices are treated 
    as under petition. Section 4(b)(3)(B) of the Act, as amended in 1982, 
    requires the Secretary to make certain findings on pending petitions 
    within 12 months of their receipt. Section 2(b)(1) of the 1982 
    amendments further requires that all petitions pending on October 13, 
    1982, be treated as having been newly submitted on that date. This was 
    the case for Arabis perstellata var. ampla and Arabis perstellata var. 
    perstellata because of the acceptance of the 1975 Smithsonian report as 
    a petition. From 1983 through 1990 the Service found that the 
    petitioned listing of both varieties was warranted but precluded by 
    higher priority species. In 1990, it was determined that listing of 
    Arabis perstellata var. ampla was not warranted because data on 
    distribution, vulnerability, and threats were incomplete. Status survey 
    information received by the Service in 1991 completed these 
    informational gaps and was sufficient and conclusive enough to support 
    the proposed listing of Arabis perstellata var. ampla and Arabis 
    perstellata var. perstellata published in the Federal Register of 
    January 3, 1994 (59 FR 53). The proposed listing represented the final 
    petition finding for the large and small rock cresses.
    
    Summary of Comments and Recommendations
    
        In the January 3, 1994, proposed rule, and through associated 
    notifications, all interested parties were requested to submit factual 
    reports and information that might contribute to the development of a 
    final rule for the rock cress. Appropriate Federal and State agencies, 
    county governments, scientific organizations, and interested parties 
    were contacted by letters dated January 20, 1994. Legal notices were 
    published in the ``Frankfort State Journal'' (Frankfort, Kentucky) on 
    January 23, 1994 and in the ``Daily News Journal'' (Murfreesboro, 
    Tennessee) on January 21, 1994.
        Four written responses were received on the proposed rule to list 
    rock cress. One Federal agency, one State agency, and two individuals 
    provided comments.
        The U.S. Soil Conservation Service, Nashville, Tennessee, responded 
    by stating they have ``no projects which might affect the species 
    proposed for listing.''
        The Kentucky State Nature Preserves Commission and one individual 
    from Kentucky (who owns land that supports the species), supported the 
    listing of the typical variety. Neither commented on the large rock 
    cress.
        One individual opposed the listing because ``The Fish and Wildlife 
    Service is intruding into an area in which it certainly has no moral or 
    legal authority--private property.'' The Service response is that the 
    Act does not allow the Service to use land ownership as a factor in 
    determining whether a species should be placed on the Endangered and 
    Threatened Species List. The Act requires that a decision to list a 
    species be based solely on biological data. Further, listed plants 
    receive very little formal protection on private lands. For the most 
    part they are only protected on Federal lands or through section 7 of 
    the Act (consultation with other Federal Agencies).
        The same individual also stated that ``. . . you (the Service) 
    present hypothetical scenarios of what timber harvest might do to the 
    resources and the area subject to timber harvest. All of your arguments 
    are based on conjecture and supposition with little or no scientific 
    data. The areas in question have undergone severe natural and man-
    caused changes in biodiversity over the past 200 years of European 
    occupancy. Yet, after all that has occurred, the species under 
    consideration persist.'' The Service believes that, based on the 
    biology of the species, timber harvesting would impact the species. Not 
    only could the species be affected by direct impacts such as heavy 
    equipment, but because we know the species does not survive in full 
    sunlight, removal of trees would likely have a detrimental effect. 
    Further, timber harvest is only one of several threats to this species 
    (see ``Summary of Factors Affecting the Species'' section of this 
    rule). The Service agrees that the areas in question have undergone 
    considerable ``biodiversity'' changes over the past centuries since 
    European settlement. However, while it is not possible to say to what 
    degree this species has become more or less abundant since that time, 
    populations are known to have been lost and remaining populations 
    continue to be threatened. There are many examples of species that have 
    been reduced in number since European settlement, many of which have 
    become extinct. The Service believes that without the protection 
    afforded by the Act, this species would likely follow the same course.
        The individual further stated that ``The scientific community, and 
    the Service in particular, need to recognize that extinction has always 
    been a continuing process and will continue to be so.'' The Service 
    agrees that extinction is a natural process. Extinction naturally 
    occurs as species adapt (evolve) or don't adapt (become extinct) to a 
    changing environment. However, the present rate of extinction, by some 
    estimates, is as high as 1,000 times the ``normal'' extinction rate, 
    with virtually all of the extinction being attributable to human 
    induced environmental changes. A species being eliminated by processes 
    such as road building or other man-made factors is far different from a 
    species being unable to adapt to a naturally changing environment. Even 
    so, the Act does not make distinctions in this regard. A species may be 
    listed due to either natural or manmade factors that affect its 
    continued existence.
    
    Summary of Factors Affecting the Species
    
        After a thorough review and consideration of all information 
    available, the Service has determined that the rock cress should be 
    classified as an endangered species. Section 4(a)(1) of the Act and 
    regulations (50 CFR part 424) promulgated to implement the listing 
    provisions of the Act were followed. A species may be determined to be 
    an endangered or threatened species due to one or more of the five 
    factors described in Section 4(a)(1). These factors and their 
    application to Arabis perstellata E.L. Braun (rock cress) are as 
    follows:
    
    A. The present or threatened destruction, modification, or curtailment 
    of its habitat or range
    
        Arabis perstellata var. perstellata--Of the 27 known populations of 
    small rock cress, 17 are threatened with destruction or adverse 
    modification of their habitat. Eight are threatened by weedy 
    competitors, four by weedy competitors and trampling, two by trampling, 
    one by logging, and two by road work (one population was severely 
    impacted by road work during the period the species was proposed for 
    listing). The remaining 10 populations do not appear to have any 
    immediate threats but are vulnerable to the aforementioned threats as 
    well as other habitat alterations and potential inbreeding problems as 
    neighboring populations decline. Active [[Page 59]] management is 
    required to ensure that the species continues to survive at all sites.
        Arabis perstellata var. ampla--Both of the remaining large rock 
    cress populations in Tennessee are threatened from competition by weedy 
    invaders and potentially by livestock grazing and trampling. Also, the 
    smaller site appears to be made up of older individuals, and there is 
    little evidence of reproduction (Jones 1991).
    
    B. Overutilization for commercial, recreational, scientific, or 
    educational purposes
    
        At this time there is little or no commercial trade in Arabis 
    perstellata var. ampla or Arabis perstellata var. perstellata. Most 
    populations of this species are very small and cannot support the 
    collection of plants for scientific or other purposes. Inappropriate 
    collecting for scientific purposes or as a novelty could be a threat to 
    the species.
    
    C. Disease or predation
    
        Disease and predation do not appear to be factors affecting the 
    continued existence of this species at this time (Jones 1991).
    
    D. The inadequacy of existing regulatory mechanisms
    
        The large rock cress is listed as endangered in Tennessee by 
    Collins et al. (1978) and Somers (1989). Endangered species in 
    Tennessee receive some protection through the ``Rare Plant Protection 
    and Conservation Act of 1985'' (Tennessee Department of Conservation, 
    1987). The removal of plants from State properties for scientific 
    educational, or propagative purposes is controlled, as is the 
    disturbance of the species on private lands without the landowner's 
    consent. There is no protection for the species if its presence 
    conflicts with public works projects (i.e., road building).
        In Kentucky, the small rock cress is listed as endangered by the 
    Kentucky Academy of Science and Kentucky State Nature Preserves 
    Commission (Branson et al. 1981, Warren et al. 1986). These lists, 
    however, have no legal standing in the State. The state of Kentucky 
    considers plants on the State endangered species list but provides no 
    protection for them.
        The Act will provide additional protection to populations that are 
    on Federal land and to the other populations when the taking is in 
    violation of any State law, including State trespass laws. Protection 
    from inappropriate interstate commercial trade will also be provided.
    
    E. Other natural or manmade factors affecting the species' continued 
    existence
    
        Arabis perstellata var. ampla and Arabis perstellata var. 
    perstellata could be facing potential inbreeding problems as 
    neighboring populations decline.
        The Service has carefully assessed the best scientific and 
    commercial information available regarding the past, present, and 
    future threats faced by this species in determining to make this rule 
    final. Based on this evaluation, the preferred action is to list the 
    rock cress as endangered. Arabis perstellata (rock cress) is made up of 
    two subspecies occupying distinct geographic areas. The small rock 
    cress is currently known from 27 populations in Kentucky--24 in 
    Franklin County, 2 in Owen County, and 1 in Henry County. The large 
    rock cress is known from only two populations in Rutherford County, 
    Tennessee. Both subspecies are endangered throughout their range due to 
    habitat alteration; residential, commercial, or industrial development; 
    timber harvesting; grazing and trampling; and competition with native 
    and exotic weedy species, especially the European garlic mustard 
    (Alliaria petiolata). Because of their restricted distributions and 
    both subspecies' vulnerability to extinction, endangered status appears 
    to be the most appropriate classification for this species. (See 
    ``Critical Habitat'' section for a discussion of why critical habitat 
    is not being proposed for this plant.)
    
    Critical Habitat
    
        Section 4(a)(3) of the Act requires 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. The 
    Service's regulations (50 CFR 424.12(a)(1)) state that designation of 
    critical habitat is not prudent when one or both of the following 
    situations exist: (1) The species is threatened by taking or other 
    activity and the identification of critical habitat can be expected to 
    increase the degree of threat to the species or (2) the designation of 
    critical habitat would not be beneficial to the species. The Service 
    finds that designation of critical habitat is not presently prudent for 
    this species. Such a determination would result in no known benefit to 
    this species, and designation of critical habitat could further 
    threaten the species.
        Section 7(a)(2) and regulations codified at 50 CFR part 402 require 
    Federal agencies to ensure, in consultation with and with the 
    assistance of the Service, that activities they authorize, fund, or 
    carry out are not likely to jeopardize the continued existence of 
    listed species or destroy or adversely modify its critical habitat, if 
    designated. Section 7(a)(4) requires Federal agencies to confer 
    informally with the Service 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. (See ``Available 
    Conservation Measures'' section for a further discussion of section 7.) 
    As part of the development of this rule, Federal and State agencies 
    were notified of the plants' general distribution, and they were 
    requested to provide data on proposed Federal actions that might 
    adversely affect the species. No specific projects were identified. 
    Should any future projects be proposed in areas inhabited by this 
    plant, the involved Federal agency will already have the general 
    distributional data needed to determine if the species may be impacted 
    by their action; and if needed, more specific distributional 
    information would be provided.
        Regulations promulgated for the implementation of Section 7 of the 
    Act provide for both a ``jeopardy'' standard and a ``destruction or 
    adverse modification'' of critical habitat standard. Due to the highly 
    precarious status of the rock cress, any significant adverse 
    modification or destruction of the species' habitat would also likely 
    jeopardize the species' continued existence thereby triggering both 
    standards. Therefore, no additional protection for the plant would 
    accrue from a critical habitat designation that would not also occur 
    from listing of the species. Habitat protection for the rock cress will 
    be accomplished through the section 7 ``jeopardy'' standard and section 
    9 prohibitions against take.
        In addition, the rock cress is very rare, and taking for scientific 
    purposes and private collection cold pose a threat if specific site 
    information was released. The publication of critical habitat maps in 
    the Federal Register and local newspapers and other publicity 
    accompanying critical habitat designation could increase the collection 
    threat and increase the potential for vandalism during the often 
    controversial critical habitat designation process. The locations of 
    populations of this species have consequently been described only in 
    general terms in this final rule. Any existing precise locality data 
    would be available to appropriate Federal, State, and local government 
    agencies from the Service office described in the ADDRESSES section or 
    from the Service's Cookeville Field [[Page 60]] Office, 446 Neal 
    Street, Cookeville, Tennessee 38501.
    
    Available Conservation Measures
    
        Conservation measures provided to species listed as endangered or 
    threatened under the Act include recognition, recovery actions, 
    requirements for Federal protection, and prohibitions against certain 
    practices. Recognition through listing encourages and results in 
    conservation actions by Federal, State, and private agencies, groups, 
    and individuals. The Act provides for possible land acquisition and 
    cooperation with the States and requires that recovery actions be 
    carried out for all listed species. Such actions are initiated by the 
    Service following listing. The protection required of Federal agencies 
    and the prohibitions against taking are discussed, in part, below.
        Section 7(a) of the Act requires Federal agencies 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 being designated. Regulations implementing this interagency 
    cooperation provision of the Act are codified at 50 CFR part 402. 
    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 a listed species or to destroy or adversely 
    modify any designated critical habitat. If a Federal action may 
    adversely affect a listed species or its critical habitat, the 
    responsible Federal agency must enter into formal consultation with the 
    Service. All Arabis perstellata var. ampla and Arabis perstellata var. 
    perstellata populations are on privately owned land or in road rights-
    of-way. No Federal involvement is presently known or has been 
    identified for the immediate future.
        The Act and its implementing regulations set forth a series of 
    general trade prohibitions and exceptions that apply to all endangered 
    plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
    50 CFR 17.61, apply. These prohibitions, in part, would make it illegal 
    for any person subject to the jurisdiction of the United States to 
    import or export, transport in interstate or foreign commerce in the 
    course of a commercial activity, sell or offer for sale this species in 
    interstate or foreign commerce, or to remove and reduce to possession 
    the species from areas under Federal jurisdiction. In addition, for 
    plants listed as endangered, the Act prohibits the malicious damage or 
    destruction on Federal lands and the removal, cutting, digging up, or 
    damaging or destroying of such plants in knowing violation of any State 
    law or regulation, including State criminal trespass law. Certain 
    exceptions apply to agents of the Service and State conservation 
    agencies.
        The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
    permits to carry out otherwise prohibited activities involving 
    threatened species under certain circumstances. It is anticipated that 
    few trade permits would ever be sought or issued because the species is 
    not common in cultivation or in the wild.
        It is the policy of the Service, published in the Federal Register 
    on July 1, 1994, (59 FR 34272), to identify to the maximum extent 
    practicable at the time of listing those activities that would 
    constitute a violation of section 9 of the Act. The intent of this 
    policy is to increase public awareness of the effect of the listing on 
    proposed and ongoing activities within a species' range. Prohibitions 
    relating to Federal lands and to trade are not of concern at present, 
    as none of the Arabis perstellata populations are known to occur on 
    Federal lands, and there is no known current trade in this species. 
    Collection, damage or destruction on non-Federal lands is prohibited if 
    in knowing violation of State law, or in violation of State criminal 
    trespass law. This would not affect any activities in Kentucky, as 
    Kentucky State law provides no protection for plants. In Tennessee, 
    Arabis perstellata is protected under the Rare Plant Protection and 
    Conservation Act of 1985, which controls the removal of plants from 
    State properties for scientific, educational, or propagative purposes, 
    and the disturbance of the species on private lands without the 
    landowner's consent. The Service is not aware of any otherwise lawful 
    activities being conducted or proposed by the public that will be 
    affected by this listing and result in a violation of section 9.
        Questions regarding whether specific activities will constitute a 
    violation of section 9 should be directed to the Field Supervisor of 
    the Service's Asheville Office (see ADDRESSES section). Requests for 
    copies of the regulations on listed plants and inquiries about 
    prohibitions and permits should be addressed to the U.S. Fish and 
    Wildlife Service, Division of Endangered Species, 1875 Century 
    Boulevard, Atlanta, Georgia 30345-3301 (404/679-7110; Facsimile 404/
    679-7081).
    
    National Environmental Policy Act
    
        The Fish and Wildlife Service has determined that Environmental 
    Assessments and Environmental Impact Statements, as defined under the 
    authority of the National Environmental Policy Act of 1969, need not be 
    prepared in connection with regulations adopted pursuant to section 
    4(a) of the Act. A notice outlining the Service's reasons for this 
    determination was published in the Federal Register on October 25, 1983 
    (48 FR 49244).
    
    References Cited
    
    Branson, B.A., D.F. Harker, Jr., J.M. Baskin, M.E. Medley, D.L. Batch, 
    M.L. Warren, Jr., W.H. Davis, W.C. Houtcooper, B. Monroe, Jr., L.R. 
    Phillippe, and P. Cupp. 1981. Endangered, threatened, and rare animals 
    and plants of Kentucky. Transactions of the Kentucky Academy of Science 
    42:77-89.
    Braun, E.L. 1940. New plants from Kentucky. Rhodora 42:47-49.
    Collins, J.L., H.R. DeSelm, A.M. Evans, R. Kral, and B.E. Wofford. 
    1978. The rare vascular plants of Tennessee. Journal of the Tennessee 
    Academy of Science 53:128-133.
    Fernald, M.L. 1946. Identification and reidentification of North 
    American Plants. Rhodora 48:207-216.
    Jones, R.L. 1991. Status Survey Report on Arabis perstellata var. 
    perstellata. Unpublished report to the Asheville Field Office, U.S. 
    Fish and Wildlife Service, Asheville, North Carolina. 94 pp.
    Kartesz, J., and R. Kartesz. 1980. A synonymized checklist of the 
    vascular flora of the United States, Canada, and Greenland. University 
    of North Carolina Press, Chapel Hill, North Carolina.
    Rollins, R. 1960. Arabis perstellata in Tennessee. Rhodora 62:242-244.
    Somers, P. 1989. Revised list of the rare plants of Tennessee. Journal 
    of the Tennessee Academy of Science 64:179-184.
    Tennessee Department of Conservation, Division of Ecological Services. 
    1987. The Rare Plant Protection and Conservation Act of 1985. 
    Nashville, Tennessee.
    Warren, M.L., Jr., W.H. Davis, Branson, R.R. Hannan, M. Evans, D.L. 
    Batch, B.D. Anderson, B. Palmer-Hall, Jr., J.R. MacGregor, R.R. 
    Cicerello, R. Athey, B.A. Branson, G.J. Fallo, B.M. Burr, M.E. Medley, 
    and J.M. Baskin. 1986. Endangered, threatened, and rare plants and 
    animals of Kentucky. Transactions of the Kentucky Academy of Science 
    47:84-97. [[Page 61]] 
    Author
        The primary author of this final rule is Mr. J. Allen Ratzlaff, 
    Asheville Field Office, U.S. Fish and Wildlife Service, 330 Ridgefield 
    Court, Asheville, North Carolina 28806 (704/665-1195, Ext. 229).
    
    List of Subjects in 50 CFR Part 17
    
        Endangered and threatened species, Exports, Imports, Reporting and 
    recordkeeping requirements, Transportation.
    
    Regulation Promulgation
    
        Accordingly, part 17, subchapter B of chapter I, title 50 of the 
    Code of Federal Regulations, is amended 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. Section 17.12(h) is amended by adding the following, in 
    alphabetical order under flowering plants, to the List of Endangered 
    and Threatened Plants, to read as follows:
    
    
    Sec. 17.12  Endangered and threatened plants.
    
    * * * * *
        (h) * * *
    
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                                                                                            
    --------------------------------------------------      Historic range            Family name           Status     When listed    Critical     Special  
         Scientific name            Common name                                                                                       habitat       rules   
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Flowering plants:                                                                                                                                       
                                                                                                                                                            
                       *                  *                  *                  *                  *                  *                 *                   
        Arabis perstellata..  Rock cress.............  U.S.A. (KY, TN)........  Brassicaceae...........  E                     570           NA           NA
                                                                                                                                                            
                       *                  *                  *                  *                  *                  *                 *                   
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
        Dated: December 12, 1994.
    Mollie H. Beattie,
    Director, Fish and Wildlife Service.
    [FR Doc. 94-32267 Filed 12-30-94; 8:45 am]
    BILLING CODE 4310-55-M
    
    

Document Information

Effective Date:
2/2/1995
Published:
01/03/1995
Department:
Fish and Wildlife Service
Entry Type:
Rule
Action:
Final rule.
Document Number:
94-32267
Dates:
February 2, 1995.
Pages:
56-61 (6 pages)
RINs:
1018-AC27
PDF File:
94-32267.pdf
CFR: (1)
50 CFR 17.12