Federal Register / Vol. 65, No. 32 / Wednesday, February 16, 2000 / Rules and Regulations 7757 an operation or business fact or transaction, (8) A person— agent, or employee of that person, is liable for or knowingly makes, prepares, or preserves a (i) Who falsifies, or authorizes an agent or a maximum penalty of $5,000 per violation record in violation of a regulation or order of other person to falsify, documents used in if it does not make the report, does not the Secretary is subject to a maximum civil the transportation of household goods by completely and truthfully answer the penalty of $5,000 if such action motor carrier or freight forwarder to evidence question within 30 days from the date the misrepresents a fact that constitutes a the weight of a shipment or Secretary requires the answer, does not make violation other than a reporting or (ii) Who charges for services which are not or preserve the record in the form and recordkeeping violation. performed or are not reasonably necessary in manner prescribed, falsifies, destroys, or (3) Non-recordkeeping violations. A person the safe and adequate movement of the changes the report or record, files a false or entity who violates parts 385 or 390–399 shipment is liable for a minimum penalty of report or record, makes a false or incomplete of this subchapter, except a recordkeeping $2,000 for the first violation and $5,000 for entry in the record about a business related requirement, is subject to a civil penalty not each subsequent violation. fact, or prepares or preserves a record in to exceed $10,000 for each violation. (9) A person who knowingly accepts or violation of a regulation or order of the (4) Non-recordkeeping violations by receives from a carrier a rebate or offset Secretary. drivers. A driver who violates parts 385 and against the rate specified in a tariff required (17) A motor carrier, water carrier, freight 390–399 of this subchapter, except a under 49 U.S.C. 13702 for the transportation forwarder, or broker, or their officer, receiver, recordkeeping violation, is subject to a civil of property delivered to the carrier commits trustee, lessee, employee, or other person penalty not to exceed $2,500. a violation for which the penalty is equal to authorized to receive information from them, (5) * * * three times the amount accepted as a rebate who discloses information identified in 49 (b) Commercial driver’s license (CDL) or offset and three times the value of other U.S.C. 14908 without the permission of the violations. Any person who violates 49 CFR consideration accepted or received as a shipper or consignee is liable for a maximum part 383, subparts B, C, E, F, G, or H is rebate or offset for the six-year period before penalty of $2,000. subject to a civil penalty of $2,750. the action is begun. (18) A person who violates a provision of * * * * * (10) A person who offers, gives, solicits, or Part B, Subtitle IV, Title 49, U.S.C., or a (g) Violations of the commercial receives transportation of property by a regulation or order under Part B, or who regulations (CRs). Penalties for violations of carrier at a different rate than the rate in violates a condition of registration related to the CRs are specified in 49 U.S.C. Chapter effect under 49 U.S.C. 13702 is liable for a transportation that is subject to jurisdiction 149. These penalties relate to transportation maximum penalty of $100,000 per violation. under subchapter I or III or Chapter 135, or subject to the Secretary’s jurisdiction under When acting in the scope of his/her who violates a condition of registration of a 49 U.S.C. Chapter 135. Unless otherwise employment, the acts or omissions of a foreign motor carrier or foreign motor private noted, a separate violation occurs for each person acting for or employed by a carrier or carrier under section 13902, is liable for a day the violation continues. shipper are considered to be the acts and penalty of $500 for each violation if another (1) A person who fails to make a report, to omissions of that carrier or shipper, as well penalty is not provided in 49 U.S.C. Chapter specifically, completely, and truthfully as that person. 149. answer a question, or to make, prepare, or (11) Any person who offers, gives, solicits, (19) A violation of Part B, Subtitle IV, Title preserve a record in the form and manner or receives a rebate or concession related to 49, U.S.C., committed by a director, officer, prescribed is liable for a minimum penalty of motor carrier transportation subject to receiver, trustee, lessee, agent, or employee of $500 per violation. jurisdiction under subchapter I of 49 U.S.C. a carrier that is a corporation is also a (2) A person who operates as a carrier or Chapter 135, or who assists or permits violation by the corporation to which the broker for the transportation of property in another person to get that transportation at penalties of Chapter 149 apply. Acts and violation of the registration requirements of less than the rate in effect under 49 U.S.C. omissions of individuals acting in the scope 49 U.S.C. 13901 is liable for a minimum 13702, commits a violation for which the of their employment with a carrier are penalty of $500 per violation. penalty is $200 for the first violation and considered to be the actions and omissions (3) A person who operates as a motor $250 for each subsequent violation. of the carrier as well as the individual. carrier of passengers in violation of the (12) A freight forwarder, its officer, agent, (20) In a proceeding begun under 49 U.S.C. registration requirements of 49 U.S.C. 13901 or employee, that assists or willingly permits 14902 or 14903, the rate that a carrier is liable for a minimum penalty of $2,000 per a person to get service under 49 U.S.C. 13531 publishes, files, or participates in under violation. at less than the rate in effect under 49 U.S.C. section 13702 is conclusive proof against the (4) A person who operates as a foreign 13702 commits a violation for which the carrier, its officers, and agents that it is the motor carrier or foreign motor private carrier penalty is up to $500 for the first violation legal rate for the transportation or service. in violation of the provisions of 49 U.S.C. and up to $2,000 for each subsequent Departing, or offering to depart, from that 13902 (c) is liable for a minimum penalty of violation. published or filed rate is a violation of 49 $500 per violation. (13) A person who gets or attempts to get U.S.C. 14902 and 14903. (5) A person who operates as a foreign service from a freight forwarder under 49 [FR Doc. 00–3661 Filed 2–15–00; 8:45 am] motor carrier or foreign motor private carrier U.S.C. 13531 at less than the rate in effect without authority, before the implementation under 49 U.S.C. 13702 commits a violation BILLING CODE 4910±22±P of the land transportation provisions of the for which the penalty is up to $500 for the North American Free Trade Agreement, first violation and up to $2,000 for each outside the boundaries of a commercial zone subsequent violation. DEPARTMENT OF THE INTERIOR along the United States-Mexico border is (14) A person who knowingly authorizes, liable for a maximum penalty of $10,000 for consents to, or permits a violation of 49 Fish and Wildlife Service an intentional violation and a maximum U.S.C. 14103 relating to loading and penalty of $25,000 for a pattern of intentional unloading motor vehicles or who knowingly 50 CFR Part 17 violations. violates subsection (a) of 49 U.S.C. 14103 is (6) A person who operates as a motor liable for a penalty of not more than $10,000 RIN 1018±AE30 carrier or broker for the transportation of per violation. hazardous wastes in violation of the (15) A person, or an officer, employee, or Endangered and Threatened Wildlife registration provisions of 49 U.S.C. 13901 is agent of that person, who tries to evade and ; Determination of liable for a maximum penalty of $20,000 per regulation under Part B of Subtitle IV, Title Endangered Status for keckii violation. 49, U.S.C., for carriers or brokers is liable for (Keck's checker-mallow) From Fresno (7) A motor carrier or freight forwarder of a penalty of $200 for the first violation and and Tulare Counties, CA household goods, or their receiver or trustee, at least $250 for a subsequent violation. that does not comply with any regulation (16) A person required to make a report to AGENCY: Fish and Wildlife Service, relating to the protection of individual the Secretary, answer a question, or make, Interior. shippers is liable for a minimum penalty of prepare, or preserve a record under Part B of ACTION: Final Rule. $1,000 per violation. Subtitle IV, Title 49, U.S.C., or an officer,

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SUMMARY: We, the U.S. Fish and similar species by the number and size the original Endangered Species Act Wildlife Service (Service), determine of flowers, the arrangement of stamens (Act) of 1973, as amended (16 U.S.C. endangered status for Sidalcea keckii (male reproductive part), the lengths of 1531 et seq.), which directed the (Keck’s checker-mallow) pursuant to the the bract (a reduced leaf-like structure Secretary of the Smithsonian Institution Endangered Species Act (Act) of 1973, below the flower) and calyx (outermost to prepare a report on those plants as amended. This annual is known segments of the flower), the presence of considered to be endangered, from serpentine-derived clay soils in the an aggregation of linear stipules (small, threatened, or extinct in the United foothill annual grasslands of the central paired, leaf-like structures at the base of States. This report, designated as House western Mountains. The the leaves) and bracts surrounding the Document No. 94–51, was presented to plant is threatened by agricultural land flower at maturity, the size and shape of Congress on January 9, 1975. It included conversion, urbanization, grazing, and the stem leaves, the density of hairs on Sidalcea keckii as a threatened species. extirpation from naturally occurring the stems, and the presence of a We published a notice on July 1, 1975 random events due to the small number purplish spot on the flower (Hickman (40 FR 27823) of our acceptance of the and size of its two populations. This 1993; John Stebbins, Fresno State report as a petition within the context rule implements the Federal protection University, in litt. 1994). of section 4(c)(2) (petition provisions are provisions afforded by the Act for this Wiggins (1940) described Sidalcea now found in section 4(b)(3) of the Act), plant species. keckii from specimens collected in 1935 and our intention to review the status of EFFECTIVE DATE: March 17, 2000. and 1938 near White River, Tulare the plant taxa named therein. As a result County. Sidalcea keckii was known of this review, we published a proposed ADDRESSES: You may view the complete historically from 3 populations administrative file for this rule, by rule in the Federal Register on June 16, occurring between 120 to 425 meters appointment, during normal business 1976 (41 FR 24523) to determine (m) (400 to 1,400 feet (ft)) in elevation. approximately 1,700 hours at the U.S. Fish and Wildlife However, it has not been seen at 2 of species to be endangered species Service, Sacramento Fish and Wildlife these sites for about 53 years (J. pursuant to section 4 of the Act. This Office, 2800 Cottage Way, Room W– Stebbins, in litt. 1994), and the third site list, which did not include S. keckii, 2605, Sacramento, 95825. has not been relocated. The species was was assembled on the basis of FOR FURTHER INFORMATION CONTACT: Ken considered to be extirpated until 1992, comments and data received by the Fuller or Jan Knight at the above address when a new population of S. keckii was Smithsonian Institution and us in (see ADDRESSES section) (telephone 916/ discovered by consultants conducting response to House Document No. 94–51, 414–6600; facsimile 916/414–6715. an environmental site inventory prior to and the July 1, 1975, Federal Register SUPPLEMENTARY INFORMATION: construction of a subdivision publication. Background (Woodward and Clyde Consultants We published an updated Notice of 1992). Review for plants on December 15, 1980 The San Joaquin Valley of California The habitat requirements of Sidalcea (45 FR 82480). This notice included is a large, north-south oriented, alluvial keckii are not well understood. The Sidalcea keckii as a category 1 valley that is mostly farmed or population of S. keckii in Tulare County candidate, but it was noted that the developed. The San Joaquin Valley, (Tulare County population) occurs on species was possibly extinct. At that from Stockton in the north to 20- to 40-percent slopes of red or white- time, Category 1 candidates were Bakersfield in the south, is colored clay in sparsely-vegetated defined as taxa for which we had on file approximately 690 kilometers (km) (430 annual grasslands. The clays are thought substantial information on biological miles (mi)) long and covers about to be derived from serpentine soils (soils vulnerability and threats to support 6,070,305 hectares (ha) (15 million acres high in magnesium, low in calcium, and preparation of listing proposals. (ac)). Tulare and Fresno Counties are laden with heavy metals). The Tulare Category 2 candidates were defined as located toward the southern end of the County population covers an area species for which information in our valley. One population of Sidalcea measuring 30 m by 100 m (100 ft by 320 possession indicated that proposing to keckii occurs on private land toward the ft) and had a total of 60 plants in 1992 list the species as threatened or southern end of the valley, in south- (Woodward and Clyde Consultants endangered was possibly appropriate, central Tulare County. Another 1992). The population occurs on a but for which we lacked substantial data population of S. keckii occurs on a privately owned, 280–ha (700 ac) parcel on biological vulnerability and threats. mixture of private and Federal lands in of land that is currently used for The Category 1 designation for S. keckii Fresno County. livestock grazing. A second new was retained in the November 28, 1983 Sidalcea keckii is a slender, hairy, population of S. keckii was discovered supplement to the Notice of Review (48 erect annual herb belonging to the on a mixture of private and public lands FR 53640), as well as subsequent mallow family (). The species in Fresno County in 1998 (Fresno revisions on September 27, 1985 (50 FR grows 1.5 to 3.3 decimeters (dm) (6 to County population) and, at that time, 39526), February 21, 1990 (55 FR 6184), 13 inches (in) tall. The lower leaf blades consisted of 216 individual plants and September 30, 1993 (58 FR 51143). have seven to nine shallow lobes. The (Susan Carter, Bureau of Land We published a Notice of Review in the upper leaves have a tapered base with Management, in litt. 1998). The Tulare Federal Register on February 28, 1996 two to five notches in the upper lobes. County population is threatened by (61 FR 7596), that discontinued the use A few deep pink flowers, 10 to 20 urban development, agricultural land of different categories of candidates. In millimeters (mm) (0.4 to 0.8 in) wide, conversion (particularly to citrus that notice, we defined candidates as appear April through May. Seeds are orchards), and grazing. Both species meeting the definition of former smooth and pink-tinted. Sidalcea keckii populations are vulnerable to random Category 1 species, and we retained closely resembles four other annual events because of their small population Sidalcea keckii as a candidate species. species of Sidalcea—S. calycosa, S. sizes and numbers. Section 4(b)(3)(B) of the Act requires diploscyha, S. hartwegii, and S. hirsuta. us to make certain findings on pending Sidalcea calycosa and S. diploscyha Previous Federal Action petitions within 12 months of their have ranges that overlap with S. keckii. Federal Government actions on the receipt. Section 2(b)(1) of the 1982 Sidalcea keckii can be separated from plant began as a result of section 12 of amendments further requires that all

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On October 13, In the July 28, 1997, proposed rule (62 proposed rule as a threat to S. keckii. 1983, we found that the petitioned FR 40325) and associated notifications, Conversion to orchards, if the species listing of the species was warranted, but we requested that interested parties were present at the location cited by the precluded by other pending listing submit factual reports or information commenter, would have extirpated the actions, in accordance with section that might contribute to the final listing species at this location. Because the 4(b)(3)(B)(iii) of the Act. A notice of this determination for Sidalcea keckii. We aerial photograph did not depict the finding was published on January 20, published announcements of the area containing the species, we maintain 1984 (49 FR 2485). Such a finding proposed rule and notice of the public that the habitat for S. keckii at its requires the petition to be reviewed, hearing in the Tule River Times, location southeast of Porterville remains pursuant to section 4(b)(3)(C)(i) of the Porterville Recorder, and the Visalia intact, and the species is not extinct. Act. The species was included in Times-Delta. We sent copies of the Issue 2: One commenter stated that candidate Notices of Review, published proposed rule to the Porterville Public the information used in this listing does September 27, 1985 (50 FR 39528), Library and the Tulare County Free not justify the potential loss of private February 21, 1990 (55 FR 6184), Library. The original comment period property, and that private property September 30, 1993 (58 FR 51144), closed on September 26, 1997. We owners are being regulated out of the February 28, 1996 (61 FR 7596), and received one request for a public use of their lands by the Act. Another October 25, 1999 (64 FR 57534). hearing from California Assemblyman commenter stated that we assert that We published a proposed rule to list Roy Ashburn. As a result, the comment any use of the land by humans would Sidalcea keckii as endangered in the period was extended until November put Sidalcea keckii in jeopardy. One Federal Register on July 28, 1997 (62 FR 10, 1997 (62 FR 49954). We conducted commenter stated that our listing of 40325). The comment period was open a public hearing on the proposed listing Sidalcea keckii will have negative until September 26, 1997. We extended at the Visalia Convention Center, effects on the people of Tulare County the comment period to allow for a Visalia, California on October 21, 1997. and the entire Central Valley. Another public hearing and other comments on Ten people gave oral presentations at commenter asked what economic September 24, 1997 (62 FR 49954), and the hearing. Additionally, we received a impacts to the Central Valley had been the comment period closed on request from the Bureau of Reclamation considered. One commenter stated that November 10, 1997. We again reopened (BOR) to reopen the comment period in no evidentiary standard or burden of the comment period on August 19, 1998 1998. In response to that request, we proof for critical habitat or listing the (63 FR 44417), to allow for additional reopened the comment period on species is found in the proposed rule. information on the species. The August 19, 1998 (63 FR 44417). The Our Response: Section 4 (b)(10)(A) of comment period closed on October 5, second comment period closed on the Act requires that listing be based 1998. We now determine Sidalcea October 5, 1998. solely on the best scientific and keckii to be endangered with the During the first comment period and commercial data available (see publication of this rule. its extension, we received 15 oral and ‘‘Summary of Factors Affecting the The processing of this final listing written comments. Two people Species’’ section of this final rule.) We rule conforms with our Listing Priority supported the proposed listing, four are precluded from assessing the Guidance published in the Federal people had neutral comments, and nine potential effects to private property that Register on October 22, 1999 (64 FR people opposed the proposed listing. may occur as a result of listing as part 57114). The guidance clarifies the order During the second comment period, we of the listing process. The legislative in which we will process rulemakings. received six comment letters. Of these history of this provision explains the Highest priority is processing six letters, two were from individuals intent of Congress to ‘‘ensure’’ that emergency listing rules for any species who provided the same comments listing decisions are ‘‘based solely on determined to face a significant and opposing the listing during the first biological criteria and to prevent non- imminent risk to its well-being (Priority comment period. We also received two biological considerations from affecting 1). Second priority (Priority 2) is additional letters supporting the such decisions’ (H.R. Rep. No. 97–835, processing final determinations on proposed listing, and two neutral 97th Cong. 2d Sess. 19(1982)). As proposed additions to the Federal Lists comment letters. Because multiple further stated in the legislative history, of Endangered and Threatened Wildlife respondents offered similar comments, ‘‘Applying economic criteria to any and Plants (Lists). Third priority is we grouped together those of a similar phase of the species listing process is processing new proposals to add species nature. applying economics to the to the Lists. The processing of Issue 1: Several commenters stated determinations made under section 4 of administrative petition findings that because the plant is extinct, we the Act and is specifically rejected by (petitions files under section 4 of the should not list Sidalcea keckii. One the inclusion of the word ‘‘solely’’ in Act) is the fourth priority. The commenter submitted photocopies of this legislation’’ (H.R. Rep. No. 97–835, processing of critical habitat aerial photographs alleged to show that 97th Cong. 2d Sess. 19(1982)). Because determinations (prudency and lands in the area had been converted to we are precluded from considering determinability decisions) will no citrus orchards between 1992 and 1997, economic impacts in a final listing longer be subject to prioritization under as evidence of the species extinction. decision, we cannot examine such the Listing Priority Guidance. This final Another commenter stated that the potential impacts. rule is a Priority 2 action and is being photocopies of aerial photographs Agricultural land conversion, completed in accordance with the submitted to us do not prove the species urbanization, and random events current Listing Priority Guidance. We is extinct. threaten Sidalcea keckii. We believe have updated this rule to reflect any Our Response: We reviewed the that many activities on private land will changes in information concerning photocopies of the aerial photographs not violate section 9 of the Act. Such

VerDate 272000 12:38 Feb 15, 2000 Jkt 190000 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\16FER1.SGM pfrm02 PsN: 16FER1 7760 Federal Register / Vol. 65, No. 32 / Wednesday, February 16, 2000 / Rules and Regulations activities may include livestock grazing, Restoration Program. Although we will endangered or threatened due to one or construction or maintenance of include federally listed species like S. more of the five factors described in livestock fences, clearing a defensible keckii in our conservation programs, section 4(a)(1). These factors and their space for fire protection around one’s such inclusion does not mean that we application to Sidalcea keckii Wiggins personal residence, and landscaping anticipate any direct effects that would (Keck’s checker-mallow) are as follows: one’s personal residence (see ‘‘Available necessitate section 7 formal consultation A. The present or threatened Conservation Measures’’ section of this with the BOR. destruction, modification, or final rule.) Not all uses of the land will curtailment of its habitat or range. One Peer Review put the species in jeopardy. extant population of S. keckii, of Issue 3: One commenter stated that We solicited the expert opinions of approximately 60 individuals in Tulare we lack jurisdiction to enact the three appropriate and independent County, was discovered in 1992 (J. proposed rule, and that the rule should specialists in accordance with our Stebbins, in litt. 1994). Since 1992, the be withdrawn because there is no Interagency Cooperative Policy for peer landowner has not granted us connection between regulation of these review, published on July 1, 1994 (59 permission to enter the property and plants (located in California) and a FR 34270). We requested they review check the status of the population. substantial effect on ‘‘interstate the proposed rule and provide Another population of S. keckii in commerce.’’ comments on the pertinent scientific or Fresno County was found in 1998. Only Our Response: The Federal commercial data and assumptions three historical sites for Sidalcea keckii Government has the authority under the relating to the , population have been reported. The species is Commerce Clause of the U.S. status, and supportive biological and presumed extirpated at all three sites Constitution to protect this species. The ecological information for the proposed because, despite repeated searches for Court of Appeals, in National plant. The purpose of such review is to the species, it has not been found at any Association of Home Builders of the ensure listing decisions are based upon of these sites since 1939 (J. Stebbins, in U.S. v. Babbitt, 130 F.3d 1041 (D.C. Cir. scientifically sound data, assumptions, litt. 1994). A report of an occurrence 1997). cert. denied, 118 S.Ct. 2340 and analyses, including input of near Porterville, Tulare County, is a (1998), held that application of the Act’s appropriate experts and specialists. misidentification of either S. calycosa or prohibitions against taking of We received two responses from the S. hirsuta, and is not S. keckii (J. endangered species was a proper independent specialists whose opinions Stebbins, in litt. 1994). exercise of Commerce Clause power. were solicited. The first reviewer stated The habitat of the Fresno County That case involved a challenge to that Sidalcea keckii is very closely population of Sidalcea keckii has no application of the Act’s prohibitions to related and very similar to S. known threats, except for random, protect the listed Delhi Sands flower- diploscypha. Although the first reviewer naturally occurring events such as fire. loving fly (Rhaphiomidas terminatus related that the scarcity of knowledge The habitat of the Tulare County abdominalis). As with Sidalcea keckii, and collections of the species make the population has been degraded, and the Delhi Sands flower-loving fly is quality of its distinctiveness from other continues to be threatened, by urban endemic to only one State. taxa difficult, the reviewer stated that S. development, agricultural land The Federal Government also has the keckii should be listed as federally conversion, and grazing (J. Stebbins, in authority under the Property Clause of endangered. Additionally, the reviewer litt. 1994). As recently as 1992, a the Constitution to protect this species. indicated that the soil seed bank where subdivision was proposed for the Sidalcea keckii occurs on Federal land, the species had been known to occur or private land containing the Tulare and the courts have long recognized currently occurs needs to be protected County population of S. keckii, although Federal authority under the Property so that it may grow in favorable years. that proposal has since been withdrawn Clause to protect Federal resources in The second reviewer found the (Marge Neufeld, Tulare County Planning such circumstances. See Kleppe v. New information in the proposed rule to be Department, in litt. 1995). Agricultural Mexico, 429 U.S. 873 (1976). accurate and the listing action land conversion also threatens this Issue 4: One commenter stated that warranted, given our current knowledge population (California Natural Diversity we had over-emphasized the possibility of the taxon and documented threats. Data Base (CNDDB)1997). Citrus of future Federal involvement on However, the second reviewer related orchards occur within 1.6 km (1 mi) of properties where Sidalcea keckii may that two collections of S. diploscypha this population of S. keckii. The occur, because the species did not occur from Napa County seemed to be very population is at the same elevation as in the BOR’s Friant service area. close, if not identical, to S. keckii. Such existing orchards, and has soils similar Our Response: The location of one a disjunct range extension and to those on which citrus is grown. population of Sidalcea keckii in Tulare morphological similarity to S. Between 1992 and 1997, rangelands County is close enough to BOR’s Friant diploscypha may present taxonomic and were converted into citrus orchards on service area that it may be affected by range issues that need to be carefully a parcel adjacent to the western actions relating to BOR’s water sorted out. The second reviewer stated boundary of the occurrence of S. keckii programs in the area. Although the that until such issues are resolved, S. (Ken Fuller, Service, pers. obs. 1999). Friant service area may or may not be keckii must be afforded protection The land on which the population is expanded to include the area that provided by listing under the Act. found changed ownership in 1993 and contains the occurrence of S. keckii in is currently used for grazing. Although Tulare County (CH2M Hill 1997), we Summary of Factors Affecting the the current level of grazing on the parcel consider both the occurrence in Fresno Species is not thought to pose a threat to the County and the location of the Section 4 of the Act and regulations species, an increase in grazing intensity occurrence of S. keckii in Tulare County (50 CFR part 424) promulgated to could potentially threaten the species. to be included in, and directly or implement the listing provisions of the The current zoning of this 64–ha (160 indirectly affected by, our Central Act set forth the procedures for adding ac) property is Planned Development Valley Project Conservation Program species to the Federal List of Foothill Mobile Home (Roberto Brady, and the cooperative Service and BOR Endangered and Threatened Wildlife. A Tulare County Planning Department, San Joaquin Valley Ecological Services species may be determined to be pers. comm. 1997). This designation

VerDate 272000 12:38 Feb 15, 2000 Jkt 190000 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\16FER1.SGM pfrm02 PsN: 16FER1 Federal Register / Vol. 65, No. 32 / Wednesday, February 16, 2000 / Rules and Regulations 7761 means that, subject to site plan review, significance if a project has the potential random events such as flood, fire, the current or any future landowner to ‘‘reduce the number or restrict the disease, drought, or other occurrences could place a subdivision, business, or range of an endangered, rare, or (Shaffer 1981, 1987; Primack 1993; mixed business and residential threatened species.’’ Species that are Meffe and Carroll 1994). Such events are development on the land. The lands eligible for listing as rare, threatened, or not usually a concern until the number adjacent to this property, which are endangered but are not so listed are of populations or geographic owned by the same landowner, are given the same protection as those distribution become severely limited, as zoned to permit citrus, grapes, or other species that are officially listed with the is the case with S. keckii. crop agriculture, or cattle grazing (R. Federal or State governments. Once Fire is a natural part of the ecosystem Brady, pers. comm. 1997). A zoning significant effects are identified, the where the populations occur but variance could permit either residential lead agency has the option to require because the species is so reduced in or agricultural use of the parcel on mitigation for effects through changes in range, may adversely affect the species, which the plant occurs. The intentions the project or to decide that overriding depending on the time of year it occurs. of the current landowner are unknown. considerations make mitigation A fire occurred in the area of the Tulare B. Overutilization for commercial, infeasible. In the latter case, projects County population of S. keckii in the recreational, scientific, or educational may be approved that cause significant summer of 1996 or 1997. The fire started purposes. Overutilization is not environmental damage. Protection of near the two-lane road that borders the currently known to be a factor for the unlisted, proposed, and listed species southern side of the property. The fire plant. However, Sidalcea keckii is an through CEQA is, therefore, dependent burned about 162 ha (400 ac) before attractive, showy plant, and the genus is upon the discretion of the lead agency. being put out. It is uncertain but prized as a source of horticultural Sidalcea keckii is not listed by the unlikely that the population of S. keckii plants. Simply listing a species can California Department of Fish and Game was damaged by the fire because the precipitate commercial or scientific under the California Endangered species typically blooms in April and interest, both legal and illegal, which Species Act (CESA) (Chapter 1.5 sec. May with seed-set soon after flowering, can threaten the species through 2050 et seq. of the California Fish and and the fire occurred later in the unauthorized and uncontrolled Game Code and Title 14 California Code summer. We have not been granted collection. Unrestricted collecting for of Regulations section 670.2). permission to enter the property and scientific or horticultural purposes, and E. Other natural or manmade factors check the status of the population since impacts from excessive visits by affecting its continued existence. 1992. If a fire should occur before the individuals interested in seeing rare Sidalcea keckii is extremely localized, plants bloomed or as they were plants could result in a reduction of with only one small population of blooming, the fire could destroy the plant numbers and seed production. approximately 60 individuals and individual plants as well as deplete the The two known populations of the another population with 216 individual seed bank. species are so small that even limited plants (CNDDB 1997; S. Carter, in litt. We have carefully assessed the best collecting pressure could have 1998). Small population size increases scientific and commercial information significant impacts. the susceptibility of a population to available regarding the present and C. Disease or predation. At this time, extirpation from random demographic, future threats faced by this species in disease is not known to pose any environmental, and/or genetic events, developing this final rule. Only two problems for Sidalcea keckii. affecting survival and reproduction of populations of Sidalcea keckii are Moderate to light livestock grazing individuals (Shaffer 1981, 1987; Lande known to exist, and total only about 276 occurs at the Tulare County population 1988; Meffe and Carroll 1994). individual plants. The Tulare County location. S. keckii is not believed to be Environmental events that may put population of S. keckii is threatened by selectively grazed. However, if the small populations at risk include urban development, agricultural land intensity of grazing increases at this site, random or unpredictable fluctuations in conversion, and grazing. Both the Tulare the species may be subject to increased the physical environment, such as and Fresno County populations are grazing pressure and trampling of changes in the weather (Shaffer 1981, threatened by naturally occurring plants. The timing and intensity of 1987; Lande 1988; Meffe and Carroll random events. Although we are not grazing are important factors in the 1994). The small population of Sidalcea aware of any current proposal for either effect of grazing on the plant. Livestock keckii may also be subject to increased development or conversion of the parcel grazing during spring and summer genetic drift (random fluctuation in gene on which the two small populations likely causes the most damage to the frequencies) and inbreeding (mating by occur, the Tulare County population species. When herbivores eat the flower relatives more frequently than would be occurs in an area that is zoned for or seed head of the plant, the expected by chance) as a consequence of development or agriculture and is reproductive output for the year for that its small population size (Menges 1991; currently unprotected from these individual is destroyed. Ellstrand and Elam 1993). Decreased threats. Sidalcea keckii is in danger of D. The inadequacy of existing genetic variation resulting from genetic extinction throughout its range and, regulatory mechanisms. The California drift and inbreeding may lead to a loss therefore, meets the Act’s definition of Environmental Quality Act (CEQA) of fitness (ability of individuals to endangered. Because of the high requires full disclosure of the potential survive and reproduce). Reduced potential for these threats, if realized, to environmental impacts of proposed genetic variation in small populations result in the extinction of S. keckii, the projects. The public agency with may make the species less able to preferred action is to list this plant as primary authority or jurisdiction over successfully adapt to future endangered. the project is designated as the lead environmental changes (Ellstrand and agency and is responsible for Elam 1993). In addition, the Critical Habitat conducting a review of the project and combination of two small populations, Critical habitat is defined in section 3 consulting with the other agencies small range, and restricted habitat of the Act as: (i) The specific areas concerned with the resources affected makes S. keckii highly susceptible to within the geographical area occupied by the project. Section 15065 of the extinction or extirpation from a by a species, at the time it is listed in CEQA Guidelines requires a finding of significant portion of its range due to accordance with the Act, on which are

VerDate 272000 12:38 Feb 15, 2000 Jkt 190000 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\16FER1.SGM pfrm02 PsN: 16FER1 7762 Federal Register / Vol. 65, No. 32 / Wednesday, February 16, 2000 / Rules and Regulations found those physical or biological Consequently, consistent with keckii (Keck’s checkermallow) without features (I) Essential to the conservation applicable regulations (50 CFR further delay. of the species and (II) That may require 424.12(a)(1)(i)) and recent case law, we We plan to employ a priority system special management considerations or do not expect that the identification of for deciding which outstanding critical protection and; (ii) Specific areas critical habitat will increase the degree habitat designations should be outside the geographical area occupied of threat to this species of taking or addressed first. We will focus our efforts by a species at the time it is listed, upon other human activity. on those designations that will provide a determination that such areas are In the absence of a finding that critical the most conservation benefit, taking essential for the conservation of the habitat would increase threats to a into consideration the efficacy of critical species. ‘‘Conservation’’ means the use species, if any benefits would result habitat designation in addressing the of all methods and procedures needed from critical habitat designation, then a threats to the species, and the to bring the species to the point at prudent finding is warranted. In the magnitude and immediacy of those which listing under the Act is no longer case of this species, critical habitat may threats. We will develop a proposal to necessary. Our regulations (50 CFR provide some benefits. The primary designate critical habitat for the 424.12(a)(1)) state that designation of regulatory effect of critical habitat is the Sidalcea keckii (Keck’s checkermallow) critical habitat is not prudent when one section 7 requirement that Federal as soon as feasible, considering our or both of the following situations agencies refrain from taking any action workload priorities. Unfortunately, for exist—(1) The species is threatened by that destroys or adversely modifies the immediate future, most of Region 1’s taking or other human activity and critical habitat. While a critical habitat listing budget must be directed to identification of critical habitat can be designation for habitat currently complying with numerous court orders expected to increase the degree of threat occupied by this species would not be and settlement agreements, as well as to the species, or (2) Such designation likely to change the section 7 due and overdue final listing of critical habitat would not be consultation outcome because an action determinations. that destroys or adversely modifies such beneficial to the species. Available Conservation Measures In the proposed rule, we indicated critical habitat would also be likely to that designation of critical habitat was result in jeopardy to the species, in Conservation measures provided to not prudent for Sidalcea keckii (Keck’s some instances section 7 consultation species listed as endangered or checkermallow) because of a concern might be triggered only if critical habitat threatened under the Act include that publication of precise maps and is designated. Examples could include recognition, recovery actions, descriptions of critical habitat in the unoccupied habitat or occupied habitat requirements for Federal protection, and Federal Register could increase the that may become unoccupied in the prohibitions against certain activities. vulnerability of these species to future. Designating critical habitat may Recognition through listing encourages incidents of collection and/or also provide some educational or and results in public awareness and vandalism. We also indicated that informational benefits. Therefore, we conservation actions by Federal, State, designation of critical habitat was not find that designation of critical habitat and private organizations, groups, and prudent because we believed the limited is prudent for Sidalcea keckii (Keck’s individuals. Without the elevated benefit provided by designation was checkermallow). profile that Federal listing affords, little outweighed by the increase in threats The Final Listing Priority Guidance likelihood exists that any conservation from collection and/or vandalism. for FY 2000 (64 FR 57114) states that the activities would be undertaken. The Act In the last few years, a series of court processing of critical habitat provides for possible land acquisition decisions have overturned Service determinations (prudency and and cooperation with the State and determinations regarding a variety of determinability decisions) and proposed requires that recovery actions be carried species that designation of critical or final designations of critical habitat out for all listed species. The protection habitat would not be prudent (e.g., will no longer be subject to required of Federal agencies and the Natural Resources Defense Council v. prioritization under the Listing Priority prohibitions against certain activities U.S. Department of the Interior 113 F. Guidance. Critical habitat involving listed plants are discussed, in 3d 1121 (9th Cir. 1997); Conservation determinations, which were previously part, below. Council for Hawaii v. Babbitt, 2 F. Supp. included in final listing rules published Section 7(a) of the Act requires 2d 1280 (D. Hawaii 1998)). Based on the in the Federal Register, may now be Federal agencies to evaluate their standards applied in those judicial processed separately, in which case actions with respect to any species that opinions, we have reexamined the stand-alone critical habitat is proposed or listed as endangered or question of whether critical habitat for determinations will be published as threatened and with respect to its Sidalcea keckii (Keck’s checkermallow) notices in the Federal Register. We will critical habitat, if any is being would be prudent. undertake critical habitat designated. Regulations implementing Due to the small number of determinations and designations during this interagency cooperation provision populations, Sidalcea keckii (Keck’s FY 2000 as conservation efforts demand of the Act are codified at 50 CFR part checkermallow) is vulnerable to and in light of resource constraints. As 402. Section 7(a)(4) of the Act requires unrestricted collection, vandalism, or explained in detail in the Listing Federal agencies to confer with us on other disturbance. We remain concerned Priority Guidance, our listing budget is any action that is likely to jeopardize that these threats might be exacerbated currently insufficient to allow us to the continued existence of a species by the publication of critical habitat immediately complete all of the listing proposed for listing, or result in maps and further dissemination of actions required by the Act. Deferral of destruction or adverse modification of locational information. However, we the critical habitat designation for proposed critical habitat. If a species is have examined the evidence available Sidalcea keckii (Keck’s checkermallow) listed subsequently, section 7(a)(2) for Sidalcea keckii (Keck’s will allow us to concentrate our limited requires Federal agencies to ensure that checkermallow) and have not found resources on higher priority critical activities they authorize, fund, or carry specific evidence of taking, vandalism, habitat and other listing actions, while out are not likely to jeopardize the collection, or trade of this species or any allowing us to put in place protections continued existence of such a species or similarly situated species. needed for the conservation of Sidalcea to destroy or adversely modify its

VerDate 272000 12:38 Feb 15, 2000 Jkt 190000 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\16FER1.SGM pfrm02 PsN: 16FER1 Federal Register / Vol. 65, No. 32 / Wednesday, February 16, 2000 / Rules and Regulations 7763 critical habitat. If a Federal action may permit may be issued for scientific or References Cited affect a listed species or its critical recovery purposes. Such activities on California Natural Diversity Data Base. 1997. habitat, the responsible Federal agency non-Federal lands would constitute a An electronic data base. Natural Heritage must enter into formal consultation with violation of section 9 when conducted Division. California Department of Fish us. in knowing violation of California State and Game. Sacramento, California. Listing Sidalcea keckii will provide law or regulations or in violation of CH2M Hill. 1997. Draft environmental for development of a recovery plan for State criminal trespass law. impact report for the consolidated and the plant. Such a plan would bring Activities that are not likely to violate conformed place of use. U.S. Department of together both State and Federal efforts section 9 include livestock grazing at the Interior and Bureau of Reclamation. for conservation of the plant. The plan current intensitities, construction or Pages 2–1, 4–2 to 4–5, 4–12, 4–13, Figs. 2– 2 and 2–3. would establish a framework for maintenance of fences and livestock agencies to coordinate activities and Ellstrand, N. and D. Elam. 1993. Population water facilities, clearing a defensible genetic consequences of small population cooperate with each other in space for fire protection around one’s conservation efforts. The plan would set size: implications for plant conservation. personal residence, and landscaping Annual Review of Ecological Systems. recovery priorities, assign (including irrigation) around one’s 24:217–42. responsibilities, and estimate costs of personal residence. Questions regarding Hickman, J.C., ed. 1993. The Jepson Manual- various tasks necessary to accomplish whether specific activities will higher plants of California. University of them. It would also describe site- constitute a violation of section 9 California Press, Berkeley, California. Pages specific management actions necessary should be directed to the Field 755 and 758. to achieve conservation and survival of Supervisor of the Sacramento Fish and Lande, R. 1988. Genetics and demography in biological conservation. Science 24:1455– the plant. Additionally, pursuant to Wildlife office (see ADDRESSES section). section 6 of the Act, we would be able 1460. The Act and 50 CFR 17.62 and 17.63 to grant funds to California, the affected Meffe, G. and Carroll. 1994. Principles of also provide for the issuance of permits State, for management actions conservation biology. Sinauer Associates, to carry out otherwise prohibited promoting the protection and recovery Inc. Publishers. Sunderland, activities involving endangered plant Massachusetts. Pages 191–194. of the species. Menges, E. 1991. The application of The Act and its implementing species under certain circumstances. Such permits are available for scientific minimum viable populations theory to regulations set forth a series of general plants. Pages 45–61 in Genetics and prohibitions and exceptions that apply purposes and to enhance the propagation or survival of the species. conservation of rare plants. Falk, D. and K. to all endangered plants. All Holsinger, eds. Center for Plant prohibitions of section 9(a)(2) of the Act, Requests for copies of the regulations on Conservation. Oxford University Press. implemented by 50 CFR 17.61 for listed plants, and general inquiries New York, New York. endangered plants, apply. These regarding prohibitions and permits may Primack, R. 1993. Essentials of conservation prohibitions, in part, make it illegal for be addressed to the U.S. Fish and biology. Sinauer and Associates. Pages any person subject to the jurisdiction of Wildlife Service, Ecological Services, 272–273. the United States to import or export, Division of Recovery Planning and Shaffer, M. 1981. Minimum population sizes transport or ship in interstate or foreign Permits, 911 NE 11th Ave., Portland, for species conservation. BioScience Oregon 97232–4181 (telephone 503/ 31:131–134. commerce in the course of a commercial ll 231–2063). . 1987. Minimum viable populations: activity, sell or offer for sale in interstate coping with uncertainty. in Viable ´ or foreign commerce, or remove and National Environmental Policy Act populations for conservation. Soule, M., reduce the species to possession from Ed. School of Natural Resources, areas under Federal jurisdiction. In We have determined that an University of Michigan. Cambridge addition, for plants listed as Environmental Assessment or University Press. 16 pp. endangered, the Act prohibits the Environmental Impact Statement, as Wiggins, I. 1940. A new annual species of malicious damage or destruction to defined under the authority of the Sidalcea. Contributions to the Dudley areas under Federal jurisdiction and the National Environmental Policy Act of Herbarium 3:55–56. removal, cutting, digging up, or 1969, need not be prepared in Woodward and Clyde Consultants. 1992. Focused biological surveys for eight target damaging or destroying of such plants connection with regulations adopted pursuant to section 4(a) of the Act. We species in Tulare County. Unpublished in knowing violation of any State law or report. Tulare County Association of regulation, including State criminal published a notice outlining our reasons Governments. Appendix J–1. trespass law. Certain exceptions apply for this determination in the Federal to our agents and State conservation Register on October 25, 1983 (48 FR Author 49244). agencies. The primary author of this proposed It is our policy, published in the Paperwork Reduction Act rule is Ken Fuller, U.S. Fish and Federal Register on July 1, 1994, (59 FR Wildlife Service, Sacramento Fish and 34272) to identify, to the maximum This rule does not contain any Wildlife Office (see ADDRESSES section). extent practicable at the time a species information collection requirements for is listed, those activities that would or which the Office of Management and List of Subjects in 50 CFR Part 17 would not constitute a violation of Budget (OMB) approval under the section 9 of the Act. The intent of this Paperwork Reduction Act (44 U.S.C. Endangered and threatened species, policy is to increase public awareness of 3501 et seq.) is required. An information Exports, Imports, Reporting and the effects of the listing on proposed collection related to the rule pertaining recordkeeping requirements, and ongoing activities within the to permits for endangered and Transportation. species’ range. The species is known to threatened species has OMB approval Regulation Promulgation occur on private and Federal lands. and is assigned the clearance number Collection, damage, or destruction of 1018–0094. For additional information Accordingly, we amend part 17, this species on Federal land is concerning permits and associated subchapter B of chapter I, title 50 of the prohibited, although in appropriate requirements for endangered and Code of Federal Regulations, as set forth cases, a Federal endangered species threatened species, see 50 CFR 17.32. below:

VerDate 272000 12:38 Feb 15, 2000 Jkt 190000 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 E:\FR\FM\16FER1.SGM pfrm02 PsN: 16FER1 7764 Federal Register / Vol. 65, No. 32 / Wednesday, February 16, 2000 / Rules and Regulations

PART 17Ð[AMENDED] Authority: 16 U.S.C. 1361–1407; 16 U.S.C. the List of Endangered and Threatened 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Plants: 625, 100 Stat. 3500, unless otherwise noted. 1. The authority citation for part 17 § 17.12 Endangered and threatened plants. continues to read as follows: 2. Section 17.12(h) is amended by adding the following, in alphabetical * * * * * order under FLOWERING PLANTS, to (h) * * *

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

******* FLOWERING PLANTS

******* Sidalcea keckii ...... Keck's checker-mal- U.S.A. (CA) ...... MalvaceaeÐMallow .. E NA NA low.

*******

Dated: January 13, 2000. critical habitat includes all waterways, Background Jamie Rappaport Clark, substrate, and adjacent riparian zones During the past 3 years, NMFS has Director, U.S. Fish and Wildlife Service. below longstanding, naturally published final listing determinations [FR Doc. 00–3278 Filed 2–15–00; 8:45 am] impassable barriers (i.e., natural for numerous ESUs of salmon and BILLING CODE 4310±55±U waterfalls in existence for at least steelhead throughout the Pacific several hundred years). After Northwest and California. Although considering public comments and critical habitat has been designated for DEPARTMENT OF COMMERCE reviewing additional scientific several of these ESUs, final designations information, NMFS has modified National Oceanic and Atmospheric are still pending for 19 ESUs of five various aspects of the proposed Administration species: (1) Puget Sound, Lower designations, including a revised Columbia River, Upper Willamette 50 CFR Part 226 description of adjacent riparian zones River, Upper Columbia River spring- and the exclusion of Indian lands from run, California Central Valley spring- [Docket No. 990128036±0025±02; I.D. critical habitat. The economic (and run, and California Coastal chinook 012100E] other) impacts resulting from this salmon ESUs (63 FR 11482, March 9, RIN 0648±AG49 critical habitat designation are expected 1998); (2) Hood Canal summer-run and to be minimal. Columbia River chum salmon ESUs (63 Designated Critical Habitat: Critical FR 11774, March 10, 1998); (3) Ozette DATES: This rule is effective March 17, Habitat for 19 Evolutionarily Significant Lake sockeye salmon ESU (63 FR 11750, 2000. The incorporation by reference of Units of Salmon and Steelhead in March 10, 1998); (4) Oregon Coast coho Washington, Oregon, Idaho, and certain publications listed in the rule is salmon ESU (64 FR 24998, May 10, California approved by the Director of the Federal 1999); and (5) Southern California, Register as of June 4, 1999. AGENCY: National Marine Fisheries South-Central California coast, Central Service (NMFS), National Oceanic and ADDRESSES: Copies of the USGS California coast, California Central Atmospheric Administration (NOAA), publication and maps may be obtained Valley, Upper Columbia River, Snake Commerce. from the USGS, Map Sales, Box 25286, River Basin, Lower Columbia River, Upper Willamette River, and Middle ACTION: Final rule. Denver, CO 80225. Copies may be inspected at NMFS, Protected Resources Columbia River steelhead ESUs (64 FR SUMMARY: NMFS is designating critical Division, 525 NE Oregon Street—Suite 5740, February 5, 1999). habitat for 19 evolutionarily significant 500, Portland, OR 97232–2737, or Section 4(a)(3)(A) of the ESA requires units (ESUs) of chinook (Oncorhynchus NMFS, Office of Protected Resources, that, to the maximum extent prudent tshawytscha), chum (O. keta), coho (O. 1315 East-West Highway, Silver Spring, and determinable, NMFS designate kisutch), and sockeye salmon (O. nerka) MD 20910, or at the Office of the critical habitat concurrently with a and steelhead trout (O. mykiss) Federal Register, 800 North Capitol determination that a species is previously listed under the Endangered Street, NW., Suite 700, Washington, DC. endangered or threatened. At the time of Species Act (ESA). Critical habitat final listing for each of these 19 ESUs, occurs in the states of Washington, Reference materials regarding this critical habitat was not determinable Oregon, Idaho, and California and critical habitat designation can be because the information to perform the encompasses accessible reaches of all obtained via the internet at required analyses was insufficient. rivers (including estuarine areas and www.nwr.noaa.gov. However, NMFS has published tributaries) within the range of each FOR FURTHER INFORMATION CONTACT: In proposed rules designating critical listed ESU. Critical habitat is also Washington, Oregon, or Idaho, contact habitat for these ESUs, solicited public designated in Ozette Lake for that Garth Griffin (Portland) at (503) 231– comments, and held public hearings on sockeye salmon ESU. The areas the proposals. This final rule considers 2005. In California, contact Craig described in this final rule represent the the new information and comments Wingert (Long Beach) at (562) 980–4021. current freshwater and estuarine range received in response to the proposed of the listed species. For all ESUs, SUPPLEMENTARY INFORMATION: rules for all 19 ESUs.

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