14338 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

‘‘Magnesium powder or Magnesium DEPARTMENT OF THE INTERIOR SUPPLEMENTARY INFORMATION: alloys, powder’’ in PG I, in column 8A, Background the entry ‘‘151’’ is revised to read Fish and Wildlife Service ‘‘None’’. Vernal pools in the Central Valley of 50 CFR Part 17 were a common and PART 173ÐSHIPPERSÐGENERAL widespread feature in pre-European REQUIREMENTS FOR SHIPMENTS RIN 1018±AC00 times (Holland and Jain 1977). Although AND PACKAGINGS historic amounts of habitat Endangered and Threatened Wildlife losses and annual loss rates have been 4. The authority citation for Part 173 and ; Determination of disputed, Holland estimated that continues to read as follows: Endangered Status for Three Plants urbanization and other factors had and Threatened Status for Five Plants eliminated 67 to 88 percent of the vernal Authority: 49 U.S.C. 5102–5127; 49 CFR From Vernal Pools in the Central Valley pools in the Central Valley by 1973 1.53. of California (Holland 1978, and Robert Holland, consultant, in litt. 1992). Public 5. In § 173.28, in the table in AGENCY: Fish and Wildlife Service, comments and additional work paragraph (b)(4)(i), the footnote is Interior. regarding the number of remaining acres revised to read as follows: ACTION: Final rule. of vernal pool habitat in the Central § 173.28 Reuse, reconditioning and Valley indicate the loss of vernal pool remanufacture of packagings. SUMMARY: The Fish and Wildlife Service habitat is closer to 50 percent than 67 (Service) determines endangered status to 88 percent (59 FR 48139; R. Holland, * * * * * pursuant to the Endangered Act pers. comm. 1996). The plants discussed 1 Metal drums or jerricans with a minimum of 1973, as amended (Act) for three herein grow only in vernal pools in thickness of 0.82 mm body and 1.09 mm plants, pilosa (hairy Orcutt California and have experienced minor heads which are manufactured and marked grass), (Sacramento to major population and habitat prior to January 1, 1997 may be reused. Metal Orcutt grass), and greenei reductions throughout their respective drums or jerricans manufactured and marked (Greene’s tuctoria); and threatened ranges. California vernal pools are on or after January 1, 1997, and intended for status for five plants, generally small, seasonally aquatic reuse, must be constructed with a minimum campestris ssp. succulenta (fleshy ecosystems that are inundated in the thickness of 0.82 mm body and 1.11 mm owl’s-clover), Chamaesyce hooveri winter and dry slowly in the spring and heads. (Hoover’s spurge), colusana summer, making a harsh, unique * * * * * (Colusa grass), (San environment. Cyclical wetting and drying create an unusual ecological § 173.170 [Amended] Joaquin Valley Orcutt grass), and (slender Orcutt grass). situation supporting a unique biota. 6. In § 173.170, in the first sentence of Between publication of the proposed Many plants and animals have evolved paragraph (c), the wording ‘‘450 g (15.9 and final rules for these species, the to possess such specific characteristics ounces)’’ is revised to read ‘‘454 g (16 Service determined that Orcuttia that these organisms cannot live outside ounces)’’. inaequalis, which was originally these temporary pools. Four other listed proposed as endangered, should be species may occur with these plants: PART 178ÐSPECIFICATIONS FOR listed as threatened due to lesser The vernal pool tadpole shrimp PACKAGINGS immediacy and magnitude of threats to (Lepidurus packardi); conservancy fairy its existence. These species grow in the shrimp (Branchinecta conservatio); 7. The authority citation for part 178 basins and margins of vernal pools of longhorn fairy shrimp (B. longiantenna); continues to read as follows: the Central Valley of California. Habitat and vernal pool fairy shrimp (B. lynchi). However, no close associations are Authority: 49 U.S.C. 5101–5127; 49 CFR loss and degradation due to known between any of the listed shrimp 1.53. urbanization, agricultural land conversion, livestock grazing, off- species and the eight plants affected by 8. In § 178.2, a new paragraph (f) is highway vehicle use, a flood control this rule. added to read as follows: project, a highway project, altered The Central Valley of California hydrology, landfill projects, and consists of the in the § 178.2 Applicability and responsibility. competition from weedy nonnative north half of the State and the San * * * * * plants imperil the continued existence Joaquin Valley in the south half. Within the Central Valley, vernal pools are (f) No packaging may be of these species. This rule implements Federal protection and recovery found in four physiographic settings, manufactured or marked to a packaging each possessing an impervious soil layer specification that was in effect on provisions afforded by the Act for these eight plants. relatively close to the surface. These September 30, 1991, and that was four settings include high terraces with EFFECTIVE DATE: April 25, 1997. removed from this part 178 by a rule iron-silicate or volcanic substrates, old published in the Federal Register on ADDRESSES: The complete file for this alluvial terraces, basin rims with December 21, 1990 and effective rule is available for public inspection, claypan soils, and low valley terraces October 1, 1991. by appointment, during normal business with silica-carbonate claypans. Due to hours at the Sacramento Field Office, Issued in Washington, DC on March 20, local topography and various geological U.S. Fish and Wildlife Service, 3310 El 1997, under authority delegated in 49 CFR populations, vernal pools are usually Camino Avenue, Suite #130, part 1. clustered into pool complexes. Pools Sacramento, California 95821–6340. Kelley S. Coyner, within a complex typically are FOR FURTHER INFORMATION CONTACT: Ken separated by a distance of a few to Deputy Administrator. Fuller at the above address or by several meters and may form dense, [FR Doc. 97–7558 Filed 3–25–97; 8:45 am] telephone at 916/979–2120 or facsimile interconnected mosaics of small pools BILLING CODE 4910±60±P at 916/979–2128. or a more sparse scattering of large Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14339 pools. Vernal pool habitats and the eight spreading to erect stems, each is spike-like and rather plants discussed herein are found over terminating in a spike-like elongate, with the spikelets remote on a very limited, discontinuous, inflorescence. At maturity, the spikelets the axis below and usually strongly fragmented area within the Central of the are aggregated into a dense, congested above. The equal-length Valley. hat-shaped cluster, which separates lemmas are deeply cleft into fine teeth them from other members of the Discussion of the Eight Species that are sharp-pointed or short-awned. Orcuttia. Additionally, the lemmas and O. tenuis grow Neostapfia colusana (Colusa grass) is (lower bracts enclosing the grass floret) together over a portion of their a robust, tufted annual that grows 7 to are deeply cleft into five prominent respective ranges but are readily 30 centimeters (cm) (3 to 12 inches (in)) teeth which may be sharp-pointed or distinguished, as the stems of O. pilosa in height. The stems are decumbent have awns that are 0.5 millimeters (mm) are simple, tiller freely from the base toward the base with the upper portion (0.2 in) long. The middle tooth is and never branch from the upper nodes. erect and terminating in spike-like conspicuously longer than the four Additionally, the spikelets of O. pilosa that are cylindrical, laterals. Orcuttia inaequalis does not are strongly congested at the apex of the dense, and resemble small ears of corn. occur with any other species of inflorescence and the stems and leaves Because of this unique inflorescence, Orcuttia. The species most closely are larger. Orcuttia pilosa occurs this distinctive plant is not easily resembles O. californica and O. viscida. infrequently with , but confused with any others. Joseph Burtt- The former does not have the long these two grasses can be readily Davy (1898) collected and first central lemma tooth and lacks the distinguished. described N. colusana as a member of grayish appearance, whereas, the Hoover collected Orcuttia pilosa in the genus Stapfia. Burtt-Davy (1899) spikelets of the latter are more renamed this genus Neostapfia and 1938 from a single locality in eastern congested toward the apex of the Stanislaus County, at the time shortly thereafter, Frank Scribner (1899) inflorescence, but not as much as in O. submerged Neostapfia within the genus considering these specimens to be a inaequalis. Orcuttia inaequalis has also more robust form of O. tenuis. He used Anthochloa. Robert Hoover (1940) smaller lemmas, noncurving lemma placed this species in the resurrected one of these specimens as the type for teeth, and smaller seeds. Orcuttia a new species, O. pilosa, which he monotypic genus Neostapfia. inaequalis grows with Neostapfia described after examining additional Neostapfia colusana has been colusana at five sites in the San Joaquin collections from Merced and Madera extirpated from its type locality in Valley. Colusa County. Seven populations of N. Klyver first collected and identified counties in (Hoover colusana in Colusa, Merced, and Orcuttia inaequalis as O. californica 1941). Orcuttia pilosa occurs along a Stanislaus counties have been lost. near Lane’s Bridge in Fresno County in 490 km (223 mi) stretch on the eastern Three populations in Merced County 1927 (Klyver 1931). Hoover (1936a) margin of the San Joaquin and and one occurrence in Stanislaus described O. inaequalis as a distinct Sacramento valleys from Tehama County have not been seen in many species, but reduced the species to a County south to Stanislaus County and years and are considered to possibly be variety of O. californica in 1941 (Hoover through Merced and Madera counties. extirpated. The remaining 40 1941). Reeder (1982) determined O. Previously, 34 populations of O. pilosa populations in the San Joaquin Valley inaequalis to be a distinct species based were known. Eleven populations are concentrated along a 200 kilometer on seed proteins, chromosome numbers, variously have been extirpated or are (km) (98 mile (mi)) stretch of the eastern and morphological characteristics. presumed extirpated due to agricultural edge of the San Joaquin Valley in Sixteen populations of O. inaequalis land conversion, urbanization, and Stanislaus and Merced counties. have been lost in Fresno, Madera, intensive cattle grazing in Madera, Additionally, two separate populations Merced, and Stanislaus counties. Merced, Stanislaus, and Tehama occur in Solano County in the Additionally, three populations of O. counties. Of the 24 native, extant Sacramento Valley and another two inaequalis have not been seen in some populations and 1 introduced populations are found in Yolo County. years of surveying and are considered population, only 12 populations are All populations exist on private lands, possibly extirpated. The remaining 23 considered to be stable (Stone et al. with the exception of one population populations, mostly in southeastern San 1988; J. Silveira, U.S. Fish and Wildlife found on Castle Air Force Base (Merced Joaquin Valley in Fresno, Merced, and Service (Service), pers. comm. 1994). Of County) in 1993 and one population Madera counties, are discontinuously the 25 populations, 3 ungrazed found on McClellan Air Force Base scattered over a 79 km (36 mi) range. populations of O. pilosa occur on the (Yolo County) in 1993. In addition to Two populations are on Federal land, Sacramento National Wildlife Refuge. the population on The Nature one managed by the Bureau of Land One population of O. pilosa occurs on Conservancy’s (TNC) Jepson Prairie Management (BLM) and one BOR lands, and a translocated one Preserve in Solano County, this plant is transplanted population by the Bureau occurs on land owned by California afforded some protection via a 970 of Reclamation (BOR), while the State Department of Transportation. The hectare (ha) (2,400 acre (ac)) remaining 21 populations are found on remaining 20 populations occur on conservation easement purchased by private lands. Three populations of O. private lands with 1 population of O. TNC at the Flying M Ranch in Merced inaequalis are protected by a pilosa in Butte County, 4 in Stanislaus County (R. Alfandre, TNC, pers. comm. conservation easement with TNC at the County, 6 in Madera County, and 9 in 1994). ‘‘The overall trend for Colusa Flying M Ranch in Merced County. Tehama County. Four of the nine grass is one of decline’’ (California ‘‘The general trend for San Joaquin populations of O. pilosa in Tehama Department Fish and Game (CDFG) Valley Orcutt grass is one of decline’’ County are located on the TNC’s Vina 1992a). (CDFG 1991b). Plains Preserve. However, only one of Orcuttia inaequalis (San Joaquin Orcuttia pilosa (hairy Orcutt grass) is these sites at the preserve is excluded Valley Orcutt grass) is a tufted annual a densely tufted, usually densely pilose from an agreement allowing cattle that reaches 5 to 15 cm (2 to 6 in) in annual reaching about 5 to 20 cm (2 to grazing by the previous landowner height. The grayish, pilose (bearing soft, 8 in) in height. The stems are erect or (Stone et al. 1988). ‘‘The overall trend straight hairs) plants have several decumbent at the base. The for hairy Orcutt grass is one of decline 14340 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations due to loss of vernal pool habitat’’ extirpated in Fresno, Madera, Merced, guide for one of the ten populations on (CDFG 1991c). San Joaquin, Stanislaus, Tehama, and lands administered by the BLM and Orcuttia viscida (Sacramento Orcutt Tulare counties. The 20 remaining three of the nine populations on those grass) is a densely tufted, pilose annual populations of T. greenei occur in Butte, lands administered by the Lassen that reaches 2 to 10 cm (1 to 4 in) in Glenn, Merced, Shasta, and Tehama National Forest (B. Corbin, Lassen height. The erect stems terminate in counties. The present range of this National Forest, pers. comm. 1994; J. spike-like inflorescences that are species extends 567 km (258 miles). Molter, BLM, pers. comm. 1994; congested at the apex. The plants are With the exception of one small California Natural Diversity Database viscid (sticky) even when young and population of 50 plants on the (CNDDB) 1996). ‘‘Although discoveries more so at maturity. Orcuttia viscida Sacramento National Wildlife Refuge, of additional populations in recent years develops five-toothed lemmas 6 to 7 mm all populations are on private lands, have extended the known range of this (0.2 to 0.3 in) long with the middle including four on the TNC’s Vina Plains species, the overall trend for slender tooth conspicuously longer than the Preserve. ‘‘The general trend for Orcutt grass is one of decline as a result four laterals. The lemma teeth curve Greene’s Orcutt grass is one of decline of habitat alteration and loss’’ (CDFG outward at maturity, giving the as a result of habitat alteration and 1991f). inflorescence a distinct bristly destruction’’ (CDFG 1991e). Castilleja campestris ssp. succulenta appearance. Although O. viscida is Orcuttia tenuis (slender Orcutt grass) (fleshy owl’s-clover) is a glabrous, geographically isolated from all other is a weakly-tufted and sparsely-pilose hemiparasitic (partly parasitic) annual members of the genus, it most closely annual grass. It grows about 5 to 15 cm herb belonging to the snapdragon family resembles O. inaequalis, but can be (2 to 6 in) in height, producing one to (Scrophulariaceae). The stems are separated as described above under the several erect stems that often branch simple or branched, generally 5 to 25 discussion of O. inaequalis. from the upper nodes. The inflorescence cm (2 to 10 in.) tall with brittle- Hoover collected Orcuttia viscida in of this plant is elongate, with the succulent or brittle-fleshy, entire, 1941 from a vernal pool near Folsom in spikelets usually remote along the axis alternate leaves. The branches end in a Sacramento County and described it as and slightly, if at all, congested toward dense, short, green inflorescence with a variety of O. californica (Hoover the apex. The lemmas are deeply cleft bracts equaling or exceeding the bright 1941). Reeder elevated O. viscida to into fine, equal-length, prominent teeth yellow to white that appear in specific rank based on differences in that are sharp-pointed or short-awned. May. Castilleja campestris ssp. chromosome number, seed size, and Orcuttia tenuis and O. pilosa are found succulenta occurs with C. campestris other morphological characteristics growing together over a portion of their ssp. campestris in Stanislaus County, (Reeder 1980, 1982). Orcuttia viscida respective ranges but are readily but the latter can be distinguished by its possesses the narrowest range of the distinguished as described in the usually more brittle leaves, shorter eight species proposed for listing herein. discussion of O. pilosa. bracts, larger corollas, and longer Orcuttia viscida occurs within a 350 Alice Eastwood first collected stigmata. square km (135 square mi) area in Orcuttia tenuis in 1912 in Shasta Hoover (1936b) originally described eastern Sacramento County. Only 40 km County. These specimens were the plant as Orthocarpus campestris var. (18 mi) separates the northernmost from considered to be O. californica prior to succulentus from specimens at its type the southernmost population. Two of the description of O. tenuis by locality in beds of vernal pools near the nine known populations have been Hitchcock as a new species in 1934, Ryer, Merced County. He subsequently extirpated. Presently, three populations based upon spikelet arrangement as well elevated it to a full species, O. are found on private lands and four as lemma tooth morphology (Hitchcock succulentus, distinguishing it from O. populations are located on non-Federal 1934). Orcuttia tenuis has been campestris on the basis of leaf and bract public lands (one area owned by a extirpated from its type locality in shape and flexibility, corolla color, and public municipality, one owned by the Shasta County and four other sites in anther cell length (Hoover 1968). County of Sacramento, one by the City the vicinity of the Redding Municipal Chuang and Heckard (1991) of Fair Oaks, and one by the CDFG). Airport. Disjunct populations occur in significantly revised Orthocarpus, ‘‘The trend for Sacramento Orcutt grass vernal pools on remnant alluvial fans subsuming most of what had been is one of rapid decline’’ (CDFG 1991d). and high stream terraces and recent called Orthocarpus into the genus Tuctoria greenei (Greene’s tuctoria) is basalt flows across 440 km (220 mi) Castilleja. They also proposed the new a tufted, more or less pilose, annual (Stone et al. 1988). Orcuttia tenuis is combination C. campestris ssp. grass that grows 5 to 15 cm (2 to 6 in) restricted to northern California, with 2 succulenta. This small annual plant was tall. The plant develops several to many populations occurring in Lake County, 1 formerly more widespread in the erect stems, the outermost decumbent to in Lassen County, 2 in Plumas County, Central Valley and is now extirpated spreading at the base, with each 2 in Sacramento County, 19 (including from its type locality near Ryer in terminating in a spike-like inflorescence one translocated) in Shasta County, 2 in Merced County. Additionally, three that may be partially enveloped by the Siskiyou County, and 32 in Tehama populations in Fresno County have not uppermost leaf. The lemmas are County. Thirty-nine populations are on been observed for some years and are strongly curved and more or less private lands. In addition to the possibly extirpated (CNDDB 1996). The truncate at the apex. populations on the TNC’s Vina Plains plant discontinuously occurs in the San Vasey (1891) described Tuctoria Preserve in Tehama County, The Trust Joaquin Valley over a range of 145 km greenei as Orcuttia greenei from for Public Lands has obtained a (66 mi) extending through northern specimens collected by Edward Greene conservation easement on the Inks Fresno, western Madera, eastern near Chico in Butte County in 1890. It Creek Ranch in Tehama County to Merced, southeastern San Joaquin, and remained in the genus Orcuttia until protect one population of O. tenuis (M. Stanislaus counties. One population Reeder (1982) described the genus Kelly, BLM, pers. comm. 1993). The occurs on lands managed by the BOR, Tuctoria and placed the former O. City of Redding owns lands containing one on lands owned by the California greenei into the new genus Tuctoria. two populations. The United States Department of Transportation, and two Nineteen populations of T. greenei have Forest Service (USFS) and the BLM populations on land managed by the been extirpated or are possibly jointly have prepared a management BLM. Thirty-two populations occur on Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14341 private lands. Of these populations, United States. This report, designated as campestris ssp. succulentus and N. seven occur at the Flying M Ranch, House Document No. 94–51, was colusana to Category 2 candidates. where TNC has a conservation easement presented to Congress on January 9, Category 2 candidates were those (CNDDB 1996). ‘‘The overall trend for 1975, and included Castilleja species for which data in the Service’s succulent owl’s clover is one of decline’’ campestris ssp. succulenta (as possession indicated that listing was (CDFG 1991g). Orthocarpus succulentis [sic]), possibly appropriate, but for which Chamaesyce hooveri (Hoover’s Neostapfia colusana, Orcuttia substantial data on biological spurge), a member of the spurge family inaequalis (as O. californica var. vulnerability and threats were not (), is a prostrate, glabrous inaequalis), O. pilosa, O. tenuis, and O. known or on file to support proposed annual herb. The leaves are gray-green, viscida (as O. californica var. viscida) as rules. The plant notice was again asymmetric at the base, rounded to endangered, and Chamaesyce hooveri revised on September 27, 1985 (50 FR kidney-shaped and have small, narrow (as hooveri) as threatened. 39526) and the status of the eight plants white teeth around the margins. The The Service published a notice on July remained unchanged from the 1983 small flowers occur singly in the leaf 1, 1975, (40 FR 27823) of its acceptance supplement. In the revision of the plant axils. Chamaesyce ocellata can occur in of the report of the Smithsonian notice published on February 21, 1990 the same range with C. hooveri but is Institution as a petition within the (55 FR 6184), N. colusana was returned readily distinguished by its spreading context of section 4(c)(2) (petition to category 1 status. In 1991 and 1992, rather than prostrate habit, yellowish- provisions are now found in section the Service received additional green color, and entire leaf margins. 4(b)(3) of the Act) and its intention to information regarding threats to Chamaesyce serpyllifolia is similar to C. review the status of the species named Castilleja campestris ssp. succulenta, hooveri. Both species have a gray-green therein. The seven plants above were and returned this species to category 1 color and may be prostrate, but C. included in the July 1, 1975, notice. On status. As published in the Federal serpyllifolia has less rounded leaves, June 16, 1976, the Service published a Register on February 28, 1996 (61 FR and the marginal teeth are shorter and proposal (42 FR 24523) to determine 7596), candidate category 2 status was are usually limited to the leaf apex. approximately 1,700 discontinued and only category 1 Neither C. ocellata nor C. serpyllifolia species to be endangered species species are recognized as candidates for have been documented growing together pursuant to section 4 of the Act. This listing purposes. with C. hooveri in the same vernal pool. list of 1,700 plant taxa was assembled Section 4(b)(3)(B) of the Act requires Hoover first collected this plant in on the basis of comments and data the Secretary to make certain findings Tulare County in 1937. Wheeler (1940) received by the Smithsonian Institution on pending petitions within 12 months described it as Euphorbia hooveri. and the Service in response to House of their receipt. Section 2(b)(1) of the Koutnik (1985) placed this species in Document No. 94–51 and the July 1, 1982 amendments further requires that the genus Chamaesyce based on the 1975, Federal Register publication. presence of a sheath around the vascular all petitions pending on October 13, Castilleja campestris ssp. succulenta, 1982, be treated as having been newly bundle, its sympodial (lateral Chamaesyce hooveri, Neostapfia branching) growth habit, and its submitted on that date. This was the colusana, O. inaequalis, O. pilosa, O. case for Castilleja campestris ssp. photosynthetic pathway. Chamaesyce tenuis, and O. viscida were included in succulenta, Chamaesyce hooveri, hooveri is found in vernal pools on the June 16, 1976, Federal Register Neostapfia colusana, Orcuttia remnant alluvial fans and related document. depositional stream terraces along a General comments received in inaequalis, O. pilosa, O. tenuis, and O. stretch of 528 km (240 mi) on the relation to the 1976 proposal were viscida, because the 1975 Smithsonian eastern margin of the Central Valley. summarized in an April 26, 1978, report had been accepted as a petition. Four populations of C. hooveri are publication (43 FR 17909). The In October of 1983 through 1991, the extirpated or are possibly extirpated in Endangered Species Act Amendments Service found that the petitioned listing Butte, Tehama, and Tulare counties. Of of 1978 required that all proposals over of the above seven plant species was the 25 extant populations, 10 2 years old be withdrawn. A 1-year warranted but precluded by other higher populations are known from Glenn, grace period was given to those priority listing actions. Merced, Stanislaus, and Tulare proposals already more than 2 years old. A proposal to list Orcuttia inaequalis, counties. Three populations occur at the On December 10, 1979, the Service O. tenuis, O. viscida, and Tuctoria northern end of Butte County and the published a notice (44 FR 70796) of the greenei as endangered and Castilleja remainder are located in Tehama withdrawal of the June 16, 1976, campestris ssp. succulenta, Chamaesyce County. Five of the 12 Tehama County proposal, along with four other hooveri, Neostapfia colusana, and O. populations occur on TNC’s Vina Plains proposals that had expired. pilosa as threatened was published on Preserve. All populations are on The Service published an updated August 5, 1993 (58 FR 41700). This privately owned lands, except for the Notice of Review for plants on proposal primarily was based on four populations in Glenn County found December 15, 1980 (45 FR 82480). This information supplied by reports to the on the Sacramento National Wildlife notice included Castilleja campestris California Natural Diversity Data Base, Refuge (CNDDB 1996; J. Silveira, ssp. succulentus, Chamaesyce hooveri, the Status Survey of the Grass Tribe Sacramento National Wildlife Refuge, Neostapfia colusana, Orcuttia Orcuttieae and Chamaesyce hooveri pers. comm. 1994). inaequalis, O. pilosa, O. tenuis, O. (Euphorbiaceae) in the Central Valley of viscida, and Tuctoria greenei as category California (Stone et al. 1988), and Previous Federal Action 1 candidates. Category 1 candidates observations by numerous botanists. Federal actions on these eight species were those species for which the Service Since publication of the proposed rule began as a result of section 12 of the had on file substantial information on for these species, the Service has Endangered Species Act of 1973, which biological vulnerability and threats to determined that Orcuttia inaequalis, directed the Secretary of the support a proposal to list. On November which was proposed as endangered, Smithsonian Institution to prepare a 28, 1983, the Service published a should be listed as threatened due to a report on those species considered to be supplement to the notice of review (48 lesser immediacy and magnitude of endangered, threatened, or extinct in the FR 53640), which changed Castilleja threats to its existence. 14342 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

The processing of this final rule Regency Hotel in Sacramento on containing the vernal pool complex, conforms with the Service’s listing November 3, 1993, from 6 pm to 8 pm. mostly centered on the county-owned priority guidance published in the Eleven people presented oral and land having one population of Orcuttia Federal Register on December 5, 1996 written comments. viscida, was avoided. Because the (61 FR 64475). The guidance clarifies During the comment period, the County currently does not own land the order in which the Service will Service received comments (letters and elsewhere for future landfill expansion process rulemakings following two oral testimony) from 27 people. and has not announced plans to related events: (1) The lifting, on April Numerous people submitted more than purchase additional land, it is 26, 1996, of the moratorium on final one comment to the Service. Seven reasonable to expect that any future listings imposed on April 10, 1995 comments supported the listing, 12 expansion will threaten this population. (Public Law 104–6), and (2) the comments opposed the listing, and 8 Moreover, any expansion of the current restoration of funding for listing through comments are viewed as neutral. landfill area will destroy potential passage of the Omnibus Budget Several commenters provided habitat for O. viscida (Clark, in litt. Reconciliation law on April 26, 1996, clarification and additional detailed 1993). following severe funding constraints information that have been incorporated Issue 3. One commenter stated that imposed by a number of continuing into this rule. Opposing comments and loss of vernal pool habitat from many of resolutions between November 1995 other comments questioning the the planned housing projects and and April 1996. The guidance calls for proposed rule have been organized into aggregate mines in the Central Valley giving highest priority to handling specific issues. These issues and the will be mitigated by vernal pool emergency situations (Tier 1) and Service’s response to each are creation. Because vernal pool creation second highest priority (Tier 2) to summarized as follows: has been successful and is not resolving the listing status of the Issue 1. One commenter stated that experimental, no habitat losses exist as outstanding proposed listings. This final the population of Orcuttia viscida in a claimed by the Service. rule falls under Tier 2. At this time there vernal pool complex within a preserve Service Response: Ferren and Gervitz are no pending Tier 1 actions. This rule in the proposed Sunrise-Douglas (1990) reviewed 21 vernal pool creation has been updated to reflect any changes subdivision is not threatened. Another projects and stated that no conclusive in distribution, status and threats since commenter stated that this same data exist to substantiate the hypothesis the effective date of the listing population is threatened by human ‘‘that vernal pools can be restored or moratorium. This additional disturbance. created to provide functional values information was not of a nature to alter Service Response: The Service within the range of variability of natural the Service’s decision to list the species. reported in the proposed rule that one pools.’’ In a review of 53 mitigation- population of Orcuttia viscida was related transplantation, relocation, and Summary of Comments and threatened by an industrial park reintroduction attempts in California, Recommendations development in eastern Sacramento Peggy Fiedler (1991) concluded that the Upon the publication of the August 5, County (CNDDB 1993). This industrial success rate was 8 percent. In a study on 1993, proposed rule and associated park development project was dropped the preservation and management of notifications (58 FR 41700), all from further consideration, and the vernal pools, Jones and Stokes (1990) interested parties were requested to Sunrise-Douglas subdivision has been concluded that the science of vernal submit factual reports or information proposed in the same area (George pool creation is still in its infancy and that might assist the Service in Clark, California Native Plant Society, in is primarily an experimental technique. determining whether listing is litt. 1993). The proposed subdivision Thus, the Service maintains that warranted for these species. A 90-day includes a proposed preserve area, urbanization contributes to on-going comment period closed on November which includes the vernal pools losses of natural vernal pool habitat. 18, 1993. Appropriate Federal and State containing O. viscida and O. tenuis. The Service also maintains that vernal agencies, county and city governments, Because the preserve is only a proposal, pool habitat creation efforts are scientists, and interested parties were it does not provide any protection to experimental in nature at this time, and contacted and requested to comment. these plant populations. Detrimental are generally not successful (59 FR Individual newspaper notices of the effects from herbicide runoff, invasion 48136). Proposed subdivisions and proposed rule were published in the of horticultural exotics, bicycle riding, aggregate mines continue to threaten Lake County Record-Bee, Modesto Bee, and other human intrusions have been suitable vernal pool habitat and, in Record Searchlight, Visalia Times-Delta, observed in other preserves adjacent to some cases, populations of these eight Siskiyou Daily News, Madera Tribune, subdivisions, including one preserve for vernal pool plants. Chico-Enterprise Record, Daily O. viscida in Sacramento County. The Issue 4. One commenter stated that Republic, Turlock Daily, Fresno Bee, Service considers the populations at the Service erroneously calculated the and Sacramento Bee on a variety of Sunrise-Douglas to be imperiled by loss of vernal pool acreage in California dates from August 21 to August 26, similar threats as discussed in Factor E and suggested that the number of acres 1993. in the ‘‘Summary of Factors Affecting of vernal pools lost was far less than In response to the publication of the the Species.’’ claimed by the Service. proposed rule, William Hazeltine, Issue 2. One commenter stated that Service Response: The historical Environmental Consultant, Oroville, one population of Orcuttia viscida is not context of vernal pool losses in California, requested a public hearing in threatened by the Sacramento County California in the proposed rule was not a letter dated August 16, 1993. As a landfill. Another commenter stated that intended as a thorough, exhaustive result, the public comment period was the Sacramento County landfill investigation and analysis of vernal pool extended to November 18, 1993. Notice threatens this same population. losses. Retrospective and contradictory of the public hearing was published in Service Response: Recently, the information and opinions likely will the Federal Register (58 FR 52063) and Sacramento County landfill has been continue to generate debate on this in the Sacramento Bee, a newspaper expanded because the current use area point. The relevant issue is that vernal with a large regional circulation. A was nearly full to capacity. During the pool habitat is depleted and fragmented public hearing was held at the Hyatt last landfill expansion project, the area to render these eight vernal pool plants Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14343 vulnerable to extinction by present and the plant communities involved. biological needs for the long-term foreseeable threats across all or a Temperature and effective spring persistence of these populations. significant portion of their respective rainfall moisture contribute to No commenter submitted any data to ranges. The threats to vernal pool difficulties in predicting vernal pool substantiate their statements that habitat and the eight vernal pool plants plant growth and reproduction. These drought and/or urbanization have are discussed in the ‘‘Summary of environmental factors influence the caused of the decline of Tuctoria Factors Affecting the Species.’’ ability to determine vernal pool plant greenei. Populations of T. greenei and Issue 5. Several commenters availability for livestock consumption the other seven vernal pool plants have questioned the data that were used in and identify what levels of consumption been surveyed in drought and non- the proposed rule to determine that are not likely to adversely affect long- drought years. In regard to the these eight vernal pool plants warrant term plant sustainability. Grazing on likelihood of extirpation due to drought, listing. One commenter stated that the private lands occurs at many of the these eight vernal pool plants have data in the proposed rule were in error, locations of these eight vernal pool adapted to survive extreme incomplete, and inconclusive. One plants. The Service is aware of some environmental variations like drought. commenter stated that the data were populations having no livestock grazing Current information suggests extirpation poor because the status survey was done on them for over 40 years. Additionally, from drought is unlikely, except for in 2 drought years. the Service is aware of numerous marginal populations. It is not readily Service Response: The Service has instances where, under a specific set of apparent why populations may not received reports from the CNDDB, circumstances, livestock grazing has appear consistently on a given site and knowledgeable botanists, and from a little to no adverse effect on some the reasons may be attributed to drought field status survey specifically directed populations of these eight vernal pool or other unknown factors. at gathering the best available scientific plants. For instance, private livestock The best scientific and commercial and commercial information on the grazing in California commonly occurs information indicates some populations distribution and threats to these eight in the winter and early spring. Direct of these eight vernal pool plants may vernal pool plants. Information from impacts from grazing and trampling are have been extirpated as a result of botanical collections of these vernal avoided in many instances because the livestock grazing and that other pool plants that date from the 1890’s plants have yet to emerge from the populations are adversely impacted by was utilized in the preparation of the vernal pools that are still filled with livestock grazing (Stone et al. 1988). The proposed rule. The Service received water in the winter and early spring. Service maintains that current information from a request for These populations have been information suggests that livestock information from Federal, State, and characterized as stable and thriving and grazing, under certain conditions, may be detrimental to some of these eight local agencies and consulted not threatened by grazing, given a professional botanists during the vernal pool species. The determination specific set of management preparation of the proposed rule. of whether impacts from livestock circumstances (Stone et al. 1988). Destruction and loss of habitat and grazing are positive, neutral, or However, it would be inaccurate to extirpation of populations of these eight detrimental to these vernal pool plants characterize these vernal pool plant vernal pool plants from a variety of is made on a site-by-site basis for populations as stable and thriving as a causes have been documented. These specific populations and is based upon result of heavy or moderate grazing. species of plants have been surveyed in documented observations. Livestock Documented observations of positive, drought and non-drought years. grazing is only one of numerous neutral, and detrimental effects of Although these vernal pool plants have activities adversely affecting these eight livestock grazing on some populations variable populations and new vernal pool plants. Additional populations may be found in the future, of these eight vernal pool plants exist information regarding livestock grazing the same threats are likely to apply to (Stone et al. 1988). may be found in ‘‘Factor C’’ in the any newly discovered populations. No One population of Tuctoria greenei ‘‘Summary of Factors Affecting the data were provided to substantiate may have been extirpated as a result of Species.’’ comments that the findings of the cattle grazing from a site on private land Issue 7. Several commenters stated proposed rule were based on erroneous near Farmington, San Joaquin County. that the listing of these eight vernal pool or inconclusive data. This population was last seen in 1936 plant species will have an adverse Issue 6. Several commenters stated (Stone et al. 1988). Three populations of impact on cattle ranching and that the that livestock grazing had no or little T. greenei in Merced County, two Service needs to consider the economic adverse or possibly a beneficial effect or populations in Tehama County, and one effects of listing. was necessary for the survival of these population in Stanislaus County are Service Response: Under section eight vernal pool plants or that these presumed to be extirpated as a result of 4(b)(7)(A), a listing determination must plants are stable and thriving as a result cattle grazing (Stone et al. 1988). The be based solely on the best scientific of moderate or heavy grazing. One last time any of these populations was and commercial data available. The commenter stated that drought, not documented was in 1981. The proposed legislative history of this provision livestock grazing, was responsible for rule stated that livestock grazing was clearly states the intent of Congress to the decline of Tuctoria greenei. Another responsible for the damaged and ‘‘ensure’’ that listing decisions are commenter stated that urbanization and declining status of five populations of T. ‘‘based solely on biological criteria and drought, not livestock grazing, was greenei. Alternatively, another five to prevent non-biological considerations responsible for the decline of T. greenei. populations of T. greenei in Tehama from affecting such decisions’’, H. R. Service Response: Livestock grazing County are not threatened by current Rep. No. 97–835, 97th Cong. 2d Sess. 19 may have adverse, beneficial, or little livestock grazing practices and were not (1982). As further stated in the effect on vernal pool plants depending included in the discussion of grazing legislative history, ‘‘Applying economic upon a wide variety of circumstances. threats in the proposed rule. In these criteria * * * to any phase of the Grazing varies in frequency, intensity, five specific cases in Tehama County, species listing process is applying timing, duration, and kind of animal, livestock grazing has little or no adverse economics to the determinations made resulting in widely varying impacts to effect and is compatible with the under section 4 of the Act and is 14344 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations specifically rejected by the inclusion of California. The recovery plan will law, be made without regard to their the word ‘‘solely’’ in this legislation,’’ H. include all federally listed and economic impact. In enacting the R. Rep. No. 97–835, 97th Cong. 2d Sess. candidate vernal pool species and have Endangered Species Act, Congress 19 (1982). Because the Service is the goal to delist the species. required that the Department list species precluded from considering economic Implementation of the recovery plan based solely upon scientific and impacts in a final decision on a will help provide more than piecemeal commercial data indicating whether or proposed listing, the Service has not protection. not they are in danger of extinction. examined such impacts to the cattle While a few populations of some of Thus, by law and U.S. Attorney industry or other business that may be these vernal pool plants are found on guidelines, the Service cannot conduct caused by the listing of these eight preserves, most populations are located such TIAs prior to listing. However, the vernal pool species. on private lands and are not secure. In Service will be preparing a Takings Issue 8. One commenter stated that the few cases where some of these Implication Assessment regarding this livestock operators create vernal pool species are in preserves on privately listing after the listing becomes final. habitat by building stock ponds. owned lands, the preserves are not Issue 12. Several commenters stated Service Response: Although some managed specifically for these plants that the Service needs to complete a populations of Orcuttia tenuis are found and threats arise from sources other Regulatory Impact Analysis, as directed in livestock ponds, such habitat is than . For example, by Presidential Executive Order 12291, artificial and does not support the one commenter stated that one for the proposed rule for the eight vernal biological functions and values of population of Neostapfia colusana pool plants. natural vernal pools. Additionally, located in a preserve, Jepson Prairie, Service Response: The Endangered artificial livestock stock ponds are only owned by TNC, is threatened by Species Act requires that listing a temporary feature of surface competition from a nonnative, decisions be made solely on the basis of hydrology. Lack of maintenance or aggressive weed, common frog- biological information. The legislative changing land uses can cause such a (Phyla nodiflora var. nodiflora). history of the 1982 amendments to the livestock pond to disappear. The Furthermore, a population of Orcuttia Act states: Service considers that livestock ponds viscida, located on a preserve owned by ‘‘The Committee of Conference * ** represent temporary artificial refuge that CDFG, is adversely affected by runoff adopted the House language which is not ecologically viable for the eight from an adjacent housing development requires the Secretary to base vernal pool plants to sustain that has changed the hydrology of the determinations regarding the listing or themselves. vernal pool complex. For additional delisting of species ‘solely’ on the basis Issue 9. One commenter stated the information regarding protection of of the best scientific and commercial Service should assess impacts from individual populations, please refer to data available to him. As noted in the grasshopper predation on these eight the ‘‘Background’’ and the ‘‘Summary of House Report, economic considerations vernal pool plants. Factors Affecting the Species.’’ have no relevance to determinations Service Response: Grasshopper Issue 11. Several commenters stated regarding the status of species and the predation has been recorded only twice that the Service must complete a economic analysis requirements of in the history of monitoring information Takings Implication Assessment under Executive Order 12291, and such on these eight vernal pool plants. The Executive Order 12630. statutes as the Regulatory Flexibility Act Service does not consider grasshopper Service Response: The U.S. Attorney and the Paperwork Reduction Act, will predation a serious threat to these eight General has issued guidelines to the not apply to any phase of the listing vernal pool plants. Department of the Interior (Department) process.’’ H.R. Conf. Rep. No. 835, 97th Issue 10. Several commenters stated on the implementation of Executive Cong., 2d Sess. 20 (1982); accord, H.R. that these vernal pool plant species are Order 12630, ‘‘Governmental Actions Rep. No. 567, 97th Con., 2d Sess. 12, in preserves and do not require more and Interference with Constitutionally 19–20 (1982); S. Rep. No. 418, 97th protection. One commenter stated that Protected Property Rights.’’ Under these Cong., 2d Sess. 4 (1982). piecemeal protection may not prevent guidelines, a special rule applies when The Service has concluded that the extinction of these species. Another an agency within the Department is analyses required by the Regulatory commenter stated that, in specific cases, required by law to act without Flexibility Act and Executive Order some of the existing preserves do not exercising its usual discretion. The 12291 are not applicable to listing protect these plants. provisions in the guidelines relating to determinations. Additionally, Executive Service Response: The likelihood of non-discretionary actions clearly are Order 12291 was revoked by issuance of the long-term survival of any of the applicable to the determination of Executive Order 12866 on September eight vernal pool plants is difficult to endangered or threatened status for the 30, 1993. predict with the best scientific methods. vernal pool plants in this rule. Issue 13. Several commenters stated Difficulties and uncertainties in In this context, an agency’s action that the Service must prepare an predicting extinction of species involve might be subject to legal challenge if it Environmental Impact Statement (EIS), knowledge of many interrelated factors did not consider or act upon economic pursuant to the National Environmental including; the biological status of the information. In these cases, the Attorney Policy Act (NEPA), on this rule. species, the genetic structure within and General’s guidelines state that Takings Service Response: For the reasons set among populations of a species, the Implication Assessments (TIAs) shall be out in the NEPA section of this significance of contributions of marginal prepared after, rather than before, the document, the Service has determined populations to the genetics of the agency makes the decision upon which that the rules issued pursuant to section species, the rate and direction of gene its discretion is restricted. The purpose 4(a) of the Act do not require the flow, historic or current population of the TIAs in these special preparation of an EIS. The Federal bottlenecks, genetic drift, and circumstances is to inform policymakers courts have held in Pacific Legal inbreeding. Upon listing of the eight of areas where unavoidable taking Foundation v. Andrus, 657 F2d. 829 vernal pool plants, the Service will exposures exist. Such TIAs shall not be (6th Circuit 1981) that an EIS is not undertake preparation of a recovery considered in the making of required for listing under the Act. The plan for vernal pool ecosystems in administrative decisions that must, by court decision noted that preparing an Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14345

EIS on listing actions does not further critical habitat for people to find more continue to work with recognized the goals of NEPA or the Act. populations of these eight vernal pool experts, and Federal, State, and local Issue 14. One commenter stated that plants. entities in examining the use of the Service was uncooperative and Service Response: The Service additional alternatives, such as inaccessible regarding the notification of believes that, at this time, the threat including methoprene and the use of the proposed rule. Another commenter posed by designating critical habitat Bacillus thuringiensis var. israelensis stated that the Service needs to conduct outweighs any potential benefit. As (Bti) and Lagenidium giganteum to a hearing for the proposed rule to list discussed in the ‘‘Summary of Factors achieve mosquito control. The Service is these eight vernal pool plants in Butte Affecting the Species’’ and ‘‘Critical confident that Federal listing will County because the Butte County Board Habitat’’ sections of this rule, all eight contribute to the survival of the eight of Supervisors passed a resolution that vernal pool plants could be adversely species of vernal pool plants without directs all government agencies to affected by acts of vandalism. The threatening public health and safety. inform them of any action that may Service is aware of vernal pools that Issue 17. One commenter affect their economics, customs, or contained suitable habitat for other recommended that the eight vernal pool culture. federally proposed species that species be listed as threatened because Service Response: The Service apparently were destroyed to escape it would allow for incidental take in published a notice of the proposed rule regulatory requirements. Designation of conservation plans. regarding these eight vernal pool plants critical habitat at this time would Service Response: Section 9, in the Federal Register on August 5, increase the threats to these eight vernal ‘‘Prohibited Acts’’, of the Act and the 1993. On August 16, 1993, the Service pool plants from similar acts of Code of Federal Regulations (50 CFR mailed out over 125 notifications of the vandalism. Within the constraints of parts 10, 17) address protection of proposed rule to Federal, State, and agency budget and priority workload, federally listed endangered and county entities, and individuals. the Service is willing to work with threatened plants. Incidental take does Additionally, the Service published anyone interested in inventorying not apply to federally listed plants. public notices regarding the proposed vernal pools for undiscovered However, it is unlawful to remove, rule in the following newspapers— populations of these eight vernal pool damage or destroy any such species Chico-Enterprise Record, Fresno Bee, plants. Critical habitat is typically from areas under Federal jurisdiction, or Fairfield Daily Republic, Lake County designated for known populations to remove, damage or destroy any such Record-Bee, Madera Tribune, Modesto throughout the range of these species. species in knowing violation of any Bee, Redding Record Searchlight, Therefore, such a designation would not State law or regulation on other lands. Siskiyou Daily News, Sacramento Bee, aid in the discovery of new populations. For further information, please see the Turlock Daily, and Visalia Times-Delta. Issue 16. A commenter from a protection section in ‘‘Factor E’’ in the In regard to notification of the public mosquito abatement district was ‘‘Summary of Factors Affecting the hearing, one request for a public hearing concerned about restrictions of Species.’’ was received. In accordance with the mosquito control activities in vernal Endangered Species Act, the Service pools. Another commenter stated that Peer Review determined that the request for a public listing would prevent landowners from The Service solicited the expert hearing was received during the abating mosquitos on private lands and, opinions of more than a dozen comment period and scheduled a public thereby, could create a public nuisance appropriate and independent specialists hearing in a large city, Sacramento, that that could cause a liability. regarding pertinent scientific or is located in the center of the range of Service Response: After the Service commercial data and assumptions the eight species proposed for listing. proposed three species of fairy shrimp relating to the and biological The notification of the public hearing and one species of tadpole shrimp for and ecological information for these and extension of the comment period listing in 1992 (57 FR 19856), eight species. Two responses from was published in the Federal Register commenters expressed similar concerns. specialists were received. One specialist on October 6, 1993 (58 FR 52063) and Although degraded or disturbed vernal provided information supporting the shortly thereafter published in the pools may contain abundant mosquito position of the Service that Orcuttia Sacramento Bee, a local newspaper with populations, most natural, non- tenuis and O. viscida were facing a a large circulation. The Service also degraded vernal pools do not provide a number of threats in Sacramento mailed the notification of public hearing significant breeding source for County. The other specialist provided and extension of comment period to mosquitos. Since the Federal listing the information that clarified overlap in the interested parties. The Service three species of fairy shrimp and one distribution of Chamaesyce hooveri, C. maintains that adequate public tadpole shrimp in vernal pools of ocellata, and C. serpyllifolia, and notification was given in regard to the California in 1994 (59 FR 48136), the provided additional range, distribution notification of the proposed rule, the Service is not aware of any problems or or threat information for Orcuttia public hearing, and extension of conflicts that have arisen regarding inaequalis, O. pilosa and Tuctoria comment period for the eight vernal treatment of vernal pools for mosquitos greenei. These comments were pool plants proposed for listing. The and the need to protect federally listed incorporated into the final rule. perception of the Service as fairy shrimp or tadpole shrimp. If the uncooperative and inaccessible is need for treatment of some vernal pools Summary of Factors Affecting the regrettable. We will continue to strive occurs, least toxic, benign chemical Species for complete satisfaction in our alternatives and biological or cultural After a thorough review and communication with the public. controls exist for mosquito control. The consideration of all information Issue 15. One commenter stated that Service recognizes that potential available, the Service has determined the Service needs to designate critical conflicts may exist with the use of some that Orcuttia pilosa Hoover (hairy habitat. Another commenter stated that of the many chemicals used for Orcutt grass), Orcuttia viscida (Hoover) critical habitat should not be mosquito control that may potentially J. Reeder (Sacramento Orcutt grass), and designated. Another commenter stated be detrimental to vernal pool plants and Tuctoria greenei (Vasey) J. Reeder that the Service needs to designate biota. The Service does and will (Greene’s tuctoria) should be classified 14346 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations as endangered; and Castilleja campestris County and three populations in Tulare population of Chamaesyce hooveri in (Benth.) Chuang and Heckard ssp. County; one population of Castilleja Stanislaus County is threatened by succulenta (Hoover) Chuang and campestris ssp. succulenta in Madera increases in agricultural irrigation Heckard (fleshy owl’s-clover), County and one in Fresno County; runoff and by grazing (CNDDB 1996). Chamaesyce hooveri (Wheeler) Koutnik fourteen populations of N. colusana in The U.S. Army Corps of Engineers’ (Hoover’s spurge), Neostapfia colusana southeastern Stanislaus County; seven (Corps) Merced County Stream Channel (Davy) Davy (Colusa grass), Orcuttia populations of T. greenei in Merced Project threatens three populations of O. inaequalis Hoover (San Joaquin Valley County; and two populations of O. inaequalis, four populations of N. Orcutt grass), and Orcuttia tenuis inaequalis in Madera County (Stone et colusana, and four populations of Hitchcock (slender Orcutt grass) should al. 1988, Woodward-Clyde 1992, Castilleja campestris ssp. succulenta in be classified as threatened. Procedures CNDDB 1996). Merced County within the San Joaquin found at section 4 of the Act and Additionally, numerous activities Valley (R. Keck, Service, pers. comm. regulations (50 CFR part 424) associated with agricultural 1992; CNDDB 1996). promulgated to implement the listing development have caused habitat provisions of the Act were followed. A degradation severe enough that many Because the human population of the species may be determined to be populations of the species proposed for Central Valley is growing rapidly, endangered or threatened due to one or listing herein have not been seen for 2 numerous populations of Chamaesyce more of the five factors described in consecutive years or more and are hooveri, Orcuttia inaequalis, O. pilosa, section 4(a)(1). These factors and their presumed to be extirpated (Stone et al. O. tenuis, and O. viscida have been application to Orcuttia pilosa, Orcuttia 1988, CNDDB 1996). For example, extirpated and continue to be threatened viscida, Tuctoria greenei, Castilleja livestock pond construction has by urban development projects. For campestris ssp. succulenta, Chamaesyce inundated one population of Neostapfia example, two major proposed urban hooveri, Neostapfia colusana, Orcuttia colusana in Merced County. Irrigated developments are likely to adversely inaequalis, and Orcuttia tenuis are as agriculture and associated runoff have affect significant amounts of vernal pool follows: likely eliminated one population of habitat in the Central Valley, one for Orcuttia inaequalis in Madera County, A. The present or threatened 80,000 people in southwest Placer and one population of Tuctoria greenei destruction, modification, or County and one for 40,000 people in in Madera County and one in Merced curtailment of habitat or range. The southeastern Yolo County. In El Dorado County. Overgrazing and hay County, a 730 ha (1,800 ac) community habitat of these species has been production likely have destroyed one reduced and fragmented throughout near Georgetown is proposed as the first population of O. inaequalis in Tehama of 15 large-scale urban developments. their respective ranges as vernal pools County. Discing combined with grazing continue to be eliminated by Four new cities, projected to house presumably has destroyed one 142,000 people, are proposed for Sutter urbanization, flood control projects, population of T. greenei in Merced landfill projects, highway development, County in the Sacramento Valley County. Discing also has destroyed one (Weigand 1991). Urbanization has and agricultural land conversion. Lands population of N. colusana in Tulare on the Central Valley floor are closer to extirpated one population of O. County. Discing has likely eliminated inaequalis in Fresno County, three existing and expanding cities and farms one population of Castilleja campestris than the valley rim, which is steeper, populations of O. pilosa in Madera ssp. succulenta in Fresno County (Stone County, and one population of Tuctoria less fertile and more removed from et al. 1988, CNDDB 1996). In addition, cities. As a result, valley floor vernal greenei in Tehama County (Stone et al. 5 of the 12 remaining populations of O. 1988). In the Sacramento Valley, eight pools, along with open rangeland, have pilosa in Madera, Merced, and been and continue to be favored for populations of O. tenuis in Shasta Stanislaus counties have been damaged County are threatened by urbanization urban and agricultural development. by discing or discing combined with around Redding (Stone et al. 1988). Within the last 20 years, conversion of grazing (Stone et al. 1988). land to agricultural use is known to Human activities that alter the Numerous proposed housing have eliminated one population of hydrology of vernal pools, including developments, golf courses, and Chamaesyce hooveri in Tulare County; changes in the amount of water or the landfills in the Sacramento and San five populations of Neostapfia colusana length of inundation, may directly and Joaquin valleys threaten vernal pool in Stanislaus County, one in Colusa indirectly affect vernal pool plants. For areas that may provide suitable habitat County, and one in Merced County; five example, a vernal pool known to for O. tenuis and O. viscida, including populations of Orcuttia inaequalis in contain Orcuttia tenuis was channelized Borden Ranch, Evelyn Clipper Stanislaus County, four in Madera for mosquito abatement. It is likely that Residential Subdivision, Laguna County, three in Merced County, and the population was extirpated as a result Commons, Laguna Palms, Lakeview one in Fresno County; five populations (Stone et al. 1988, CNDDB 1996). Pond subdivision, Merced Community Golf of O. pilosa in Stanislaus County, two construction for recreational waterfowl Course, Rio Mesa subdivision, River in Madera County, and one in Merced hunting in Colusa County has Bend Ranch, Sunrise-Douglas, and County; one population of O. tenuis in presumably eliminated one population Yosemite Estates (June DeWesse, Kelly Shasta County; one population of of Neostapfia colusana. Additionally, Geer, and Mark Littlefield, Service, pers. Tuctoria greenei in Tulare County, three hydrological modifications have comm. 1994; CNDDB 1996). Although in Fresno County, one in Madera destroyed two Merced County and one one population of O. viscida in eastern County, four in San Joaquin County, two Fresno County population of O. Sacramento County is within a preserve, in Stanislaus County, and two in inaequalis, and three populations of O. this population remains threatened by a Tehama County (Stone et al. 1988, tenuis in Shasta County (Stone et al. proposed subdivision (G. Clark, CNPS, Rarefind 1996). Agricultural land 1988). Increases in agricultural field pers. comm. 1993). Housing tract conversion now threatens eight runoff are responsible for possibly developments imperil two populations populations of O. pilosa in Madera and extirpating one population of N. of Castilleja campestris ssp. succulenta Stanislaus counties; two populations of colusana in Merced County and one in in Fresno County and one population in Chamaesyce hooveri in Stanislaus Stanislaus County (CNDDB 1996). One Madera County, and one population of Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14347

O. tenuis in Shasta County (CNDDB species proposed for Federal listing in that cause only minimal individual and 1996). the Central Valley of California. cumulative environmental impacts. Proposed gravel and aggregate mining Vandalism is considered a threat to the Projects that qualify for authorization projects that threaten to destroy vernal eight vernal pool species, as discussed under NWP 26 and that affect less than pool habitat containing Orcuttia further in the ‘‘Critical Habitat’’ section one acre of isolated waters or inaequalis, O. viscida and Castilleja of this rule. headwaters may proceed without campestris ssp. succulenta include C. Disease or predation. All eight notifying the Corps. Evaluation of Granite Vineyard Aggregate Mining plants occur mostly on private land, impacts of such projects through the Project and Granite 1/Aspen VI, both in some Federal rangelands managed by section 404 permit process is thus Sacramento County, and Fresno County the USFS and the BLM that are subject precluded. Surface Mining (K. Geer, pers. comm. to livestock grazing, and rarely on Corps District and Division Engineers 1994). The University of California National Wildlife Refuge lands managed may require that an individual section prepared a draft environmental impact by the Service. Livestock grazing and 404 permit be obtained if projects statement for a new 810-ha (2,000-ac) associated trampling may or may not otherwise qualifying under NWP 26 campus for 25,000 students that will be adversely affect vernal pool plants would have greater than minimal located at Lake Yosemite in Merced depending on, among other things, the individual or cumulative environmental County. The site is in valley grassland kind of livestock, stocking level, season- impacts. However, the Corps has been that harbors vernal pool habitat (John of-use, and grazing duration. The reluctant to withhold authorization Zimmermann, University of California, intensity and, more importantly, the under NWP 26 unless the existence of in litt. 1994; Geer, pers. comm. 1994) timing of this activity affect how a listed threatened or endangered and contain some of the eight plant livestock grazing may adversely impact species would be jeopardized, species in this rule. vernal pool plants (Stone et al. 1988). regardless of the significance of the In addition to the numerous housing However, as long as the land remains in affected wetland resources. developments discussed above, dry pasture, moderate grazing regimes Additionally, and equally important, increasing urbanization of the Central appear to have little impact on the upland watersheds of vernal pools Valley can affect vernal pool habitat. populations of Orcuttia, Neostapfia, are not provided any protection in most Landfills, highway projects, and a Tuctoria, and Chamaesyce hooveri cases. Disturbance or loss of watersheds proposed Federal prison facility on a (Stone et al. 1988). The stems of C. have extirpated several populations of former U.S. Air Force base threaten hooveri exude a latex when broken that these species as discussed previously in vernal pool habitat. For example, the 90 appears to repel herbivores and that Factor A. Thus, as a consequence of the ha (200 ac) Merced County Landfill will may be poisonous. The impact of small scale of many vernal pools (most destroy vernal pools contained in the grazing combined with plant are less than one acre in size) and the project area. This project area contains competition probably has an adverse lack of protection of associated Orcuttia inaequalis, O. pilosa, Castilleja effect on Tuctoria greenei (see Factor E watersheds, these vernal pool plants campestris ssp. succulenta, Neostapfia below). receive insufficient Federal protection colusana, and Tuctoria greenei. D. The inadequacy of existing under section 404 of the Clean Water Additionally, a proposed landfill regulatory mechanisms. The Act. threatens one population of C. Endangered Species Act can The Orcuttia tenuis Species campestris ssp. succulenta in Fresno incidentally afford protection to these Management Guide written by the County (CNDDB 1996). One of the seven plants if they co-exist with species Lassen National Forest and the Sacramento County populations of O. already listed as threatened or Susanville District of the BLM (1990) viscida is threatened by a public landfill endangered. Four other listed species gives long-term management direction expansion (G. Clark, in litt. 1993). Three may occur with these plants: The vernal for 5 of 19 Forest Service and BLM plant populations of C. campestris ssp. pool tadpole shrimp (Lepidurus and animal populations in Plumas, succulenta, two populations of O. packardi); conservancy fairy shrimp Shasta, and Siskiyou counties in inaequalis, and one population of O. (Branchinecta conservatio); longhorn northern California. Since 1990, three of pilosa in Madera County are threatened fairy shrimp (B. longiantenna); and the five populations of O. tenuis by proposed expansion of State vernal pool fairy shrimp (B. lynchi). included in the guide have been fenced Highway 41 (Brian Apper, California However, these species are only rarely to protect them from impacts from State Dept. of Transportation, in litt. and sporadically found in the same grazing and off-highway vehicle use. 1993; CNDDB 1996). One population of vernal pools or vernal pool complexes Since 1990, six additional populations N. colusana in Merced County is as the eight vernal pool plants. of O. tenuis located on BLM threatened by a proposed Federal prison Under section 404 of the Clean Water administered land, not currently on part of the former Castle Air Force Act, the U. S. Army Corps of Engineers included in the species management Base (Earth Technology Corporation (Corps) regulates the discharge of fill guide, have been fenced to protect the 1994). into waters of the United States, which populations from grazing. Grazing has B. Overutilization for commercial, includes navigable and isolated waters, been discontinued in some instances. recreational, scientific, or educational headwaters, and adjacent wetlands. The The California Fish and Game purposes. Overutilization is not known section 404 regulations require that Commission has listed Castilleja to be a factor for any of these species. applicants obtain an individual permit campestris ssp. succulenta, Neostapfia Collecting for scientific or horticultural to place fill for projects affecting greater colusana, Orcuttia inaequalis, O. pilosa, purposes or uncontrolled visits by than 4 ha (10 ac) of waters of the United O. tenuis, and O. viscida as endangered, groups or individuals could result in States. Nationwide Permit (NWP) No. 26 and has classified Tuctoria greenei as a trampling of vernal pool plants from (33 CFR part 330) was established by the under the California increased publicity that may result from Department of the Army to facilitate Endangered Species Act (California Fish a listing proposal. The Service is aware authorization of discharges of fill into and Game Code section 2050 et seq.) of several instances of the destruction of isolated waters (such as vernal pools) and California Code of Regulations Title vernal pool and associated upland that cause the loss of less than 4 ha (10 14 § 670.2 (1995). Chamaesyce hooveri habitats known or likely to contain ac) of waters of the United States, and is not State-listed or classified. 14348 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

Although the ‘‘take’’ of State-listed continued cattle grazing by the previous Tuctoria greenei in Tehama County and plants is prohibited under the California landowner, and the other populations one in Butte County within the Native Plant Protection Act (California have all been damaged by grazing (Stone Sacramento Valley, and all seven Fish and Game Code Section 1908 and et al. 1988). Two of the five populations remaining extant sites in Merced County California Fish and Game Code Section of Tuctoria greenei on the Vina Plains in the San Joaquin Valley (Stone et al. 2080), State law appears to exempt the Preserve are also damaged and declining 1987, 1988; CNDDB 1996). Tuctoria taking of such plants via habitat due to grazing (CNDDB 1996). greenei appears to be the most modification or land use changes by the E. Other natural or manmade factors susceptible of the eight plants in this owner. After the CDFG notifies a affecting its continued existence. rule to negative grazing impacts because landowner that a State-listed plant Nonnative annual and perennial plants its preference to grow in the margin of grows on his or her property, the have invaded many vernal pools of the a vernal pool (along the outer edges of California Native Plant Protection Act Central Valley. Nonnative annual the pool) makes it more susceptible to requires only that the landowner notify grasses such as Hordeum geniculatum, livestock trampling damage and the agency ‘‘at least 10 days in advance Phalaris paradoxa, Polypogon competition from nonnative weeds such of changing the land use to allow monospeliensis, and Lolium as L. multiflorum, Phalaris paradoxa, salvage of such a plant’’ (California Fish multiflorum and soil disturbance and Polypogon monospeliensis (Stone et and Game Code § 1913(c)). associated with cattle grazing appear to al. 1987). All populations of T. greenei The California Environmental Quality result in low vigor and low seed are subject to grazing. One population of Act (CEQA) obligates disclosure of production of two populations of T. greenei in Tehama County, two in environmental resources within Orcuttia inaequalis in Merced County Merced County, and one in Butte proposed project areas and may enhance (Stone et al. 1988). Additionally, the County are damaged and declining due opportunities for conservation efforts. nonnative perennial herb, Sida to grazing (Stone et al. 1988). Because However, CEQA does not guarantee that hederacea, appears to threaten another cattle grazing is likely the primary cause such conservation efforts will be O. inaequalis population at a heavily for extirpation or presumed extirpation implemented. Additionally, part of the grazed site in Merced County (Stone et of T. greenei at eight sites and all other environmental review under the CEQA al. 1988). This same perennial, along populations are grazed by livestock, the for projects that result in the loss of sites with the three weedy, nonnative grasses remaining populations of T. greenei are supporting these species includes the L. multiflorum, H. geniculatum, and P. potentially threatened by grazing (Stone development of mitigation plans. Such monospeliensis, appear to threaten three et al. 1988). Lastly, the primary threat to plans usually involve the populations of O. pilosa, two in Tehama populations of Orcuttia pilosa, O. transplantation of the plant species to County and one in Stanislaus County tenuis, and T. greenei on TNC’s Vina another existing vernal pool, or the (Stone et al. 1988). The native Plains Preserve is competition from artificial creation of vernal pool habitat. perennials Eleocharis macrostachya and nonnative, aggressive weeds, including Transplantation and habitat creation Eryngium sp. appear to limit Convolvulus arvensis, Proboscidea efforts are experimental in nature at this distribution and abundance of three louisianica, and Xanthium strumarium time, and are generally not successful populations of O. tenuis in Shasta (CDFG 1991i, CNDDB 1996). (Fiedler 1991, Jones and Stokes 1990). County and ten populations in Tehama A population of Neostapfia colusana Following the development of the County in the Sacramento Valley (Stone on the McClellan U.S. Air Force Base transplantation plan, the original site is et al. 1987, 1988). Five populations of radio transmitter site in Yolo County is destroyed. Therefore, if the mitigation Chamaesyce hooveri in Tehama County severely degraded due to herbicide effort fails, the resource has already are threatened by one or more native or runoff from the antenna pads and to been lost. nonnative plant species (CNDDB 1996). discing of firebreaks (CNDDB 1996; G. The public agency with primary The distribution and abundance of O. Clark, in litt. 1993). authority or jurisdiction over the project viscida at six of the seven extant sites Off-highway vehicle damage has been (the lead agency) is responsible for is significantly restricted by Eleocharis reported to one population of Orcuttia conducting a review of the project and macrostachya, which appears to tenuis in Plumas County and threatens consulting with other agencies threaten one population of O. viscida two additional populations in Shasta concerned with the resources affected through competitive exclusion (Stone et and one population of O. pilosa in by the project. However, the lead agency al. 1988). Another population of Madera County (CNDDB 1996). may approve projects that cause Neostapfia colusana on TNC’s Jepson Because vernal pools are fairly significant environmental damage, such Prairie Preserve is threatened by localized habitats in close proximity to as the destruction of State-listed competitive exclusion from the urban and agricultural areas, endangered species, and does not nonnative, aggressive Phyla nodiflora uncontrolled visits by groups or always require adequate mitigation for var. nodiflora (CNDDB 1996; G. Clark, in individuals could result in trampling of the replacement or protection of the litt. 1993). Initial results from on-going vernal pool plants and potentially affected resources. The protection of research regarding controlling or threaten all eight species. listed species through CEQA is therefore eradicating Phyla nodiflora var. The Service has carefully assessed the dependent upon the discretion of the nodiflora at the Jepson Prairie Preserve best scientific and commercial lead agency. have indicated that control or information available regarding the Conservation easements do not eradication is likely to be very difficult present and future threats faced by these currently ensure adequate protection for (CDFG 1991h). eight species in determining to issue these vulnerable plant species. First, Soil disturbance from cattle grazing this rule. As described under the fewer than 8 percent of the populations combined with competition from the ‘‘Summary of Factors Affecting the of these eight species are within existing introduced annual grasses Crypsis Species’’ section above, the available conservation easements. Secondly, schoensides, Phalaris paradoxa, information indicates that many of the although four populations of Orcuttia Hordeum geniculatum, and Polypogon populations of these plants are currently pilosa are located on the TNC’s Vina monspeliensis and the nonnative threatened. Thirty-three populations of Plains Preserve, only one of these sites perennial Lolium multiflorum appear to these eight vernal pool plants have been is excluded from an agreement allowing adversely affect two populations of extirpated and much of the habitat has Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14349 been lost to a variety of human from expanding urban areas. conservation of the species and (II) that activities. Large-scale human population Nonetheless, these five species are may require special management increases and attendant urban growth, likely to become increasingly imperiled considerations or protection; and (ii) as well as changes in agricultural uses in the foreseeable future unless current specific areas outside the geographical in adjacent areas, have destroyed and trends of urban development and area occupied by a species at the time continue to destroy significant agricultural conversion are reversed. Of it is listed, upon a determination that quantities of the plants’ vernal pool the 36 extant populations of Castilleja such areas are essential for the habitat and continue to eliminate many campestris ssp. succulenta, nearly half conservation of the species. plant populations. As a result, all eight are threatened by one or more of the ‘‘Conservation’’ as defined in section species have fragmented, discontinuous, following—urbanization, agricultural 3(3) of the Act means the use of all highly restricted habitats within the land conversion, discing, trampling, a methods and procedures needed to Central Valley, most of which are flood control project, and a proposed bring the species to the point at which vulnerable to current and future threats. highway expansion project. About one- listing under the Act is no longer More than half of the remaining third of the 25 remaining populations of necessary. populations of the plants determined for Chamaesyce hooveri are threatened by Section 4(a)(3) of the Act, as listing as endangered face numerous on- agricultural land conversion, a flood amended, and the implementing going threats. Although these remaining control project, and/or competition with regulations (50 CFR 424.12) require that, populations of O. pilosa, O. viscida, and nonnative weeds. Ten populations of to the maximum extent prudent and Tuctoria greenei vary in size of Neostapfia colusana are lost or determinable, the Secretary designate occupied habitat, their geographic suspected of being lost due to critical habitat at the time a species is distribution near expanding urban areas conversion of habitat. Of the 44 determined to be endangered or and restriction to the Central Valley remaining populations of N. colusana, threatened. The Service finds that floor renders them more vulnerable to 22 populations are threatened or are designation of critical habitat is not various threats, as described in Factor damaged and declining due to prudent for Orcuttia pilosa, O. viscida, ‘‘A’’. The Central Valley floor is favored agricultural land conversion, discing, a Tuctoria greenei, Castilleja campestris over the valley rim for urban flood control project, a proposed ssp. succulenta, Chamaesyce hooveri, development, agricultural activities, and Federal prison, herbicide contaminated Neostapfia colusana, O. inaequalis, and agricultural land conversion. The runoff, and/or competition with O. tenuis. Service regulations (50 CFR immediacy and magnitude of threats to nonnative plants. Sixteen populations of 424.12(a)(1)) state that the designation these plant populations is, therefore, O. inaequalis have been lost and three of critical habitat is not prudent when greater than those occurring above the other populations are possibly one or both of the following situations valley floor. Nine populations of O. extirpated. Of the remaining 23 native exist—(1) the species is imperiled by pilosa have been lost and two others are extant populations of O. inaequalis, 11 taking or other human activity and the possibly extirpated. Fourteen of the are variously threatened by identification of critical habitat can be remaining 25 native extant populations urbanization, agricultural land expected to increase the degree of such of O. pilosa are variously threatened by conversion, and competition with threat to the species, or (2) such urbanization, agricultural land nonnative weeds. Twenty-three of the designation of critical habitat would not conversion, a highway expansion 59 native extant populations of O. be beneficial to the species. In the case project, discing, off-highway vehicle tenuis are variously threatened either by of the eight vernal pool plants in this use, and competition from nonnative one or more of the following— final rule, both criteria are met. weeds. Of the seven extant populations urbanization, altered hydrology, off- of O. viscida, five populations are highway vehicles, and competition from The listing of these plants as threatened by one or more of the nonnative weeds. Based on the endangered or threatened elevates following factors—a landfill project, evaluation above, the preferred action is awareness of their rarity, making them urban development, and competition to list Castilleja campestris ssp. more sought after by curiosity seekers, from nonnative weeds. Approximately succulenta, Chamaesyce hooveri, N. researchers, rare plant collectors, and half the known populations of Tuctoria colusana, O. inaequalis, and O. tenuis vandals. Because vernal pool habitats greenei have been extirpated or are as threatened. are small and easily identified, the possibly extirpated by some form of Alternatives to this action were publication of precise maps and human activity. With the exception of considered but not preferred. Not listing descriptions of critical habitat in the the population on the Sacramento Orcuttia pilosa, O. viscida, and Tuctoria Federal Register would increase the National Wildlife Refuge, the remaining greenei as endangered or Castilleja vulnerability of these plant species to 20 extant populations of T. greenei are campestris ssp. succulenta, Chamaesyce incidents of collection and general variously threatened by competition hooveri, Neostapfia colusana, O. vandalism. Over a period of recent from nonnative weeds, grazing, and inaequalis, and O. tenuis as threatened years, the Service is aware of the discing agricultural land conversion. Based would not provide adequate protection or filling of vernal pools and associated upon the above evaluation, the and would not be consistent with the upland habitats known to or likely proposed action is to list O. pilosa, O. Act. The Service is not proposing to containing Federal candidate, proposed viscida, and T. greenei as endangered. designate critical habitat for these plants or listed species including vernal pool The remaining populations of the four species at this time, as discussed below. fairy shrimp (Branchinecta lynchi), species proposed as threatened and vernal pool tadpole shrimp (Lepidurus Orcuttia inaequalis, which was Critical Habitat packardi), California tiger salamander proposed as endangered, face fewer Critical habitat is defined in section (Ambystoma californiense), Burke’s existing threats, that are of lesser 3(5)(A) of the Act as: (i) The specific goldfields (Lasthenia burkei), Sonoma magnitude. Moreover, several areas within the geographical area sunshine (Blennosperma bakeri), and populations of these five plants occur in occupied by a species, at the time it is Butte County meadowfoam (Limnanthes pool habitats above the Central Valley listed in accordance with the Act, on floccosa ssp. californica) (Jim Browning, floor (up to 1,090 m (3,600 feet) in which are found those physical or Jan Knight, Chris Nagano, Dan Strait, elevation) and/or somewhat removed biological features (I) essential to the Service, pers. comms. 1994). 14350 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

Most of the populations of the eight their actions with respect to any species decision of whether a Federal prison is vernal pool plants occur on private that is proposed or listed as endangered located on part of the former U.S. Air lands where Federal involvement in or threatened and with respect to its Force base. land-use activities does not generally critical habitat, if any is being Listing Orcuttia pilosa, O. viscida, occur. The most likely Federal designated. Regulations implementing and Tuctoria greenei as endangered and involvement would occur with the this interagency cooperation provision Castilleja campestris ssp. succulenta, Corps through section 404 of the Clean of the Act are codified at 50 CFR part Chamaesyce hooveri, Neostapfia Water Act. The Service finds that 402. Section 7(a)(1) requires Federal colusana, O. inaequalis, and O. tenuis Federal involvement in the few areas agencies to use their authorities to as threatened provides for the where these plants occur on Federal further the purposes of the Act by development of a recovery plan(s), land has already been identified without carrying out programs for listed species. which will bring together State and the designation of critical habitat. The Section 7(a)(2) of the Act requires Federal efforts for conservation of these USFS and the BLM jointly have Federal agencies to insure that activities plants. The recovery plan(s) would prepared a species management guide they authorize, fund, or carry out are not establish a framework for agencies to for Orcuttia tenuis. A few populations likely to jeopardize the continued coordinate activities and cooperate with have been fenced to protect them from existence of the species or destroy or each other in conservation efforts. The off-highway vehicle use and grazing. adversely modify its critical habitat. If a plan(s) would set recovery priorities and The BLM also is aware of the Federal action is likely to adversely estimate costs of various tasks necessary populations of Castilleja campestris ssp. affect a listed species, the responsible to accomplish them. It also would succulenta and O. inaequalis and has Federal agency must enter into formal describe site-specific management fenced several populations of each consultation with the Service. actions necessary to achieve conservation and survival of these species to protect the populations from The Corps of Engineers will become species. Additionally, pursuant to trespass grazing. Sacramento National involved with these species through its section 6 of the Act, the Service would Wildlife Refuge personnel are also permitting authority under section 404 be able to grant funds to affected states aware of the few populations of of the Clean Water Act as well as water for management actions aiding in the Chamaesyce hooveri, O. pilosa, and projects in the Central Valley such as Tuctoria greenei occurring on Service protection and recovery of these plants. the Merced County Streams Project. By land in Glenn County. Protection of a The Act and its implementing regulation, nationwide permits may not few populations of several of these regulations set forth a series of general be issued where a federally listed vernal pool plants and their habitats on prohibitions and exceptions that apply endangered or threatened species would Federal land will be addressed through to all endangered and threatened plants. be affected by the proposed project the recovery process and through the All prohibitions of section 9(a)(2) of the without first completing formal section 7 consultation process. Act, implemented by 50 CFR 17.61 and consultation pursuant to section 7 of the Therefore, the Service finds that 17.71, apply. These prohibitions, in Act. The presence of a listed species designation of critical habitat for these part, make it illegal for any person would highlight the national importance eight plants is not prudent at this time subject to the jurisdiction of the United because such designation would of these resources. In addition, issuance States to import or export; transport in increase the threat from vandalism or of housing loans by the Department of interstate or foreign commerce in the other human activities. The Service also Housing and Urban Development in course of a commercial activity, sell or finds that designation of critical habitat areas that presently support these eight offer for sale in interstate or foreign is not beneficial because most of the species would be subject to review by commerce, or remove and reduce the populations of the eight vernal pool the Service under section 7 of the Act. species to possession from areas under plants are found on private lands. The BOR will become involved under Federal jurisdiction. In addition, for Where they are found on Federal lands, its Friant water contract renewal plants listed as endangered, the Act the agencies are aware of the species program to the extent that these species prohibits the malicious damage or and are already addressing conservation may occur within the 404,700 ha (1 destruction on areas under Federal efforts. million ac) water delivery area (M. Kohl, jurisdiction and the removal, cutting, Service, pers. comm. 1992). Other future digging up, or damaging or destroying of Available Conservation Measures BOR contract renewals will provide such plants in knowing violation of any Conservation measures provided to additional potential for section 7 State law or regulation, including State species listed as endangered or involvement. The BLM and the USFS criminal trespass law. Section 4(d) of threatened under the Act include will become involved as they are the Act allows for the provision of such recognition, recovery actions, responsible for authorizing grazing and protection to threatened species through requirements for Federal protection, and other land uses in areas containing regulation. Seeds from cultivated prohibitions against certain activities. vernal pools. Highway construction and specimens of threatened plant taxa are Recognition through listing encourages maintenance projects that receive exempt from these prohibitions and results in conservation actions by funding from the Department of provided that a statement ‘‘Of Federal, State, and private agencies, Transportation (Federal Highways Cultivated Origin’’ appears on the groups, and individuals. The Act Administration) will be subject to shipping containers. Certain exceptions provides for possible land acquisition review under section 7 of the Act. The apply to agents of the Service and State and cooperation with the State and Federal Bureau of Prisons could become conservation agencies. requires that recovery actions be carried involved in discussions with the Service The Act and 50 CFR 17.62, 17.63, and out for all listed species. The protection in the event that part of the reuse of the 17.72 also provide for the issuance of required of Federal agencies and the former U.S. Castle Air Force Base is permits to carry out otherwise prohibitions against certain activities determined to be a Federal prison prohibited activities involving involving listed plants are discussed, in facility. Castle Air Force Base is now endangered or threatened plant species part, below. closed, but the property is still under under certain circumstances. Such Section 7(a) of the Act, as amended, Federal ownership. The U.S. Air Force permits are available for scientific requires Federal agencies to evaluate may become involved regardless of the purposes and to enhance the Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14351 propagation or survival of the species. construction and maintenance, non- Management and Budget under For threatened plants, permits are also federally authorized mining, and Executive Order 12866. The Department available for botanical or horticultural recreational activities. Activities that has determined that these final exhibition, educational purposes, or occur on Federal land, or on private regulations meets the applicable special purposes consistent with land that receive Federal authorization, standards provided in Sections 3(a) and purposes of the Act. Because none of permits, or funding, and for which 3(b)(2) of Executive Order 12988. these eight plants are common in the either a Federal endangered species References Cited wild or in cultivation, trade permits permit is issued to allow collection for likely would not be sought. Requests for scientific or recovery purposes, or a A complete list of all references cited copies of the regulations on plants and consultation is conducted in accordance herein is available upon request from inquiries regarding them may be with section 7 of the Act, would also not the Field Supervisor of the Sacramento addressed to the U.S. Fish and Wildlife result in a violation of section 9. General Field Office (see ADDRESSES section). Service, Ecological Services, Permits prohibitions and exceptions that apply Author: The primary author of this Branch, 911 NE 11th Avenue, Portland, to all endangered and threatened plants proposed rule is Ken Fuller (see Oregon 97232–4181 (503/231–6241). in section 9(a)(2) of the Act, ADDRESSES section). It is the policy of the Service (59 FR implemented by 50 CFR 17.61 and List of Subjects in 50 CFR Part 17 34272; July 1, 1994) to identify to the 17.71, apply as discussed earlier in this maximum extent practicable at the time section. Questions regarding whether Endangered and threatened species, of listing those activities that would or specific activities will constitute a Exports, Imports, Reporting and record- violation of section 9 should be directed would not constitute a violation of keeping requirements, and to the Field Supervisor of the Service’s section 9 of the Act. The intent of this Transportation. Sacramento Field Office (see ADDRESSES policy is to increase public awareness of section). Regulation Promulgation the effect of the listing on proposed or on-going activities. The Service believes National Environmental Policy Act Accordingly, part 17, subchapter B of that the following actions would result The Service has determined that chapter I, title 50 of the Code of Federal in a violation of section 9, although Environmental Assessments and Regulations, is amended as set forth possible violations are not limited to Environmental Impact Statements, as below: these actions alone: Collection, damage, defined by the National Environmental PART 17Ð[AMENDED] or destruction of these species on Policy Act of 1969, need not be Federal lands, except in certain cases prepared in connection with regulations described below; and activities on non- 1. The authority citation for part 17 adopted pursuant to section 4(a) of the continues to read as follows: Federal lands conducted in knowing Endangered Species Act, as amended. A violation of California State law, which notice outlining the Service’s reasons Authority: 16 U.S.C. 1361–1407; 16 U.S.C. requires a ten day notice be given before for this determination was published in 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500, unless otherwise noted. taking of plants on private land. The the Federal Register on October 25, Service believes that, based on the best 1983 (48 FR 49244). § 17.12 [Amended] available information, the following actions will not result in a violation of Required Determinations 2. Section 17.12(h) is amended by section 9 on private land provided that The Service has examined this adding the following, in alphabetical they do not violate State trespass or regulation under the Paperwork order under Flowering Plants, to the List other laws: Livestock grazing, ranching Reduction Act of 1995 and found it to of Endangered and Threatened Plants to operations (construction or maintenance contain no information collection read as follows: of fences, water facilities, corrals; off- requirements. This rulemaking was not * * * * * road vehicle travel), firebreak subject to review by the Office of (h) * * *

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

Flowering Plants:

******* Castilleja campestris ssp. Fleshy owl's-clover ...... U.S.A. Scrophulariaceae ...... T 611 NA NA succulenta. (CA).

******* Chamaesyce hooveri ...... Hoover's spurge ...... U.S.A. Euphorbiaceae ...... T 611 NA NA (CA).

******* Neostapfia colusana ...... Colusa grass ...... U.S.A. ...... T 611 NA NA (CA).

******* Orcuttia inaequalis ...... San Joaquin Valley U.S.A. Poaceae ...... T 611 NA NA Orcutt grass. (CA). 14352 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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

******* Orcuttia pilosa ...... Hairy Orcutt grass ...... U.S.A. Poaceae ...... E 611 NA NA (CA).

******* Orcuttia tenuis ...... Slender Orcutt grass ..... U.S.A. Poaceae ...... T 611 NA NA (CA).

******* Orcuttia viscida ...... Sacramento Orcutt grass U.S.A. Poaceae ...... E 611 NA NA (CA).

******* Tuctoria greenei ...... Greene's tuctoria ...... U.S.A. Poaceae ...... E 611 NA NA (CA).

*******

Offset Folios 7 to 8 Insert Here Fishery Management Plan for the Spiny rescission of the January 15, 1986, Dated: February 24, 1997. Lobster Fishery of the Gulf of Mexico control date with respect to this fishery. John G. Rogers, and South Atlantic (FMP). The FMP was Authority: 16 U.S.C. 1801 et seq. Acting Director, U.S. Fish and Wildlife Service prepared by the Councils and is Dated: March 20, 1997. [FR Doc. 97–7619 Filed 3–25–97; 8:45 am] implemented through regulations at 50 C. Karnella, BILLING CODE 4310±55±P CFR part 640, under the authority of the Magnuson-Stevens Fishery Acting Assistant Administrator for Fisheries, Conservation and Management Act. National Marine Fisheries Service. [FR Doc. 97–7717 Filed 3–25–97; 8:45 am] DEPARTMENT OF COMMERCE A control date of January 15, 1986, was established for the spiny lobster BILLING CODE 3510±22±F National Oceanic and Atmospheric fishery in anticipation of a possible Administration Federal limited access program for this fishery (51 FR 5713, February 18, 1986). 50 CFR Part 640 50 CFR Part 679 The notice announcing this control date [Docket No. 970318058±7058±01; I.D. stated that anyone entering the fishery [Docket No. 961107312±7021±02; I.D. 022597A] after January 15, 1986, was not assured 031997A] RIN 0648±XX82 of continued participation if a limited Fisheries of the Exclusive Economic access system was adopted. Zone Off Alaska; Offshore Component Spiny Lobster Fishery of the Gulf of No limited access program was Pollock in the Aleutian Islands Subarea Mexico and South Atlantic; Rescission developed by the Councils. Instead, the AGENCY: of Control Date Councils adopted Florida’s management National Marine Fisheries regime for the exclusive economic zone Service (NMFS), National Oceanic and AGENCY: National Marine Fisheries Atmospheric Administration (NOAA), Service (NMFS), National Oceanic and (EEZ) off Florida. The commercial fishery is confined primarily to Florida Commerce. Atmospheric Administration (NOAA), ACTION: Modification of a closure. Commerce. waters and the EEZ off Florida. Commercial and recreational spiny ACTION: Notice of rescission of control SUMMARY: NMFS is opening directed lobster landings outside Florida are date. fishing for pollock by vessels catching negligible. pollock for processing by the offshore SUMMARY: The Gulf of Mexico and South In 1992, NMFS adopted for the EEZ component in the Aleutian Islands Atlantic Fishery Management Councils off Florida, Florida’s spiny lobster trap subarea (AI) of the Bering Sea and (Councils) believe that changes in the certificate, trap reduction, and trap Aleutian Islands management area management of the spiny lobster fishery identification programs (57 FR 56516, (BSAI). This action is necessary to fully makes a previously announced control November 30, 1992). utilize the total allowable catch (TAC) of date obsolete. Therefore, on behalf of In 1994, NMFS removed the pollock in that area. the Councils, NMFS announces that the requirement for Federal vessel permits EFFECTIVE DATE: 1200 hrs, Alaska local date of January 15, 1986, is no longer in the commercial fishery in the EEZ off time (A.l.t.), March 20, 1997, through considered a control date for entry into Florida (59 FR 53118, October 21, 1994). 1200 hrs, A.l.t., March 22, 1997. the Gulf of Mexico and South Atlantic The South Atlantic Council determined FOR FURTHER INFORMATION CONTACT: spiny lobster fishery. (at its November 1996 meeting) and the Mary Furuness, 907–586–7228. EFFECTIVE DATE: March 26, 1997. Gulf Council determined (at its July SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: 1996 meeting) that these changes in the groundfish fishery in the BSAI exclusive Georgia Cranmore, 813–570–5305. management of the spiny lobster fishery economic zone is managed by NMFS SUPPLEMENTARY INFORMATION: The spiny make the control date obsolete. according to the Fishery Management lobster fishery is managed under the Therefore, NMFS announces the Plan for Groundfish of the Bering Sea