Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Proposed Rules 61953 simply approve requirements that the register for the meeting and for the data petitioner, as follows: William G. Brady State is already imposing. Therefore, summaries please contact the Safe d/b/a KHJ Radio, 746 Shadow Lane, because the federal SIP-approval does Drinking Water Hotline (800) 426-4791 Kalispell, MT 59901. not impose any new requirements, I or Marty Kucera at US EPA (202) 260– FOR FURTHER INFORMATION CONTACT: certify that it does not have a significant 7773, [email protected]. Kathleen Scheuerle, Mass Media impact on any small entities affected. SUPPLEMENTARY INFORMATION: The Safe Bureau, (202) 418–2180. Moreover, due to the nature of the Drinking Water Act as amended in 1996 SUPPLEMENTARY INFORMATION: This is a federal-state relationship under the directs EPA to promulgate regulations summary of the Commission’s Notice of Clean Air Act, preparation of a requiring disinfection ‘‘as necessary’’ for Proposed Rule Making, MM Docket No. regulatory flexibility analysis would ground water systems. The intention of 97–232, adopted November 5, 1997, and constitute federal inquiry into the the GWDR is to reduce microbial released November 14, 1997. The full economic reasonableness of state action. contamination risk from public water text of this Commission decision is The Clean Air Act forbids EPA to base sources relying on ground water. To available for inspection and copying its actions concerning SIPs on such determine if treatment is necessary, the during normal business hours in the grounds. Union Electric Co. v US EPA, rule will establish a framework to Commission’s Reference Center (Room 427 US 246, 256–66 (S.Ct. 1976); 42 identify public water supplies 239), 1919 M Street, NW., Washington, U.S.C. 7410(a)(2). vulnerable to microbial contamination DC. The complete text of this decision List of Subjects in 40 CFR Part 52 and to develop and implement risk may also be purchased from the control strategies including but not Commission’s copy contractors, Environmental protection, Air limited to disinfection. This rulemaking International Transcription Services, pollution control, Nitrogen dioxide, will apply to all public water systems Inc., 1231 20th Street, NW., Ozone, Volatile organic compounds. that use ground water, which includes Washington, DC 20036, (202) 857–3800, Authority: 42 U.S.C. 7401–7671q. noncommunity systems. facsimile (202) 857–3805. Dated: November 6, 1997. Dated: November 17, 1997. Provisions of the Regulatory Flexibility Act of 1980 do not apply to William J. Muszynski, William R. Diamond, this proceeding. Acting Regional Administrator. Acting Director for Office of Ground Water and Drinking Water. Members of the public should note [FR Doc. 97–30521 Filed 11–19–97; 8:45 am] [FR Doc. 97–30556 Filed 11–19–97; 8:45 am] that from the time a Notice of Proposed BILLING CODE 6560±50±P BILLING CODE 6560±50±P Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex ENVIRONMENTAL PROTECTION parte contacts are prohibited in AGENCY FEDERAL COMMUNICATIONS COMMISSION Commission proceedings, such as this 40 CFR Parts 141 and 142 one, which involve channel allotments. 47 CFR Part 73 See 47 CFR 1.1204(b) for rules [FRL±5923±6] governing permissible ex parte contact. [MM Docket No. 97±232, RM±9191] For information regarding proper Notice of Public Meeting on the filing procedures for comments, see 47 Ground Water Disinfection Rule Radio Broadcasting Services; Eureka, MT CFR 1.415 and 1.420. AGENCY: Environmental Protection List of Subjects in 47 CFR Part 73 AGENCY: Federal Communications Agency. Commission. Radio broadcasting. ACTION: Proposed rule; notice of ACTION: Proposed rule. meeting. Federal Communications Commission. SUMMARY: This document requests John A. Karousos, SUMMARY: Notice is hereby give that the comments on a petition filed by William Chief, Allocations Branch, Policy and Rules Environmental Protection Agency (EPA) G. Brady d/b/a KHJ Radio proposing the Division, Mass Media Bureau. is holding a public meeting concerning allotment of Channel 228C3 at Eureka, [FR Doc. 97–30414 Filed 11–19–97; 8:45 am] the Ground Water Disinfection Rule Montana, as that community’s first local BILLING CODE 6712±01±P (GWDR). The objective of this meeting FM broadcast service. The channel can is to provide the public with data be allotted to Eureka without a site summaries to support the GWDR restriction at coordinates 48–52–54 and DEPARTMENT OF THE INTERIOR development; ask for comments on the 115–02–54. Although it is not necessary data; solicit further data if available; to site restrict the allotment, we will Fish and Wildlife Service discuss the EPA’s next steps for the rule request concurrence from the Canadian 50 CFR Part 17 development and data analysis; as well Government for Channel 228C3 as a as to identify parties who may be specially negotiated short-spaced RIN 1018±AE44 interested in further meetings. allotment. Channel 228C3 at Eureka is DATES: The meetings will be held on short spaced to vacant Channel 226C, Endangered and Threatened Wildlife December 18 and 19, 1997. Cranbrook, British Columbia, Canada. and Plants; Proposed Endangered Status for the Plant Plagiobothrys ADDRESSES: The meetings will be held at DATES: Comments must be filed on or the Ana Hotel at 2401 M street, NW, before January 5, 1998, and reply Hirtus (Rough Popcornflower) Washington, D.C. 20037. The hotel’s comments on or before January 20, AGENCY: Fish and Wildlife Service, phone number is (202) 429–2400. 1998. Interior. FOR FURTHER INFORMATION CONTACT: EPA ADDRESSES: Federal Communications ACTION: Proposed rule. will provide a copy of the data Commission, Washington, DC 20554. In summaries a few weeks prior to the addition to filing comments with the SUMMARY: The U.S. Fish and Wildlife meeting to anyone who requests it. To FCC, interested parties should serve the Service (Service) proposes endangered 61954 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Proposed Rules species status pursuant to the height and has a fairly stout stem with cause of extirpation at these sites Endangered Species Act of 1973, as widely spreading, coarse, firm hairs on (Gamon and Kagan 1985). In 1961, a amended (Act) for the plant the upper part. The leaves of the main collection was made adjacent to Plagiobothrys hirtus (rough stem are opposite (paired) and the Interstate 5 south of Yoncalla, a site popcornflower). This species is racemes are paired and without bracts. which remains extant today (J. Kagan, restricted to wet swales and meadows in The individual flowers are 1–2 pers. comm. 1997). Douglas County, Oregon, where only 10 millimeters (0.4–0.6 inches (in)) wide, Despite the few pre-1961 collections, occurrences are known. Most and white in color (Gamon and Kagan Plagiobothrys hirtus was probably populations are small with few 1985). It grows in scattered groups and widespread historically on the individuals. The total estimated number reproduces largely by insect-aided floodplains of the interior valleys of the of plants is 3,000 within a combined cross-pollination and partially by self- Umpqua River. Because P. hirtus occurs area of about 4 hectares (ha) (10 acres pollination. The species is distinguished in low-lying areas, seeds were likely (ac)). Threats to this species include from other Plagiobothrys species by dispersed by flood waters, resulting in destruction and/or alteration of habitat coarse, sparse hairs on the stem and a patchy clumped distribution on the by development and hydrological branches (Gamon and Kagan 1985). floodplains (Gamon and Kagan 1985). changes (e.g., wetland fills, draining, Plagiobothrys hirtus grows in open, Natural processes such as flooding and construction); spring and summer seasonal wetlands in poorly-drained fire maintained open, wetland habitat grazing by domestic cattle, horses, and clay or silty clay loam soils (Gamon and (Gamon and Kagan 1985). Draining of sheep; roadside maintenance; and Kagan 1985). The taxon is considered wetlands for urban and agricultural uses competition from native and alien plant dependent on seasonal flooding and/or and road and reservoir construction, species. This proposal, if made final, fire to maintain open habitat and to however, has altered the original would implement the Federal protection limit competition with invasive native hydrology of the valley to such an and recovery programs of the Act for and alien plant species such as extent that the total area of suitable this plant. Himalayan blackberry (Rubus discolor), habitat for P. hirtus has been DATES: Comments from all interested Oregon ash (Fraxinus latifolia), teasel significantly reduced. In addition, fire parties must be received by January 20, (Dipsacus fullonum), and pennyroyal suppression has allowed the invasion of 1998. Public hearing requests must be (Mentha pulegium) (Gamon and Kagan woody and herbaceous species into received by January 5, 1998. 1985, Almasi and Borgias 1996). formerly open wetland habitats (Gamon ADDRESSES: Comments and materials Plagiobothrys hirtus occurs in open and Kagan 1985). concerning this proposal should be sent microsites within the one-sided sedge Plagiobothrys hirtus is now limited to to the State Supervisor, U.S. Fish and (Carex unilateralis)—meadow barley 10 known occurrences in the vicinity of Wildlife Service, Oregon State Office, (Hordeum brachyantherum) community Sutherlin and Yoncalla, Oregon (ONHP 2600 S.E. 98th Ave., Suite 100, Portland, type within interior valley grasslands. 1996). All extant populations of this species are small (i.e., fewer than 500 Oregon 97266. Comments and materials Other frequently associated species individuals) and occur in disjunct received will be available for public include tufted hairgrass (Deschampsia habitat. The 10 occurrences are inspection by appointment during cespitosa), American slough grass estimated to have a total of about 3,000 normal business hours at the above (Beckmannia syzigachne), great camas individuals and a combined area of less address. (Camassia leichtlinii var. leichtlinii), water foxtail (Alopecurus geniculatus), than 4 ha (10 ac) (Amsberry and Meinke FOR FURTHER INFORMATION CONTACT: baltic rush (Juncus balticus), wild mint 1997). Andrew Robinson, Botanist, at the (Mentha arvensis), Willamette All extant populations are at risk of above address or by telephone (503/ downingia (Downingia yina), and extirpation due to a variety of threats 231–6179). bentgrass (Agrostis alba) (Gamon and (Almasi and Borgias 1996; J. Kagan, SUPPLEMENTARY INFORMATION: Kagan 1985). pers. comm. 1997; R. Meinke, Oregon Plagiobothrys hirtus is endemic to the State University, pers. comm. 1997). In Background interior valley of the Umpqua River in addition to the ongoing threat of direct Plagiobothrys hirtus was first southwestern Oregon. The species was loss of habitat from conversion to urban collected by Thomas Howell in 1887 collected only four times between 1887 and agricultural uses, hydrological and described the following year as and 1961, all at sites within Douglas alterations, and fire suppression, other Allocarya hirta (Greene 1888). County (Gamon and Kagan 1985). The threats to the species include spring and Subsequent taxonomic treatments taxon was considered possibly extinct summer livestock grazing, and roadside included A. scouleri var. hirta, P. (Meinke 1982) until it was rediscovered mowing, spraying and landscaping scouleri var. hirtus, A. calycosa, and P. in 1983 as a result of intensive field (Gamon and Kagan 1985, J. Kagan, pers. hirtus (Gamon and Kagan 1985). surveys (Jimmy Kagan, Oregon Natural comm. 1995). Six of the 10 extant Johnston recognized two varieties of the Heritage Program (ONHP), pers. comm. occurrences are adjacent to highways. species, P. hirtus var. hirtus and P. 1997). The location of the first The other four occurrences are in urban hirtus var. collaricarpus (Gamon and specimen, collected by Howell on June or agricultural areas. Kagan 1985). Later, Chambers (1989) 25, 1887, was given only as the Umpqua Nine of the 10 known occurrences are considered the material included in the Valley (Greene 1888). The sites of on private land. The other population is variety collaricarpus to be a variety of collections from 1932 and 1939, were on public land owned by the Oregon P. figuratus, which elevated the material from 16 kilometers (km) (10 miles (mi)) Department of Transportation (ODOT). assigned to P. hirtus var. hirtus to a full east of Sutherlin and 3 km (2 mi) north One of the private parcels is owned and species. of Yoncalla, respectively (Siddall and managed for the species by The Nature A member of the borage family Chambers 1978) . Both sites were Conservancy (TNC). The other eight (Boraginaceae), Plagiobothrys hirtus is surveyed in 1983, but no plants were occurrences on private lands have no an annual herb on drier sites or found (Gamon and Kagan 1985). At the protective management for the species perennial herb on wetter sites time, the sites were heavily grazed by and are at risk of extirpation from (Amsberry and Meinke 1997). It reaches sheep, which lead the botanists to development, incompatible grazing 30–70 centimeters (cm) (1–2 feet (ft)) in speculate that grazing was the probable practices, and recreational activities (J. Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Proposed Rules 61955

Kagan, pers. comm, 1997; R. Meinke, hirtus as a candidate species. Candidate 1983, these sites were the largest known pers. comm., 1997) species are those for which the Service occurrences (ONHP 1996). One site, has on file sufficient information on with approximately 200 individuals in Previous Federal Action biological vulnerability and threats to 1983, has since been destroyed and only Federal action on Plagiobothrys hirtus support proposals to list the species as 1 plant was found in 1996; development began when the Secretary of the threatened or endangered. of this site is imminent (J. Kagan, pers. Smithsonian Institute prepared a report Section 4(b)(3)(B) of the Act requires comm. 1997). The other site, estimated on plants considered to be endangered, the Secretary to make findings on to have 300–500 plants when threatened, or extinct, pursuant to pending petitions within 12 months of discovered in 1983, has been declining section 12 of the Act. That report, their receipt. Section 2(b)(1) of the 1982 since that time. In 1994, a portion of the designated as House Document No. 94– amendments further requires that all wetland at the site was filled, and the 51, was presented to Congress on petitions pending on October 13, 1982, remaining area was observed to be January 9, 1975. On July 1, 1975, the be treated as having been newly significantly impacted by mountain bike Service published a notice in the submitted on that date. This was the recreation; only about 50–100 plants Federal Register (40 FR 27823) case for P. hirtus because of the were present (J. Kagan, pers. comm. accepting the report as a petition within acceptance of the 1975 Smithsonian 1995). Urban development of this site is the context of section 4(c)(2) (now Report as a petition. On October 13, considered likely (J. Kagan, pers. comm. section 4(b)(3)(A)) of the Act. The notice 1983, the Service found that the 1997, R. Meinke, pers. comm. 1997). further indicated the Service’s intention petitioned listing of this species was Three sites are known on private land to review the status of the plant species warranted, but precluded by other about 1.6 km (1 mi) east of Sutherlin. named therein. As a result of this pending listing actions, in accordance One of these, when discovered in 1983, review, the Service published a with section 4(b)(3)(B)(iii) of the Act; had about 30–35 plants within an area proposed rule in the Federal Register on notice of this finding was published on of about 200 square meters (m2) (2,200 June 16, 1976, (41 FR 24523), to January 20, 1984 (49 FR 2485). Such a square feet (ft2)). The site lies within the determine approximately 1,700 vascular finding requires the petition to be Sutherlin urban growth boundary and is plant species to be endangered pursuant recycled pursuant to section 4(b)(3)(C)(I) slated for development (ONHP 1996). to section 4 of the Act. This list, which of the Act. The finding was reviewed The other two sites were discovered in included P. hirtus, was assembled on annually in October of 1984 through 1986. One of these had 200 plants in the basis of comments and data received 1995. Publication of this proposal 1986, but by 1988 had only 30–40 plants by the Smithsonian Institute and the constitutes the final 1-year finding for scattered over an area of 25 m2 ( 275 ft2). Service in response to House Document the petitioned action. Habitat conditions on this site are No. 94–51 and the July 1, 1975 Federal Plagiobothrys hirtus has a listing described as marginal (ONHP 1996). Register publication. In 1978, priority number of 2. Processing of this The other site also had about 200 plants amendments to the Act required that all rule is a Tier 3 activity under the when first observed in 1986, but by proposals over 2 years old be current listing priority guidance. withdrawn. A 1-year grace period was 1988 had decreased to about 100 plants given to proposals already over 2 years Summary of Factors Affecting the (ONHP 1996). During the most recent old. On December 10, 1979, the Service Species site survey in 1993, only 50–100 plants published a notice in the Federal Section 4 of the Endangered Species were seen (J. Kagan, pers. comm. 1997). Register (44 FR 70796) of the Act (16 U.S.C. 1533) and regulations (50 Four additional sites are known on withdrawal of that portion of the June CFR part 424) promulgated to private land several kilometers south of 16, 1976, proposal that had not been implement the listing provisions of the the town of Sutherlin. One of these, made final, along with four other Act set forth the procedures for adding when discovered in 1983, consisted of proposals that had expired. species to the Federal lists. A species about 150 plants growing in an area of The Service published an updated may be determined to be an endangered about 50 m2 (550 ft2). In 1996, only Notice of Review for plants on or threatened species due to one or more about 50 plants remained. Two other December 15, 1980 (50 FR 82480), of the five factors described in section sites were both discovered in 1984. One including Plagiobothrys hirtus as a 4(a)(1) of the Act. These factors and consisted of 50–60 plants in a 30 m2 category 1 candidate species. Category 1 their application to Plagiobothrys hirtus (330 ft2) area, and the other had 200–300 species were those for which the Service Greene (rough popcornflower) are as plants (ONHP 1996). Both occurrences had on file substantial information on follows: had generally decreasing numbers of biological vulnerability and threats to A. The present or threatened individuals through the late 1980’s. support preparation of listing proposals. destruction, modification, or TNC acquired a portion of the larger of This status was changed to category 2 in curtailment of habitat or range. the two occurrences and began formal the November 28, 1983, supplement to Plagiobothrys hirtus is threatened by monitoring in 1995. Individuals were the notice (48 FR 53657), and remained destruction and modification of its too numerous for a complete census in as such in the September 27, 1985, wetland habitat (R. Meinke, pers. comm. 1995 with the total population on the Notice of Review (50 FR 39527). 1997). Although the species is believed site estimated at over 16,000 Category 2 species were those for which to have been more abundant in the past individuals. In 1996, however, the conclusive data on biological throughout the interior valleys of the population plummeted to only 394 vulnerability and threats were not Umpqua River, it is now limited to 10 plants, a drop attributed to an extensive currently available to support proposed small, isolated occurrences. Direct loss period of standing water on the preserve rules. In the February 21, 1990, Notice of habitat from hydrological alterations, that year due to a wet spring (Almasi of Review (55 FR 6185), this status was wetland filling, or conversion to other and Borgias 1996). See Factor E changed back to category 1. Upon uses pose a threat to all 10 extant discussion for further details on this publication of the February 28, 1996, occurrences. population decline. The fourth site, Notice of Review in the Federal Register Two sites occur on private land when discovered in 1990, had fewer (61 FR 7596), the Service ceased using within the urban boundary of the town than 50 plants (J. Kagan, pers. comm. category designations and included P. of Sutherlin. When first discovered in 1995). 61956 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Proposed Rules

The last site is on public land and lands managed by ODOT and has been fires during the growing season, insect private land about 22 km (14 mi) north designated by the agency as a Special or disease outbreaks, or toxic chemical of Sutherlin near the town of Yoncalla. Management Area. Mowing and spills. The rapid, and as yet This site is the locality of the 1961 spraying practices have been modified unexplained, collapse of the population collection that was relocated in 1983. to protect the species at this site where at the TNC preserve argues for the About 200 plants were present in 1988, the plant appears to be stable or protection of all extant sites to shield and the population size has continued increasing (N. Testa, Oregon Department the species from random events that to increase under management by of Transportation, pers. comm. 1997). could cause its extinction. Small, ODOT. Although the population on E. Other natural or manmade factors isolated populations may also have an public land appears vigorous, a portion affecting its continued existence. Nine adverse effect on pollinator activity, of the population on the adjacent of 10 extant sites of Plagiobothrys hirtus seed dispersal, and gene flow. The private land appears to have vanished (J. occur adjacent to major highways existence of both annual and perennial Kagan, pers. comm. 1997). Alterations (Interstate 5 and/or State Route 99) or populations in P. hirtus suggests that in site hydrology pose the primary railroad beds. Herbicide spraying and some local genetic differentiation may threat to the plants (R. Meinke, Oregon highway landscaping has affected and already exist among populations of the State University, pers. comm. 1997). reduced at least one P. hirtus population species. Genetic drift within small, B. Overutilization for commercial, (J. Kagan, pers. comm. 1995). Mowing is isolated populations can lead to a loss recreational, scientific, or educational also part of the routine maintenance of of genetic variability and a reduced purposes. No evidence of overutilization roadways. As with livestock grazing, likelihood of long-term viability (Soule´ of this taxon for any purpose exists at mowing or pesticide spraying during the in Lesica and Allendorf 1992). this time. However, the plants are easily spring may reduce seed set and thereby The Service has carefully assessed the accessible by road, and the small negatively affect populations of the best scientific and commercial population sizes make them vulnerable plant. Late season mowing has benefited information available concerning the to overcollection by botanical the P. hirtus population at the ODOT past, present, and future threats faced by enthusiasts. site, probably by reducing competition this species in determining to propose C. Disease or predation. Grazing has from other plants and herbivory by this rule. Based on this evaluation, the likely been a contributing factor in voles (R. Meinke, pers. comm. 1997). preferred action is to list Plagiobothrys declining Plagiobothrys hirtus numbers With the exception of the P. hirtus hirtus as endangered. Filling of its throughout its historic range (Gamon populations in ODOT’s Special wetland habitat for development, and Kagan 1985). Livestock graze in Management Area and The Nature livestock grazing during its growing pastures containing four of the Conservancy’s Popcorn Swale, none of season, invasion by competitive plant occurrences (ONHP 1996). The timing the roadside occurrences are protected species as a result of hydrological and intensity of grazing, however, from herbicide spraying, landscaping or alteration and fire suppression, and determine the effects of grazing on the early season mowing. In addition, roadside spraying and mowing continue plant. Grazing during spring and early roadside occurrences are at risk of toxic to reduce plant numbers and habitat. summer likely threatens P. hirtus. When chemical spills and runoff containing The small, isolated occurrences with herbivores eat the flower or seed head oil and grease (N. Testa, pers. comm. few individuals make the species more of the plant, the reproductive output for 1997). Vehicle accidents also increase vulnerable. In addition, continued the year for that individual is destroyed. the risk of fuel contamination or fire; decreases in the number of occurrences This activity may be more significant at such an accident recently occurred and individuals could result in sites where the species functions as an adjacent to the ODOT population, but decreased genetic variability. The varied annual (Gamon and Kagan 1985). the plant was not affected (N. Testa, and cumulative threats to P. hirtus However, where fires and flooding no pers. comm. 1997). indicate the species is in danger of longer occur, grazing may benefit the Encroachment by native and alien extinction throughout its range. For species. Fall grazing, in particular, may plant species increases when natural these reasons, the Service believes that be of benefit because the plant is processes like fire or flooding are altered listing P. hirtus as endangered is the dormant during at this time and grazing (J. Kagan, pers. comm. 1997; R. Meinke, most appropriate action. Failure to list can keep the habitat open by reducing pers. comm. 1997). After a 1985 fire at this species would likely result in the growth of competing species one of the sites in Sutherlin, the plants extinction of the species. Threatened (Gamon and Kagan 1985). By reducing responded the following year with status is not appropriate because all of vegetative growth, fall grazing or vigorous growth (J. Kagan, pers. comm. the extant occurrences of P. hirtus are mowing (see factor E discussion) may 1997). As with late season grazing or small, and 8 of 10 occurrences have no also lower the suitability of the habitat mowing, late season fire is likely to be protection from mowing, herbicide for voles and, thereby, reduce herbivory of benefit, while fire which occurs prior application, imminent urbanization, and on the plant. to seed set may have negative grazing threats. In addition, one of the D. Inadequacy of existing regulatory consequences to Plagiobothrys hirtus. protected occurrences recently suffered mechanisms. Under the Oregon The encroachment of weedy, and a precipitous, and as yet unexplained, Endangered Species Act (ORS 564.100– especially woody, species may also alter reduction in numbers. Not listing the 564.135) and pursuant regulations (OAR site hydrology by capturing more of the taxon or listing it as threatened would 603, Division 73), the Oregon available water, an alternative not provide adequate protection and Department of Agriculture has listed explanation for the dramatic collapse of would not be consistent with the Act. Plagiobothrys hirtus as endangered the population at the TNC preserve (OAR 603–73–070). This statute between 1995 and 1996 (see Factor A; Critical Habitat prohibits the ‘‘take’’ of State-listed R. Meinke, pers. comm. 1997). Critical habitat is defined in section 3 plants on State, county, and city owned Because of the small, isolated nature of the Act as: (i) The specific areas or leased lands. Most occurrences of P. of the occurrences and the few within the geographical area occupied hirtus occur on private land and are not individuals present in most of them, by a species, at the time it is listed in subject to any current regulations. One Plagiobothrys hirtus is also more accordance with the Act, on which are site is adjacent to State Route 99 on susceptible to random events, such as found those physical or biological Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Proposed Rules 61957 features (I) essential to the conservation Highway Administration may become destroy or adversely modify its critical of the species and (II) that may require involved (see ‘‘Available Conservation habitat. If a Federal action may affect a special management considerations or Measures’’ section below), any such listed species or its critical habitat, the protection; and (ii) specific areas Federal involvement would also require responsible Federal agency must enter outside the geographical area occupied consultation under section 7 of the Act. into consultation with the Service. by a species at the time it is listed, upon Any action that would adversely modify Because Plagiobothrys hirtus occurs a determination that such areas are critical habitat would also jeopardize in wetlands, regulatory mechanisms essential for the conservation of the the continued existence of the species. under the Clean Water Act apply to this species. ‘‘Conservation’’ means the use Most occurrences of this plants are of species. Under section 404 of the Clean of all methods and procedures needed such small size that a wetland fill less Water Act, the U.S. Army Corps of to bring the species to the point at than the 0.13 ha (0.34 ac) regulatory Engineers (Corps) regulates the which listing under the Act is no longer threshold (see ‘‘Available Conservation discharge of fill material into the waters necessary. Measures’’ section below) would of the United States, including Section 4(a)(3) of the Act, as eliminate it. The designation of critical wetlands. To be in compliance with the amended, and implementing regulations habitat would not provide additional Clean Water Act, potential applicants (50 CFR 424.12) require that, to the benefits for this species beyond the are required to notify the Corps prior to maximum extent prudent and protection afforded by listing. undertaking any activity that would determinable, the Secretary designate The Service finds, therefore, that result in the fill of wetlands under the critical habitat at the time the species is designation of critical habitat for this Corps’ jurisdiction (e.g., grading, determined to be endangered or species is not prudent because such discharge of soil or other fill material, threatened. The Service finds that designation would likely increase the etc.). Nationwide Permit Number 26 (33 designation of critical habitat is not degree of threat to the species from CFR 330.5 and 33 CFR 330, App. A) has prudent for P. hirtus. Service vandalism and would provide no been issued to regulate the fill of regulations (50 CFR 424.12(a)(1)) state additional benefit to the species’ wetlands that are not larger than 1.2 ha that designation of critical habitat is not protection. Protection of the species’ (3 ac), nor cause the loss of waters of the prudent when one or both of the habitat will be addressed primarily United States for a distance of more following situations exist—(1) The through the recovery process. than 150 linear m (500 linear ft) of species is threatened by taking or other Available Conservation Measures streambed (61 FR 65874). Where fill human activity, and identification of critical habitat can be expected to Conservation measures provided to would occur in a wetland less than 0.13 increase the degree of threat to the species listed as endangered or ha (0.34 ac) in size, no requirement species, or (2) such designation of threatened under the Act include exists to notify the Corps prior to fill critical habitat would not be beneficial recognition, recovery actions, activities. Where fill would occur in a to the species. requirements for Federal protection, and wetland of 0.13 ha (0.34 ac) to 1.2 ha (3 Although overutilization is not prohibitions against certain practices. ac) in size, the Corps circulates for considered to be a threat to Recognition through listing results in agency comment a predischarge Plagiobothrys hirtus at this time, listing public awareness and conservation notification to the Service and other of this species as endangered would actions by Federal, State, and local interested parties prior to determining publicize its rarity and, thus, can make agencies, private organizations, and whether or not the proposed fill activity it more attractive to researchers or individuals. The Act provides for qualifies under Nationwide Permit 26. collectors of rare plants. Most possible land acquisition and Individual permits are required for the occurrences are small enough that even cooperation with the states and requires discharge of fill into wetlands that are limited collecting pressure could have that recovery actions be carried out for greater than 1.2 ha (3 ac) in size. The adverse impacts. The Service is also all listed species. The protection review process for the issuance of aware of a report that, after the species required by Federal agencies and the individual permits is more extensive, was listed by the State of Oregon, a prohibitions against certain activities and conditions may be included that landowner contacted by State botanists involving listed plants are discussed, in require the avoidance or mitigation of to discuss protective measures for a part, below. environmental impacts. The Corps has population on his property allegedly Section 7(a) of the Act requires discretionary authority and can require responded by blading the site and Federal agencies to evaluate their an applicant to seek an individual destroying the population (J. Kagan, actions with respect to any species that permit if the Corps believes that the pers. comm. 1997). The publication of is proposed or listed as endangered or resources are sufficiently important, precise maps and descriptions of critical threatened and with respect to its regardless of the wetland’s size. In habitat in the Federal Register would critical habitat, if any is being practice, the Corps rarely requires an make this plant more vulnerable to designated. Regulations implementing individual permit when a project would incidents of collection and/or vandalism this interagency cooperation provision qualify for a Nationwide Permit, unless and, therefore, contribute to the decline of the Act are codified at 50 CFR part a federally threatened, endangered, or of this species and increase enforcement 402. Section 7(a)(4) of the Act requires proposed species occurs on the site. If problems. Federal agencies to confer with the a federally threatened or endangered Further, designation of critical habitat Service on any action that is likely to species or a proposed species may be for Plagiobothrys hirtus is not prudent jeopardize the continued existence of a affected by a proposed project, the for lack of benefit. This plant does not species proposed for listing or result in Corps must ensure that it does not occur on Federal land, and it is not destruction or adverse modification of authorize, fund or carry out any action believed to have historically occurred proposed critical habitat. If a species is that is likely to jeopardize the species’ on Federal land. Although a potential listed subsequently, section 7(a)(2) continued existence, pursuant to section nexus for Federal action exists for all requires Federal agencies to ensure that 7(a)(2) of the Endangered Species Act. occurrences within section 404 of the activities they authorize, fund, or carry Therefore, if an applicant’s project site Clean Water Act and for some out are not likely to jeopardize the has one or more listed species on it, the occurrences in which the Federal continued existence of the species or Corps would be required to enter into 61958 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Proposed Rules consultation with the Service. Should P. illegal for any person subject to the Public Comments Solicited hirtus become listed, the species may be jurisdiction of the United States to afforded increased protection through import or export, transport in interstate The Service intends that any final consultation on Corps permits. or foreign commerce in the course of a action resulting from this proposal will In addition, the Federal Highway commercial activity, sell or offer for sale be as accurate and as effective as Administration would become involved in interstate or foreign commerce, or possible. Therefore, comments or with Plagiobothrys hirtus when highway remove and reduce the species to suggestions from the public, other maintenance is funded, even in part, by possession from areas under Federal concerned governmental agencies, the the Federal government. Any State jurisdiction. In addition, for plants scientific community, industry, or any highway activity being implemented by listed as endangered, the Act prohibits other interested party concerning this ODOT that is partly funded by the the malicious damage or destruction on proposed rule are hereby solicited. Federal government would be subject to areas under Federal jurisdiction and the Comments are particularly sought review under the Act. In addition, removal, cutting, digging up, or concerning: Department of Housing and Urban damaging or destroying of such plants Development projects and Natural in knowing violation of any State law or (1) Biological, commercial trade, or other Resources Conservation Service projects regulation, including State criminal relevant data concerning any threat (or lack in areas that presently support P. hirtus trespass law. Certain exceptions to the thereof) to Plagiobothrys hirtus; would also be subject to review under prohibitions apply to agents of the (2) The location of any additional section 7 of the Act. Service and State conservation agencies. occurrences of this species and the reasons Listing of this plant would provide for It is the policy of the Service, why any habitat should or should not be development of a recovery plan for the published in the Federal Register on determined to be critical habitat pursuant to plant. Such a plan would bring together July 1, 1994 (59 FR 34272), to identify section 4 of the Act; State, Federal and private efforts for to the maximum extent practicable at (3) Additional information concerning the conservation of the plant. The plan the time a species is listed those range, distribution, and population size of would establish a framework for activities that would or would not this species; and agencies to coordinate activities and constitute a violation of section 9 of the (4) Current or planned activities in the cooperate with each other in Act. The intent of this policy is to subject area and their possible impacts on conservation efforts. The plan would set increase public awareness of the effect Plagiobothrys hirtus. recovery priorities, note responsible of the listing on proposed and ongoing Any final decision on this proposal parties, and estimate costs of various activities within a species’ range. will take into consideration the tasks necessary to accomplish them. It Activities that would constitute a comments and any additional would also describe site-specific violation of section 9 of the Act include information received by the Service, and management actions necessary to removing, damaging or destroying such communications may lead to a achieve conservation and survival of the Plagiobothrys hirtus in violation of State plant. Additionally, pursuant to section law. In addition, collection on Federal final regulation that differs from this 6 of the Act, the Service would be able lands without a permit and other proposal. to grant funds to Oregon for actions considered to be malicious The Act provides for one or more management actions promoting the damage to the species on Federal lands public hearings on this proposal, if protection and recovery of this species. would be prohibited, although P. hirtus requested. Requests must be received Two sites currently receive some is not currently known to occur on within 45 days of the date of publication protective management. The site owned Federal lands. Activities that are not of the proposal in the Federal Register. and managed by ODOT has been likely to violate section 9 of the Act Such requests must be made in writing designated as a Special Management include routine landscape maintenance, and addressed to the State Supervisor, Area. Mowing is restricted to late in the clearing of vegetation for firebreaks, and Oregon State Office (see ADDRESSES fall when Plagiobothrys hirtus is livestock grazing on privately-owned section). dormant (N. Testa, pers. comm. 1997). land. Questions regarding whether The other site in protective ownership specific activities may constitute a National Environmental Policy Act is owned and managed by TNC. This violation of section 9 should be site, which currently contains about 400 addressed to the State Supervisor of the The Fish and Wildlife Service has individual plants, is being actively Service’s Oregon State Office (see determined that Environmental managed for the protection and ADDRESSES section). Assessments and Environmental Impact development of P. hirtus habitat (Almasi The Act and 50 CFR 17.62 and 17.63 Statements, as defined under the and Borgias 1996). Monitoring, life also provide for the issuance of permits authority of the National Environmental history studies, and transplantation to carry out otherwise prohibited Policy Act of 1969, need not be experiments using field-collected seed activities involving endangered plants prepared in connection with regulations have been initiated at these two sites. under certain circumstances. Such adopted pursuant to section 4(a) of the The objectives of these efforts are to permits are available for scientific Endangered Species Act of 1973, as increase population sizes, and establish purposes and to enhance the amended. A notice outlining the protocols for seed collection, propagation or survival of the species. Service’s reasons for this designation greenhouse propagation, and Requests for copies of the regulations was published in the Federal Register transplantation techniques (Amsberry concerning listed plants and animals on October 25, 1983 (48 FR 49244). and Meinke 1997). and general inquiries regarding The Act and its implementing prohibitions and permits may be Required Determinations regulations set forth a series of general addressed to the U.S. Fish and Wildlife prohibitions and exceptions that apply Service, Ecological Services, The Service has examined this to all endangered plants. All Endangered Species Permits, 911 N.E. regulation under the Paperwork prohibitions of section 9(a)(2) of the Act, 11th Avenue, Portland, Oregon, 97232– Reduction Act of 1995, and found it to implemented by 50 CFR 17.61, apply. 4181 (503/231–2063; FAX 503/231– contain no information collection These prohibitions, in part, make it 6243). requirements. Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Proposed Rules 61959

References Cited Meinke, R.J. 1982. Threatened and recordkeeping requirements, Endangered Vascular Plants of Oregon: Transportation. Almasi, K. and D. Borgias. 1996. Monitoring An Illustrated Guide. Unpublished plan: Plagiobothrys hirtus ssp. hirtus. report to the U.S. Fish and Wildlife Proposed Regulation Promulgation Unpublished report by The Nature Service. 352 pp. Conservancy, Southwestern Oregon Accordingly, the Service hereby Oregon Natural Heritage Program. 1996. proposes to amend part 17, subchapter Office, Ashland, OR. 5 pp. Biological Conservation Database: Amsberry, K. and R.J. Meinke. 1997. Plagiobothrys hirtus Element Occurrence B of chapter I, title 50 of the Code of Restoring the Popcorn-flower. U.S. Fish Records. Unpublished report of the Federal Regulations, as set forth below: and Wildlife Service Endangered Species Oregon Natural Heritage Program, Bulletin. 22(2):12–13. Portland, Oregon. 12 pp. PART 17Ð[AMENDED] Chambers, K. 1989. The Taxonomic Siddall, J.L. and K.L. Chambers. 1978. Status Relationships of Allocarya corallicarpa 1. The authority citation for part 17 report for Plagiobothrys hirtus ssp. continues to read as follows: (Boraginaceae). Madron˜ o 36(4):280–281. hirtus. Unpublished report submitted to Gamon, J., and J. Kagan. 1985. Status report the U.S. Fish and Wildlife Service. 10 Authority: 16 U.S.C. 1361–1407; 16 U.S.C. for Plagiobothrys hirtus. Unpublished pp. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– report submitted to U.S. Fish and 625, 100 Stat. 3500; unless otherwise noted. Wildlife Service. 58 pp. Authors: The primary authors of this 2. Amend § 17.12(h) by adding the Greene, E.L. 1888. New or noteworthy proposed rule are Josh Millman and Cat following, in alphabetical order under species. Pittonia 1:161. Brown, U.S. Fish and Wildlife Service, FLOWERING PLANTS, to the List of Lesica, P. and F. Allendorf. 1992. Are small Oregon State Office (see ADDRESSES Endangered and Threatened Plants to populations of plants worth preserving? section). Conservation Biology 6(1):135–139. read as follows: List of Subjects in 50 CFR Part 17 § 17.12 Endangered and threatened plants. Endangered and threatened species. * * * * * Exports, Imports, Reporting and (h) * * *

Species Historic range Family Status When listed Critical Special Scientific name Common Name habitat rules

******* FLOWERING PLANTS

******* Plagiobothrys hirtus Rough U.S.A. (OR) ...... Boraginaceae/ E ...... NA NA popcornflower. borage.

*******

Dated: October 22, 1997. Jamie Rappaport Clark, Director, Fish and Wildlife Service. [FR Doc. 97–30473 Filed 11–19–97; 8:45 am] BILLING CODE 4310±55±P