5268 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations our ultimate determination as to Company is denied in its entirety, as mineral soils consisting mostly of whether a BOC’s sales agency or other described herein. ultramafic rocks (rocks with unusually marketing arrangement causes its Federal Communications Commission. large amounts of magnesium and iron); interests to be so intertwined with the the large amount of magnesium in the Magalie Roman Salas, interests of a particular alarm soil gives it a green mottled color. monitoring service provider that the Secretary. Ultramafic rocks are found BOC itself may be considered to be [FR Doc. 00–2363 Filed 2–2–00; 8:45 am] discontinuously throughout California, ‘‘engag[ed] in the provision’’ of alarm BILLING CODE 6712±01±M in the Sierra Nevada and in the Coast monitoring service. Ranges from Santa Barbara County, 7. In this Order, we clarify our California, to British Columbia. Soils rationale for taking into account DEPARTMENT OF THE INTERIOR produced from ultramafic rocks have whether a BOC’s sales agency or other characteristic physical and chemical marketing arrangement is available on a Fish and Wildlife Service properties, such as high concentrations non-discriminatory basis in assessing of magnesium, chromium, and nickel, whether the BOC is engaged in the 50 CFR Part 17 and low concentrations of calcium, ‘‘provision’’ or alarm monitoring service RIN 1018±AE82 nitrogen, potassium, and phosphorus. We strongly disagree with SBC that the Serpentine soils alter the pattern of availability of sales agency or other Endangered and Threatened Wildlife vegetation and marketing arrangements on a and ; Determination of composition nearly everywhere they nondiscriminatory basis has no Endangered Status for the Plant Yreka occur. While serpentine soils are relevance in determining whether a from Siskiyou County, CA inhospitable for the growth of most BOC is engaged in the provision of plants, some plants are wholly or largely alarm monitoring services. While the AGENCY: Fish and Wildlife Service, restricted to serpentine substrates Commission may consider a variety of Interior. (Kruckeberg 1984). other factors as well, the presence of ACTION: Final rule. Elias Nelson (1899) described Phlox sales agency or other marketing hirsuta based on a collection made by arrangements with multiple alarm SUMMARY: We, the U.S. Fish and Edward L. Greene in 1876 near Yreka, monitoring service providers is an Wildlife Service (Service), determine Siskiyou County, California. Willis L. indication that the BOC’s interests in endangered status pursuant to the Jepson (1943) reduced the species to such arrangements are limited only to Endangered Species Act (Act) of 1973, varietal status, treating the taxon as the provision of the sales agency or as amended, for Phlox hirsuta (Yreka var. hirsuta. Edgar marketing component of the service. phlox). This perennial plant species is Wherry (1955) in his monograph of the Alternatively, to the extent that a BOC known only from two locations in genus Phlox and most recently Patterson makes a sales agency or other marketing Siskiyou County, California. A third and Wilken (1993) recognize this taxon arrangement available to any alarm location, near Etna Mills, California, has as Phlox hirsuta E. E. Nelson. monitoring service provider on the same been searched, but no plants or habitats Phlox hirsuta is a perennial subshrub terms and conditions, such availability have been found since 1930. The in the phlox family (). is evidence that the BOC’s interests are primary threats to P. hirsuta include The species grows 5 to 15 centimeters independent of, and not intertwined urbanization, inadequate State (cm) (2 to 5.9 inches (in)) high from a with, a particular alarm monitoring regulatory mechanisms, and extirpation stout, woody base and is hairy service provider. Therefore, in the from random events due to the small throughout. Narrowly lanceolate to absence of actual sales agency or other number of populations and limited ovate leaves with glandular margins are marketing arrangements with multiple range of the species. This rule crowded on the stem. The leaves are 1.5 alarm monitoring service providers, a implements the Federal protections and to 3 cm (0.6 to 1.2 in) long and 4 to 7 commitment to make such arrangements recovery provisions afforded by the Act millimeters (mm) (0.2 to 0.3 in) wide. available on a nondiscriminatory basis for this plant. Pink to purple flowers appear from would be evidence—to be considered DATES: Effective March 6, 2000. April to June. The corollas (petals) of along with other factors—that a BOC’s the flowers are 12 to 15 mm (0.5 to 0.6 ADDRESSES: The complete file for this in) long and are smooth-margined at the interests are independent of, and rule is available for public inspection, apex (tip) (CNPS 1977, 1985). The 5 to distinct from, any particular alarm by appointment, during normal business monitoring service provider. 8 mm (0.2 to 0.3 in) style (female hours at the U.S. Fish and Wildlife reproductive organ in a plant) is Accordingly, we do not disturb our Service, Sacramento Fish and Wildlife previous finding that the availability of contained within the corolla tube (tube Office, 2800 Cottage Way, Suite W2605, formed by the flower petals) (CNPS sales agency or other marketing Sacramento, California 95825–1846. arrangements on a nondiscriminatory 1977, 1985; Pattersen and Wilken 1993). basis is relevant to whether a BOC is FOR FURTHER INFORMATION CONTACT: Several other phlox species may occur engaged in the provision of alarm Kirsten Tarp or Jan Knight, Sacramento within the range of P. hirsuta. Of these, monitoring services. Fish and Wildlife Office (see ADDRESSES P. speciosa (showy phlox) has notched section) (telephone 916/414–6645; petals and grows to 15 to 40 cm (5.9 to I. Ordering Clauses facsimile 916/414–6710). 15.8 in), considerably taller than P. 8. Pursuant to sections 1–4, 201–205, SUPPLEMENTARY INFORMATION: hirsuta. Phlox adsurgens (northern 214, 275, and 303(r) of the phlox) is also larger than P. hirsuta Background Communications Act of 1934, as growing to 15 to 30 cm (5.9 to 11.8 in). amended, 47 U.S.C. 151–154, 201–205, Phlox hirsuta (Yreka phlox) is In addition, P. adsurgens blooms later 214, 275, 303(r), this Order on endemic to Siskiyou County, California, (from June to August) than P. hirsuta Reconsideration in CC Docket No. 96– where it grows on serpentine slopes in and is glabrous (lacking hairs and 152 is adopted. the vicinity of the City of Yreka glands) rather than hairy. Prostrate 9. The petition for reconsideration (California Native Plant Society (CNPS) (lying flat on the ground) to decumbent filed by Southwestern Bell Telephone 1985). Serpentine soils are rocky (mostly lying on the ground but with

VerDate 272000 14:04 Feb 02, 2000 Jkt 190000 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 E:\FR\FM\03FER1.SGM pfrm03 PsN: 03FER1 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations 5269 tips curving up) stems and herbage P. hirsuta is the more vigorous and which we had on file substantial lacking glands separate P. diffusa dense of the two occurrences (Linda information on biological vulnerability (spreading phlox) from P. hirsuta (CNPS Barker, Klamath National Forest, in litt. and threats to support preparation of 1977, 1985). Although found at the same 1985; Adams 1987; CNDDB 1997). Part listing proposals. Our November 28, latitudes, P. stansburyi (Stansbury’s of the P. hirsuta occurrence in the City 1983, supplement to the Notice of phlox) occurs 112 kilometers (km) (70 of Yreka is owned by the City of Yreka; Review (48 FR 53640) as well as the miles (mi)) farther to the east in Lassen the remainder is privately owned (Larry subsequent revision on September 27, and Modoc Counties (CNPS 1977). Bacon, City of Yreka, pers. comm. 1997). 1985 (50 FR 39526), included P. hirsuta Phlox cespitosa is glandular-hairy, has a The Highway 3 occurrence is partially as a category 2 candidate. Category 2 matted growth habit, and is one of on US Forest Service lands on the taxa were those for which data indicated several species of phlox that forms mats Klamath National Forest, partially listing was possibly appropriate, but for (Hickman 1993 third printing with within a State highway right-of-way, which substantial data on biological corrections 1996), which is unlike the and partially privately owned (CDFG vulnerability and threats were not erect stem, open branch habit of P. 1986; CNDDB 1997). Approximately 50 currently known or on file to support a hirsuta. percent of occupied habitat at the listing proposal. Phlox hirsuta is found on serpentine Highway 3 occurrence and 25 percent of We revised the plant notice of review soils at elevations from 880 to 1,340 the occupied habitat of the species is on again on February 21, 1990 (55 FR meters (2,800 to 4,400 feet) in land administered by the Klamath 6184), and September 30, 1993 (50 FR association with Pinus jeffreyi (Jeffrey National Forest (based on maps in 51143). In both notices, we included pine), Calocedrus decurrens (incense Service files; B. Williams, pers. comm. Phlox hirsuta as a category 1 candidate. cedar), and Juniperus spp. (junipers) 1997). Phlox hirsuta is threatened by In our February 28, 1996, Notice of (CNPS 1985; California Department of urbanization at the City of Yreka Review (61 FR 7596), we ceased using Fish and Game (CDFG) 1986; California location and by inadequate State the category designations and included Natural Diversity Data Base (CNDDB) regulatory mechanisms throughout its P. hirsuta as a candidate species. 1997). Phlox hirsuta is known from only range. The small number of populations Candidate species are those taxa for two locations in the vicinity of Yreka, and small range of the species also make which we have on file sufficient California. One occurrence is an open it vulnerable to decline or extirpation information on biological vulnerability ridge in a juniper woodland within the due to random events throughout its and threats to support proposals to list city limits of Yreka (CNPS 1977, 1985; range. the species as threatened or endangered. CNDDB 1997). Estimates of the area Section 4(b)(3)(B) of the Act requires occupied by the occurrence range from Previous Federal Action the Secretary to make certain findings approximately 15 hectares (ha) (37 acres Federal action on Phlox hirsuta began on pending petitions within 12 months (ac)) (Grant and Virginia Fletcher, in litt. as a result of section 12 of the Act, of their receipt. Section 2(b)(1) of the 1995) to approximately 36 ha (90 ac) which directed the Secretary of the 1982 amendments further requires that (Nancy Kang, Service, in litt. 1995a). Smithsonian Institution to prepare a all petitions pending on October 13, Other extreme serpentine sites searched report on those plants considered to be 1982, be treated as having been newly in the area do not support additional endangered, threatened, or extinct in the submitted on that date. That provision populations of Phlox hirsuta (Adams United States. This report, designated as of the Act applied to Phlox hirsuta, 1987). The second occurrence is about House Document No. 94–51, was because the 1975 Smithsonian report 8 to 10 km (5 to 6 mi) southwest of presented to Congress on January 9, had been accepted as a petition. On Yreka along California State Highway 3 1975, and included P. hirsuta as an October 13, 1982, we found that the in an open Jeffrey pine forest (CNPS endangered species. We published a petitioned listing of the species was 1977, 1985; CNDDB 1997) and includes notice in the July 1, 1975, Federal warranted, but precluded by other approximately 65 ha (160 ac) of Register (40 FR 27823), announcing our pending listing actions, in accordance occupied habitat (Service maps on file). decision to treat the Smithsonian report with section 4(b)(3)(B)(iii) of the Act; A third location, where the species was as a petition within the context of notification of this finding was last reported in 1930, is in the vicinity section 4(c)(2) (now section 4(b)(3) of published on January 20, 1984 (49 FR of Mill Creek near Etna Mills. The area the Act) and our intention to review the 2485). Such a finding requires the was searched, but no plants or status of P. hirsuta. On June 16, 1976, petition to be recycled, pursuant to appropriate habitats were identified we published a proposal in the Federal section 4(b)(3)(C)(i) of the Act. The (CNPS 1985), and the location may be Register (41 FR 24523) to determine finding was reviewed annually in incorrect (CDFG 1986; Adams 1987). approximately 1,700 taxa October of 1984 through 1997. Surveys have been conducted on 80 as endangered species pursuant to On April 1, 1998, we published a percent of the potential habitat (defined section 4 of the Act. The list of 1,700 proposed rule to list Phlox hirsuta as an as the presence of suitable soils) on plant taxa, which included P. hirsuta, endangered species in the Federal Klamath National Forest (Ken Fuller was assembled on the basis of Register (63 FR 15820). The comment and Diane Elam, Service, in litt. 1997; comments and data received by the period was open until June 1, 1998. Barbara Williams, Klamath National Smithsonian Institution and us in With publication of this final rule, we Forest, pers. comm. 1997) and Bureau of response to House Document No. 94–51 now determine that P. hirsuta is Land Management (Joe Molter, Bureau and the July 1, 1975, Federal Register endangered. of Land Management, pers. comm. 1997) publication. The processing of this final rule lands within the Redding Resource We published an updated Notice of conforms with our Listing Priority Area; no new populations of P. hirsuta Review for plants on December 15, 1980 Guidance published in the Federal have been discovered. (45 FR 82480), that identified those Register on October 22, 1999 (64 FR Land ownership of the two plants currently being considered for 57114). The guidance clarifies the order occurrences of Phlox hirsuta is a listing as endangered or threatened. We in which we will process rulemakings. mixture of private, the City of Yreka, included Phlox hirsuta as a category 1 Highest priority is processing and the US Forest Service (CNDDB candidate species. Category 1 emergency listing rules for any species 1997). The City of Yreka occurrence of candidates were defined as taxa for determined to face a significant and

VerDate 272000 14:04 Feb 02, 2000 Jkt 190000 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\03FER1.SGM pfrm03 PsN: 03FER1 5270 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations imminent risk to its well-being (Priority Constitution to regulate this plant Botanist for the Klamath National 1). Second priority (Priority 2) is species. Forest, who identified the Phlox as processing final determinations on Service Response: A recent decision Phlox diffusa. proposed additions to the lists of in the United States Court of Appeals Issue 4: One commenter stated that endangered and threatened wildlife and for the District of Columbia Circuit we should consider the economic effects plants. Third priority is processing new National Association of Home Builders of the listing on the local economies proposals to add species to the lists. The of the U.S. v. Babbitt, 130 F.3d 1041 where the plant occurs. processing of administrative petition (D.C. Cir. 1997) makes it clear in its Service Response: Under section findings (petitions filed under section 4 application of the test used in the 4(b)(1)(A) of the Act, a listing of the Act) is the fourth priority. The United States Supreme Court case, determination must be based solely on processing of critical habitat United States v. Lopez, 514 U.S. 549 the best scientific and commercial data determinations (prudency and (1995), that regulation of endangered available about whether a species meets determinability decisions) and proposed species limited to one State under the the Act’s definition of a threatened or or final designations of critical habitat Act is within Congress’ Commerce endangered species. The legislative will no longer be subject to Clause power. On June 22, 1998, the history of this provision clearly states prioritization under the Listing Priority Supreme Court declined to accept an the intent of Congress to ‘‘ensure’’ that Guidance. This final rule for Phlox appeal of this case (118 S. Ct. 2340 listing decisions are ‘‘based solely on hirsuta is a Priority 2 action and is being (1998)). Therefore, our application of biological criteria and to prevent non- completed in accordance with the the Act to Phlox hirsuta is biological considerations from affecting current Listing Priority Guidance. constitutional. such decisions,’’ H.R. Rep. NO. 97–835, We have updated this rule to reflect Issue 2: Two commenters stated that 97th Cong., 2nd Sess. 19 (1982). As any changes in distribution, status, and existing State regulations, such as the further stated in the legislative history, threats since publishing the proposed California Environmental Quality Act ‘‘applying economic criteria . . . to any rule and to incorporate information (CEQA) regulatory mechanisms, were phase of the species listing process is obtained through the public comment sufficient to protect Phlox hirsuta, and applying economics to the period. This additional information did thought that federally listing P. hirsuta determinations made under section 4 of not alter our decision to list these would be a duplication of effort. the Act and is specifically rejected by species. Service Response: We believe that the the inclusion of the word ‘solely’ in the existing State regulatory mechanisms legislation,’’ H.R. Rep. NO. 97–835, 97th Summary of Comments and are inadequate to protect Phlox hirsuta. Cong. 2nd Sess. 19 (1982). Because we Recommendations Please see factor D in the ‘‘Summary of are precluded from considering In the proposed rule published April Factors Affecting the Species,’’ section economic impacts in a final decision on 1, 1998, in the Federal Register (63 FR in this rule. a proposed listing, we did not examine 15820) and associated notifications, we We do not believe that federally such impacts. requested all interested parties to listing Phlox hirsuta would be a Issue 5: Three commenters were submit factual reports or information duplication of effort. Federal and State concerned the listing would violate that might contribute to development of regulations complement each other. As private property rights under the Fifth a final rule. We contacted and requested discussed further in factor D in the Amendment to the US Constitution. A comments from appropriate Federal ‘‘Summary of Factors Affecting the fourth commenter stated that public and agencies, State agencies, county and city Species’’ section, the CEQA and private property owners should be governments, scientific organizations, California Endangered Species Act adequately compensated for setting and other interested parties. We (CESA) apply to actions on private and aside land for Phlox hirsuta. published an announcement of the State lands. As applied to plant species, Service Response: We disagree that proposed rule in the Siskiyou Daily the Federal Endangered Species Act the listing of Phlox hirsuta would News on April 3, 1998, which invited primarily covers Federal land and constitute a taking of private property in general public comment. The public Federal actions that may affect proposed violation of the Fifth Amendment to the comment period closed on June 1, 1998. and listed species. Constitution. The regulatory protection We received no request for a public Issue 3: Three commenters questioned afforded listed plant species under the hearing. the rarity of Phlox hirsuta. One of the Act is limited. In particular, section 9 of During the public comment period, 22 commenters, in response to seeing an the Act does not prohibit the ‘‘take’’ of individuals or agencies submitted article in the Siskiyou Daily News, listed plant species on private lands. comments. Four commenters supported stated there is a lot of Yreka phlox Generally, as applied to private the listing, 11 commenters opposed the growing in Siskiyou and Shasta property, only the removal, damage, or listing, and 7 commenters were neutral. Counties. Another commenter provided destruction of listed plant species in Supporting comments were received a long list of places to check. A third violation of a State law or regulation or from the State and local chapter of the commenter provided photos of Phlox in the course of a violation of a State California Native Plant Society and two occurring in Scott Valley, noting that criminal trespass law is a violation of private citizens. Opposing comments these plants appear to be very similar to the Act. Further, the mere issuance of a were received from the Pacific Legal the photo of Phlox hirsuta published in regulation, like the enactment of a Foundation and 10 private citizens. the Siskiyou Daily News on April 3, statute, is rarely sufficient to establish Opposing comments and other 1998. that private property has been taken comments questioning the proposed Service Response: We maintain that unless the regulation itself appears to rule have been organized into specific Phlox hirsuta is a very rare plant. As deny the property owner economically issues. We summarized these issues and discussed in the ‘‘Background’’ section viable use of personal property. In order our response to each as follows: of this rule, several other Phlox species, to establish that their properties have Issue 1: One commenter opposed the that are much more abundant, may been taken as a result of a regulatory listing of Phlox hirsuta, stating that the occur within the range of Phlox hirsuta. action, such as the listing of a species, Federal Government lacks authority We sent the photos of Phlox from Scott property owners must first initiate an under the Commerce Clause of the Valley to Barbara Williams, Forest attempt to utilize their property and

VerDate 272000 14:04 Feb 02, 2000 Jkt 190000 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\03FER1.SGM pfrm03 PsN: 03FER1 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations 5271 receive a determination regarding the these situations, the Service hopes that the rarity of P. hirsuta. The reviewer level of use that is less than allowed private landowners will work with us stated that a number of botanists and prior to the listing. Property owners voluntarily to minimize the effects of other professionals interested in Phlox, must ordinarily apply for all available their projects to listed species. When in addition to those mentioned in the permits and waivers before takings actions involve Federal land (as with proposed rule, have searched very could potentially be established. The U.S. Forest Service land) or Federal carefully for P. hirsuta populations commenters have not provided any funding (as may be the case with without success. The reviewer thought cogent legal basis for their assertions California Department of Transportation that finding additional sites for P. that listing Phlox hirsuta will result in (Caltrans) activities), we work with the hirsuta is very unlikely. a Fifth Amendment taking of private Federal agency involved to minimize Summary of Factors Affecting the property. effects to listed species. When plant Species Issue 6: Several commenters were species consist of very few populations concerned about how private and/or very small ranges, like Phlox Section 4 of the Act (16 U.S.C. 1533) landowners may be affected by the hirsuta, recovery strategies also include and the regulations (50 CFR part 424) listing of Phlox hirsuta. collection of seed for storage in botanic issued to implement the listing Service Response: Portions of the two gardens. This action is designed to provisions of the Act set forth the Phlox hirsuta populations do grow on prevent extinction of the species due to procedures for adding species to the private land. As noted above, Federal catastrophic events (such as a flood) and Federal lists. A species may be listing does not restrict the damage or to provide seeds for introduction to determined to be endangered or destruction of listed plants due to other sites, should we find that threatened due to one or more of the otherwise lawful private activities on introductions are appropriate. five factors described in section 4(a)(1). private land beyond any level of Issue 9: Three commenters wanted to These factors and their application to protection that may be provided under know the difference between Phlox Phlox hirsuta E.E. Nelson (Yreka phlox) State law. Federal listing of plants does hirsuta and other such as are as follows: not restrict any uses of privately owned ‘‘common phlox,’’ P. caespitosa (tufted A. The present or threatened land unless Federal funding or a Federal phlox), and P. diffusa (spreading phlox). destruction, modification, or permit is involved. Listing Phlox hirsuta Service Response: The Jepson Manual, curtailment of its habitat or range. The as endangered likely will not affect Higher Plants of California (Hickman Phlox hirsuta population within the logging, farming, or ranching operations, 1993 third printing with corrections City of Yreka represents at least 18 including cattle grazing, on private land. 1996), provides the technical percent, and possibly 45 percent, of Other activities that do not violate the description of differences in these occupied habitat for the species taking prohibitions of section 9(a)(2) of species. We recognize The Jepson (calculated from Service records). This the Act, as well as prohibited activities, Manual as the most recently accepted population is threatened by are discussed further under the taxonomic treatment of plants in development, with the majority of the ‘‘Available Conservation Measures’’ California. The Jepson Manual is the site already subdivided into lots for section of this rule. most recent taxonomic identification development (CNPS 1985; CDFG 1986). Issue 7: Four commenters questioned key (or flora, i.e., a treatise on the plants Eight of the subdivision lots support P. the prudence of saving endangered of an area) for plants of California, and hirsuta; of these eight, seven have P. species. the flora to which we refer for plant hirsuta on at least 75 percent of the lot Service Response: The Act directs us . Earlier treatments of P. (N. Kang, in litt. 1995a). Six of the eight to conserve endangered and threatened caespitosa, and its varieties, suggest it lots are privately owned, and two are species. The Act reflects the value has smaller flowers than P. hirsuta. All owned by the City of Yreka. Congress and the American people of the treatments also describe P. Additionally, a smaller piece of land in place upon the biological diversity of caespitosa, and its varieties, as having a the same area supports P. hirsuta and is the United States. When a species goes densely clumped (not open), tufted, or also owned by the City (N. Kang, in litt. extinct, part of our natural heritage has cushion-like growth form. In contrast, P. 1995a; L. Bacon, pers. comm. 1997). The been lost and cannot be replaced. hirsuta is described as a subshrub (small P. hirsuta occurrence within the City of Additionally, every species is part of the shrub) having an erect stem and open Yreka has been disturbed by road biological network that supports all life. branches. Please see the ‘‘Background’’ construction associated with the A species in decline is a sign that section of this rule for a discussion on subdivision (CNPS 1985; CDFG 1986). something may be wrong in the how P. hirsuta differs from P. diffusa An unmaintained roadway bisects the environment. By addressing the causes and other common phloxes. occurrence and likely represents of a plant or animal’s decline we are permanent destruction of habitat at the protecting the environment on which Peer Review site (N. Kang, in litt. 1995a). Additional we all depend. In accordance with Interagency disturbance resulted from grading for a Issue 8: One commenter asked how Cooperative Policy published on July 1, house pad on one lot in 1994; Phlox the threats to Phlox hirsuta might be 1994 (59 FR 34270), we solicited formal hirsuta has not reinvaded the disturbed eliminated. scientific peer review and expert area (N. Kang, in litt. 1995a, 1995b). For Service Response: Generally, recovery opinions of three independent and most of the lots in the subdivision, ‘‘the strategies for plants focus first on appropriate specialists regarding likely ones to be developed currently protection and management of known pertinent scientific or commercial data provide P. hirsuta habitat’’ (N. Kang, in populations. This process would and assumptions relating to the litt. 1995a, 1995b). Because P. hirsuta involve working with landowners to taxonomy, population status, and plants are fairly evenly distributed avoid adverse effects to the species. If supportive biological and ecological across the lots, strategic placement of use of private land does not involve information for the proposed plant. development in occupied habitat would Federal funding or permitting, or violate Only one of the three requested not necessarily minimize impacts to the a State law, we do not have the reviewers provided comments. This species. Additionally, over the long- authority to prevent any action that reviewer supported the listing of Phlox term, private landowners may not might affect federally listed plants. In hirsuta and commented specifically on maintain their properties in a manner

VerDate 272000 14:04 Feb 02, 2000 Jkt 190000 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\03FER1.SGM pfrm03 PsN: 03FER1 5272 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations consistent with protection of the plants D. The inadequacy of existing fails, the resource has already been lost. and their habitat (N. Kang, in litt. regulatory mechanisms. The State of Furthermore, CEQA does not guarantee 1995a). Formerly, some lots at the site California Fish and Game Commission that such conservation efforts will be were registered with The Nature (CFGC) listed Phlox hirsuta as an implemented. Finally mitigation is at Conservancy landowner contact endangered species under the California the discretion of the lead agency, which program, but that program no longer Endangered Species Act (CESA) may decide that overriding exists (Lynn Lozier, The Nature (Chapter 1.5 section 2050 et seq. of the considerations make mitigation Conservancy, pers. comm. 1997). While California Fish and Game Code and infeasible. In the latter case, projects we are unaware of specific development Title 14 California Code of Regulations that cause significant environmental plans on any lots at this time, a ‘‘for 670.2). Although the ‘‘take’’ of State- damage, such as destruction of sale’’ sign was posted on the private listed plants has long been prohibited endangered species, may be approved. property in May 1997 (K. Fuller and D. under the California Native Plant Protection of listed species through Elam, in litt. 1997). Protection Act (CNPPA) (Chapter 10 CEQA is, therefore, dependent upon the The only other occurrence of Phlox § 1908) and CESA (Chapter 1.5 section discretion of the agency involved. hirsuta, located along California State 2080), in the past these statutes have not E. Other natural or manmade factors Highway 3, has been disturbed in the provided adequate protection for such affecting its continued existence. Phlox past by logging and road construction. plants from the impacts of habitat hirsuta is known from only two small Although selective logging (CNPS 1985; modification or land use change. For occurrences, which occupy fewer than Adams 1987) resulted in roads and example, under the CNPPA, after the 121 ha (300 ac) in a restricted habitat bulldozer trails through the site (Adams California Department of Fish and Game type (serpentine soils) over a very small 1987), logging is probably not a threat to notifies a landowner that a State-listed range (approximately 65 square-km (25 P. hirsuta at this time (K. Fuller and D. plant grows on his or her property, the square-mi)). The combination of only Elam, in litt. 1997; B. Williams, pers. statute requires only that the landowner two populations, small range, and comm. 1997). Thirty years ago, the notify the agency ‘‘at least 10 days in restricted habitat makes the species realignment of Highway 3 impacted part advance of changing the land use to highly susceptible to extinction or of this occurrence (Sharon Stacey, allow salvage of such a plant’’ (CNPPA, extirpation from a significant portion of Caltrans, pers. comm. 1996). The area Chapter 10 § 1913). Under recent its range due to random events such as has since been designated by Caltrans as amendments to CESA, a permit under fire, drought, disease, or other an Environmentally Sensitive Area (S. Section 2081(b) of the California Fish occurrences (Shaffer 1981, 1987; Meffe Stacey, pers. comm. 1998), which and Game Code is required to ‘‘take’’ and Carroll 1994). Such events are not provides limited protection in that it State-listed species incidental to usually a concern until the number of requires acknowledgment of a sensitive otherwise lawful activities. The populations or geographic distribution species occurrence in project planning. amendments require that impacts to the become severely limited, as is the case Although road maintenance crews are to species be fully mitigated. However, with Phlox hirsuta. Once the number of be made aware that no new ground is these requirements have not been tested populations or the plant population size to be disturbed along this stretch of with respect to State-listed plant is reduced, the remnant populations, or highway (Bob Sheffield, Caltrans, pers. species, and several years will be portions of populations, have a higher comm. 1997), the portion of the required to evaluate their effectiveness. probability of extinction from random occurrence within the Caltrans right-of- events (Primack 1993). way could be disturbed by road CEQA requires full disclosure of We have carefully assessed the best maintenance (Charlotte Bowen, potential environmental impacts of scientific and commercial information Caltrans, in litt. 1991). The area within proposed projects, including impacts on available regarding the past, present, the right-of-way consists of 5 small State-listed plant species. Therefore, and future threats faced by Phlox subpopulations with approximately 100 before proceeding with development of hirsuta in determining to finalize this plants, occupying less than 0.8 hectare private and City of Yreka lands where rule. Urbanization, inadequate State (2 ac) along 4 km (2.5 mi) of California Phlox hirsuta grows, the City of Yreka regulatory mechanisms, and extirpation State Highway 3. While encroaching would require CEQA review (L. Bacon, from random events due to the small development has been considered to be pers. comm. 1997). The public agency number of populations and small range a potential threat to the plants occurring with primary authority or jurisdiction of the species threaten P. hirsuta. The on private lands at the Highway 3 site over the project is designated as the lead two occurrences of P. hirsuta total fewer (CNPS 1985; CDFG 1986), the threat agency and is responsible for than 121 ha (300 ac) of occupied habitat from development at this site does not conducting a review of the project and in the vicinity of the City of Yreka, appear imminent. consulting with the other agencies Siskiyou County, California. The site B. Overutilization for commercial, concerned with the resources affected within the City of Yreka is already recreational, scientific, or educational by the project. Section 15065 of the subdivided, has been disturbed by purposes. Overutilization is not known CEQA Guidelines requires a finding of activities associated with urbanization to be a threat to Phlox hirsuta, although significance if a project has the potential in the past, is situated in an area that is it has been suggested that the species to ‘‘reduce the number or restrict the suitable for development, and is may be of interest to rock garden range of a rare or endangered plant or unprotected from this threat. In enthusiasts (CNPS 1977). animal.’’ Once significant effects are addition, both occurrences are at risk C. Disease or predation. Disease identified, the lead agency may require due to inadequate State regulatory presents no known threat to Phlox mitigation for these effects through mechanisms and due to potential hirsuta. Parts of the Highway 3 site have changes in the project or a mitigation extirpation of all or part of the been grazed in the past, perhaps by plan. When mitigation plans are occurrences due to random events. trespassing cattle (CNPS 1985; Adams required, they often involve Therefore, the preferred action is to list 1987). However, grazing is probably not transplantation of the plant species to P. hirsuta as endangered. a threat to P. hirsuta at this time (K. an existing or artificially created habitat, Alternatives to listing were Fuller and D. Elam, in litt. 1997; B. followed by destruction of the original considered before publication of this Williams, pers. comm. 1997). site. Therefore, if the mitigation effort final rule. The other alternatives were

VerDate 272000 14:04 Feb 02, 2000 Jkt 190000 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\03FER1.SGM pfrm03 PsN: 03FER1 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations 5273 not preferred because they would not refrain from taking any action that Available Conservation Measures provide adequate protection and would destroys or adversely modifies critical Conservation measures provided to not be consistent with the Act. Listing habitat. While a critical habitat species listed as endangered under the Phlox hirsuta as endangered would designation for habitat currently Act include recognition, recovery provide Federal protection for the occupied by this species would not be actions, requirements for Federal species and result in additional likely to change the section 7 protection, and prohibitions against protection as outlined under the consultation outcome (because an action certain activities. Recognition through ‘‘Available Conservation Measures’’ that destroys or adversely modifies such listing encourages and results in section. critical habitat would also be likely to conservation actions by Federal, State, Critical Habitat result in jeopardy to the species), in and private agencies, groups, and some instances, section 7 consultation In the proposed rule, we indicated individuals. The Act provides for might be triggered only if critical habitat possible land acquisition and that designation of critical habitat was is designated. Examples could include not prudent for Phlox hirsuta because of cooperation with the State and requires unoccupied habitat or occupied habitat that recovery actions be carried out for a concern that publication of precise that may become unoccupied in the maps and descriptions of critical habitat all listed species. The protection future. Designating critical habitat may in the Federal Register could increase required of Federal agencies and the also provide some educational or the vulnerability of this species to prohibitions against certain activities informational benefits. Therefore, we incidents of collection and vandalism. involving listed plants are discussed, in find that critical habitat designation is We also indicated that designation of part, below. critical habitat was not prudent because prudent for Phlox hirsuta. Section 7(a) of the Act requires we believed it would not provide any The Final Listing Priority Guidance Federal agencies to evaluate their additional benefit beyond that provided for FY 2000 (64 FR 57114) states, ‘‘The actions with respect to any species that through listing as endangered. processing of critical habitat is proposed or listed as endangered and In the last few years, a series of court determinations (prudency and with respect to its critical habitat, if any decisions have overturned Service determinability decisions) and proposed is being designated. Regulations determinations regarding a variety of or final designations of critical habitat implementing this interagency species that designation of critical will be funded separately from other cooperation provision of the Act are habitat would not be prudent (e.g., section 4 listing actions and will no codified at 50 CFR Part 402. Section Natural Resources Defense Council v. longer be subject to prioritization under 7(a)(1) requires Federal agencies to use U.S. Department of the Interior 113 F. the Listing Priority Guidance. Critical their authorities to further the purposes 3d 1121 (9th Cir. 1997); Conservation habitat determinations, which were of the Act by carrying out programs for Council for Hawaii v. Babbitt, 2 F. Supp. previously included in final listing rules listed species. Section 7(a)(2) requires 2d 1280 (D. Hawaii 1998)). Based on the published in the Federal Register, may Federal agencies to ensure that activities standards applied in those judicial now be processed separately, in which they authorize, fund, or carry out are not opinions, we have reexamined the case stand-alone critical habitat likely to jeopardize the continued question of whether critical habitat determinations will be published as existence of such a species or to destroy designation for Phlox hirsuta would be notices in the Federal Register. We will or adversely modify its critical habitat. prudent. undertake critical habitat If a Federal action may affect a listed Due to the small number of determinations and designations during species or its critical habitat, the populations, Phlox hirsuta is vulnerable FY 2000 as allowed by our funding responsible Federal agency must enter to unrestricted collection, vandalism, or allocation for that year.’’ As explained into formal consultation with us. Listing Phlox hirsuta would provide other disturbance. We remain concerned in detail in the Listing Priority for development of a recovery plan for that these threats might be exacerbated Guidance, our listing budget is currently by the publication of critical habitat the species. The plan would bring insufficient to allow us to complete maps and further dissemination of together both State and Federal efforts immediately all of the listing actions locational information. However, we for conservation of the species. The plan required by the Act. Deferral of the have examined the evidence available would establish a framework for critical habitat designation for Phlox for P. hirsuta and have not found agencies to coordinate activities and hirsuta will allow us to concentrate our specific evidence of taking, vandalism, cooperate with each other in limited resources on higher priority collection, or trade of this species or any conservation efforts. The plan would set critical habitat and other listing actions, similarly situated species. recovery priorities and estimate costs of while allowing us to put in place Consequently, consistent with various tasks necessary to accomplish protections needed for the conservation applicable regulations (50 CFR them. The plan also would describe site- of P. hirsuta without further delay. 424.12(a)(1)(i)) and recent case law, we specific management actions necessary do not expect that the identification of We plan to employ a priority system to achieve conservation and survival of critical habitat will increase the degree for deciding which outstanding critical P. hirsuta. Additionally, pursuant to of threat to this species of taking or habitat designations should be section 6 of the Act, we would be able other human activity. addressed first. We will focus our efforts to grant funds to the State of California In the absence of a finding that critical on those designations that will provide for management actions promoting the habitat would increase threats to a the most conservation benefit, taking protection and recovery of the species. species, if there are any benefits to into consideration the efficacy of critical Federal activities potentially affecting critical habitat designation, then a habitat designation in addressing the Phlox hirsuta include issuance of prudent finding is warranted. In the threats to the species and the magnitude special use permits and rights-of-way. case of this species, designation of and immediacy of those threats. We will Approximately one-half of the Highway critical habitat may provide some develop a proposal to designate critical 3 occurrence of Phlox hirsuta occurs on benefits. The primary regulatory effect habitat for Phlox hirsuta as soon as lands managed by the U.S. Forest of critical habitat is the section 7 feasible, considering our workload Service. The U.S. Forest Service would requirement that Federal agencies priorities. be required to consult with us if any

VerDate 272000 14:04 Feb 02, 2000 Jkt 190000 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 E:\FR\FM\03FER1.SGM pfrm03 PsN: 03FER1 5274 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations activities they authorize, fund, or carry policy is to increase public awareness of connection with regulations adopted out may affect P. hirsuta. For example, the effect of the listing on proposed and pursuant to section 4(a) of the Act as consultations with U.S. Forest Service ongoing activities within a species’ amended. We published a notice may be required on road maintenance range. One of the two occurrences of outlining our reasons for this and right-of-way authorizations for Phlox hirsuta is on U.S. Forest Service determination in the Federal Register projects that include adjacent or lands. We believe that, based upon the on October 25, 1983 (48 FR 49244). intermixed private land. best available information, the following Other Federal agencies that may actions will not likely result in a Paperwork Reduction Act become involved if this rule is finalized violation of section 9, provided these This rule does not contain any new include the Federal Highway activities are carried out in accordance collections of information other than Administration through funding with existing regulations and permit those already approved under the provided to Caltrans. In addition, when requirements: Paperwork Reduction Act, 44 U.S.C. we issue a permit under section 10 of (1) Activities authorized, funded, or 3501 et seq., and assigned Office of the Act for a habitat conservation plan carried out by Federal agencies, (e.g., Management and Budget clearance (HCP) prepared by a non-Federal party, grazing management, agricultural number 1018–0094. An agency may not we must prepare an intra-Service conversions, wetland and riparian conduct or sponsor, and a person is not section 7 biological opinion regarding habitat modification, flood and erosion required to respond to, a collection of the effects of issuance of the section control, residential development, information, unless it displays a 10(a) permit on affected listed plant recreational trail development, road currently valid control number. For species. construction, hazardous material additional information concerning The Act and its implementing containment and cleanup activities, permit and associated requirements for regulations set forth a series of general prescribed burns, pesticide/herbicide endangered plant species, see 50 CFR prohibitions and exceptions that apply application, pipelines or utility lines 17.62 and 17.63. to all endangered plants. All crossing suitable habitat) when such prohibitions of section 9(a)(2) of the Act, activity is conducted in accordance with References Cited implemented by 50 CFR 17.61 for any reasonable and prudent measures A complete list of all references in endangered plants, apply. These given by us in a consultation conducted this document is available upon request prohibitions, in part, make it illegal for under section 7 of the Act, and from the Field Supervisor, Sacramento any person subject to the jurisdiction of (2) Activities on private lands that do Fish and Wildlife Office (see ADDRESSES the United States to import or export, not involve Federal agency funding or section). transport in interstate or foreign authorization on private lands, such as commerce in the course of a commercial Author: The primary authors of this construction of fences, livestock-water final rule are Diane Elam and Kirsten activity, sell or offer for sale in interstate ponds, and livestock grazing, unless or foreign commerce, or remove and Tarp, U.S. Fish and Wildlife Service, such activities are carried out in Sacramento Fish and Wildlife Office reduce to possession from areas under knowing violation of State law or Federal jurisdiction any such plant. In (see ADDRESSES section) (telephone 916/ regulation or in the course of any 414–6645). addition, the Act prohibits malicious violation of a State criminal trespass damage or destruction on areas under law. List of Subjects in 50 CFR Part 17 Federal jurisdiction, and the removal, We believe that the following could Endangered and threatened species, cutting, digging up, or damaging or result in a violation of section 9; Exports, Imports, Reporting and destroying of such plants in knowing however, possible violations are not recordkeeping requirements, violation of any State law or regulation limited to these actions alone: or in the course of any violation of a (1) Unauthorized collecting of the Transportation. State criminal trespass law. Certain species on Federal lands, and Regulation Promulgation exceptions to the prohibitions apply to (2) Interstate or foreign commerce and our agents and State conservation import/export without previously For the reasons given in the preamble, agencies. obtaining an appropriate permit. we amend part 17, subchapter B of The Act and 50 CFR 17.62 and 17.63 Permits to conduct activities are chapter I, title 50 of the Code of Federal also provide for the issuance of permits available for purposes of scientific Regulations, as set forth below: to carry out otherwise prohibited research and enhancement of activities involving endangered plant propagation or survival of the species. PART 17Ð[AMENDED] species. Such permits are available for Questions regarding whether specific 1. The authority citation for part 17 scientific purposes and to enhance the activities will constitute a violation of continues to read as follows: propagation and survival of the species. section 9 should be directed to the Field We anticipate that few trade permits Supervisor of the Service’s Sacramento Authority: 16 U.S.C. 1361–1407; 16 U.S.C. would ever be sought or issued for this Fish and Wildlife Office (see ADDRESSES 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– species because it is not common in section). 625, 100 Stat. 3500, unless otherwise noted. cultivation or in the wild. 2. Amend section 17.12(h) by adding As published in the Federal Register National Environmental Policy Act the following, in alphabetical order on July 1, 1994 (59 FR 34272), it is our We have determined that an under FLOWERING PLANTS, to the List policy to identify to the maximum environmental assessment and of Endangered and Threatened Plants: extent practicable at the time a species environmental impact statement, as is listed those activities that would or defined under the authority of the § 17.12 Endangered and threatened plants. would not constitute a violation of National Environmental Policy Act of * * * * * section 9 of the Act. The intent of this 1969, need not be prepared in (h) * * *

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

FLOWERING PLANTS

******* Phlox hirsuta ...... Yreka phlox ...... U.S.A. (CA) ...... Polemoniaceae ...... E 683 ...... NA

*******

Dated: January 13, 2000. FOR FURTHER INFORMATION CONTACT: John unintentional take of small numbers of Jamie Rappaport Clark, Bridges, Office of Marine Mammals polar bears and Pacific walrus for a 3- Director, Fish and Wildlife Service. Management, U.S. Fish and Wildlife year period during year-round oil and [FR Doc. 00–2310 Filed 2–2–00; 8:45 am] Service, 1011 East Tudor Road, gas activities, including incidental takes BILLING CODE 4310±55±P Anchorage, AK 99503, Telephone (907) resulting from the construction and 786–3810 or 1–800–362–5148. operation of a subsea pipeline SUPPLEMENTARY INFORMATION: associated with the offshore Northstar DEPARTMENT OF THE INTERIOR facility. Background We are reinstating our now expired Fish and Wildlife Service Section 101(a)(5)(A) of the Marine regulations through March 31, 2000, to Mammal Protection Act (Act) gives the ensure that we have adequate time to 50 CFR Part 18 Secretary of the Interior (Secretary) thoroughly review and respond to through the Director of the U.S. Fish public input on our December 9, 1999, RIN 1018±AF87 and Wildlife Service (We) the authority proposed rule. We believe it is to allow the incidental, but not important to maintain the coverage and Marine Mammals; Incidental Take intentional, taking of small numbers of protection for polar bears and Pacific During Specified Activities marine mammals in response to walrus provided by those regulations. requests by U.S. citizens (you) [as AGENCY: Fish and Wildlife Service, Existing Letters of Authorization, which defined in 50 CFR 18.27(c)] engaged in Interior. require monitoring and reporting of all a specified activity (other than polar bear interactions as well as site- ACTION: Final rule. commercial fishing) in a specific specific mitigation measures, will be geographic region. We may grant SUMMARY: This final rule reinstates our reissued. permission for incidental takes for existing rule issued Thursday, January periods of up to 5 years. On January 28, Prior to issuing regulations at 50 CFR 28, 1999 (64 FR 4328), and codified at 1999, we published in the Federal Part 18, Subpart J, we evaluated the 50 CFR Part 18, Subpart J to authorize Register (64 FR 4328) regulations to level of industrial activities, their the incidental, unintentional take of allow such incidental takes in the associated impacts to polar bears and small numbers of polar bears and Pacific Beaufort Sea and adjacent northern Pacific walrus, and their effects on the walrus during oil and gas industry coast of Alaska for the period January availability of these species for (Industry) exploration, development, 28, 1999, through January 30, 2000. subsistence use. Based on the best and production operations in the These regulations were based on the scientific information available and the Beaufort Sea and adjacent northern findings for the 1-year period that the results of 6 years of monitoring data, we coast of Alaska. This final rule effects of oil and gas related exploration, found that the effects of oil and gas authorizes incidental, unintentional development, and production activities related exploration, development, and take of small numbers of polar bears and in the Beaufort Sea and adjacent production activities in the Beaufort Sea Pacific walrus only for activities northern coast of Alaska would have a and the adjacent northern coast of covered by our existing regulations at 50 negligible impact on polar bears and Alaska would have a negligible impact CFR Part 18, Subpart J; incidental take Pacific walrus and their habitat and no on polar bears and Pacific walrus and resulting from any subsea pipeline unmitigable adverse impact on the their habitat. We also found that the activities located offshore in the availability of these species for activities as described would have no Beaufort Sea is not authorized. This subsistence uses by Alaska Natives, if unmitigable adverse impacts on the final rule reinstates regulations at 50 certain conditions were met. availability of these species for CFR Part 18, Subpart J effective through Our present action reinstates the subsistence use by Alaska Natives. March 31, 2000. current regulations that expired on The regulations that we are reinstating DATES: This rule is effective February 3, January 30, 2000, which are located at include permissible methods of taking 2000 through March 31, 2000. 50 CFR Part 18, Subpart J, effective and other means to ensure the least ADDRESSES: Comments and materials through March 31, 2000. This adverse impact on the species and its received in response to this action are rulemaking was intended to avoid a habitat and on the availability of these available for public inspection during lapse in these regulations while we species for subsistence uses along with normal working hours of 8:00 a.m. to considered public comments on our other relevant sections. This includes 4:30 p.m., Monday through Friday, at proposed regulations published requirements for monitoring and the Office of Marine Mammals December 9, 1999 (64 FR 68973), the reporting. The geographic coverage is Management, U.S. Fish and Wildlife comment period for which closed on the same as the regulations we issued on Service, 1011 E. Tudor Road, January 10, 2000. Those proposed January 28, 1999. All existing Letters of Anchorage, AK 99503. regulations would allow the incidental, Authorization will be reissued.

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