Federal Register / Vol. 54, No. 71 / Friday, April 14, 1989 / Rules and Regulations 14961

information, and entertainment Ordering Clauses FOR FURTHER INFORMATION CONTACT: programming. The efficiency and 11. Authority for the rule changes B.C. “Jay” Jackson, Jr., Mass Media responsiveness of such operations adopted herein is contained in Sections Bureau, (202) 632-9660. depends, however, on a partnership 4 (i) and (j), and 301, 303, 308, and 309 of SUPPLEMENTARY INFORMATION: between the network and its numerous the Communications Act of 1934, as Following is a summary of affiliates. The additional flexibility amended. provided by the elimination of the two- Commission’s Third Report and Order 12. Accordingly, it is ordered, That year rule should, we believe, be of some in MM Docket No. 86-144, adopted pursuant to the Administrative assistance to networks and their February 15,1989 and released April 10, Procedure Act, 5 U.S.C. 553(d)(1), the affiliates in assuring that this 1989. The full text of this action is partnership functions effectively. amendments to the Commission’s Rules available for inspection and copying 7. In sum, we find that the record and Regulations adopted herein, as set during normal business hours in the FCC supports our initial evaluation in the forth below shall become effective 30 Dockets Branch (Room 230), 1919 M Notice that the two-year rule should be days from the date this Report and Street, Northwest, Washington, DC. The eliminated to allow networks and Order is published in the Federal complete text of this action may also be stations to negotiate the term of Register. purchased from the Commission’s copy affiliation agreements in accordance 13. It is further ordered, That this contractors, International Transcription with their business judgments. The proceeding is terminated. Services, (202) 857-3800, 2100 M Street, initial considerations that prompted the List of Subjects in 47 CFR Part 73 NW., Suite 140, Washington, DC 20037. adoption of the rule have been greatly eroded by developments in the Television broadcasting. Summary of the Third Report and Order intervening years, such as the increased Rule Amendment 1. This order addresses the last of a diversity and complexity of the video number of technical rule revisions that marketplace. Indeed, in today’s video 47 CFR Part 73 is amended as follows: became necessary as a result of the marketplace, the rule may even be 14. The authority citation for part 73 creation of three new FM broadcast detrimental to the network and station continues to read as follows: station classes in BC Docket 80-90 interests that it was intended to protect, Authority: 47 USC sections 154 and 303. limiting these entities’ flexibility to [Report and Order, 48 FR 29486, June 27, negotiate agreements that will permit 15. Section 73.658 is amended by 1983). It amends 47 CFR Part 73 to them to respond to an increasingly removing the text of paragraph (c) and provide a uniform level of protection competitive marketplace and to better marking it reserved. from intermediate frequency ("IF”) serve the public. Federal Communications Commission. interference. IF interference degrades Donna R. Searcy, FM reception, and in severe cases can Final Regulatory Flexibility Analysis prevent reception by a susceptible S ecreta ry . Statement receiver of most or all of the FM stations [FR Doc. 89-9005 Filed 4-13-89; 8:45 am] 8. Pursuant to the Regulatory in the area. BILLING CODE 6712-01-M Flexibility Act of 1980, 5 U.S.C. 605, we 2. Specifically, this order adjusts the conclude that the adopted rule required minimum separation distances modifications will have a positive 47 CFR Part 73 for IF-related FM stations to prevent impact on many small entities, by giving overlap of their predicted 36 mV/m them greater flexibility in negotiating [MM Docket No. 86-144; FCC 89-62] median field strength contours, with networks on the term for which regardless of the station classes. Two affiliation agreements will run, thus FM Broadcast Service; Review of FM stations are IF-related if their Technical Parameters for FM creating a greater opportunity for a assigned frequencies are 10.6 or 10.8 Allocation, FM Broadcast Stations steady supply of programming, which MHz (53 or 54 channels) apart. Also, a may make it easier to obtain financial new separation requirement applicable backing necessary to construct or AGENCY: Federal Communications only to FM Channel 253 (98.5 MHz) and improve ¡Facilities and easier to attract Commission. TV Channel 6 is adopted, based on the advertisers. a c t i o n : Final rule. same protection criterion, because the 9. The Secretary shall cause a copy of s u m m a r y : The Commission establishes aural carrier (at 87.75 MHz) from a TV this Report and Order, including the a uniform protection level (36 mV/m) to station on Channel 6 is IF-related to FM Final Regulatory Flexibility Analysis, to serve as a basis for the intermediate channel 253 (98.5 MHz). be sent to the Chief Counsel for frequency minimum distance separation Advocacy of the Small Business 3. This proceeding was initiated in requirements applicable to FM Administration, in accordance with 1986 by a Notice of Proposed Rule broadcast stations, and amends 47 CFR Paragraph 603(a) of the Regulatory Making [Notice) (51 FR 15927, April 29, Part 73 by (1) adjusting the existing Flexibility Act (Pub. L. No. 96-354, 94 1986) to refine certain rules that were requirements to meet the uniform Stat. 1164, 5 U.S.C. 601 et seq., (1981)). affected by previous action in BC protection level and (2) establishing a Docket No. 80-90. A First Report and Paperwork Reduction Act Statement new requirement to address a Order (52 FR 8259, March 17,1987) 10. The action contained herein has previously unidentified potential source resolved two issues raised in the Notice. been analyzed with respect to the of interference. These actions will result Five remaining proposals were Paperwork Reduction Act of 1980 and in more reasonable and consistent addressed in a Second Report and Order found to contain no new or modified treatment of FM station applications, [Second Report) (52 FR 37786, October 9, form, information collection and/or and will provide appropriate protection 1987) . Four of these were resolved in the from interference for FM receivers. record keeping, labeling, disclosure, or Second Report, but action on the fifth, record retention requirements; and will EFFECTIVE DATE: May 17,1989. concerning IF distance separation not increase or decrease burden horn’s ADDRESS: Federal Communications requirements for the newly created imposed on the public. Commission, Washington, DC 20554. station classes, was deferred until 1 4 9 6 2 Federal Register / Vol. 54, No. 71 / Friday, April 14, 1989 / Rules and Regulations mu n< n ' i ' m » ii iw ii wi iu m I iiiiUMiii ' i n m m i i n n im iw a ■ ttuiiin m n iiTTTTrnwrinm»n ii '■ t i r r r —nmiminmi mm

additional information could be and assignments in the vicinity of FM allotment and assignment requirements obtained. Channel 253 allotments and assignments should be based upon reasonably 4. If distance separation requirements (and vice versa). derived and consistently applied are contained in 47 CFR 73.207, which 7. In the Further Notice, revised IF technical standards. In cases involving specifies, by station class, the minimum minimum distance separation unique or unusual circumstances the distance that each FM station must be requirements were proposed for all FM Commission may consider waivers of separated from other IF-related FM station classes and for TV Channel 6 technical rules, however, even in these stations. The distances specified for and FM Channel 253 stations based on a cases the Commission believes that a Classes A, B, and C (the original uniform protection level of 36 mV/m, clear understanding by all parties of the classes) were intended to avoid the which is the least restrictive of the technical principles underlying the rule overlap of 20 mV/m field strength current protection levels. Interested for which the waiver is sought is contours (see Report and Order in parties, particularly receiver essential to the proper disposition of Docket No. 15934, 30 FR 8680, July 9, manufacturers and organizations such requests. The Commission 1965). However, the specified distances representing them, were invited to concludes that one specific protection are insufficient to prevent such overlap. submit any additional data or test level for IF interference should be Nevertheless, lack of evidence of IF results either supporting or opposing on selected and applied uniformly. interference suggests that the existing technical grounds the choice of 36 mV/ 11. Obviously, there is a trade-off lesser separations have provided m, or to suggest an alternative between protection level and site adequate protection. protection level. flexibility. That is, a lower level of 5. In BC Docket 80-90, the 8. Fourteen parties filed formal protection permits shorter separations, Commission applied the existing IF comments in response to the Further which in turn allow a greater number of separation distances for the large Class Notice and five submitted replies. The potential transmitter sites. Some B and C stations to the new majority support the proposed generally, commenters allege that this trade-off intermediate size classes Bl, C2, and Cl. but several oppose it or suggest should never favor site flexibility unless Consequently, stations in there new modifications. it is proven that service to the public has classes must currently meet the same 9. Discussion. Currently, FCC rules been reduced. Others argue that the requirements as the largest stations, and policies with regard to FM IF benefits to be gained, in terms of site even though they generally operate with interference result in arbitrarily varying flexibility, are limited. However, the lower effective radiated power and levels of protection and thus are Commission believes that licensees of antenna height above average terrain. technically inconsistent. The minimum certain classes of FM stations should Therefore, in the Notice it was proposed spacings now required in 47 CFR 73.207 not be unnecessarily constrained by an to reduce the separations for the new for IF-related stations provide different inconsistent technical standard, while classes to those necessary to provide a protection levels for various FM station others, operating under a less restrictive 30 mV/m protection leveL (Preventing class combinations. The distances for standard, do not appear to have overlap of two stations’ 30 mV/m Classes Bl and Cl were not based on experienced any significant problems contours is referred to herein as a “30 any calculated standard but were over the years. mV/m protection level.”) This proposal simply taken from the next larger 12. In view of years of actual was based on the current rules for the classes (Class B and C, respectively) as operation by some classes of FM old classes, which provide protection a temporary measure in BC Docket 80- stations under requirements resulting in levels varying approximately from 24 90. Licensees of grandfathered short­ a protection level of 36 mV/m, the mV/m to 36 mV/m (30 being halfway spaced stations and other applicants Commission believes that this level is between 24 and 36). The purpose of this requesting a waiver of the IF distance sufficient to protect receivers currently proposal was simply to provide separation requirements currently must in U 3e. Receiver manufacturers are approximately the same protection level show, among other things, that a encouraged to design receivers that are for these new classes as has existed for proposed modification would not cause immune to IF interference, as the record Class A, B and C stations since 1965. the overlap of the 20 mV/m predicted indicates this can be done without However, in the Second Report, the median field strength contours of IF- making such receivers significantly more Commission found the record developed related stations. Finally, there are expensive. Although some commenters in response to the Notice with regard to currently no requirements at all for the recommend that the current distances be the issue of IF separations to be TV Channel 6-FM Channel 253 IF retained, the Commission sees no public inconclusive, and concluded that relationship, which presents at least as benefit to retaining the technically adoption then of distances based on the much potential for IF interference as do inconsistent distances. Accordingly, the 30 mV/m protection level would have the pure FM requirements. Commission is revising the required been premature. 10. In the Further Notice, the minimum FM IF spacings as proposed in 6. In March 1988, the Commission Commission stated that no technical the Further Notice. Furthermore, issued a Further Notice of Proposed justification could be found for the because the aural transmitter of a TV Rule Making [Further Notice] (53 FR disparate treatment of these similar station operating on Channel 6 is similar 10259, March 30,1988) with the goal of situations. Furthermore, the Commission to an FM station with regard to potential developing a more comprehensive has seen nothing in the record in this for IF interference, the Commission is record concerning the IF issue. The proceeding to persuade it otherwise. An adding a new requirement to address Further Notice also expanded the scope FM receiver does not need more this interference potential. of the proposal to include consideration protection from two IF-related Class Bl 13. In view of the recent proposal to of existing IF distance separation stations than from two IF-related Class increase the maximum permitted requirements applicable to the pre-BC A stations. Nor does this same receiver effective radiated power of Class A FM Docket 80-90 FM station classes (A, B need less protection from TV 6-Channel stations (see Notice of Proposed Rule and C) and possible new IF minimum 253 IF interference than it does from two Making in MM Docket 88-375, 53 FR distance separation requirements IF-related Class Cl stations. The 38743, October 3,1988), licensees of applicable to TV Channel 6 allotments Commission believes that its technical these stations should be aware that, Federal Register / Voi. 54, No. 71 / Friday, April 14, 1989 / Rules and Regulations 149C3 although the minimum IF distance station’s 36 mV/m median field strength Federal Communications Commission. separation requirements for Class A contour and the 36 mV/m contour of the Donna R. Searcy, stations is not increased herein, the TV station’s aural transmitter will not Secreta ry . Commission will do so in order to be accepted. List of Subjects in 47 CFR Part 73 maintain the 36 mV/m protection level if 16. The Commission has previously the proposed power increase is Radio Broadcasting, FM Broadcast determined that section 605(b) of the ultimately adopted. stations, Minimum distance separation Regulatory Flexibility Act of 1980 (Pub. requirements. 14. An analysis of FCC FM licensing L. 96-354) does not apply to this rule records reveals that there are currently For the reasons set forth in the making proceeding because it will not 22 pairs of IF-related licensed FM preamble, 47 CFR Part 73 is amended as have a significant economic impact on a stations that are short-spaced under the follows: substantial number of small entities. current rule. Under the revised rule, 12 of these 22 station pairs will no longer 17. The actions contained herein have PART 73—[AMENDED] be short-spaced, and will be subject to been analyzed with respect to the T. The authority citation for 47 CFR applicable IF distance separation Paperwork Reduction Act of 1980 and Part 73 continues to read as follows: requirements. The remaining short­ found to contain no new or modified Authority: 47 U.S.C. 154 and 303. spaced stations may continue to operate form, information collection and/or as authorized, however, applications to record keeping, labeling, disclosure, or 2.47 CFR 73.207 is amended by modify these stations in ways that record retention requirements, and they revising Table A in paragraph (b)(1), increase the area of overlap of the will not incrase or decrease burden and by adding a new paragraph (c). In stations' 36 mV/m median field strength hours imposed on the public. Table A, the first three columns, entitled contours will not be accepted. “Co-channel”, “200 kHz”, and “400/600 15. A similar analysis using both the 18. Authority for the action taken kHz” remain unchanged. The fourth TV and FM engineering databases herein is contained in sections 4(i), column, entitled "10.6/10.8 MHz”, is reveals 7 locations where a TV Channel 303(f) and 303(r) of the Communications revised to read as follows: 6 and FM Channel 253 are short-spaced Act of 1934, as amended. Accordingly, It under the new requirement. These is o rd ered That Part 73 of the § 73.207 Minimum distance separation stations may continue to operate as Commission’s Rules and Regulations are between stations. k k . k k authorized, however, applications to amended, as set forth below. It is fu rth er modify these stations in ways that ordered, That this proceeding is (b) * * * increase the area of overlap of the FM terminated. (1) * * *

Table A—Minimum Distance Separation Requirements in Kilometers (Miles)

400/600 1 0 .6/108 Relation Co-channel 200 kHz kHz MHz

, . * • • * 8(5) * • * -• • * 11(6) * * * *- # * 14(9) * • » • « * 14(9) * * • » * • 21(13) • * • • • • 28(17) • * * * « • 14(9) • » • • • * 17(11) » « * ». 17(11) » • * * 24(15) * » • • 31(19) * * * • 20(12) * « # ■* 20(12) « * • • * * 27(17) * * * * 35(22) « * * * • * 20(12) • * • « . * * 27(17) • * . . # * 35(22) * « * * • * 34(21) * * * * • * 41(25) * • * • # * 48(30)

★ k . k k k kilometers) from any TV Channel 6 TV Zones II FM Class TV Zone I & III (c) The distances listed below apply allotment or assignment are not met: only to allotments and assignments on Minimum Distance Separation From TV C 2...... 22 26 Channel 253 (98.5 MHz). The Channel 6 (82-88 MHz) C 1...... 29 33 Commission will not accept petitions to c ...... 36 41 amend the Table of Allotments, TV Zones II applications for new stations, or FM Class TV Zone I & ill applications to change the channel or 3.47 CFR 73.213 is amended by location of existing assignments where A ...... 16 20 redesignating die existing text as the following minimum distances B 1...... 19 23 paragraph (a) and adding a new (between transmitter sites, in B ...... 22 26 paragraph (b) to read as follows: 14964 Federal Register / Vol. 54, No. 71 / Friday, April 14, 1989 / Rules and Regulations

§ 73.213 Grandfathered short-spaced by residential and industrial South Carolina s ta tio n s . development, conversion of habitat to ★ ★ * I t * Cherokee County supports only one pasture or small ponds, timber population of approximately 150 plants. (b) Stations at locations authorized harvesting, or cattle grazing. This action The plants are growing in an area which prior to May 17,1989, that did not meet will implement the protection of the Act. the IF separation distances required by has been adversely impacted by EFFECTIVE DATE: May 15,1989. § 73.207 and have remained short­ siltation from road construction. spaced since that time may be modified a d d r e s s e s : The complete file for this Greenville County supports eight or relocated provided that the overlap rule is available for inspection, by populations of Hexastylis naniflora. The area of the two stations' 36 mV/m field appointment, during normal business populations vary in size from 50 to strength contours is not increased. hours at the Asheville Field Office, U.S. several hundred individuals. Most of the 4. 47 CFR 73.610 is amended by adding Fish and Wildlife Service, 100 Otis populations are adjacent to the rapidly a new paragraph (f) to read as follows: Street, Room 224, Asheville, North expanding Greenville urban area or its Carolina 28801. suburbs and are threatened by loss of § 73.610 Minimum distance separations habitat to residential, commercial, or between stations. FOR FURTHER INFORMATION CONTACT: industrial construction. Agricultural h He ★ * k Mr. Robert R. Currie at the above activities, such as conversion of (f) The distances listed below apply address (704/259-0321 or FTS 672-0321). woodlands to pasture or construction of only to allotments and assignments on SUPPLEMENTARY INFORMATION: small ponds, also threaten the species. Channel 6 (82-88 MHz). The Timber harvesting, except for small, Commission will not accept petitions to Background selective cuts, would also adversely amend the Table of Allotments, Hexastylis naniflora is a rare low- impact the species. applications for new stations, or growing herbaceous plant in the Spartanburg County supports three applications to change the channel or birthwort family (Aristolochiaceae). The populations of the species. One of these location of existing assignments where species was described by Blomquist contains 2 individuals, one contains 75 the following minimum distances (1957) in his revision of the North individuals, and the last contains (between transmitter sites, in American members of the genus approximately 1,400 individuals. The kilometers) from any FM Channel 253 The plant’s heart-shaped largest population in the county once allotment or assignment are not met: Hexastylis. leaves are dark green in color, evergreen contained over 4,000 plants; however, 64 Minimum Distance Separation From FM and leathery, and are supported by long percent of the population was destroyed Channel 253 (98.5 MHz) thin petioles from a subsurface rhizome. by reservoir construction. Most of the Maximum height rarely exceeds 15 remaining plants in this population are being protected from further destruction TV Zone I TV Zones II centimeters (6 inches). The jug-shaped FM Class & III by the City of Spartanburg flowers are usually beige to dark brown (commissioners of public works). The in color and appear from mid-March to A ...... 16 20 smallest population (two plants) is early June. The flowers are small and B 1...... 19 23 within the right-of-way of the planned B ...... 22 26 inconspicuous and are found near the relocation of an interstate highway. The C 2...... 22 26 base of the petioles. The fruit matures C 1...... 29 33 population of 75 plants has been C ...... 36 41 from mid-May to early July (Blomquist adversely impacted by soil erosion 1957, Gaddy 1980,1981). Hexastylis caused by grazing cattle. naniflora grows in acidic soils along [FR Doc. 89-8913 Filed 4-13-89; 8:45 am] bluffs and adjacent slopes, in boggy North Carolina BILLING CODE 6712-01-M areas next to streams and creekheads, Cleveland County contains three and along the slopes of nearby hillsides populations. One of these supports only and ravines (Gaddy 1980,1981). The 10 plants and occurs on a poor quality DEPARTMENT OF THE INTERIOR species is distinguished from other site. The other 2 populations contain members of the genus Hexastylis by its Fish and Wildlife Service about 200 plants each. These two larger small flowers and its distinctive habitat. populations are threatened by timber 50 CFR Part 17 Hexastylis naniflora is known only harvesting, conversion of their habitat to from an eight-county area in the upper pasture or small ponds, and cattle Endangered and Threatened Wildlife piedmont of North Carolina and grazing. and Plants; Threatened Status of adjacent South Carolina. There are 24 Catawba County supports one large, Hexastylis naniflora (Dwarf-flowered known populations of this species. The healthy population of over 1,000 plants. H eartieaf following summary of the known This site has been protected to a limited distribution of Hexastylis naniflora, by extent through the Natural Areas a g e n c y : Fish and Wildlife Service, State and county, is extracted primarily Interior. Registry Program of the North Carolina from Gaddy (1980,1981). Additional Natural Heritage Program. This program a c t i o n : Final rule. information was supplied by Rayner alerts cooperative landowners to the s u m m a r y : The Service determines (South Carolina Wildlife and Marine significance of natural features on their Hexastylis naniflora to be a threatened Resources Department, personal property. It does not, however, provide species under authority of the communication, 1986,1987), Mansberg long-term protection from the threats Endangered Species Act of 1973, as (North Carolina Department of Natural facing most populations of Hexastylis amended (Act). This species is known Resources and Community naniflora. only from a small portion of the upper Development, personal communication, Burke County contains 3 populations, piedmont of southern North Carolina 1986,1987), and Newberry (University of varying in size from 10 to approximately and adjacent South Carolina. Most of South Carolina at Spartanburg, personal 500 individuals. The smallest population the known populations are threatened communication, 1987). is on a poor quality site that is littered Federal Register / Vol. 54, No. 71 / Friday, April 14, 1989 / Rules and Regulations 1 4 9 6 5 with trash. The two larger populations notice of review for native plants (50 FR North Carolina and South Carolina had remain vulnerable to loss or adverse 39526). Category 1 species are those for previously expressed their support for modification of their habitat. which the Service currently has on file the addition of the species to the Federal Rutherford County currently contains information to support the proposed list. three populations of Hexastylis addition of the species to the Federal list The Service concurs with the naniflora. A fourth population was of endangered and threatened species. conclusion that Hexastylis naniflora recently destroyed by road construction. Publication of proposed rules for some merits protection under the Act. The The largest population, containing over of these species has been delayed Service has evaluated the available 1,000 plants, is a registered natural area because of the large number of species information on the status of, and threats and thereby receives limited short-term within this category. to, this species and believes that protection. The smaller populations, 60 Section 4(b)(3)(B) of the Act, as threatened status is appropriate. and 250 individuals respectively, are amended in 1982, requires the Secretary threatened by the same activities to make certain findings on pending Summary of Factors Affecting the previously mentioned. petitions within 12 months of their Species There are three records of Hexastylis receipt. Section 2(b)(1) of the 1982 After a thorough review and naniflora from Lincoln County. One amendments further requires that all consideration of all information population has not been recently petitions pending on October 13,1982, available, the Service has determined verified and may be lost, one has been be treated as having been newly that Hexastylis naniflora should be destroyed, and the last contains about submitted on that date. This was the classified as a threatened species. 160 healthy plants. The site supporting case for Hexastylis naniflora because of Procedures found at section 4(a)(1) of these plants has been selectively logged the acceptance of the 1975 Smithsonian the Act and regulations (50 CFR Part and remains vulnerable to destruction report as a petition. In 1983,1984,1985, 424) promulgated to implement the by clear-cutting of timber and other 1986, and 1987, the Service found that listing provisions of the Act were previously referred to activities. the petitioned listing of Hexastylis followed. A species may be determined Federal government actions on this naniflora was warranted but precluded to be endangered or threatened due to species began with section 12 of the by other listing actions of a higher one or more of the five factors described Endangered Species Act of 1973 (16 priority and that additional data on in section 4(a)(1). These factors and U.S.C. 1531 et seq.), which directed the vulnerability and threats was still being their application to Hexastylis naniflora Secretary of the Smithsonian Institution gathered. Blomquist (dwarf-flowered heartleaf) to prepare a report on those plants On April 21,1988, the Service are as follows; considered to be endangered, published (53 FR 13223) a proposal to A. The present or threatened threatened, or extinct. This report, list Hexastylis naniflora as a threatened destruction, modification, or curtailment designated as House Document No. 94- species. That proposal constituted the of its habitat or range. Gaddy (1981) 51, was presented to Congress on final finding as required by the 1982 found that much of the habitat that January 9,1975. On July 1,1975, the amendments to the Endangered Species Hexastylis naniflora prefers has been Service published a notice (40 FR 27823} Act. destroyed by peach orchards, pastures, which formally accepted the Summary of Comments and housing developments, and ponds. Smithsonian report as a petition within Recommendations During searches for additional the context of section 4(c)(2) (now populations of the species, Gaddy (1981) section 4(b)(3)) of the Act. By accepting In the April 21,1988, proposed rule discovered that many small ponds had this report as a petition, the Service also and associated notifications, all been constructed at what were formerly acknowledged its intention to review the interested parties were requested to springy creekheads. Many of these areas status of those plant taxa named within submit factual reports or information may have supported the species prior to the report. Hexastylis naniflora was that might contribute to the development included in the Smithsonian report and of a final rule. Appropriate State being impounded. the July 1,1975, notice of review. On agencies, county governments, Federal A large number of the known June 16,1976, the Service published a agencies, scientific organizations, and Hexastylis naniflora populations occur proposed rule (41 FR 24523) to determine other interested parties were contacted near expanding urban areas and are approximately 1,700 vascular plant taxa and requested to comment. Newspaper threatened by the residential, to be endagered species pursuant to notices inviting public comment were commercial, and industrial development section 4 of the Act; Hexastylis published in the Greenville News associated with this growth. Populations naniflora was included in this proposal. (Greenville County), Spartanburg occurring in more rural areas are The 1978 amendments to the Act Herald (Spartanburg County), Gaffney threatened by habitat alteration or loss required that all proposals over 2 years Ledger (Cherokee County), Shelby Star from land conversion to pasture or other old be withdrawn. On December 10, (Cleveland County), Hickory Daily agricultural uses, cattle grazing, 1979 (44 FR 70796), the Service published Record (Catawba County), Lincoln intensive timber harvesting, residential a notice withdrawing plants proposed Times (Lincoln County), News Herald construction, and construction of small on June 16,1976. In 1979 the Service also (Burke County), and Daily Courier ponds. Only four populations currently funded a status survey for this species (Rutherford County). One comment was receive some form of protection. The with the final status report being received in response to the proposed City of Spartanburg, South Carolina, completed in 1980. Based upon the rule. The Catawba County manager’s through a policy statement issued by the information provided in the status office stated that it knew of no conflicts commissioners of public works, has report, Hexastylis naniflora was between county projects and protection agreed to protect most of the largest included as a category 1 species in the of the Catawba County site. They South Carolina population. Two of the December 15,1980, revised notice of outlined several protective measures larger North Carolina populations are review for native plants (45 FR 82480). that may be applicable to the population registered natural areas under the North Hexastylis naniflora was again included and stated that the county did not object Carolina Natural Heritage Program, and as a category 1 species in the September to designation of Hexastylis naniflora one South Carolina population is 27,1985, publication of an updated as a threatened species. The States of registered by The Nature Conservancy. Federal Register / Vol. 54, No. 71 / Friday, April 14, 1989 / Rules and Regulations 2 4 9 6 6 omÊÊiÊmmmsÊÊmÊÊÊmÊÊÊÊÊÊÊÊÊÊÊÊmÊÊÊÊÊÊÊÊmimmiËmËMmiKmÊmBÊimmiÊÊaÊÊnÊmÊ^iKmËmÊimÊÊmmÊÊKammemmÊÊÊmÊÊÊmÊÊÊiÊmimÊmiÊKmmmB&immiÊÊmÊÊÊmiBmÊÊÊmÊÊÊÊmitÊmmÊÊÊÊÊÊm^imm

These populations thereby receive short­ species in determining to make this rule prohibitions against taking are term protection from loss or alteration. final. Based on this evaluation, the discussed, in part, below. Registry agreements are, however, preferred action is to list Hexastylis Section 7(a) of the Act, as amended, nonbinding; and these three populations naniflora as a threatened species. requires Federal agencies to evaluate remain vulnerable to destruction in the Threatened status seems appropriate their actions with respect to any species long-term. because of the number of populations that is proposed or listed as endangered B. Overutilization for commercial, that currently exist and the protection or threatened and with respect to its recreational, scientific, or educational provided to several of the larger critical habitat, if any is being purposes. Hexastylis naniflora is not populations. Critical habitat is not being designated. Regulations implementing currently a significant component of the designated for the reasons discussed this interagency cooperation provision commercial trade in native plants; below. of the Act are codified at 50 CFR Part however, the species has potential for 402. Section 7(a)(2) requires Federal Critical Habitat horticultural use, and publicity agencies to ensure that activities they surrounding the listing of the species Section 4(a)(3) of the Act, as amended, authorize, fund, or carry out are not could generate an increased demand. requires that, to the maximum extent likely to jeopardize the continued C. Disease or predation. Not prudent and determinable, the Secretary existence of such a species or to destroy applicable to this species at this time. designate any habitat of a species which or adversely modify its critical habitat. D. The inadequacy of existing is considered to be critical habitat at the If a Federal action may adversely affect regulatory mechanisms. Hexastylis time the species is determined to be a listed species or its critical habitat, the naniflora is listed as an endangered endangered or threatened. Most responsible Federal agency must enter species in North Carolina and is populations of this species are small, into consultation with the Service. All of afforded legal protection in that State. and loss of even a few individuals to the known populations of Hexastylis North Carolina General Statute 19-B, activities such as collection for scientific naniflora are on privately or municipally 202.12-202.19, provides State-listed purposes could extirpate the species owned land. The only known Federal plants protection from intrastate trade from some locations. Taking of listed activity that may affect this species is without a permit and provides for plants is only regulated by the Act in the relocation of an interstate highway monitoring and management of case of removal, reduction to in South Carolina. A small population populations of listed species. Although possession, and malicious damage or consisting of two clumps of plants may unofficially recognized as an destruction from lands under Federal be lost during construction of this endangered component of South jurisdiction; and removal, cutting, project. It is not expected that this loss, Carolina’s flora by the South Carolina digging up, or destroying in knowing if it should occur, will significantly Wildlife and Marine Resources violation of any state law or regulation, affect the survival and recovery of Department, Hexastylis naniflora has including state criminal tresspass law. Hexastylis naniflora. no official protection status in the State. Publication of critical habitat The Act and its implementing Section 404 of the Clean Water Act descriptions and maps would increase regulations found at 50 CFR 17.71 and could potentially provide some the vulnerability of the species without 17.72 set forth a series of general trade protection for the dwarf-flowered significantly increasing protection. The prohibitions and exceptions that apply heartleaf s habitat; however, most of the owners and managers of all the known to all threatened plants. All trade sites where it occurs do not meet the populations of Hexastylis naniflora will prohibitions of section 9(a)(2) of the Act, wetlands criteria of the Clean Water be made aware of the plant’s location Act. The Endangered Species Act will implemented by 50 CFR 17.71, apply. and of the importance of protecting the provide additional protection for These prohibitions, in part, make it plant and its habitat. Protection of this Hexastylis naniflora. illegal for any person subject to the species’ habitat will be addressed E. Other natural or manmade factors jurisdiction of the United States to affecting its continued existence. through the recovery process and import or export, transport in interstate through the Section 7 jeopardy standard. Several of the known populations of or foreign commerce in the course of a No additional benefits would result from Hexastylis naniflora occur on steep commercial activity, sell or offer for sale a determination of critical habitat. ravine slopes which also support stands this species in interstate or foreign of mixed hardwoods with an understory Therefore, the Service concludes that it commerce, or to remove and reduce it to of mountain laurel [Kalmia latiflora) or is not prudent to designate critical possession from areas under Federal Rhododendron spp. These stands are habitat for Hexastylis naniflora. jurisdiction. Seeds from cultivated often very dense and reduce the amount Conservation measures provided to specimens of threatened plant species of light reaching the Hexastylis species listed as endangered or are exempt from these prohibitions naniflora plants growing below. Under threatened under the Endangered provided that a statement of “cultivated these conditions the plants often show Species Act include recognition, origin” appears on their containers. In reduced vigor and reduced flower and recovery actions, requirements for addition, for listed plants the 1988 fruit production. Careful, selective Federal protection, and prohibitions amendments (Pub. L. 100-478) to the Act logging or natural tree fall and limited against certain practices. Recognition prohibit their malicious damage or understory removal would open up through listing encourages and results in destruction on Federal lands, and their these populations to more light. conservation actions by Federal, State, removal, cutting, digging up, or Additional light, if not accompanied by and private agencies, groups, and damaging or destroying in knowing increased siltation from the intensive individuals. 1216 Endangered Species violation of any state law or regulation, soil disturbances associated with forest Act provides for possible land including state criminal trespass law. clear-cutting, probably would benefit acquisition and cooperation with the Certain exceptions can apply to agents these populations (Gaddy 1981). States and requires that recovery of the Service and State conservation The Service has carefully assessed the actions be carried out for all listed agencies. The Act and 50 CFR 17.72 also best scientific and commercial species. Such actions are initiated by the provide for the issuance of permits to information available regarding the past, Service following listing. The protection carry out otherwise prohibited activities present, and future threats faced by this required of Federal agencies and the involving threatened species under Federal Register / Voi. 54, No. 71 / Friday, April 14, 1989 / Rules and Regulations 14867 certain circumstances. It is anticipated References Cited Regulation Promulgation that few trade permits will ever be Blomquist, H.L 1957. A revision of H exa stylis Accordingly, Part 17, Subchapter B, of sought or issued, since H exastylis of North America. Brittonia 8(4):255-281. chapter I, Title 50 of the Code of Federal naniflora is not common in cultivation Gaddy, L.L. 1980. Status report on H exastylis Regulations, is amended as set forth or in the wild. Requests for copies of the naniflora Blomquist. Unpublished report below: regulations on plants and inquiries prepared under contract to the U.S. Fish regarding them may be addressed to the and Wildlife Service, Southeast Region, PART 17—[AMENDED] Office of Management Authority, U.S. Atlanta, GA. 32 pp. Fish and Wildlife Service, P.O. Box Gaddy, L.L. 1981. The status of H exa stylis 1. The authority citation for Part 17 27329, Central Station, Washington, DC na niflora Blomquist in North Carolina. continues to read as follows: Unpublished report prepared under 20038-7329 (202/343-4955). Authority: Pub. L. 93-205, 87 Stat. 884; Pub. contract to the Plant Conservation L. 94-359,90 Stat. 911; Pub. L. 95-632, 92 Stat. National Environmental Policy Act Program, North Carolina Department of 3751; Pub. L. 96-159, 93 Stat. 1225; Pub. L. 97- Agriculture. 63 pp. The Fish and Wildlife Service has 304, 96 Stat. 1411; Pub. L. 100-478,102 Stat. determined that an Environmental Author 2306; Pub. L. 100-653,102 Stat. 3825 (16 U.S.C. Assessment, under the authority of the 1531 e t seq.\, Pub. L. 99-625,100 Stat. 3500, The primary author of this proposed unless otherwise noted. National Environmental Policy Act of rule is Mr. Robert R. Currie, Asheville 1969, need not be prepared in Field Office, U.S. Fish and Wildlife 2. Amend § 17.12(h) by adding the connection with regulations adopted Service, 100 Otis Street, Room 224, following, in alphabetical order under pursuant to section 4{a) of the Asheville, North Carolina 28801 (704/ Aristolochiaceae, to the List of Endangered Species Act of 1973, as 259-0321 or FTS 672-0321). Endangered and Threatened Plants: amended. A notice outlining the Service’s reasons for this determination List of Subjects in 50 CFR Part 17 § 17.12 Endangered and threatened was published in the Federal Register on p la n ts . Endangered and threatened wildlife, ***** October 25,1983 (48 FR 49244). Fish, Marine mammals, Plants (agriculture). (h) * * *

Species Historic range Status When listed Critical habitat Scientific name Common name

Aristolochiaceae—Heartleaf family: Hexastylis naniflora...... Dwarf-flowered heartleaf...... U.S.A. (NC, SC)...... T 347 NA...... NA

Dated: March 14,1989. Becky Norton Dunlop, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 89-8899 Filed 4-13-89; 8:45 am] BILUNG CODE 4310-55-M