52370 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations the parties and the Board, the parties ranging from an informal proffer of and threatened status for two — may request the appointment of one or evidence together with limited dissita (big-leaved crown- more Board judges to act as a Board argument from the parties to a more beard) and vanessae Neutral or Neutrals. The parties may formal presentation of oral and (Encinitas baccharis) throughout their request that the Board’s chairman documentary evidence and argument historic range in southwestern appoint a particular judge or judges as from counsel, such as through a mini- California and northwestern Baja the Board Neutral, or ask the Board’s trial. California, Mexico. These four taxa are chairman to appoint any judge or judges (3) Binding decision. One or more threatened by one or more of the as the Neutral. If, when ADR has been Board judges render a decision which, following—trampling by farm workers requested for a case that has already by prior agreement of the parties, is to or recreational activities; fuel been docketed with the Board, as be binding and non-appealable. As in modification; competition from non- provided in paragraph (a)(1) of this the non-binding evaluation of a case by native species; and habitat section, the parties may request that the a Board Neutral, the manner in which destruction due to residential, panel chairman serve as the Board information is presented for a binding agricultural, commercial, and Neutral. In such a situation, if the ADR decision may vary depending on the recreational development. Several of is unsuccessful, circumstances of the particular case. these plant taxa are also threatened by (i) If the ADR has involved mediation, (4) Other procedures. In addition to a risk of from naturally the panel chairman shall not retain the other ADR techniques, including occurring events due to their small case, and modifications to those listed in this population size and limited (ii) If the ADR has not involved section, as agreed to by the Board and distribution. This rule implements the mediation, the panel chairman, after parties, the parties may use ADR Federal protection and recovery considering the parties’ views, shall techniques that do not require direct provisions afforded by the Act for these decide whether to retain the case. Board involvement. four plants. (2) Retention and confidentiality of (5) Selective use of standard EFFECTIVE DATE: November 6, 1996. materials. The Board will review procedures. Parties considering the use ADDRESSES: The complete file for this materials submitted by a party for an of ADR are encouraged to adapt for their rule is available for public inspection, ADR proceeding, but will not retain purposes any provisions in part 6101 by appointment, during normal business such materials after the proceeding is which they believe will be useful. This hours at the U.S. Fish and Wildlife concluded or otherwise terminated. includes but is not limited to provisions Service, Carlsbad Field Office, 2730 Material created by a party for the concerning record submittals, pretrial Loker Avenue West, Carlsbad, California purpose of an ADR proceeding is to be discovery procedures, and hearings. 92008. used solely for that proceeding unless the parties agree otherwise. Parties may Dated: September 26, 1996. FOR FURTHER INFORMATION CONTACT: Fred request a protective order in an ADR Robert W. Parker, Roberts, Botanist (see ADDRESSES proceeding in the manner provided in Vice Chairman. section) (telephone: 619/431-9440). 6101.12(h). [FR Doc. 96–25121 Filed 10–4–96; 8:45 am] SUPPLEMENTARY INFORMATION: (c) Types of ADR. ADR is not defined BILLING CODE 6829±AL±M by any single procedure or set of Background procedures. The Board will consider the Southern maritime is a low, fairly open chaparral typically use of any technique proposed by the DEPARTMENT OF THE INTERIOR parties which is deemed to be fair, dominated by Ceanothus verrucosus reasonable, and in the best interest of Fish and Wildlife Service (wart-stemmed ceanothus), Xylococcus the parties, the Board, and the bicolor (mission manzanita), resolution of contract disputes. The 50 CFR Part 17 Adenostoma fasciculatum var. following are examples of available obtusifolium (chamise), Quercus RIN 1018±AC01 techniques: dumosa (Nuttall’s scrub oak), (1) Mediation. The Board Neutral, as Endangered and Threatened Wildlife Cneoridium dumosum (bush rue), mediator, aids the parties in settling and Plants; Determination of Rhamnus crocea (red berry), Yucca their case. The mediator engages in ex Endangered or Threatened Status for schidigera (Mojave yucca), and parte discussions with the parties and Four Southern Maritime Chaparral occasionally Dendromecon rigida (bush facilitates the transmission of settlement Plant Taxa from Coastal Southern poppy)(Holland 1986; Todd Kehler- offers. Although not authorized to California and Northwestern Baja Wolf, Plant Ecologist, California render a decision in the dispute, the California, Mexico Department of Fish and Game (CDFG), mediator may discuss with the parties, pers. comm., 1993; Dan Kelly and on a confidential basis, the strengths AGENCY: Fish and Wildlife Service, Patricia Gordon-Reedy, biologists, and weaknesses of their positions. No Interior. OGDEN, pers. comm., 1993). Southern judge who has participated in ACTION: Final rule. maritime chaparral is a plant association discussions about the mediation will that occurs only in coastal southern participate in a Board decision of the SUMMARY: The U.S. Fish and Wildlife California along the immediate coast of case if the ADR is unsuccessful. Service (Service) determines San Diego and Orange counties and (2) Neutral case evaluation. The endangered status pursuant to the northwestern Baja California, Mexico. parties agree to present to the Board Endangered Species Act of 1973, as The distribution of southern maritime Neutral information on which the Board amended (Act), for two plants— chaparral in Orange County is disjunct, Neutral bases a non-binding, oral, Arctostaphylos glandulosa ssp. and the species composition is slightly advisory opinion. The manner in which crassifolia (Del Mar manzanita) and different from that found in San Diego the information is presented will vary orcuttiana (Orcutt’s County and Mexico (Gray and Bramlet from case to case depending upon the spineflower) throughout their historic 1992). agreement of the parties. Presentations range in southwestern California and Southern maritime chaparral is generally fall between two extremes, northwestern Baja California, Mexico; considered to be a unique and Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations 52371 threatened plant community. It has been northwestern Baja California, Mexico. are up to 2.5 m (8.2 ft) tall), and by its estimated that about 120 hectares (ha) Baccharis vanessae occurs in southern dark gray-green leaves that are glabrate (300 acres (ac)) of southern maritime maritime chaparral in the vicinity of above and tomentulose beneath. The chaparral occurred historically in Encinitas, central San Diego County, branchlets and leaf-like bracts are non- Orange County (U.S. Fish and Wildlife California, and extends inland to Mount glandular and tomentulose with Service (USFWS), unpublished data), Woodson and Poway where it is scattered long hairs or bristles (Wells while about 8,400 ha (21,000 ac) of associated with dense southern mixed 1993). Generally, A. glandulosa southern maritime chaparral occurred chaparral. One population of this plant (Eastwood manzanita) is a relatively historically in San Diego County occurs in the Santa Margarita Mountains open, smooth, dark red-barked shrub (Oberbauer and Vanderwier 1991). of northern San Diego County. Two of characterized by a basal burl and Currently, there are an estimated 60 ha the four taxa are found below 250 scarcely leaf-like bracts that are shorter (150 ac) of southern maritime chaparral meters (m) (820 feet (ft)) in elevation in than the hairy flower-stalks. Four of six in Orange County (Todd Kehler-Wolf, the United States. Arctostaphylos subspecies of A. glandulosa lack non- pers. comm., 1993) and between 600 glandulosa ssp. crassifolia reaches 730 glandular, tomentulose hairs and and 1,480 ha (1,500 and 3,700 ac) in San m (2,400 ft) elevation in Mexico. scattered white bristles on the Diego County (Oberbauer and Baccharis vanessae is known to occur at branchlets, bracts and leaves. Of the Vanderwier 1991; OGDEN 1993; Dave 880 m (2,890 ft) in elevation on Mount remaining two taxa, A. g. ssp. mollis of Hogan, Southwest Center for Biological Woodson. the western Transverse Ranges has more Diversity, in litt., 1993). This represents While three of the four plant taxa are uniformly distributed, long, white an 82 to 93 percent decline in habitat in largely restricted to the United States, bristles and bright green, smooth and southern California, largely due to 85 percent of the known populations of shiny leaves, while A. g. ssp. agricultural conversion and Verbesina dissita are known from glaucomollis of the San Gabriel and San urbanization. Much of the remaining 10 northwestern Baja California, Mexico. Bernardino Mountains lacks leaf-like to 20 percent of the United States Although the status of this species and bracts (Wells 1993). portion of southern maritime chaparral its habitat in Mexico is not well Arctostaphylos glandulosa ssp. is located on Carmel Mountain, Torrey documented, over 20 percent of the crassifolia was first described by Willis Pines State Park, and in the cities of populations occuring in Mexico have Jepson (1922) based on a specimen he Carlsbad and Encinitas in San Diego been extirpated. Agricultural collected in Del Mar, California. In County. The distribution of southern conversion, resort and residential 1925, Jepson placed Del Mar manzanita maritime chaparral and related development, and wide fuel breaks and under the name Arctostaphylos associations has also declined slash and burn practices have already tomentosa var. crassifolia (Knight 1981). significantly in Baja California, Mexico, affected and continue to contribute to This name was used by Howard for many of the same reasons. the decline of Verbesina dissita in McMinn (1939), who stated that Del Mar One of the four plant taxa to be listed Mexico (CDFG 1990, Oberbauer 1992). manzanita ‘‘seems very closely related by this final rule, Chorizanthe The natural plant communities of to A. glandulosa var. cushingiana but orcuttiana, is primarily restricted to coastal Orange and San Diego Counties the more truncate leaf-bases, the usually weathered sandstone bluffs in have undergone significant changes more tomentulose lower leaf-surfaces, association with or in microhabitats resulting from both human-caused and distribution seem sufficient to within southern maritime chaparral. activities and natural events. The rapid maintain it as a variety of A. This species is endemic to south-central urbanization of southern Orange County tomentosa.’’ J.E. Adams, in his 1940 and southern coastal San Diego County, and south-central San Diego County has treatment of the genus Arctostaphylos, California. A second taxon, already eliminated a significant portion transferred var. crassifolia to A. Arctostaphylos glandulosa ssp. of the southern maritime chaparral and glandulosa as in Jepson’s original crassifolia, is also primarily associated the four plant taxa considered herein. treatment (Knight 1981). with southern maritime chaparral in Fire also plays an important role in Philip Wells (1968) stated that ‘‘other San Diego County, California. It also determining southern California plant morphological variants of the A. occurs in disjunct populations in community distribution and glandulosa complex have largely northwestern Baja California, Mexico, at composition. The advent of widespread allopatric (do not overlap) geographic least as far south as Mesa el Descanseo, urbanization and the disruption in distributions and are recognized as 40 kilometers (km) (25 miles (mi)) north natural fire cycles potentially threatens subspecies.’’ Accordingly, Wells applied of Ensenada. the remaining southern maritime the name A. glandulosa ssp. crassifolia The remaining two taxa, Verbesina chaparral. Populations of these four taxa to the Del Mar manzanita. Subsequent dissita and Baccharis vanessae, are have been subjected to a considerable taxonomic review (Munz 1959, 1974) frequently associated with southern degree of fragmentation. upheld this treatment. Walter Knight maritime chaparral but also extend into (1981) reviewed the morphology and other plant communities. Verbesina Discussion of the Four Taxa summarized the taxonomic history of A. dissita is restricted to rugged coastal Arctostaphylos glandulosa ssp. g. ssp. crassifolia. While the majority of canyons in association with San Onofre crassifolia (Del Mar manzanita), a Knight’s discussion in that article breccia-derived soils in the southern member of the heath family (Ericaceae), supported the validity of A. g. ssp. maritime chaparral of southern Orange is one of six recognized subspecies crassifolia, Knight concluded that this County, California. This taxon also occurring in California and northwest taxon should not be recognized. He occurs in limited numbers in Venturan- Baja California, Mexico (Wells 1987, stated that A. g. ssp. crassifolia was a Diegan transitional coastal sage scrub 1993). The subspecies is an erect shrub, product of hybridization between A. (Gray and Bramlet 1992), Diegan coastal generally 1 to 1.2 m (3.3 to 4 ft) tall, but glandulosa and other manzanita species sage scrub, and southern mixed occasionally higher when introgressed in the area. However, Knight’s chaparral (Holland 1986). Verbesina (influenced by other subspecies). conclusions were not widely accepted dissita occurs disjunctly in similar This taxon is distinguished from other by botanists in San Diego County vegetation associations from Punta subspecies of Arctostaphylos glandulosa (Beauchamp 1986; Thomas Oberbauer, Descanso south to San Telmo in by its shorter stature (other subspecies Planner, County of San Diego, pers. 52372 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations comms., 1993, 1994). Knight did not cleared and converted to agriculture. southernmost known population. A offer support, nor discuss potential Cultivation at this site was active for single transplanted population of 34 parentage for considering A. g. ssp. one season and has not been continued individuals was established in San crassifolia as a hybrid entity. (T. Oberbauer, pers. comm., 1992). Dieguito Park, but this population has Arctostaphylos glandulosa ssp. Currently, about 9,400 to 10,300 not persisted (Hall 1987). The majority crassifolia is allopatric with other individuals, scattered roughly of the remaining populations are on manzanita taxa, except in Mexico, throughout the historic distribution of private lands. where the range is partly sympatric the species in San Diego County, are Chorizanthe orcuttiana (Orcutt’s (overlapping) with A. g. ssp. zacaensis known to be extant (Roberts 1993, SEB spineflower) was first described by (Wells 1987). Additionally, the 1993b, OGDEN 1995a). About 75 Charles Parry in 1884 based on a morphological characters of A. g. ssp. percent of all remaining individuals are specimen collected by Charles Orcutt at crassifolia do not appear to be located within six concentrations. The Point Loma, San Diego County, in the intermediate with any other species majority of the 26 populations are found same year (Parry 1884). Chorizanthe within the vicinity of its range (McMinn on private land, four occur in State, orcuttiana is a low, yellow-flowered 1939, Munz 1974, Wells 1993, Roberts county or local parks, and none are annual of the family 1994). known from Federal lands. The number () restricted to sandy soils. Both Knight and Wells were asked to of individuals in Baja California, It is distinguished from other members examine populations of manzanita along Mexico, is not known but is likely to be of the genus by its prostrate form, coastal San Diego County in March smaller than in the United States, based campanulate three-toothed involucre 1986. From these field observations, on the limited availability of habitat. and involucral awns that are hooked Knight revised his position and agreed Four populations of Arctostaphylos near the tip (Reveal 1989). with the classical treatment, concluding glandulosa totaling approximately 3,000 Historically, Chorizanthe orcuttiana that Arctostaphylos glandulosa ssp. individuals in the vicinity of Miramar is known from 10 separate localities in crassifolia was distinct (T. Oberbauer, Reservoir have been attributed to A. g. San Diego County from Point Loma near pers. comms., 1993, 1994; Jim Bartel, ssp. crassifolia, but Wells (pers. comm., San Diego (including the U.S. Naval USFWS, pers. comm., 1994). Wells 1992) maintains that these plants are Reservation), Del Mar, Kearney Mesa reaffirmed the distinctness of A. g. ssp. intermediate with other subspecies of A. and Encinitas (CDFG 1992). Only two crassifolia, stating ‘‘(A. g.) ssp. glandulosa and can not be definitely populations have been seen in recent crassifolia is one of the more consistent placed. Later inclusion of these years. Allen reported 50 to 100 and well-defined taxa within the populations in A. g. ssp. crassifolia individuals at Torrey Pines State Park in variable A. glandulosa complex, and (A. would not significantly alter the 1987 (CDFG 1992). However, this g. ssp.) crassifolia has a discrete findings of this rule. Nearly 50 percent population has not been relocated in the distribution, allopatric from other taxa’’ of the individuals known from the last several years, possibly due to (Wells 1987, Sweetwater Environmental vicinity of Miramar Reservoir in 1982 changing plant species composition and Biologists (SEB) 1993b). were eliminated by the Scripps Ranch density as result of a 1984 burn. The Arctostaphylos glandulosa ssp. development between 1989 and 1992. crassifolia is restricted to sandstone Baccharis vanessae (Encinitas species was thought to be extinct until terraces and bluffs from Carlsbad south baccharis), a member of the sunflower a new population was discovered in to Torrey Pines State Park, extending family (), is a dioecious 1991 at Oak Crest Park in Encinitas (D. inland to Rancho Santa Fe and Del Mar broom-like shrub, 0.5 to 1.3 m (1.6 to 4.3 Hogan, in litt., 1991). This population Mesa in San Diego County, California. ft) tall. It was discovered by Mitchel numbered fewer than 40 individuals in An additional population has been Beauchamp in October 1976 in southern 1993 and fewer than 10 individuals in reported just south of the San Dieguito maritime chaparral on Eocene 1994, and it is distributed over a River southwest of Lake Hodges. This sandstones along the north side of relatively small area (about 4 square m species has been reported from five Encinitas Boulevard in Encinitas. The (43 square ft)) (unpublished USFWS localities in northwestern Baja species was later described by data). The number of individuals varies California, Mexico, from just east of Beauchamp (1980). Baccharis vanessae widely from year to year because the Tijuana along the United States border, is distinguished from other members of success of germination is highly to Cerro el Coronel and Mesa Descanseo the genus by its filiform leaves and dependent on factors such as rainfall, 40 km (25 mi) south of the United States delicate phyllaries which are reflexed at which often differ significantly from one border. These populations may no maturity (Beauchamp 1980, Munz year to the next in southern California. longer be extant due to considerable 1974). Verbesina dissita (big-leaved crown- urban and agricultural development in As currently understood, the beard) was first described by Asa Gray the Tijuana vicinity (Roberts 1992). The historical distribution of this species (1885) based on a collection made by most recent collection in the San Diego included 19 natural populations Charles Orcutt at Ensenada, Baja Museum of Natural History was made scattered from Encinitas east through California, Mexico, in September 1884. by Reid Moran in 1982. the Del Dios highlands and Lake Hodges The taxon apparently was first collected About 1982, approximately 16,600 to area to Mount Woodson and south to in the United States at Arch Beach in 17,600 individuals of Arctostaphylos Poway and Carmel Mountain in San South Laguna, Orange County, in 1903 glandulosa ssp. crassifolia were known Diego County, California. Fourteen of by Mrs. M.F. Bradshaw (Hall 1907). to be distributed over about 26 these populations are still extant and Verbesina dissita, a member of the population centers (Roberts 1992, SEB contain approximately 2,000 sunflower family (Asteraceae), is a low, 1993b, OGDEN 1995a). A significant individuals in total (CDFG 1992). Four semi-woody perennial shrub with bright number of these populations have been of these populations, however, contain yellow flowers. This species grows from severely impacted since then. For fewer than six individuals each. An 0.5 to 1.0 m (1.6 to 3.3 ft) tall and has example, in 1987, one population of additional disjunct individual was distinctive scabrid leaves. Verbesina nearly 500 individuals near San discovered on the western slopes of dissita is distinguished from other Dieguito Creek and the surrounding Carmel Mountain in 1993 (D. Hogan, in members of the genus in California and southern maritime chaparral habitat was litt., 1993). This location harbors the Baja California, Mexico, by its naked Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations 52373 achenes and broad involucre (Munz withdrawal of the portion of the June 8, Section 4(b)(3)(B) of the Act requires 1974). 1976, proposal that had not been made the Secretary to make certain findings Verbesina dissita is found on rugged final, along with four other proposals on pending petitions within 12 months hillsides in dense maritime chaparral that had expired. of their receipt. Section 2(b)(1) of the from Laguna Beach in Orange County The Service published an updated 1982 amendments further requires that south to the San Telmo area east of Cabo notice of review of plants on December all petitions pending on October 13, Colonet in Baja California, Mexico. In 15, 1980 (45 FR 82480). This notice 1982, be treated as having been newly California it is known from two included Baccharis vanessae and submitted on that date. This was the population centers less than 3.2 km (2 Chorizanthe orcuttiana as category 1 case for Arctostaphylos glandulosa ssp. mi) apart. Because of the low growth taxa. Category 1 taxa are those taxa for crassifolia and Chorizanthe orcuttiana habit and preference for understory which substantial information on because the 1975 Smithsonian report locations, the population size of this biological vulnerability and threats are had been accepted as a petition. On taxon is difficult to estimate. The United available to support preparation of October 13, 1983, the Service found that States populations have been estimated listing proposals. On November 28, the petitioned listing of these species to contain several thousand plants 1983, the Service published in the was warranted, but precluded by other (CDFG 1992, Marsh 1992). Historically, Federal Register a supplement to the pending listing actions pursuant to this taxon has been recorded from 23 Notice of Review (48 FR 53840), in section 4(b)(3)(B)(iii) of the Act. separate locations in Mexico. Of the which B. vanessae and C. orcuttiana Notification of this finding was Mexican localities, over 20 percent, all were reclassified from category 1 to published in the Federal Register on north of Punta Santo Tomas, have been category 2. Category 2 candidates were January 20, 1984 (49 FR 2485). Such a eliminated. Nearly all known taxa for which data in the Service’s finding requires the petition to be populations are on private land. possession indicated listing was recycled, pursuant to section Previous Federal Action possibly appropriate but for which 4(b)(3)(C)(i) of the Act. The finding was substantial information on biological reviewed in October of 1984, 1985, Action by the Federal government on 1987, 1988, 1989, 1990, 1991, and 1992. two of the four plant taxa contained vulnerability and threats was not known or on file to support the preparation of Publication of the proposed rule herein began pursuant to section 12 of constituted the warranted finding for the Endangered Species Act of 1973 proposed rules. The designation of category 2 species was not included in these taxa. (Act), as amended (16 U.S.C. 153 et On December 14, 1990, the Service the latest notice of review (February 28, seq.). Section 12 directed the Secretary received a petition dated December 5, 1996; 61 FR 7596). Arctostaphylos of the Smithsonian Institution to 1990, from Mr. David Hogan of the San glandulosa ssp. crassifolia was not prepare a report on those plants Diego Biodiversity Project, to list included in either the 1980 review list considered to be endangered, threatened Baccharis vanessae as an endangered or the 1983 supplement. or extinct. This report, designated as species. The petition also requested the House Document No. 94–51, was The plant notice was again revised on designation of critical habitat. The presented to Congress on January 9, September 27, 1985 (50 FR 39526), and Service evaluated the petitioner’s 1975, and included Arctostaphylos Arctostaphylos glandulosa ssp. requested action and published a 90-day glandulosa ssp. crassifolia and crassifolia was listed as a category 3B finding on August 30, 1991 (56 FR Chorizanthe orcuttiana as endangered. taxon. Category 3B taxa were those taxa 42968), stating that substantial The Service published a notice in the that, based upon current taxonomic information had been presented that the July 1, 1975, Federal Register (40 FR understanding, did not represent requested actions concerning Baccharis 27823) of its acceptance of the report of distinct taxa under the Act’s definition vanessae may be warranted. the Smithsonian Institution as a petition of species (the designation of category A proposed rule to list Arctostaphylos within the context of section 4(c)(2) 3B has also been discontinued). This glandulosa ssp. crassifolia, Baccharis (petition provisions are now found in change reflected the questionable vanessae, and Chorizanthe orcuttiana as section 4(b)(3) of the Act) and its validity of the taxon as presented by endangered and Verbesina dissita as intention thereby to review the status of Knight (1981). The of threatened was published in the Federal the plant taxa named therein. On June Arctostaphylos glandulosa ssp. Register on October 1, 1993 (58 FR 16, 1976, the Service published a crassifolia was subsequently 51302). That proposed rule also proposal in the Federal Register (42 FR reevaluated, and the plant was included included Dudleya blochmaniae ssp. 24523) to determine approximately as a category 2 taxon in the February 21, brevifolia (short-leaved dudleya) to be 1,700 vascular plants to be endangered 1990, Plant Notice of Review (55 FR listed as endangered and Corethrogyne species pursuant to section 4 of the Act. 6184), based on the work of Wells filaginifolia var. linifolia (Del Mar sand- Chorizanthe orcuttiana and (1987). In this same notice, Baccharis aster) to be listed as a threatened taxon. Arctostaphylos glandulosa ssp. vanessae and Chorizanthe orcuttiana The proposals to list those two taxa are crassifolia were included in the June 16, were reevaluated and included as withdrawn and addressed in a 1976, Federal Register notice. category 1 species based on information document published concurrently in the General comments received in contained in status reports prepared in proposed rule section of this issue of the response to the 1976 proposal were conjunction with State listing as Federal Register. summarized in an April 26, 1978, endangered. The 1990 review included The processing of this final rule Federal Register notice (43 FR 17909). C. orcuttiana as a category 1* candidate, follows the Service’s listing priority The Endangered Species Act indicating that this species was possibly guidance published in the Federal Amendments of 1978 required that all extinct. Based on additional information Register on May 16, 1996 (61 FR 24722). proposals already over two years old be on threats and vulnerability, the Service The guidance clarifies the order in withdrawn. A 1-year grace period was elevated A. g. ssp. crassifolia and C. which the Service will process given to those proposals already more orcuttiana to category 1 and added rulemakings following two related than two years old. In the December 10, Verbesina dissita as a category 1 events: 1) the lifting, on April 26, 1996, 1979, Federal Register (44 FR 70796), candidate in the September 30, 1993, of the moratorium on final listings the Service published a notice of Notice of Review (58 FR 51144). imposed on April 10, 1995 (Public Law 52374 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations

104–6), and 2) the restoration of Wolf, D. Kelly and P. Gordon-Reedy, accepted basis for taxonomic distinction significant funding for listing through pers. comms., 1993). for all biological organisms. passage of the omnibus budget Issue 2: One commenter argued that Issue 3: One commenter claimed that reconciliation law on April 26, 1996, Arctostaphylos glandulosa ssp. historic losses of Arctostaphylos following severe funding constraints crassifolia does not warrant protection glandulosa ssp. crassifolia were the imposed by a number of continuing under the Act because the Service has result of taxonomic confusion because resolutions between November 1995 failed to demonstrate that it is a distinct of ‘‘complete lack of consensus within and April 1996. The guidance calls for taxon. The commenter claimed that the scientific community.’’ The prompt processing of final rules there was no consensus within the commenter noted the taxon has only containing species facing threats of high scientific community regarding this recently been considered a distinct magnitude. All four taxa in this rule face taxon. The commenter stated that the subspecies. The commenter also noted high magnitude threats. Service did not clearly demonstrate that that the California Native Plant Society Knight’s treatment (Knight 1981) should rejected this taxon in their 1988 Summary of Comments and Inventory (Smith and Berg 1988) and Recommendations be rejected over Wells (1987, 1993). The commenter questioned the use of that the Service determined in the In the October 1, 1993, proposed rule morphological variation in determining September 27, 1985, Notice of Review (58 FR 51302) and associated subspecific classification. Additionally, (50 FR 39528) that A. g. ssp. crassifolia notifications, all interested parties were the commenter claimed that it is unclear did not represent a distinct taxon. The requested to submit factual reports or whether the Scripps Ranch population commenter also asserted that Federal information that might contribute to the of Arctostaphylos glandulosa is recognition of this taxon has been development of a final rule. A 90-day representative of this taxon. lacking since the 1985 notice. comment period closed on January 1, Service Response: As discussed under Service Response: A discussion 1994. Appropriate State agencies, the ‘‘Background’’ section, this regarding the taxonomic history of this county governments, Federal agencies, subspecies has been recognized as taxon is included under the ‘‘Discussion and other interested parties were distinct for nearly 70 years. This taxon of the Four Taxa’’ section of this rule. contacted and requested to comment. A was first described as a variety of A. The discussion in the proposed rule has letter of notification and a copy of the glandulosa in 1922, and has been proposed rule were also sent to the been expanded to increase clarity and widely recognized in taxonomic government of Mexico. Public notices address concerns included within this treatments since then (McMinn 1939; announcing the publication of the comment. In determining the taxonomic Abrams 1951; Munz 1959, 1974; Wells proposed rule were published in the status of any taxon, the Service utilizes 1968, 1987, 1993; Beauchamp 1986). In Press-Enterprise in Riverside County on the best available information. Nearly 1985, the Service rejected this taxon October 12, 1993, and the San Diego all taxonomic treatments published based on the most recent taxonomic Union Tribune in San Diego County and since the original description of treatment at that time. However, since the Orange County Register on October Arctostaphylos glandulosa ssp. that time, floristic and monographic 13, 1993. No request for a public hearing crassifolia in 1922 recognize this taxon treatments by Beauchamp (1986) and was received. as distinct. The two most recent Wells (1987) recognized A. g. ssp. A total of seven written comments treatments (Wells 1987, 1993) are the crassifolia as a distinct taxon. The latter were received. Two commenters accepted, peer reviewed treatments for treatment detailed the taxonomic supported the listing of these taxa. Two this genus. This taxon is also recognized argument for retention of the commenters neither supported nor as distinct in local floras (Beauchamp subspecies. The Service, following the opposed the proposed listing. Three 1986) and other reports regarding the criteria of the best available information, commenters opposed the proposed status of the taxon (SEB 1993b). reinstated the taxon to category 2 status listing. Information from a number of The Service does not rely on Knight in 1990. The California Native Plant these comments has been incorporated (1981) because this treatment does not Society currently recognizes A. g. ssp. into the final rule. Eleven relevant represent the best available information. crassifolia as a list 1B taxon (Skinner issues were raised in these comments As discussed under the ‘‘Background’’ and Pavlik 1994). Plants included on list and the Service’s response to each is as section of this rule, Knight did not 1B are considered rare and endangered follows: substantiate his claim that in the State of California and are eligible Issue 1: One commenter stated that Arctostaphylos glandulosa ssp. for State listing under California’s the estimate for remaining southern crassifolia was of hybrid origin between Native Plant Protection Act (chapter 10 maritime chaparral was too high and A. glandulosa and other unidentified section 1901) or the State Endangered suggested that the definition of southern species of Arctostaphylos. Furthermore, Species Act (Skinner and Pavlik 1994). maritime chaparral adopted by the Knight reversed his opinion in 1986 and As discussed in this rule under Service, based on Holland (1986), accepted A. g. ssp. crassifolia as valid ‘‘Previous Federal Action,’’ the required modification. (T. Oberbauer, pers. comm., 1993; J. commenter is incorrect in asserting that Service Response: A range of Bartel, pers. comm., 1994). Wells (1968, the Service has not identified this taxon estimates for remaining southern 1993) published in peer-reviewed as a candidate for protection under the maritime chaparral has been publications while Knight (1981) did Act since 1985. It was published as a incorporated into the final rule. While not. Both Wells and Knight applied category 2 candidate species in the the exact amount of remaining southern morphological variation in determining February 21, 1990, Plant Notice of maritime chaparral is not agreed upon, the status of A. g. ssp. crassifolia. While Review (55 FR 6184) and as a category the Service considers this plant the Service acknowledges that other 1 candidate in 1993. During the period association to be sensitive and rare. The methods (i.e., chemotaxonomy and between 1985 and 1990, Arctostaphylos Service has coordinated with the CDFG, genetic analysis) may be used as glandulosa ssp. crassifolia was widely knowledgeable biologists, and other supplements to morphological variation recognized in environmental parties in determining an appropriate as available tools for taxonomic documentation (Beauchamp 1986; definition for southern maritime definition, morphological variation has Nelson 1988; Pacific Southwest chaparral (Jim Dice, CDFG, T. Keeler- historically been the most widely Biological Services 1990; Stephen Lacy, Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations 52375

Biological Resource Manager, ERCE, in According to SEB (1993b), 22 of the Palomar Airport (Ken Cory, USFWS, litt., 1991; T. Oberbauer, pers. comm., 24 United States populations, 137 (45 pers. comm., 1996) in an area identified 1993). Based on the best available percent) of the subpopulations and as a public open space in Table 1 of the scientific and commercial information, about 7,100 to 9,700 individuals (42 to SEB report. the Service finds A. g. ssp. crassifolia to 58 percent) of Arctostaphylos Estimates for preservation in SEB be a taxon eligible for listing under the glandulosa ssp. crassifolia are still (1993b) do not consider the Act. extant. SEB (1993b) further states that of configuration of remaining occupied Issue 4: Two commenters claimed that the remaining individuals of this taxon, open space or edge effects resulting these taxa did not warrant listing as about 82 percent are proposed for from existing and proposed endangered or threatened because the conservation, which includes about 35 development. The majority of the majority of their populations are percent on public lands and 48 percent existing Arctostaphylos glandulosa ssp. protected from development. One on private lands. crassifolia populations are relics of commenter dealt mainly with a species SEB (1993b) identify seven major larger historic populations. Nearly 50 now being withdrawn from populations that contain about three- percent of the remaining populations, consideration for listing. Another fourths of all San Diego County comprising about 10 to 14 percent of all commenter claimed that the report Arctostaphylos glandulosa ssp. individuals of A. g. ssp. crassifolia, are entitled ‘‘Description, Status, crassifolia. The Service concurs with in open space parcels that are smaller Distribution, and Conservation of Del the assessment of six of these than 20 ha (50 ac). While all Mar Manzanita (Arctostaphylos populations and identifies the seventh populations of A. g. ssp. crassifolia are glandulosa ssp. crassifolia)’’ by population identified in SEB (1993b) as important, the majority of these small, Sweetwater Environmental Biologists moderately large. Service staff assessed isolated, and poorly configured (SEB 1993b), rebuts the Service’s this population at fewer than 500 populations are entirely within 60 m finding that listing of Del Mar individuals in December 1993. The (200 ft) of, and are often surrounded by, manzanita is warranted. Based on this Service further considers that both the development. These population report, the commenters stated that the size and the configuration of these configurations likely will not contribute majority of these individuals (76 populations are important to the long- significantly to the long-term percent) occur within 7 of the 22 term viability of A. g. ssp. crassifolia. preservation of the taxon. All are subject populations. Of these 7 major Currently all seven of the populations to edge effects (i.e., invasion of exotic populations (each containing over 500 identified as large in SEB (1993b) are plants, disturbances by local residents) individuals), the commenters claimed situated in natural blocks of vegetation and may be threatened by fuel that 82 percent will be preserved, which greater than 40 ha (100 ac) in size. modification activities (i.e., fire breaks, accounts for 70 percent of the entire The number of individuals in the SEB discing, reduction through thinning). taxon. (1993b) report is not significantly The effect of isolation and habitat size Service Response: Although these different from, and generally conforms reduction also retards natural fire and commenters evidently include with, estimates used by the Service in successional cycles within the habitat of Baccharis vanessae, Chorizanthe preparation of the proposed rule. A. g. ssp. crassifolia (Roberts 1993). orcuttiana, and Verbesina dissita within However, SEB (1993b) significantly Of the larger and more significant the context of this comment, no specific overestimates the preserved population populations of Arctostaphylos discussion was included regarding these of Arctostaphylos glandulosa ssp. glandulosa ssp. crassifolia, only one taxa. crassifolia. The remarks and data population is protected and managed for The Service has considered the summary on Table 1 of the report are long-term preservation (Torrey Pines findings of the SEB report (1993b) in inconsistent—the data summary State Park north). However, this determining the status of Arctostaphylos indicates that about 18 percent of this population is located within a 80 ha glandulosa ssp. crassifolia. SEB taxon is threatened by development, (200 ac) parcel that is completely reported that there were about 17,000 while the remarks section indicates that surrounded by development (Roberts individuals of Del Mar manzanita over 30 percent of the A. g. ssp. 1993). Another population (Crest View distributed over 302 subpopulations crassifolia is currently threatened by Canyon) is under public management; within 24 populations in San Diego development. Although SEB (1993b) however, about 50 percent of this County from Oceanside south to La acknowledges that one of the major population is located within 60 m (200 Jolla, and inland to Scripps Ranch in the populations located in the city of ft) of development and is subject to edge United States. SEB described the range Carlsbad, California, consists of nearly effects (Roberts 1993). While another of this taxon as extending along the 2,000 individuals, only about 750 of population (upper end of Agua immediate coast of Baja California, these are accounted for in Table 1. The Hedionda) is also under public Mexico, south to Cabo Colonet about remaining 1,200 individuals are management, it is subject to incremental 200 km (124 mi) south of the United assumed to have been ‘‘graded.’’ clearing impacts as a result of adjacent States border. However, these individuals are still airport operations, road-widening Available data (Reid Moran, extant and are threatened by the activities, and clearing related to California Academy of Sciences, Philip implementation of a large scale mulching and agriculture (Roberts 1994; Wells, T. Oberbauer, pers. comms., development project. The Service K. Cory, pers. comm., 1996). This 1992; and herbarium collections at the considers the loss of most of this population is also bisected by numerous San Diego Natural History Museum) population, which represents a footpaths. At least 15 percent of this indicate that the distribution of this reduction of 10 to 15 percent of the population is situated within 60 m (200 taxon in Mexico is limited. The Service United States populations of A. g. ssp. ft) of development (Roberts 1993). has not been presented with any crassifolia, to be a significant impact on Of the remaining four major evidence that Arctostaphylos this taxon. Nor is public open space populations, all are threatened in part glandulosa ssp. crassifolia occurs necessarily equivalent to protection, as by development and will be further farther south than Mesa Descanseo 40 indicated in the SEB report. This is fragmented or isolated when projects are km (25 mi) south of the international exemplified by clearing and mulching of completed. While the majority of one of border. southern maritime chaparral east of these populations (Green Valley, 52376 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations

Encinitas and Carlsbad) is proposed for losses incurred over the last decade. As commenter discussed how Federal conservation, three others, all located indicated by the commentor, many listing would not provide within the City of Carlsbad, will be RPO’s protect steep slopes. In addition, Arctostaphylos glandulosa ssp. significantly reduced as a result of RPO’s also apply to all biologically crassifolia, which occurs primarily on proposed development. Two of these sensitive lands, which are defined to private lands, additional protection in populations currently contain nearly include those lands that support the two examples cited in the proposed half of all individuals (about 3,000). sensitive vegetation (San Diego rule. After mitigation is implemented for Municipal Code § 101.0462). The Service Response: The Service is proposed development projects, these ordinance further states that biologically required to determine whether any populations will be reduced by about 50 sensitive lands shall be preserved in species qualifies for listing as percent and will be scattered over four their natural state and that any endangered or threatened based on a parcels of open space containing fewer encroachment must be minimal and review of the five factors listed under than 20 ha (50 ac). A 20 ha (50 ac) parcel must not adversely impact any rare, Section 4 of the Act. The Service is not likely to insure long-term threatened or endangered species. This acknowledges that the level of conservation of Arctostaphylos presumably would include any sites protection provided for listed plant glandulosa ssp. crassifolia. containing populations of the species species is not equivalent to the Additionally, the majority of the listed herein. protection accorded federally listed surviving individuals will be situated The Service acknowledges that the animal species. Impacts to listed plant within 60 m (200 ft) of development and NCCP, MSCP, MHCP, and HMP were species are addressed through will likely be adversely affected by edge not adequately discussed in the consultation with other Federal agencies effects (Roberts 1993, City of Carlsbad proposed rule. Most of these programs when a Federal action is involved. and Fieldstone/La Costa Associates were in the early development stage at While Federal actions may be limited on 1994, OGDEN 1995a). Therefore the the time the rule was developed. private lands, some protection may be Service finds that the claim that 82 However, the Service has both afforded through this process. For percent of this taxon is proposed for monitored and actively participated in example, in autumn of 1993, the United conservation and preservation is not coordinating the development of these States Army Corps of Engineers (Corps) supported by available data. The best programs as they have matured. The initiated conferencing regarding the available data indicate that while about MSCP in southern coastal San Diego proposed impacts of a large-scale 80 percent of the A. glandulosa ssp. County has proceeded to a significant development project on a significant crassifolia populations are within level. As a result of these planning population of Arctostaphylos dedicated open space, parks, or efforts, one taxon (Dudleya blochmaniae glandulosa ssp. crassifolia. The preserved areas (about 30 percent of the ssp. brevifolia) originally proposed as conferencing process resulted in total San Diego County populations are endangered with the four subject taxa is improved preservation of that taxon. within the Multiple Species being withdrawn (see separate When assessing a habitat conservation Conservation Program (MSCP) preserve concurrent Federal Register notice), plan under section 10(a)(1)(B) of the area), only about 55 percent of the total while another (Baccharis vanessae) is Act, the Service must conduct an populations are preserved when edge being finalized as threatened instead of internal consultation pursuant to effects and configuration of preserved endangered. The Service considers the section 7 of the Act to determine areas are considered. mitigation proposed within the MSCP whether approval of the plan will Issue 5: Two commenters stated that adequate for threats to Baccharis jeopardize any federally proposed or these taxa do not warrant listing because vanessae and Arctostaphylos glandulosa listed plant or animal species. existing regulatory mechanisms ssp. crassifolia within the MSCP Additionally, ‘‘take’’ of federally listed provided by the California subregion. However, both taxa have plant species is prohibited under Environmental Quality Act (CEQA), significant populations outside this Federal law in circumstances where a County and City of San Diego Resource planning area. While other programs State law is violated, such as a violation Protection Ordinances (RPO’s), and may ultimately provide significant of the provisions of CEQA or the multispecies programs including the protection to the taxa considered herein, California Endangered Species Act. State Natural Communities at their current planning stages, the Federal listing also provides a Conservation Plan (NCCP), and local degree of conservation afforded these significant degree of recognition by MSCP, Multiple Habitat Conservation taxa is uncertain and would not State and local agencies and private Plan (MHCP), and the Carlsbad Habitat significantly alter the Service position. landowners which may result in Management Plan (HMP) provide A detailed discussion regarding these increased protection. Survey adequate protection. programs and others has been requirements and conservation Service Response: Although the incorporated into the final rule under guidelines for listed and non-listed County and City of San Diego adopted Factor D (‘‘The inadequacy of existing species differ considerably under the RPO’s in 1991, many of the populations regulatory mechanisms’’). Verbesina State Coastal Protection Act, CEQA, of these four taxa occur outside the dissita does not occur in San Diego RPO’s and other local conservation jurisdiction of these ordinances. For County and is not subject to the MSCP, regulations. Frequently, unlisted rare example, none of the major populations MHCP, or the HMP planning efforts. species are inadequately surveyed or of Arctostaphylos glandulosa ssp. Issue 6: One commenter stated that given inadequate protection under these crassifolia are within the City of San while the Service asserted that State and processes. Diego or on lands under County local regulatory controls are inadequate Issue 7: One commenter claimed that jurisdiction. Currently, the Service is to protect these plant taxa, the Service listing these taxa would have a negative aware of 10 development projects that failed to demonstrate how Federal effect on current multispecies planning have recently been approved or listing will provide further protection. efforts. proposed that may eliminate nearly 50 The commenter noted that the Service Response: The Service is percent of the remaining Arctostaphylos Endangered Species Act provides no required to determine whether any glandulosa ssp. crassifolia. This rate of direct protection to listed plants on species is endangered or threatened decline is consistent with historical private lands. Specifically, the based on the applicability of the five Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations 52377 factors listed under Section 4(a)(1) of southern maritime chaparral. scientific and commercial information, the Act. While the Service supports the Commenters noted that the locations of without reference to possible economic intent of multispecies planning efforts most of these taxa are available to the or other impacts of such a to avoid or reduce the need for future public through environmental impact determination. listing actions within designated reports, rebutting the Service’s argument Issue 10: One commenter stated that planning areas, significant populations that the designation of critical habitat collection is not a threat to any of the of the four taxa discussed herein are was not prudent since this would four taxa. outside approved or nearly completed increase the likelihood of vandalism Service Response: As discussed under multispecies conservation plan areas (i.e., habitat destruction) by revealing Factor B (‘‘Overutilization for (MSCP), or not adequately protected precise locations. commercial, recreational, scientific or Service Response: The Service within approved plans (i.e., Verbesina educational purposes’’), Chorizanthe acknowledges that available public dissita within the Central Coastal orcuttiana is threatened by environmental documentation has subregion of Orange County). Two of the overcollection because of limited already disclosed the location of many four taxa are considered covered species population size, horticultural appeal, populations of the four taxa. The under the MSCP (Arctostaphylos and the relative ease of access to glandulosa ssp. crassifolia and Service finds that designation of critical remaining sites. Baccharis vanessae). Future impacts to habitat is not prudent because it would these taxa within the MSCP have been not be beneficial to any of these four Issue 11: Two commenters requested considered and are addressed through taxa. Critical habitat is only applicable that a qualified party perform scientific planned preservation or management for to actions that have a Federal nexus. peer review to reconcile the status of plan participants throughout the Any Federal action that may affect a Del Mar manzanita as a distinct subregion (see Available Conservation listed species or designated critical subspecies, and one suggested that the Measures). Thus listing these three taxa habitat is addressed through section 7 of Service reopen the comment period to will not have a negative effect on the Act, which requires a Federal facilitate this review. current planning efforts. Chorizanthe agency to consult with the Service to Service Response: As discussed in the orcuttiana is extremely rare and not determine if the action is likely to Background section, disagreements over considered adequately conserved by the jeopardize a species or result in the taxonomic status of this species MSCP. Federal and State listing actions destruction or adverse modification of between Wells, the primary expert on frequently drive multispecies planning critical habitat. Of the four taxa, only the species, and Knight, who once efforts and offer guidance to these Chorizanthe orcuttiana (historically) proposed that the subspecies was not conservation efforts, many of which are and Baccharis vanessae occur on distinct, have been resolved in peer- voluntary. Well-designed multispecies Federal lands, and none are associated reviewed publications. conservation plans must consider a with wetlands which receive protection Summary of Factors Affecting the wide range of sensitive species and their under section 404 of the Clean Water Species habitats. The necessity for additional Act. It is anticipated that few of the listings indicate that these goals have remaining populations will be affected Section 4 of the Endangered Species not yet been met as indicated in the by actions of Federal agencies. Act and regulations (50 CFR part 424) discussion under Factor D. Issue 9: The Service should consider promulgated to implement the listing Issue 8: One commenter thought that economic effects in determining provisions of the Act set forth the the Service should designate critical whether to list these taxa under the procedures for adding species to the habitat for all four taxa included in this Endangered Species Act. Federal lists. A species may be rule, stating that critical habitat Service Response: In accordance with determined to be an endangered or designation would support the mapping section 4(b)(1)(A) of the Act, and 50 CFR threatened species due to one or more efforts and recommendations of the City 424.11(b) of the implementation of the five factors described in section of San Diego’s MSCP, and that critical regulations, listing decisions are made 4(a)(1). The threats facing these four habitat should include all remaining solely on the basis of the best available taxa are summarized in Table 1.

TABLE 1.ÐSUMMARY OF THREATS

Develop. Limited Trampling Alien plants Fire control activity numbers

Arctostaphylos glandulosa ssp. crassifolia ...... X X X X ...... Baccharis vanessae ...... X X X X X Chorizanthe orcuttiana ...... X X ...... X X Verbesina dissita ...... X X ......

These factors and their application to of the four taxa herein (Chorizanthe occurs in two disjunct populations, one Arctostaphylos glandulosa Eastw. ssp. orcuttiana) is restricted to the south- in coastal southern Orange County and crassifolia (Jeps.) Wells (Del Mar central coast of San Diego County, one along the coast in northwestern Baja manzanita), Baccharis vanessae California. Baccharis vanessae extends California, Mexico. The most imminent Beauchamp (Encinitas baccharis), inland 32 km (20 mi) and north to the threat facing all four taxa and their Chorizanthe orcuttiana Parry (Orcutt’s Santa Margarita Mountains of northern associated habitats is the ongoing and spineflower), and Verbesina dissita Gray San Diego County. Arctostaphylos threatened destruction and modification (big-leaved crown-beard) are as follows: glandulosa ssp. crassifolia extends from of habitat by one or more of the A. The present or threatened the south-central coast of San Diego following—urban development, destruction, modification, or County south into northwestern Baja agricultural development, recreational curtailment of its habitat or range. One California, Mexico. Verbesina dissita 52378 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations activities, trampling, and fuel modification and edge effects (Roberts rugged coastal hillsides and canyons in modification activities. 1993, SEB 1993a). Several of the smaller southern maritime chaparral and, to a Arctostaphylos glandulosa ssp. populations of A. g. ssp. crassifolia in lesser extent, coastal sage scrub and crassifolia (Del Mar manzanita) is Encinitas, Carlsbad, Carmel Valley and mixed chaparral, along a 3.2 km (2 mi) restricted to sandstone-derived soils on Carmel Mountain are also threatened stretch of coastline in Laguna Beach, along the south-central coast of San by development and associated indirect Orange County. Although some Diego County, extending south to Mesa impacts (Roberts 1992, SEB 1993b). populations extend into Aliso-Woods el Descanseo 40 km (25 mi) south of the The status of Arctostaphylos Regional Park, the majority of the United States border, Baja California, glandulosa ssp. crassifolia and its remaining populations are on private Mexico. This taxon is restricted almost habitat in extreme northwestern Baja land and these populations are exclusively to southern maritime California, Mexico, are not well threatened by residential development chaparral and is considered to be an documented. However, this species only and fuel modification activities (CDFG indicator species for this plant extends some 40 km (25 mi) south of the 1992). community. Estimates indicate that United States border. This region Residential development and fuel between 82 and 93 percent of southern represents one of the most severely modification activities continue to maritime chaparral vegetation in San impacted areas in Baja California. Many incrementally impact the main Laguna Diego County has been lost as a result of the same factors (urban and Beach population of Verbesina dissita of urban and agricultural development agricultural development) that have (CDFG 1992). At least four residences (Oberbauer and Vanderwier 1991; affected the status of this taxon in the were built directly on V. dissita plants OGDEN 1993; D. Hogan, in litt., 1993). United States are also clearly having an after its State-listing as a threatened Between 1980 and 1990, the population impact south of the border (Oberbauer species in 1989. Although the of San Diego County increased by more 1992). individual houses eliminated a than 600,000 people. Most of this Chorizanthe orcuttiana (Orcutt’s relatively small number of plants, local increase occurred on or near the coast spineflower) is restricted to exposed ordinances require the creation of a fuel at sites historically occupied, in part, by sandy soils at two sites in coastal south- modification zone up to 46 m (150 ft) southern maritime chaparral. About 140 central San Diego County. One site, from the residence (Richard Drewberry, to 180 ha (300 to 450 ac) (12 to 30 located at Torrey Pines State Park, is Laguna Beach Fire Department, pers. percent) of southern maritime chaparral protected. However, this population has comm., 1991). Over 20 percent of V. is currently located within approved or not been seen since 1987 (T. Oberbauer, dissita occurrences are within 46 m (150 proposed developments in San Diego pers. comm., 1992). The only currently ft) of residential development. If these County (RECON 1987, Roberts 1992, known population is within Oak Crest ordinances are fully implemented, a SEB 1993a; D. Hogan, in litt., 1993; Gail Park in Encinitas, and this population is significant portion of this species in the Kobetich, USFWS, in litt., 1993). Less threatened by proposed recreational United States would be eliminated. In than 30 percent of the remaining facilities (see Factor D). The reduction 1984, a fuel break was cut through one southern maritime chaparral is of the southern maritime chaparral in population on Temple Hill. The species preserved in parks (e.g., Torrey Pines the park will have a significant impact normally persists in relatively dense State Park) with long-term management on the long-term viability of the only brush, although it is known to respond for conservation. existing C. orcuttiana population. favorably to some clearing and fires. The While 25 of 26 populations of Estimates indicate that between 82 and plants in the fuel break began to decline Arctostaphylos glandulosa ssp. 93 percent of southern maritime after four years (Fred Roberts, USFWS, crassifolia are still extant in part, the chaparral vegetation in San Diego pers. obs., 1992). In 1991, the City of majority of these populations have been County has been lost as a result of urban Laguna Beach used goats to clear fuel greatly reduced and significantly and agricultural development breaks despite objections that the goats fragmented by urban and agricultural (Oberbauer and Vanderwier 1991; could potentially consume rare plant development, most of which has OGDEN 1993; D. Hogan, in litt., 1993). species (Dr. Peter Bowler, University of occurred since 1982. About a 50 percent Baccharis vanessae (Encinitas California, Irvine, pers. comm., 1992). decline in the number of stands and the baccharis) is associated with dense The City of Laguna Beach has indicated number of individuals has occurred mixed chaparral and southern maritime that many areas containing dense brush since 1982 (Roberts 1993, SEB 1993b). chaparral. Fourteen populations (and adjacent to residential development will Of the remaining individuals, the one isolated individual) currently exist. be cleared (R. Drewberry, pers. comm., majority are distributed in highly Seven of these remaining populations 1991). These areas are occupied in part fragmented habitat along the margins of are threatened by development projects. by V. dissita. One development residential development. Five populations are in the Del Dios completed in 1989 has placed irrigation Over 75 percent of Arctostaphylos Highlands within the Rancho Cielo and hydromulching over one glandulosa ssp. crassifolia in the United project area. Three of these are population. Verbesina dissita is not States occurs within 6 concentrations threatened by urban development and a expected to persist with overwatering located in Carlsbad, Encinitas, Del Mar, golf course (CDFG 1992). Clearing and competition from Atriplex and Torrey Pines State Park. Four of the vegetation in 1991 and 1992 and semibaccata (Australian saltbush), six populations, located in Carlsbad and application of herbicides in 1993, in which is frequently used in landscaping Encinitas, are threatened in part by combination with a serious fire in 1990, along the borders of development (F. approved or proposed development may already have eliminated some of Roberts, pers. obs., 1992). projects. These projects will result in these plants. Two other populations The remaining habitat of Verbesina the elimination of over 1,900 near Lake Hodges have been identified dissita in the United States is relatively individuals (over 35 percent) of A. g. as threatened by proposed contiguous. However, several ssp. crassifolia that occurs within these developments (CDFG 1992) or developments have been proposed that 6 populations through direct impacts. inundation from a proposed water will reduce and further fragment this Furthermore the additional loss of 1,000 storage facility (OGDEN 1995b). rare vegetation association. Only 20 individuals (20 percent) will likely In the United States, Verbesina dissita percent of the habitat is preserved (i.e., result from indirect impacts such as fuel (big-leaved crown-beard) is restricted to in Aliso-Woods Canyon Regional Park). Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations 52379

The majority of Verbesina dissita Conservation Plan (MSCP), Multiple 1993), although the only currently populations occur south of the United Habitat Conservation Plan (MHCP), and known population of C. orcuttiana States-Mexican border in coastal, Carlsbad Habitat Management plan occurs in Encinitas, less than 3.2 km (2 northwestern Baja California, where it (HMP); (4) the Federal Endangered mi) distant, and one of the largest occurs in vegetation associations similar Species Act in those cases where these populations of B. vanessae occurs on an to those found in Laguna Beach, taxa occur in habitat occupied by other adjacent parcel. One of the largest California. The status of V. dissita and listed species; (5) conservation populations of Arctostaphylos its habitat in Mexico are not well provisions under the Federal Clean glandulosa ssp. crassifolia also occurs documented. According to one Water Act; (6) land acquisition and within this project site. Although prominent researcher, the distribution management by Federal, State, or local impacts to this taxon were identified as of V. dissita in Mexico is spotty (R. agencies, or by private groups and significant under the CEQA, the adopted Moran, pers. comm., 1992). Over 20 organizations; and (7) local laws and mitigation measures were considered to populations are known between Punta regulations. be insufficient (S. Lacy, in litt., 1991). In Descanseo and San Telmo near Cabo another project within the City of State Laws and Regulation: Colonet (Roberts 1988). A survey of Carlsbad, the elimination of a historic localities in 1988 between Pursuant to the Native Plant population of A. g. ssp. crassifolia was Punta el Descanseo and Punta Santo Protection Act (chapter 10 section 1900 not considered to be a significant Tomas determined that over 25 percent et seq. of the California Fish and Game impact, even though the taxon was a of these localities had been urbanized or Code) and California Endangered Federal category 2 candidate for listing converted to agriculture. Four separate Species Act (chapter 1.5 section 2050 et at the time (M.F. Ponseggi and localities are known from Punta Bunda seq. of the Fish and Game Code), the Associates 1993). Impacts to category 2 just south of Ensenada. However, three California Fish and Game Commission candidates were considered significant of these are threatened by changes in listed Baccharis vanessae as endangered under the CEQA prior to 1996 revisions land use from relatively pristine in 1987 and Chorizanthe orcuttiana in in candidate policy that eliminated conditions in 1987 to extensive clearing 1979. Verbesina dissita was listed as category 2 ranking (61 FR 7596; in addition to rural condominium threatened by the State of California in February 28, 1996). development in 1990 (F. Roberts, memo 1989. Although both statutes prohibit Moreover, transplantation is to file, 1992). Many of the same factors the ‘‘take’’ of State-listed plants (chapter frequently used to mitigate for the loss threatening the species in the United 10 section 1908 and chapter 1.5 section of rare plant species; however, it has yet States (i.e., urban and agricultural 2080), some projects do not comply to be demonstrated to provide for long- development) are threatening this with State law. As an example, in 1992, term viability of any of the four taxa. species in Mexico as well (Oberbauer V. dissita plants in Laguna Beach were Several attempts at transplanting 1992). removed without the State’s knowledge Baccharis vanessae and Arctostaphylos B. Overutilization for commercial, (Ken Berg, CDFG, pers. comm., 1992). glandulosa ssp. crassifolia have been recreational, scientific, or educational Local lead agencies empowered to reported by Hall (1987). Attempts to purposes. Some taxa have become uphold and enforce the regulations of transplant B. vanessae at Quail vulnerable to collecting by curiosity the CEQA have made determinations Botanical Garden and at San Dieguito seekers as a result of increased publicity that have or will adversely affect these County Park failed shortly after the following the publication of listing taxa and their southern maritime monitoring period ended. Six years after proposals. Chorizanthe orcuttiana is chaparral habitat. The CEQA requires individuals of A. g. ssp. crassifolia were highly restricted and is vulnerable to that a project proponent publicly transplanted at Quail Botanical Garden, over-collection because of its rarity. disclose the potential environmental 75 percent of the plants had died. Some professional and amateur impacts of proposed projects. The Regional Planning Efforts botanists are known to favor collection public agency with primary authority or of rare species, either to have examples jurisdiction over the project is In 1991, the State of California in their collection or because these designated as the lead agency, and is established the NCCP program to specimens are valuable to trade with responsible for conducting a review of address conservation needs throughout other institutions. the project and consulting with other the State. The focus of current planning C. Disease or predation. Disease is not agencies concerned with resources programs is the coastal sage scrub known to be a factor for any of the taxa. affected by the project. Required community in southern California, Although swollen galls on the stems of biological surveys are often inadequate although other vegetation communities Baccharis vanessae indicate parasitism and project proponents may disregard are being addressed in an ecosystem- by a moth or butterfly (Beauchamp the results of surveys if occurrences of level approach. Southern maritime 1980), insect predation of the four taxa sensitive species are viewed as a chaparral and the four taxa are currently is not well understood. constraint on project design. Mitigation being considered under the MSCP, D. The inadequacy of existing measures used to condition project MHCP, and the Orange County Central regulatory mechanisms. Existing approvals are often experimental and Coastal NCCP programs. The MHCP, regulatory mechanisms that may fail to adequately guarantee protection which will include the Carlsbad HMP provide some protection for of sustainable populations of the taxa program, is still in the early Arctostaphylos glandulosa ssp. considered herein. CEQA decisions are developmental phase and thus it is crassifolia, Baccharis vanessae, also subject to overriding social and uncertain to what degree it will be Chorizanthe orcuttiana, and Verbesina economic considerations. successful in providing protection for dissita include—(1) the California To illustrate, the environmental these taxa. Endangered Species Act (CESA); (2) the documentation for a large-scale The NCCP for the Central and Coastal California Environmental Quality Act development project in Carlsbad did not Subregion of Orange County was (CEQA); (3) the California Natural include sufficient surveys for approved in July of 1996. Only one of Community Conservation Planning Chorizanthe orcuttiana or Baccharis the four taxa (Verbesina dissita) occurs Program (NCCP), which includes the vanessae (Pacific Southwest Biological within the Central/Coastal NCCP. While San Diego Multiple Species Services 1990; Larry Sward, SEB, in litt., the entire population of this species in 52380 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations the United States is within this management incorporated into the final g. ssp. crassifolia located within San subregion, only about 10 percent of the MSCP agreement. Project proponents in Dieguito County Park is also threatened species’’ distribution is protected by the areas outside the MSCP subregion will by edge effects and trampling from Central/Coastal Plan. The species is not be required to coordinate with the recreational activities. adequately conserved, nor is it Service on these taxa where applicable. Three of the species considered considered a ‘‘covered species’’ under within this rule (Arctostaphylos Federal Laws and Regulations the plan. Covered species are those glandulosa ssp. crassifolia, Baccharis species that have been adequately The Endangered Species Act may vanessae, and Chorizanthe orcuttiana) considered in terms of long-term already afford protection to candidate or occur within Oak Crest Park in preservation within a Habitat other sensitive species if they co-exist Encinitas. While this park is under Conservation Planning Area or NCCP with species already listed as threatened public ownership and management, subregion. Under an agreement with the or endangered under the Act. Although these plants are threatened by the participants, CDFG, and the Service, the coastal California gnatcatcher construction of recreational facilities, future potential impacts for covered (Polioptila californica californica) is invasive exotics, and trampling (see species are considered adequately listed as threatened under the Act and Factors A and E). addressed through proposed overlaps with the range of the taxa A single population of Baccharis preservation, mitigation, and considered herein, the coastal California vanessae is known from the Cleveland management. gnatcatcher primarily utilizes a different National Forest in the Santa Margarita Since the publication of the proposed habitat (coastal sage scrub). Mountains (S. Boyd, Rancho Santa Ana rule, the MSCP, a regional planning Additionally, under provisions of Botanical Garden, in litt., 1992). While effort in southwestern San Diego section 10(a) of the Act, the Service may this population is protected in part County, has been finalized and permit the incidental ‘‘take’’ of the because it is isolated, it represents less submitted to the Service as part of an gnatcatcher during the course of an than 10 percent of the known application for a section 10(a)(1)(B) otherwise legal activity provided that populations of this species. In Orange incidental take permit for 85 species, the taking will not appreciably reduce County, Verbesina dissita extends into including Arctostaphylos glandulosa the likelihood of its survival and Aliso-Woods Canyons Regional Park. ssp.0 crassifolia and Baccharis recovery in the wild. Projects developed However, this park encompasses less vanessae. The Service and the City of with authorization for take of the coastal than 10 percent of the known San Diego have jointly prepared a California gnatcatcher may, however, populations of the species. Recirculated Environmental Impact contribute to the decline of Additionally, while this county regional Report/Environmental Impact Arctostaphylos glandulosa ssp. park is, in part, managed for biological Statement, Issuance of Take crassifolia, Baccharis vanessae and conservation, V. dissita is threatened by Authorizations for Threatened and Chorizanthe orcuttiana in areas where fuel modification (i.e., thinning, Endangered Species due to Urban the project area includes both coastal mechanical clearing, and irrigation) and Growth within the Multiple Species sage scrub and southern maritime exotic vegetation replacement at the Conservation Program (MSCP) Planning chaparral. park boundary. Area. This document, released on Some protection has been afforded to These plant taxa also occur in August 30, 1996, for a 45-day public these taxa through section 404 of the ‘‘dedicated’’ open space frequently in review period, assesses the effects of Clean Water Act (G. Kobetich, in litt., association with development projects. land-use decisions that will be made by 1993). However, since the majority of These areas are often specifically set local jurisdictions to implement the these taxa occur in upland habitat or in aside for conservation as required by plan and the effects of the proposed isolated and fragmented parcels, it is local and county project approvals and/ issuance of the incidental take permit unlikely that actions affecting the taxa or the CEQA, and are managed by on the 85 species. A decision on the will require section 404 permits. private organizations, individuals, corporations, or local jurisdictions. permit issuance is expected in late 1996. Land Acquisition and Management The MSCP will, upon approval, set However, open space dedications do not aside preservation areas and provide Land acquisition and management by incorporate the principles of monitoring and management for the 85 State or local agencies or by private conservation biology. Many are ‘‘covered species’’ addressed in the groups and organizations have inadequately configured, or are too permit application, including contributed to the protection of some small for the long-term preservation of Arctostaphylos glandulosa ssp. localities containing the taxa included these taxa (see Factor E). County open crassifolia and Baccharis vanessae. in this rule. However, as discussed space designations within General ‘‘Covered species’’ are taxa that will be below, these efforts are inadequate to Development Plans are subject to adequately conserved by the plan’s assure the long-term survival of these amendments and, therefore, cannot be proposed preservation and management. four taxa. For example, Torrey Pines considered as permanent conservation. About 30 percent of the A. g. ssp. State Park and Crest Canyon Preserve crassifolia population (without (Del Mar) contain significant Local Laws, Regulations, and consideration to edge effect) is protected populations of Arctostaphylos Ordinances within the MSCP (about 90 percent of glandulosa ssp. crassifolia. While The four taxa in this rule have been the species’ total populations are within Torrey Pines State Park is managed for identified as sensitive under various the subregion) and about 45 percent of long-term preservation of biological local laws, regulations and ordinances. B. vanessae populations are protected resources, the populations within the However, development projects within the MSCP (about 70 percent of park contain less than 20 percent of the continue to be approved and the total populations are within the remaining A. g. ssp. crassifolia implemented with designs that do not subregion). While all threats have not individuals. The populations of this preserve populations or habitat for the been eliminated for these two taxa taxon in Crest Canyon Preserve Park are taxa considered herein. Currently, the within the subregion, the Service affected by trampling associated with Service is aware of 10 approved or believes that future potential impacts recreational activities and edge effects proposed development projects that will will be adequately addressed by (see Factor E). A small population of A. directly or indirectly impact about 3,000 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations 52381 individuals of Arctostaphylos population within these planning areas human activities associated with nearby glandulosa ssp. crassifolia. While these (SEB 1993a, 1993b). Because A. g. ssp. urbanization. Additionally, unidentified projects have been or currently are crassifolia has already declined by pollinators or seed-dispersal agents for subject to review under existing local about 50 percent over the last decade, these taxa may also be impacted by regulatory mechanisms and these additional significant losses will development. conservation plans, this taxon is still contribute to the further decline of this Habitat fragmentation and isolation, declining rapidly. Management and taxon and may affect its recovery in addition to fuel modification, recovery become increasingly difficult (Roberts 1993; SEB 1993b; G. Kobetich, threaten the taxa in areas adjacent to as options for preservation are reduced. in litt., 1993). Although the only extant residential development. For example, Existing local land-use regulations population of C. orcuttiana is on public nearly 15 percent of extant have failed to protect these taxa as land within the jurisdiction of the Arctostaphylos glandulosa ssp. exemplified by Oak Crest Park in MHCP, no protection measures have crassifolia occurs in small, fragmented, Encinitas. Although a portion of the been developed or implemented for this and isolated parcels of open space park was originally set aside for population. Several important (Roberts 1993). Of the six largest conservation purposes by the County of populations of Baccharis vanessae are populations of this taxon, 20 percent of San Diego (D. Hogan, in litt., 1991; T. threatened by current project proposals the individuals are within 60 m (200 ft) Oberbauer, pers. comm., 1992), that will reduce the effectiveness of the of existing development and are recreational development has MHCP, when developed, to adequately threatened by edge effects (Roberts eliminated southern maritime chaparral stabilize populations within the 1993, SEB 1993a). This is exemplified habitat and individuals of subregion (OGDEN 1995a; D. Hogan, in by Crest Canyon Preserve, where nearly Arctostaphylos glandulosa ssp. litt., 1991; D. Wigginton, pers. comm., 50 percent of the approximately 1,000 crassifolia, Baccharis vanessae, and 1992). The additional recognition that individuals of A. g. ssp. crassifolia are Chorizanthe orcuttiana. One area results from listing is expected to within 60 m (200 ft) of development. recently developed included a natural generate additional efforts in providing Arctostaphylos glandulosa ssp. preserve area set aside under an for the long-term preservation of these crassifolia is also threatened by agreement between the City and the four taxa. trampling where trails have been cut California Coastal Commission. Current through populations by recreationalists recreational development plans for Oak Laws and Regulation in Mexico and farm workers (Hogan 1990; CDFG Crest Park, including the construction of The range of Arctostaphylos 1992; F. Roberts and E. Berryman, a community center, swimming pool glandulosa ssp. crassifolia and USFWS, pers. obs.). and numerous walking paths, will Verbesina dissita continues south along Conflicts between fire management impact two of these taxa (A. g. ssp. the Pacific coast into northwestern Baja and preservation arise when insufficient crassifolia and B. vanessae). The California, Mexico. Mexico has laws buffers exist between sensitive proposed development will reduce the that presumably provide protection to biological resources and residential B. vanessae population and the extent of rare plants; however, enforcement of dwellings. A recent example includes southern maritime chaparral within the these laws is lacking (USFWS 1992b). clearing of about 1 ha (2 ac) of southern park by approximately one-third (David In summary, although most of these maritime chaparral adjacent to a new Wigginton, City of Encinitas Community taxa are receiving at least some residential development in Carlsbad in Services, pers. comm., 1992). protection through existing regulatory June 1992. Another example demonstrating how mechanisms, threats continue to Baccharis vanessae is limited to small existing regulatory mechanisms are adversely affect the taxa, as indicated by numbers, comprising only 14 extant inadequate is provided by a project in their declining status. populations containing about 2,000 the City of Carlsbad that was originally E. Other natural or manmade factors individuals. No population is known to approved circa 1980. The project area affecting their continued existence. At have over 300 individuals and 5 of these contained the northernmost known least two of the taxa (Baccharis populations have fewer than 6 population of Arctostaphylos vanessae and Chorizanthe orcuttiana) individuals. One individual has been glandulosa ssp. crassifolia and a may be threatened by a risk of discovered on the western slopes of significant stand of southern maritime extinction from naturally occurring Carmel Mountain. chaparral. When a city official was events because of their restricted Chorizanthe orcuttiana, known from a approached by the project proponent in distribution and small population size. single locality, is the most vulnerable of 1992, the city informed the proponent Genetic viability can be reduced in the four taxa. This species is threatened that the existing CEQA documentation small populations, making them less by trampling by farm workers and was inadequate and that additional adaptable to changes in the recreationalists because of its small size biological surveys would be required. environment. The potential for and its preference for open areas, which Despite this finding, the proponent was extirpation by virtue of their small tend to attract foot traffic through able to obtain grading permits to clear population sizes can be exacerbated by otherwise dense chaparral vegetation (F. the land without additional natural causes such as drought or fire. Roberts and E. Berryman, pers. obs.). documentation (Terri Stewart, CDFG, For example, the impact of fire on The only known site could be pers. comm., 1992). Baccharis vanessae is not fully eliminated in a single event if a Several development projects have understood, yet a 1,200 ha (3,000 ac) fire particularly large number of people proceeded without adequate surveys for in the Del Dios highlands burned four were to walk through and trample the Chorizanthe orcuttiana (City of Carlsbad of the known populations in September population. Exotic grass and weed and Fieldstone/La Costa Associates 1990 (CDFG 1992, Los Angeles Times species are also threatening the 1994). Arctostaphylos glandulosa ssp. 1992). Many populations are now in population. crassifolia has been considered in the close proximity to residential All four taxa are potentially majority of these plans; however development, and are threatened by threatened by the interruption of the projects have recently been proposed edge effects including fuel modification natural fire cycle. Fragmentation has and approved that have or will directly activities, fire suppression, the invasion rendered individual populations more or indirectly eliminate nearly half of the of exotic plant species, and increased susceptible to fire events that may either 52382 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations occur too frequently or be suppressed outside the geographical area occupied consultation with the Service, to ensure too long to maintain a healthy southern by a species at the time it is listed, upon that any action authorized, funded, or maritime chaparral habitat. a determination that such areas are carried out by such agency, does not The Service has carefully assessed the essential for the conservation of the jeopardize the continued existence of a best scientific and commercial species. ‘‘Conservation’’ means the use federally listed species, or does not information available regarding the past, of all methods and procedures needed destroy or adversely modify designated present, and future threats faced by to bring the species to the point at critical habitat. The taxa in this rule are these four taxa in determining to make which listing under the Act is no longer all confined to small geographic areas this rule final. Based on this evaluation, necessary. and each population is composed of so the preferred action is to list Section 4(a)(3) of the Act, as few individuals that the determinations Arctostaphylos glandulosa ssp. amended, and implementing regulations for jeopardy and adverse modification crassifolia and Chorizanthe orcuttiana (50 CFR 424.12) require that, to the would be similar. Therefore, designation as endangered. These taxa are in danger maximum extent prudent and of critical habitat provides no additional of extinction throughout all or a determinable, the Secretary designate benefit beyond those that these taxa significant portion of their ranges due to critical habitat at the time the species is would receive by virtue of their listing habitat alteration and destruction determined to be endangered or as endangered or threatened species and resulting from urban, recreational and threatened. The Service finds that likely would increase the degree of agricultural development; fuel designation of critical habitat is not threat from vandalism, collecting, or modification activities; trampling by prudent for the taxa discussed in this other human activities. The Service farm workers and recreational activities; rule at this time. Service regulations (50 finds that designation of critical habitat inadequacy of existing regulatory CFR 424.12(a)(1)) state that designation is not prudent for these taxa at this time. mechanisms; naturally occuring events of critical habitat is not prudent when due to limited populations; and one or both of the following situations Available Conservation Measures competition from exotic plant species. exist—(1) the species is threatened by Conservation measures provided to For the reasons discussed below, the taking or other human activity, and species listed as endangered or Service finds that Verbesina dissita and identification of critical habitat can be threatened under the Endangered Baccharis vanessae are likely to become expected to increase the degree of such Species Act include recognition, endangered within the foreseeable threat to the species; or (2) such recovery actions, requirements for future throughout all or a significant designation of critical habitat would not Federal protection, and prohibitions portion of their range. Although V. be beneficial to the species. against certain activities. Recognition dissita is extremely threatened in the As discussed under Factor B, through listing encourages and results United States by development and fuel Chorizanthe orcuttiana is particularly in conservation actions by Federal, modification activities, the status of this threatened by taking, specifically State, and local agencies, private species in Baja California, Mexico, is overcollecting, an activity difficult to organizations, and individuals. The Act considerably better due to a larger regulate and enforce. Taking is only provides for possible land acquisition number of extant populations. However, regulated by the Act with respect to from willing sellers and cooperation it is still threatened by similar activities plants in cases of (1) removal and with the States and requires that in Mexico. Therefore the preferred reduction to possession of federally recovery actions be carried out for all action is to list V. dissita as threatened. listed plants from lands under Federal listed species. The protection required While nearly half of the known B. jurisdiction, or their malicious damage of Federal agencies and the prohibitions vanessae populations continue to be at or destruction on such lands; and (2) against certain activities involving listed risk from urban development, removal, cutting, digging-up, or plants are discussed, in part, below. inundation from a proposed water damaging or destroying in knowing Section 7(a) of the Act, as amended, storage facility, and fire management violation of any State law or regulation, requires Federal agencies to evaluate methods, the species is not in including State criminal trespass law. their actions with respect to any species immediate danger of extinction. The The publication of precise maps and that is proposed or listed as endangered Service therefore revises the preferred descriptions of critical habitat in the or threatened and with respect to its action for B. vanessae from listing as Federal Register would make these critical habitat, if any is being endangered in the original proposed plants more vulnerable to incidents of designated. Regulations implementing regulation to listing as threatened in this collection or vandalism and, therefore, this interagency cooperation provision final rule. In addition, the MSCP in San could contribute to the decline of this of the Act are codified at 50 CFR part Diego County will offer significant species. 402. Section 7(a)(4) requires Federal management and preservation for about Critical habitat designation provides agencies to confer with the Service on half of the populations upon its protection only on Federal lands or on any action that is likely to jeopardize authorization. Critical habitat is not private lands when there is Federal the continued existence of a species being proposed for these taxa for the involvement through authorization or proposed for listing or result in reasons discussed below. funding of, or participation in, a project destruction or adverse modification of or activity. Of the taxa discussed herein, proposed critical habitat. If a species is Critical Habitat only one population of Baccharis listed subsequently, section 7(a)(2) Critical habitat, is defined in section vanessae is known to occur on Federal requires Federal agencies to ensure that 3 of the Act, as: (i) The specific areas lands. All Federal and state agencies activities they authorize, fund, or carry within the geographical area occupied and local planning agencies involved out are not likely to jeopardize the by a species, at the time it is listed in have been notified of the location and continued existence of the species or accordance with the Act, on which are importance of protecting the habitat of destroy or adversely modify its critical found those physical or biological these taxa. Protection of their habitat habitat. If a Federal action may affect a features (I) essential to the conservation will be addressed through the recovery listed species or its critical habitat, the of the species and (II) that may require process and through the section 7 responsible Federal agency must enter special management considerations or consultation process. Section 7(a)(2) of into formal consultation with the protection; and (ii) specific areas the Act requires Federal agencies, in Service. Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations 52383

Although only one of the four taxa prohibits the malicious damage or listing and result in a violation of (Baccharis vanessae at the Olivenhein destruction on any area under Federal section 9. Water Storage Facility) is known to be jurisdiction and the removal, cutting, Questions regarding whether specific directly affected by activities permitted digging up, or damaging or destroying of activities will constitute a violation of under section 404 of the Clean Water such endangered plants in knowing section 9 should be directed to the Field Act, effects of actions that include direct violation of any State law or regulation, Supervisor of the Service’s Carlsbad and indirect impacts that are including State criminal trespass law. Field Office (see ADDRESSES section). interrelated or interdependent with the Section 4(d) of the Act allows for the Requests for copies of the regulations taxa under consideration may require a provision of such protection to concerning listed plants and general permit under section 404 of the Clean threatened species through regulation. inquiries regarding prohibitions and Water Act. Additionally, two of the taxa This protection may apply to Baccharis permits may be addressed to the U.S. (Arctostaphylos glandulosa ssp. vanessae and Verbesina dissita in the Fish and Wildlife Service, Ecological crassifolia and B. vanessae) are known future if regulations are promulgated. Services, Endangered Species Permits, to occur in areas where highway Seeds from cultivated specimens of 911 N.E. 11th Avenue, Portland, Oregon projects, which may involve Federal threatened plant species are exempt 97232-4181 (telephone 503/231-2063; funding and the Federal Highways from these prohibitions provided that facsimile 503/231-6243). Administration, have been proposed. At their containers are marked ‘‘Of National Environmental Policy Act least one taxon (B. vanessae) occurs on Cultivated Origin’’. Certain exceptions Federal land, within the Cleveland to the prohibitions apply to agents of the The Fish and Wildlife Service has National Forest and within 1 km (0.6 Service and State conservation agencies. determined that Environmental Assessments and Environmental Impact mi) of Camp Pendelton Marine Base. The Act and 50 CFR 17.62, 17.63, and Statements, as defined under the New populations of these taxa could be 17.72 also provide for the issuance of authority of the National Environmental discovered at Miramar Naval Air permits to carry out otherwise Policy Act of 1969, need not be Station, Point Loma Naval Reserve, and prohibited activities involving prepared in connection with regulations Camp Pendelton Marine Base. These endangered or threatened species under adopted pursuant to section 4(a) of the Federal nexuses would require certain circumstances. Such permits are Endangered Species Act of 1973, as initiation of section 7 consultation on available for scientific purposes and to amended. A notice outlining the actions that may affect the taxa. enhance the propagation or survival of Service’s reasons for this determination Two of these species, Arctostaphylos the species. For threatened plants, glandulosa ssp. crassifolia and was published in the Federal Register permits are also available for botanical Baccharis vanessae, are considered on October 25, 1983 (48 FR 49244). or horticultural exhibition, educational covered species under the MSCP. These purposes, or special purposes consistent References Cited species will receive benefits from the with the purpose of the Act. It is plan upon its approval. These benefits A complete list of all references cited anticipated that few trade permits include—(1) preservation of the herein is available upon request from would ever be sought or issued because majority of populations within the the Carlsbad Field Office (see none of the four taxa are common in subregion including two major ADDRESSES section). cultivation or in the wild. populations of A. g. ssp. crassifolia and Author one and a half major populations of B. It is the policy of the Service, vanessae, (2) management plans that published in the Federal Register on The primary author of this final rule will address impacts from fuel July 1, 1994 (59 FR 34272), to identify is Fred M. Roberts, Jr., Carlsbad Field management and close proximity of to the maximum extent practicable at Office (see ADDRESSES section). the time a species is listed those existing and proposed development, List of Subjects in 50 CFR Part 17 and (3) monitoring of the status of these activities that would or would not Endangered and threatened species, populations. Some populations within constitute a violation of section 9 of the Exports, Imports, Reporting and this subregion will be eliminated or Act. The intent of this policy is to recordkeeping requirements, and reduced, but it has been determined that increase public awareness of the effect Transportation. the populations preserved under the of this listing on proposed and ongoing plan will be adequate to stabilize the activities within the species’ range. One Regulation Promulgation status of these taxa within the MSCP of these four taxa (Baccharis vanessae) is known to occur on lands under the Accordingly, part 17, subchapter B of planning area. chapter I, title 50 of the Code of Federal The Act and its implementing jurisdiction of the U.S. Forest Service and populations of the taxa may Regulations, is amended as set forth regulations set forth a series of general below: prohibitions and exceptions that apply potentially be discovered on lands to all endangered or threatened plants. under the jurisdiction of the Department PART 17Ð[AMENDED] All prohibitions of section 9(a)(2) of the of Defense (Navy). Collection, damage or Act, implemented by 50 CFR 17.61 destruction of any of these species on 1. The authority citation for part 17 (endangered plants) or 17.71 (threatened Federal lands is prohibited, although in continues to read as follows: plants), apply. These prohibitions, in appropriate cases a Federal endangered Authority: 16 U.S.C. 1361–1407; 16 U.S.C. part, make it illegal for any person species permit may be issued to allow 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– subject to the jurisdiction of the United collection. Such activities on non- 625, 100 Stat. 3500; unless otherwise noted. States to import or export, transport in Federal lands would constitute a 2. Section 17.12(h) is amended by interstate or foreign commerce in the violation of section 9 if conducted in adding the following, in alphabetical course of a commercial activity, sell or knowing violation of State law or order under FLOWERING PLANTS, to offer for sale in interstate or foreign regulations or in violation of State the List of Endangered and Threatened commerce, or remove and reduce the criminal trespass law. The Service is not Plants, to read as follows: species to possession from areas under aware of any otherwise lawful activities Federal jurisdiction. In addition, for being conducted or proposed by the § 17.12 Endangered and threatened plants. plants listed as endangered, the Act public that will be affected by this * * * * * 52384 Federal Register / Vol. 61, No. 195 / Monday, October 7, 1996 / Rules and Regulations

(h) * * *

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

FLOWERING PLANTS:

******* Arctostaphylos Del Mar manzanita ... U.S.A. (CA), Mexico Ericaceae ...... E 589 NA NA glandulosa ssp. crassifolia.

******* Baccharis vanessae Encinitas baccharis U.S.A. (CA) ...... Asteraceae ...... T 589 NA NA

******* Chorizanthe Orcutt's spineflower U.S.A. (CA) ...... Polygonaceae ...... E 589 NA NA orcuttiana.

******* Verbesina dissita ...... Big-leaved crown- U.S.A. (CA), Mexico Asteraceae ...... T 589 NA NA beard.

*******

Dated: September 27, 1996. dealer permit holders that no Section 625.101(b) requires the John G. Rogers, commercial quota is available for Regional Administrator, Northeast Acting Director, Fish and Wildlife Service. landing summer flounder in Region (Regional Administrator) to [FR Doc. 96–25462 Filed 10–4–96; 8:45 am] Massachusetts. monitor state commercial quotas and to BILLING CODE 4310±55±P EFFECTIVE DATE: October 2, 1996 through determine when a state commercial December 31, 1996. quota is harvested. The Regional FOR FURTHER INFORMATION CONTACT: Administrator is further required to DEPARTMENT OF COMMERCE Lucy Helvenston, 508–281–9347. publish a notification in the Federal SUPPLEMENTARY INFORMATION: Register advising a state and notifying National Oceanic and Atmospheric Regulations governing the summer Federal vessel and dealer permit holders Administration flounder fishery are found at 50 CFR that, effective upon a specific date, the state’s commercial quota has been 50 CFR Part 648 part 648. The regulations require annual specification of a commercial quota that harvested and no commercial quota is [Docket No. 951116270±5308±02; I.D. is apportioned among the states from available for landing summer flounder 092696B] North Carolina through Maine. The in that state. Because the available process to set the annual commercial information indicates that the Fisheries of the Northeastern United quota and the percent allocated to each Commonwealth of Massachusetts has States; Summer Flounder Fishery; state are described in § 648.100. attained its quota for 1996, the Regional Commercial Quota Harvested for The total commercial quota for Administrator has determined that Massachusetts summer flounder for the 1996 calendar based on dealer reports and other available information, the State’s AGENCY: National Marine Fisheries year is set equal to 11,111,298 lb commercial quota has been harvested. Service (NMFS), National Oceanic and (5,040,000 kg) (January 4, 1996, 61 FR Atmospheric Administration (NOAA), 291). The percent allocated to vessels The regulations at § 648.4(b) provide Commerce. landing summer flounder in that Federal permit holders agree as a ACTION: Commercial quota harvest. Massachusetts is 6.82046 percent, or condition of the permit not to land 757,841 lb (343,751 kg). summer flounder in any state that the SUMMARY: NMFS issues this notification Section 648.100(d)(2) provides that Regional Administrator has determined announcing that the summer flounder any overages of the commercial quota no longer has commercial quota commercial quota available to the landed in any state will be deducted available. Therefore, effective 0001 Commonwealth of Massachusetts has from that state’s annual quota for the hours October 2, 1996 further landings been harvested. Vessels issued a following year. In the calendar year of summer flounder in Massachusetts by commercial Federal fisheries permit for 1995, a total of 1,127,995 lb (511,650 kg) vessels holding commercial Federal the summer flounder fishery may not were landed in Massachusetts. The fisheries permits are prohibited for the land summer flounder in Massachusetts amount allocated for Massachusetts remainder of the 1996 calendar year, for the remainder of calendar year 1996, landings in 1995 was 1,122,246 lb unless additional quota becomes unless additional quota becomes (509,042 kg), creating a 5,749 lb (2,608 available through a transfer and is available through a transfer. Regulations kg) overage that was deducted from the announced in the Federal Register. governing the summer flounder fishery amount allocated for landings in that Federally permitted dealers are also require publication of this notification state during 1996 (April 5, 1996, 61 FR advised that they may not purchase to advise the Commonwealth of 15199). The resulting quota for summer flounder from federally Massachusetts that the quota has been Massachusetts is 752,092 lb (341,143 permitted vessels that land in harvested and to advise vessel and kg). Massachusetts for the remainder of the