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Dated: January 18, 2000. extirpated numerous populations of reduced D. luteum to a variety of D. Stephen C. Saunders, these two plants in coastal Marin and nudicaule, it is currently recognized as Acting Assistant Secretary for Fish and Sonoma Counties in northern California. a full species (Warnock 1993). Wildlife and Parks. The historical range of Delphinium Delphinium luteum occurs on rocky [FR Doc. 00– 1746 Filed 1–25–00; 8:45 am] bakeri and D. luteum did not extend areas within coastal scrub plant BILLING CODE 4310±55±P beyond coastal Marin and Sonoma community, including areas with active Counties. rock slides, from sea level to 100 m (300 Ewan (1942) described Delphinium ft) in elevation (Guerrant 1976). DEPARTMENT OF THE INTERIOR bakeri based on type material collected Delphinium luteum is a perennial by Milo Baker in 1939 from Coleman herb in the buttercup family Fish and Wildlife Service Valley, Sonoma County, California. In (Ranunculaceae) that grows from fibrous the most recent treatment, Warnock roots to 56 cm (22 in) tall. The leaves 50 CFR Part 17 (1993) retained the taxon as a full are mostly basal, fleshy, and green at the species. Historically, D. bakeri was time of flowering. The flowers are RIN 1018±AE23 known from Coleman Valley in Sonoma cornucopia-shaped. The five Endangered and Threatened Wildlife County and from a site near Tomales in conspicuous sepals are bright yellow, and Plants; Determination of Marin County. Delphinium bakeri with the posterior sepal elongated into Endangered Status for Two Larkspurs occurs on decomposed shale within the a spur. The inconspicuous petals occur From Coastal Northern California coastal scrub plant community from 120 in two pairs. The upper petals are to 150 meters (m) (400 to 500 feet (ft)) narrow and unlobed; the lower petals AGENCY: Fish and Wildlife Service, in elevation (California Natural are oblong to ovate. The fruit is a Interior. Diversity Database (CNDDB) 1997). follicle. Delphinium luteum flowers ACTION: Final rule. Delphinium bakeri is a perennial herb from March to May. in the buttercup family (Ranunculaceae) Never widely distributed, historical SUMMARY: We, the U.S. Fish and that grows from a thickened, tuber-like, populations of Delphinium luteum have Wildlife Service (Service), determine fleshy cluster of roots. The stems are been partially or entirely extirpated by endangered status pursuant to the hollow, erect, and grow to 65 rock quarrying activities, overcollecting, Endangered Species Act (Act) of 1973, centimeters (cm) (26 inches (in)) tall. residential development, and sheep as amended for two plants—Delphinium The shallowly five-parted leaves occur grazing, resulting in the species now bakeri (Baker’s larkspur) and primarily along the upper third of the being even more narrowly distributed Delphinium luteum (yellow larkspur). stem and are green at the time the plant (Guerrant 1976; CNDDB 1998; Betty These species grow in a variety of flowers. The flowers are irregularly Guggolz, Milo Baker Chapter, California habitats including coastal prairie, shaped. The five sepals (outer most Native Plant Society (CNPS), pers. coastal scrub, or chaparral in Sonoma whorl or set of floral parts) are comm. 1995). The CDFG (1994) reported and Marin Counties in northern conspicuous, bright dark blue or the species is declining. The two California. Habitat loss and degradation, purplish, with the rear sepal elongated remaining populations near Bodega, sheep grazing, road maintenance into a spur. The inconspicuous petals both on private land, total fewer than 50 activities, and overcollection imperil the occur in two pairs. The lower pair is plants. Development, overcollection, continued existence of these plants. oblong and blue-purple; the upper pair and sheep grazing threaten the Random events increase the risk of is oblique and white. Seeds are remaining two populations. Because of extinction to the extremely small plant produced in several dry, many-seeded its extreme range restriction and small populations. This rule implements the fruits, which split open at maturity on population size, the plant is also Federal protection and recovery only one side (i.e., several follicles). vulnerable to extinction from random provisions afforded by the Act for these Delphinium bakeri flowers from April natural events, such as fire or insect two species. through May (Warnock 1993). outbreaks (CNDDB 1998; B. Guggolz, EFFECTIVE DATE: February 25, 2000. Habitat conversion, grazing, and/or pers. comm. 1995). roadside maintenance activities have ADDRESSES: The complete file for this extirpated occurrences of Delphinium Previous Federal Action rule is available for public inspection, bakeri in Marin and Sonoma Counties Federal Government actions on the by appointment, during normal business (California Department of Fish and two species began as a result of section hours at the U.S. Fish and Wildlife Game (CDFG) 1994). The CDFG (1994) 12 of the Act (16 U.S.C. 1531 et seq.), Service, Sacramento Fish and Wildlife also reported the species is declining. which directed the Secretary of the Office, 2800 Cottage Way, Room W2606, The only known remaining population, Smithsonian Institution to prepare a Sacramento, California 95825. with a total of about 35 plants, is found report on those plants considered to be FOR FURTHER INFORMATION CONTACT: on a steep road bank on private and endangered, threatened, or extinct in the Kirsten Tarp, Sacramento Fish and county land in Marin County that is United States. This report, designated as Wildlife Office (see ADDRESSES section) threatened by road work, overcollection, House Document No. 94–51, was (telephone 916/414–6464; facsimile and sheep grazing. Because of its presented to Congress on January 9, 916/414–6486). extreme range restriction and small 1975, and included Delphinium bakeri SUPPLEMENTARY INFORMATION: population size, the plant is also and D. luteum as endangered. We vulnerable to extinction from random published a notice on July 1, 1975 (40 Background natural events, such as fire or insect FR 27823) of our acceptance of the Delphinium bakeri (Baker’s larkspur) outbreaks (CNDDB 1997). report of the Smithsonian Institution as and D. luteum (yellow larkspur) were Heller (1903) described Delphinium a petition within the context of section found historically in coastal prairie, luteum based on type material collected 4(c)(2) (petition provisions are now coastal scrub, or chaparral habitats. from ‘‘grassy slopes about rocks, near found in section 4(b)(3) of the Act) and Urban development, agricultural land Bodega Bay, along the road leading to our intention to review the status of the conversion, and livestock grazing have the village of Bodega’’ in Sonoma plant taxa named in the report. The destroyed much of the habitat and County. Although Jepson (1970) above two taxa were included in the

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July 1, 1975, notice. On June 16, 1976, on pending petitions within 12 months comment period closed on August 18, we published a proposal (41 FR 24523) of their receipt. Section 2(b)(1) of the 1997. We contacted appropriate Federal to determine approximately 1,700 1982 amendments further requires that and State agencies, county and city vascular plant species to be endangered all petitions pending on October 13, governments, scientific organizations, species pursuant to section 4 of the Act. 1982, be treated as having been newly and other interested parties and The list of 1,700 plant taxa was submitted on that date. This provision requested comments. We sent copies of assembled on the basis of comments and applied to Delphinium bakeri and D. the proposed rule and the request for data received by the Smithsonian luteum, because the 1975 Smithsonian comments letter to seven local libraries Institution and us in response to House report had been accepted as a petition. for public display. We published Document No. 94–51 and the July 1, On October 13, 1982, we found that the newspaper notices in the Press 1975, Federal Register publication. D. petitioned listing of these species was Democrat and Marin Independent bakeri and D. luteum were included in warranted but precluded by other Journal on June 25, 1997; Sonoma this Federal Register document. pending listing actions, in accordance County Independent on June 26, 1997; General comments received in with section 4(b)(3)(B)(iii) of the Act; and Petaluma Argus Courier on June 27, relation to the 1976 proposal were notification of this finding was 1997, which invited general public summarized in an April 26, 1978, notice published on January 20, 1984 (49 FR comment. (43 FR 17909). The Act Amendments of 2485). Such a finding requires the During the public comment period, 1978 required that all proposals over petition to be recycled, pursuant to we received written comments from five two years old be withdrawn. A one-year section 4(b)(3)(C)(i) of the Act. The individuals or agencies. Three grace period was given to those finding was reviewed annually in commenters expressed support for the proposals already more than two years October of 1983 through 1994, and we listing proposal, and two commenters old. In the December 10, 1979, notice published a proposed rule on June 19, opposed the proposal. Supporting (44 FR 70796), we published a notice of 1997 (62 FR 33383). comments were received from the CNPS withdrawal of the June 6, 1976, The processing of this final rule and two individuals from Washington proposal, along with four other conforms with our Listing Priority State University. The two commenters proposals that had expired. Guidance published in the Federal from Washington State University sent a We published a Notice of Review for Register on October 22, 1999 (64 FR letter informing us of their research on plants on December 15, 1980 (45 FR 57114). The guidance clarifies the order the genetic variation in Delphinium 82480). This notice included in which we will process rulemakings. luteum. Opposing comments were Delphinium bakeri and D. luteum as Highest priority is processing received by the Washington Legal category 1 candidates for Federal listing. emergency listing rules for any species Foundation and the Marin Farm Bureau. Category 1 taxa were those for which we determined to face a significant and Opposing comments and other had on file substantial information on imminent risk to its well-being (Priority comments questioning the proposed biological vulnerability and threats to 1). Second priority (Priority 2) is rule were organized into specific issues. support preparation of listing proposals. processing final determinations on These issues and our response to each On November 28, 1983, we published a proposed additions to the lists of are summarized below. supplement to the Notice of Review (48 endangered and threatened wildlife and Issue 1: One commenter stated that FR 53640). This supplement changed D. plants. Third priority is processing new the Service should not list Delphinium bakeri and D. luteum from category 1 to proposals to add species to the lists. The bakeri and D. luteum because it has no category 2 candidates. Category 2 taxa processing of administrative petition authority to list or regulate species were those for which data in our findings (petitions filed under section 4 under the Act that are not involved in possession indicated listing was of the Act) is the fourth priority. The interstate commerce. This commenter possibly appropriate, but for which processing of critical habitat further believed that Federal listing for substantial data on biological determinations (prudency and D. bakeri and D. luteum is unnecessary vulnerability and threats were not determinability decisions) and proposed since it would not confer greater currently known or on file to support or final designations of critical habitat protection than California State law proposed rules. will no longer be subject to already provides for these indigenous The plant notice was revised on prioritization under the Listing Priority plants. September 27, 1985 (50 FR 39526). Guidance. This final rule is a Priority 2 Our Response: The Federal Delphinium bakeri and D. luteum were action and is being completed in Government has the authority under the again included as category 2 candidates. accordance with the current Listing Commerce Clause of the U.S. Another revision of the plant notice was Priority Guidance. Constitution to protect these species, for published on February 21, 1990 (55 FR We have updated this rule to reflect the reasons given in Judge Wald’s 6184). In this revision D. bakeri and D. any changes in distribution, status, and opinion and Judge Henderson’s luteum were included as category 1 threats since publishing the proposed concurring opinion in National candidates. We made no changes to the rule and to incorporate information Association of Home Builders v. Babbitt, status of the two species in the plant obtained through the public comment 130 F.3d 1041 (D.C. Cir. 1997), cert. notice published on September 30, 1993 period. This additional information did denied, 1185 S.Ct. 2340 (1998). That (58 FR 51144). On February 28, 1996, not alter our decision to list these case involved a challenge to application we published a Notice of Review in the species. of the Act’s prohibitions to protect the Federal Register (61 FR 7596) that listed Delhi Sands flower-loving fly discontinued the use of candidate Summary of Comments and (Rhapimodas terminatus abdominalis). categories and considered the former Recommendations As with Delphinum bakeri and D. category 1 candidates as simply In the June 19, 1997, proposed rule luteum, the Delhi Sands flower-loving ‘‘candidates’’ for listing purposes. Both (62 FR 33383) and associated fly is endemic to only one State. Judge species were included as candidates in notifications, we requested all interested Wald held that application of the Act’s the February 28, 1996, Notice of Review. parties to submit factual reports or prohibition against taking of endangered Section 4(b)(3)(B) of the Act requires information that might contribute to species to this fly was a proper exercise the Secretary to make certain findings development of a final rule. A 60-day of Commerce Clause power to regulate:

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(1) use of channels of interstate larkspurs will have a dramatic and scientifically sound data, assumptions, commerce; and (2) activities disruptive impact on local land use and and analyses, including input of substantially affecting interstate planning. appropriate experts and specialists. The commerce, because it prevented loss of Our Response: As discussed in the three requested reviewers concurred biodiversity and destructive interstate ‘‘Critical Habitat’’ section of this final with the accuracy of the rule and competition. Judge Henderson upheld rule, a critical habitat determination is supported listing these taxa. Information protection of the fly because doing so not being made at this time for these provided was incorporated and is prevents harm to the ecosystem upon plants. The ‘‘take’’ prohibition, as presented in the final rule. which interstate commerce depends and defined in section 9 of the Act, generally Summary of Factors Affecting the because doing so regulates commercial does not apply to plants (except when Species development that is part of interstate such take is prohibited by state law or commerce. occurs in the course of a violation of Section 4 of the Act and regulations Issue 2: One commenter urged us not state criminal trespass law). (50 CFR part 424) that implement the to list Delphinium bakeri and D. luteum, Issue 4: One commenter said that we listing provisions of the Act established stating that ‘‘the listing of the two should consider the adverse economic the procedures for adding species to the larkspurs violates the Principles of effect that the listing would have on the Federal lists. A species may be Federalism,’’ and that ‘‘California has local agriculture industry. determined to be an endangered or ample resources to regulate and protect Our Response: Under section threatened species due to one or more these two larkspur species,’’ and 4(b)(1)(A) of the Act, a listing of the five factors described in section (therefore) ‘‘should be able to make its determination must be based solely on 4(a)(1). These factors and their own decisions regarding these plants the best scientific and commercial data application to Delphinium bakeri Ewan found within its own border.’’ The available. The legislative history of this (Baker’s larkspur) and Delphinium commenter further stated that this provision clearly states the intent of luteum Heller (yellow larkspur) are as listing has significant impacts on the Congress to ‘‘ensure’’ that listing follows: rights of private property owners to decisions are ‘‘based solely on biological A. The Present or Threatened make reasonable use of their property. criteria and to prevent non-biological Destruction, Modification, or Our Response: As we stated in the considerations from affecting such Curtailment of Its Habitat or Range. Of proposed rule (62 FR 33383), existing decisions,’’ H.R. Rep. No. 97–835, 97th the two remaining populations of State and local regulations are Cong., 2nd Sess. 19 (1982). As further Delphinium luteum, one located at an inadequate to protect these species. The stated in the legislative history, old rock quarry site near Bodega has Act does not prevent the State of ‘‘applying economic criteria * * * to been partially destroyed and fragmented California from protecting and any phase of the species listing process by historical quarry activities. The regulating the two larkspur species. is applying economics to the number of plants remaining at this site Federal and State regulations determinations made under section 4 of continues to decline. Population complement each other. As discussed the Act and is specifically rejected by numbers were between 100 to 200 further in Factor D of the ‘‘Summary of the inclusion of the word ‘solely’ in the plants in 1978 (Ed Guerrant, Berry Factors Affecting the Species’’ section of legislation,’’ H.R. Rep. No. 97–835, 97th Botanic Garden, pers. comm. 1995), but this final rule, the California Cong. 2nd Sess. 19 (1982). Because we recent counts indicate that only 30 to 40 Environmental Quality Act (CEQA) and are precluded from considering individuals remain (B. Guggolz, pers. California Endangered Species Act economic impacts in a final decision to comm. 1995). The other extant site has (CESA) apply to actions on private and list a species, we cannot examine such fewer than 10 remaining individuals. A State lands. For plants, the Federal impacts. historical site near the town of Graton Endangered Species Act primarily Issue 5: One commenter stated that was converted to residential uses by covers Federal land and Federal actions the plants are in existence because of 1987 (CNDDB 1997). that may affect proposed and listed agriculture and not the opposite. Historically, habitat of Delphinium species. Our Response: As discussed under bakeri was eliminated by agricultural The listing of plants under the Federal Factor A of the ‘‘Summary of Factors conversion to grainfields (Ewan 1942). Endangered Species Act does not Affecting the Species’’ section of this Remaining habitat may be threatened by necessarily restrict any uses of private final rule, historical habitat of sheep grazing (CNDDB 1997). One land unless Federal funding, Delphinium bakeri was eliminated by extirpated population was subjected to authorization, or a permit is involved. agricultural conversion. The discussion sheep grazing, but it is unknown if For example, such private land uses as under Factor C explains that both grazing was the primary cause of its proper livestock grazing, clearing a species are limited in their range, have demise. The few remaining individuals defensible space for fire protection few individuals, and are extremely (approximately 35) are extremely around one’s personal residence, vulnerable to trampling. vulnerable to impacts that otherwise landscaping (including irrigation), or might not be significant. Threats to the fence maintenance are not affected by Peer Review lone remaining site of D. bakeri are Federal listing of plants. If an activity is In accordance with interagency peer discussed under factors B through E. At conducted, authorized, or funded by a review policy published on July 1, 1994 the rock quarry site near Bodega Bay, Federal agency, the Federal action (59 FR 34270), we solicited the expert the Bodega Harbor landowners agency must consult with us when the opinions of three independent association is proposing to build an activity may affect listed species. specialists regarding pertinent scientific equipment storage shed and a public Issue 3: One commenter was or commercial data and assumptions trail that would be close to the concerned that once an endangered relating to the taxonomy, population remaining plants. Although the species is listed, the designation of status, and supportive biological and proposed storage equipment shed would critical habitat under the Act would ecological information for the taxon be located on degraded habitat and result in a taking of land. This under consideration for listing. The would have no direct impact on the commenter further stated that the ‘‘take’’ purpose of such review is to ensure that extant population of D. luteum, the provision as applied to the two listing decisions are based on public trail would be located adjacent to

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Guggolz, pers. comm. 1995). long-term survival of this species (see Protection of listed species through Although the project proponents have Factor E). CEQA is therefore dependent upon the been notified that construction of the D. The Inadequacy of Existing discretion of the agency involved. In shed and trail may be detrimental to D. Regulatory Mechanisms. The California addition, revisions to CEQA guidelines luteum, we understand that the project Fish and Game Commission (CFGC) have been proposed which, if remains proposed as is. listed Delphinium bakeri and implemented, may weaken protections B. Overutilization for Commercial, Delphinium luteum as rare species in for State-listed, rare, threatened, and Recreational, Scientific, or Educational 1979 under the California Native Plant endangered species. Purposes. Overutilization is a threat for Protection Act (CNPPA) (Div. 2 Ch. 10, E. Other Natural or Manmade Factors both species. In 1992, all the follicles (a Section 1900 et seq. of the Fish and Affecting Its Continued Existence. The single-celled cavity that acts like a Game Code). Although the ‘‘take’’ of remaining population of Delphinium many-seeded fruit, which upon drying State-listed plants is generally luteum at the rock quarry may be splits open to release seeds) were prohibited under CNPPA (See Sec. threatened by users of a trail associated collected from the plants at the only 1908), the extent of protection for State- with the extension of an existing golf known site of Delphinium bakeri (CDFG listed plants has been a matter of some course into the current county scenic 1993). Because these follicles contained uncertainty. CNPPA limits the State’s easement that exists on the site (B. the plants’ seeds, all sexual ability to regulate or prohibit the take of Guggolz, pers. comm. 1995). This reproduction for 1992 was lost. Were plants during agricultural operations, easement is not a conservation easement this collection to occur regularly or in timber harvesting, or mining assessment with us but may offer some limited, conjunction with unrelated natural work, or removal of plants from certain incidental protection to the species in events (e.g., fire), the species may be facilities and right-of-way [see Sec. 1913 terms of controlling development to lost. Due to its distinctive yellow (a) and (b)]. Under another provision of protect the viewshed. However, the flowers, which is uncommon for CNPPA, landowners in some trail’s close proximity to the remaining larkspurs, D. luteum is of considerable circumstances can remove plants after populations of D. luteum may increase horticultural interest. Collecting is providing CDFG at least 10 days the amount of collection of the species thought to have extirpated at least one advance notice [see Sec. 1913(c)]. The by people using the trail. occurrence of D. luteum located scope of these exceptions to CNPPA The remaining population of southwest of Tomales (CNDDB 1997). take prohibition, and consequently to Delphinium bakeri occurs on a steep Additionally, some of the historical the protection for plants, are unsettled road bank that is adjacent to a county decline to D. luteum can be attributed to and suspect. State designation as a rare, road in Marin County. Some potential collecting. Delphinium luteum was threatened, or endangered species under exists for herbicide spraying and road offered for purchase in horticultural the CNPPA does provide for maintenance activities that could be trade journals during the 1940’s and consideration of impacts by State detrimental to this species due to the 1950’s (Michael Warnock, Sam Houston agencies under CEQA, described below. extremely low number of individuals University, pers. comm. 1994). Plants The CEQA (chapter 2 section 21050 et that remain. The degree of threat that can still be procured from a local seq. of the California Public Resources these activities pose to the remaining nursery, although their seed source is Code) requires a full disclosure of the population of D. bakeri is uncertain at not from the wild. Garden-grown seed is potential environmental impacts of this time. also available through an international proposed projects. The public agency Because few populations and/or garden society (NARGS 1998). Both with primary authority or jurisdiction individuals remain, both Delphinium populations of D. luteum are near over the project is designated as the lead bakeri and D. luteum are likely residential areas, about 30 m (100 ft) agency and is responsible for threatened by genetic drift (random from the nearest house, and are subject conducting a review of the project and change in particular gene frequency that to collecting. Unrestricted collecting for consulting with the other agencies may lead to preservation or extinction of scientific or horticultural purposes or concerned with the resources affected certain genes and an overall reduction excessive visits by individuals by the project. Section 15065 of the of genetic variability). D. bakeri has 1 interested in seeing rare plants could CEQA Guidelines requires a mandatory population consisting of 35 plants. result from increased publicity as a finding of significance if a project has Delphinium luteum has 2 populations, result of this rulemaking. the potential to ‘‘reduce the number or totaling fewer than 50 plants. Small C. Disease or Predation. Most restrict the range of a rare, threatened, populations often are subject to Delphinium species are toxic to cattle or endangered plant or animal.’’ Species increased genetic drift and inbreeding as but not sheep. Ewan (1942) noted that that can be shown to meet the criteria consequences of their small populations Delphinium bakeri did not appear to be for State listing and have been (Ellstrand and Elam 1993). A loss of poisonous to livestock. However, its designated as rare, threatened, or genetic variability, and consequent toxicity has not been tested. Sheep endangered, such as D. bakeri and D. reduction in genetic fitness, provides grazing may threaten the plant (CNDDB luteum, must be considered under less opportunity for a species to 1997). One extirpated population was CEQA guidelines (CEQA Section successfully adapt to environmental subjected to grazing, but it is unknown 15380). Once significant effects are change (Ellstrand and Elam 1993). if grazing was the primary cause of its identified, the lead agency has the The combination of few populations, demise. The few remaining individuals option to require mitigation for effects small number of individuals found (approximately 35) are extremely through changes in the project or to within each population, narrow range, vulnerable to impacts that otherwise decide that overriding considerations and restricted habitat make these two might not be significant. Although D. make mitigation infeasible. In a case plant species susceptible to destruction

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Therefore, we find that population fluctuations or even habitat was not prudent because we critical habitat is prudent for both population extirpations are not usually believed it would not provide any Delphinium bakeri and D. luteum. a concern until the number of additional benefit beyond that provided The Final Listing Priority Guidance individuals or geographic distribution through listing as endangered. for FY 2000 (64 FR 57114) states, ‘‘The become as limited as they have for both In the last few years, a series of court processing of critical habitat Delphinium bakeri and D. luteum decisions have overturned Service determinations (prudency and (Primack 1993). Once a plant population determinations regarding a variety of determinability decisions) and proposed becomes significantly reduced due to species that designation of critical or final designations of critical habitat habitat destruction and fragmentation, habitat would not be prudent (e.g., will no longer be subject to the remnant population has a greater Natural Resources Defense Council v. prioritization under the Listing Priority probability of extinction from random U.S. Department of the Interior 113 F. Guidance. Critical habitat events. 3d 1121 (9th Cir. 1997); Conservation determinations, which were previously We have carefully assessed the best Council for Hawaii v. Babbitt, 2 F. Supp. included in final listing rules published scientific and commercial information 2d 1280 (D. Hawaii 1998)). Based on the in the Federal Register, may now be available regarding the past, present, standards applied in those judicial processed separately, in which case and future threats faced by these species opinions, we have reexamined the stand-alone critical habitat in determining this final rule. Habitat question of whether critical habitat for determinations will be published as loss and degradation, sheep grazing, Delphinium bakeri and D. luteum would notices in the Federal Register. We will inadequate regulatory mechanisms, be prudent. undertake critical habitat naturally occurring events, small plant Due to the small number of determinations and designations during populations, road maintenance populations both Delphinium bakeri FY 2000 as allowed by our funding activities, and overcollection imperil the and D. luteum are vulnerable to allocation for that year.’’ As explained continued existence of these plants. unrestricted collection, vandalism, or in detail in the Listing Priority Delphinium bakeri has 1 population other disturbance. We remain concerned Guidance, our listing budget is currently with a total of 35 plants. Delphinium that these threats might be exacerbated insufficient to allow us to immediately luteum has 2 small populations with a by the publication of critical habitat complete all of the listing actions total of fewer than 50 plants. Both plant maps and further dissemination of required by the Act. Deferral of the species are in danger of extinction locational information. However, we critical habitat designation for throughout all of their range, and the have examined the evidence available Delphinium bakeri and D. luteum has preferred action is therefore to list D. for Delphinium bakeri and D. luteum allowed us to concentrate our limited bakeri and D. luteum as endangered. and have not found specific evidence of resources on higher priority critical Other alternatives to this action were taking, vandalism, collection, or trade of habitat (including court ordered considered but not preferred because either species or any similarly situated designations) and other listing actions, not listing or listing as threatened would species. Consequently, consistent with while allowing us to put in place not be consistent with the Act. applicable regulations (50 CFR protections needed for the conservation 424.12(a)(1)(i)) and recent case law, we of Delphinium bakeri and D. luteum Critical Habitat do not expect that the identification of without further delay. However, because Critical habitat is defined in section 3, critical habitat will increase the degree we have successfully reduced, although paragraph (5)(A) of the Act as the of threat to this species of taking or not eliminated, the backlog of other specific areas within the geographical other human activity. listing actions, we anticipate in FY 2000 area occupied by a species, at the time In the absence of a finding that critical and beyond giving higher priority to it is listed in accordance with the Act, habitat would increase threats to a critical habitat designation, including on which are found those physical or species, if there are any benefits to designations deferred pursuant to the biological features essential to the critical habitat designation, then a Listing Priority Guidance, such as the conservation of the species and which prudent finding is warranted. In the designation for this species, than we may require special management case of this species, there may be some have in recent fiscal years. considerations or protection; and benefits to designation of critical We plan to employ a priority system specific areas outside the geographical habitat. The primary regulatory effect of for deciding which outstanding critical area occupied by the species at the time critical habitat is the section 7 habitat designations should be it is listed in accordance with the requirement that Federal agencies addressed first. We will focus our efforts provisions of section 4 of the Act, upon refrain from taking any action that on those designations that will provide a determination by the Secretary that destroys or adversely modifies critical the most conservation benefit, taking such areas are essential for the habitat. While a critical habitat into consideration the efficacy of critical conservation of the species. designation for habitat currently habitat designation in addressing the ‘‘Conservation’’ means the use of all occupied by this species would not be threats to the species, and the methods and procedures needed to likely to change the section 7 magnitude and immediacy of those bring the species to the point at which consultation outcome because an action threats. We will develop a proposal to listing under the Act is no longer that destroys or adversely modifies such designate critical habitat for both necessary. critical habitat would also be likely to Delphinium bakeri and D. luteum as In the proposed rule, we indicated result in jeopardy to the species, there soon as feasible, considering our that designation of critical habitat was may be instances where section 7 workload priorities. Unfortunately, for not prudent for Delphinium bakeri and consultation would be triggered only if the immediate future, most of Region 1’s D. luteum because of a concern that critical habitat is designated. Examples listing budget must be directed to publication of precise maps and could include unoccupied habitat or complying with numerous court orders

VerDate 042000 14:02 Jan 25, 2000 Jkt 190000 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 E:\FR\FM\26JAR1.SGM pfrm01 PsN: 26JAR1 Federal Register / Vol. 65, No. 17 / Wednesday, January 26, 2000 / Rules and Regulations 4161 and settlement agreements, as well as estimate costs of various tasks necessary conversions, wetland and riparian due and overdue final listing to accomplish them. The plan(s) also habitat modification, flood and erosion determinations (like the one at issue in would describe site-specific control, residential development, this case). management actions necessary to recreational trail development, road achieve conservation and survival of the construction, hazardous material Available Conservation Measures two plants. Additionally, pursuant to containment and cleanup activities, Conservation measures provided to section 6 of the Act, we would be able prescribed burns, pesticide/herbicide species listed as endangered or to grant funds to the State of California application, pipelines or utility lines threatened under the Endangered for management actions promoting the crossing suitable habitat) when such Species Act include recognition, protection and recovery of these species. activity is conducted in accordance with recovery actions, requirements for The Act and its implementing consultation conducted under section 7 Federal protection, and prohibitions regulations set forth a series of general of the Act; against certain activities. Recognition prohibitions and exceptions that apply (2) Residential landscape through listing results in public to all endangered plants. All maintenance (including irrigation) and awareness and conservation actions by prohibitions of section 9(a)(2) of the Act, the clearing of vegetation around one’s Federal, State, and local agencies, implemented by 50 CFR 17.61 for personal residence as a firebreak. private organizations, and individuals. endangered plants, apply. These We believe that the following actions The Act provides for possible land prohibitions, in part, make it illegal for could result in a violation of section 9; acquisition and cooperation with the any person subject to the jurisdiction of however, possible violations are not State and requires that recovery actions the United States to import or export, limited to these actions alone: be carried out for all listed species. The transport in interstate or foreign (1) Unauthorized collecting of the protection required of Federal agencies commerce in the course of a commercial species on Federal lands; and and the prohibitions against certain activity, sell or offer for sale in interstate (2) Interstate or foreign commerce and activities involving listed plants are or foreign commerce, or remove and import/export without previously discussed, in part, below. reduce to possession from areas under obtaining an appropriate permit. Section 7(a) of the Act requires Federal jurisdiction any such plant. In Permits to conduct activities are Federal agencies to evaluate their addition, the Act prohibits malicious available for purposes of scientific actions with respect to any species that damage or destruction on areas under research and enhancement of is proposed or listed as endangered or Federal jurisdiction, and the removal, propagation or survival of the species. threatened and with respect to its cutting, digging up, or damaging or Questions regarding whether specific critical habitat, if any is being destroying of such plants in knowing activities will constitute a violation of designated. Regulations implementing violation of any State law or regulation, section 9 should be directed to the Field this interagency cooperation provision or in the course of a violation of State Supervisor of the Sacramento Fish and of the Act are codified at 50 CFR part criminal trespass law. Certain Wildlife Office (see ADDRESSES section). 402. Section 7(a)(4) of the Act requires exceptions to the prohibitions apply to Requests for copies of the regulations Federal agencies to confer with us on our agents and State conservation regarding listed species and inquiries any action that is likely to jeopardize agencies. regarding prohibitions and permits may the continued existence of a proposed The Act and 50 CFR 17.62 and 17.63 be addressed to the U.S. Fish and species or result in destruction or also provide for the issuance of permits Wildlife Service, Endangered Species adverse modification of proposed to carry out otherwise prohibited Permits, 911 N.E. 11th Avenue, critical habitat. If a species is listed activities involving endangered plant Portland, Oregon 97232–4181 subsequently, section 7(a)(2) requires species. Such permits are available for (telephone 503/231–2063, facsimile Federal agencies to ensure that activities scientific purposes and to enhance the 503/231–6243). they authorize, fund, or carry out are not propagation or survival of the species. likely to jeopardize the continued We anticipate that few trade permits National Environmental Policy Act existence of such a species or to destroy would ever be sought or issued for the We have determined that an or adversely modify its critical habitat. two species because they are not environmental assessment, as defined If a Federal action may affect a listed common in cultivation or in the wild. under the authority of the National species or its critical habitat, the As published in the Federal Register Environmental Policy Act of 1969, need responsible Federal agency must enter on July 1, 1994 (59 FR 34272), our not be prepared in connection with into formal consultation with us. None policy to identify to the maximum regulations adopted pursuant to section of the populations of either species extent practicable at the time a species 4(a) of the Act, as amended. We occur on Federal land. Although one of is listed those activities that would or published a notice outlining our reasons the populations occurs adjacent to a would not constitute a violation of for this determination in the Federal county road, we believe it is unlikely section 9 of the Act. The intent of this Register on October 25, 1983 (48 FR that any activities would occur that policy is to increase public awareness of 49244). involve the use of Federal Highway the effect of the listing on proposed and Paperwork Reduction Act funds. We anticipate few if any section ongoing activities within a species’ 7 consultations for either species. range. This rule does not contain any Listing these two plants would We believe that, based upon the best collections of information that require provide for development of a recovery available information, the following Office of Management and Budget plan (or plans) for them. Such plan(s) actions will not likely result in a (OMB) approval under the Paperwork would bring together both State and violation of section 9, provided these Reduction Act, 44 U.S.C. 3501 et seq. Federal efforts for conservation of the activities are carried out in accordance An information collection related to the plants. The plan(s) would establish a with existing regulations and permit rule pertaining to permits for framework for agencies to coordinate requirements: endangered and threatened species has activities and cooperate with each other (1) Activities authorized, funded, or OMB approval and is assigned clearance in conservation efforts. The plan(s) carried out by Federal agencies (e.g., number 1018–0094. This rule does not would set recovery priorities and livestock grazing, agricultural alter that information collection

VerDate 042000 14:02 Jan 25, 2000 Jkt 190000 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 E:\FR\FM\26JAR1.SGM pfrm01 PsN: 26JAR1 4162 Federal Register / Vol. 65, No. 17 / Wednesday, January 26, 2000 / Rules and Regulations requirement. For additional information Wildlife Office (see ADDRESSES section); PART 17Ð[AMENDED] concerning permits and associated telephone 916/414–6464. requirements for endangered plants, see 1. The authority citation for part 17 List of Subjects in 50 CFR Part 17 50 CFR 17.62 and 17.63. continues to read as follows: Authority: 16 U.S.C. 1361–1407; 16 U.S.C. References Cited Endangered and threatened species, Exports, Imports, Reporting and 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500, unless otherwise noted. A complete list of all references in recordkeeping requirements, this document is available upon request Transportation. 2. Amend § 17.12(h) by adding the from the Field Supervisor, Sacramento following, in alphabetical order under Regulation Promulgation FLOWERING PLANTS, to the List of Fish and Wildlife Office (see ADDRESSES Endangered and Threatened Plants: section). For the reasons given in the preamble, Author: The primary author of this we amend part 17, subchapter B of § 17.12 Endangered and threatened plants. final rule is Kirsten Tarp, U.S. Fish and chapter I, title 50 of the Code of Federal * * * * * Wildlife Service, Sacramento Fish and Regulations, as set forth below: (h) * * *

Species Historic range Family Status When listed Critical habi- Special Scientific name Common name tat rules

FLOWERING PLANTS

******* Delphinium bakeri .... Baker's larkspur ...... U.S.A. (CA) ...... Ranunculaceae ...... E 681 NA NA

******* Delphinium luteum ... Yellow larkspur ...... U.S.A. (CA) ...... Ranunculaceae ...... E 681 NA NA

*******

Dated: December 15, 1999. predation by a non native predatory spot currently located near the southeast Jamie Rappaport Clark, snail, two species of non native marsh coast of the island of Hawaii (Stearns Director, U.S. Fish and Wildlife Service. flies, a non native fish, and two species 1985). Hawaii is the youngest island in [FR Doc. 00–1827 Filed 1–25–00; 8:45 am] of non native frogs. These populations the chain and is characterized by gently BILLING CODE 4310±55±P are also subject to an increased sloping shield volcanoes and currently likelihood of extirpation from naturally active lava flows. Volcanoes on the occurring events, including natural other islands are either dormant or DEPARTMENT OF THE INTERIOR disasters such as hurricanes and extinct. Ongoing erosion has formed landslides. This final rule implements steep-walled valleys with well Fish and Wildlife Service the Federal protection provisions developed soils and stream systems provided by the Act for Newcomb’s throughout the chain. Kauai, the oldest 50 CFR Part 17 snail. and most northwesterly of the main islands, is characterized by high rainfall, RIN 1018±AE27 EFFECTIVE DATE: This rule takes effect deep valleys, numerous perennial February 25, 2000. streams, and luxuriant vegetation. Endangered and Threatened Wildlife ADDRESSES: The complete file for this and Plants; Determination of Four species of Lymnaeidae snails are rule is available for inspection, by native to Hawaii (Morrison 1968 and Threatened Status for Newcomb's appointment, during normal business Snail From the Hawaiian Islands Hubendick 1952). Three of these species hours at the Pacific Islands Ecoregion, are found on two or more of the eight AGENCY: Fish and Wildlife Service, U.S. Fish and Wildlife Service, 300 Ala main islands. The fourth species, Interior. Moana Boulevard, Room 3–122, Box Newcomb’s snail, is restricted to the 50088, Honolulu, HI 96850. ACTION: Final rule. island of Kauai. Newcomb’s snail is FOR FURTHER INFORMATION CONTACT: unique among the Hawaiian lymnaeids SUMMARY: We, the U.S. Fish and Robert Smith, Pacific Islands Manager, in that the slender, tapering shape Wildlife Service (Service), determine Pacific Islands Ecoregion (see typically associated with the shells of the Newcomb’s snail (Erinna newcombi) ADDRESSES section) (808/541–2749; lymnaeids has been completely lost. to be a threatened species under the facsimile: 808/541–2756). The result is a smooth, black shell authority of the Endangered Species Act SUPPLEMENTARY INFORMATION: formed by a single, oval whorl, 6 of 1973, as amended (Act). This millimeters (mm) (0.25 inches (in.)) long freshwater snail is restricted to the Background and 3 mm (0.12 in.) wide. A similar Hawaiian Island of Kauai. The The Hawaiian archipelago comprises shell shape is found in a Japanese distribution of this snail has greatly eight main islands (Niihau, Kauai, lymnaeid (Burch 1968), but Burch’s decreased from the known historic Oahu, Molokai, Lanai, Kahoolawe, study of chromosome number shows distribution, and the existing Maui, and Hawaii) and their offshore that Newcomb’s snail has evolutionary populations are presently limited to islets, plus the shoals and atolls of the ties to the rest of the Hawaiian restricted habitats within six perennial Northwest Hawaiian Islands. The main lymnaeids, all of which are derived streams on State land. The six known islands and the northwestern chain from North American ancestors populations of Newcomb’s snail and its were formed sequentially by basaltic (Patterson and Burch 1978). This habitat are currently threatened by lava that emerged from a crustal hot parallel evolution of similar shell

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