Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations 28403

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

Species Historic range Family name Status When listed Critical habi- Special Scientific name Common name tat rules

******* FLOWERING PLANTS

******* Thelypodium howellii Howell's spectacular U.S.A. (OR) ...... Brassicaceae mus- T 662 NA NA ssp. spectabilis. thelypody. tard.

Dated: April 28, 1999. Random events increase the risk to the under tropical climates such as high Jamie Rappaport Clark, few, small populations of E. apricum. acidity, high aluminum content, and Director, U.S. Fish and Wildlife Service. This action implements the protection low fertility (Singer 1978). These soils [FR Doc. 99–13249 Filed 5–25–99; 8:45 am] of the Act for these plants. and the sedimentary deposits with BILLING CODE 4310±55±P EFFECTIVE DATE: June 25, 1999. which they are associated also contain ADDRESSES: The complete file for this large amounts of commercially valuable rule is available for inspection, by minerals including quartz sands, DEPARTMENT OF THE INTERIOR appointment, during normal business kaolinitic (containing a hydrous silicate hours at the U.S. Fish and Wildlife of aluminum) clays, lignite (low-grade Fish and Wildlife Service Service, Sacramento Field Office, 3310 coal), and possible gold-bearing gravels (Chapman and Bishop 1975). The 50 CFR Part 17 El Camino Avenue, Suite 130, Sacramento, California 95821–6340. nearest modern-day relatives to these soils occur in Hawaii and Puerto Rico RIN 1018±AE25 FOR FURTHER INFORMATION CONTACT: (Singer 1978). Kirsten Tarp (telephone 916/979–2120) Endangered and Threatened Wildlife The vegetation in the Ione area is and/or Jason Davis (telephone 916/979– and Plants; Determination of distinctive enough to be designated as 2749), staff biologists at the above Endangered Status for the Plant ‘‘Ione chaparral’’ in a classification of address (facsimile 916/979–2723). Eriogonum apricum (inclusive of vars. plant communities in California apricum and prostratum) (Ione SUPPLEMENTARY INFORMATION: (Holland 1986). Stebbins (1993) Buckwheat) and Threatened Status for Background characterized the Ione chaparral as an ecological island, which he defined as a the Plant Arctostaphylos myrtifolia Arctostaphylos myrtifolia (Ione (Ione Manzanita) relatively small area with particular manzanita), Eriogonum apricum var. climatic and ecological features that AGENCY: Fish and Wildlife Service, apricum (Ione buckwheat), and differ significantly from surrounding Interior. Eriogonum apricum var. prostratum areas. This plant community occurs ACTION: Final rule. (Irish Hill buckwheat) are found only on very acidic, nutrient-poor, primarily in western Amador County, coarse soils, and is comprised of low- SUMMARY: We determine endangered about 70 kilometers (km) (43.5 miles growing, heath-like shrubs and scattered status pursuant to the Endangered (mi)) southeast of Sacramento in the herbs (Holland 1986). The dominant Species Act of 1973, as amended (Act), central Sierra Nevada foothills of shrub is Arctostaphylos myrtifolia, for Eriogonum apricum (inclusive of California. Most populations occur at which is narrowly endemic to the area. vars. apricum and prostratum) (Ione elevations between 90 and 280 meters Ione chaparral is restricted in buckwheat). We also determine (m) (295 and 918 feet (ft)). A few distribution to the vicinity of Ione in threatened status for Arctostaphylos isolated occurrences of A. myrtifolia Amador County, and a few local areas myrtifolia (Ione manzanita). These two occur in adjacent northern Calaveras of adjacent northern Calaveras County species occur primarily on soils derived County. where the community is estimated to from the Ione Formation in Amador Both species included in this rule cover 2,430 hectares (ha) (6,002 acres and/or Calaveras counties in the central occur primarily on ‘‘Ione soils’’ which (ac)) (California Natural Diversity Sierra Nevada foothills of California and have developed along a 40 mile stretch Database (CNDDB) 1997). The endemic are imperiled by one or more of the of the Ione Formation. The Ione plants that grow here are thought to do following factors—mining, clearing of Formation, comprised of a unique so because they can tolerate the acidic, vegetation for agriculture and fire Tertiary Oxisol, consisting of fluvial nutrient-poor conditions of the soil protection, disease, inadequate (stream or river produced), estuarine, which exclude other plant species. The regulatory mechanisms, habitat and shallow marine deposits (Bureau of climate of the area may be moderated by fragmentation, residential and Land Management (BLM) 1989), was its location due east of the Golden Gate commercial development, changes in developed under a subtropical or (Gankin and Major 1964, Roof 1982). fire frequency, and continued erosion tropical climate during the Eocene (35– due to prior off-road vehicle use. 57 million years ago). The Ione soils in Discussion of the Two Species Existing regulatory mechanisms do not the area are coarse-textured and exhibit Charles Parry (1887) described adequately protect these species. soil properties typical of those produced Arctostaphylos myrtifolia based upon

VerDate 06-MAY-99 16:08 May 25, 1999 Jkt 183247 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 E:\FR\FM\26MYR1.XXX pfrm01 PsN: 26MYR1 28404 Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations material collected near Ione, California. Resource Area, in litt. 1994; M. Wood, one is partially protected by CDFG Subsequent authors variously treated in litt. 1994) and existing regulatory (CNDDB 1997). Eriogonum apricum var. this taxon as Uva-ursi myrtifolia mechanisms do not adequately protect apricum occurs primarily on private or (Abrams 1914), A. nummularia var. the species. The amount of A. myrtifolia non-Federal land; BLM manages one myrtifolia (Jepson 1922), Schizococcus habitat already lost to mining cannot be occurrence. Mining, clearing of myrtifolius (Eastwood 1937, cited in quantified because information vegetation for agriculture and for fire Gankin and Major 1964), and regarding the total mineral production protection, habitat fragmentation, Arctostaphylos uva-ursi ssp. myrtifolia as well as the total acreage of land increased residential development, and (Roof 1982). Philip Wells (1993), in his newly disturbed by a mining operation erosion variously threaten the treatment of California Arctostaphylos, is proprietary (Maryann Showers, occurrences of this plant. Existing maintained the species as A. myrtifolia. California Department of Mining and regulatory mechanisms do not Arctostaphylos myrtifolia is an Geology, pers. comm. 1994). Although adequately protect this species. evergreen shrub of the heath family the exact area of habitat lost is Eriogonum apricum var. prostratum (Ericaceae) that lacks a basal burl. unknown, a significant loss of habitat has smaller leaves, a prostrate (low Attaining a height of generally less than has occurred (Roof 1982; Stebbins 1993; growing) habit, and an earlier flowering 1.2 m (3.9 ft), plants appear low and Michael K. Wood, Botanical Consultant, time than E. apricum var. apricum. The spreading. The bark is red, smooth, and in litt. 1994). Arctostaphylos myrtifolia two known occurrences of E. apricum waxy. Olive green, narrowly elliptic occurs primarily on private or non- var. prostratum are restricted to leaves are 6 to 15 millimeters (mm) (0.2 Federal lands. One occurrence on BLM otherwise barren outcrops on less than to 0.6 inches (in.)) long. Red scale-like land is within the Ione Manzanita Area 0.4 ha (1 ac) in openings of Ione inflorescence (flower cluster) bracts are of Critical Environmental Concern chaparral on private land. Mining, 1 to 2 mm (0.04 to 0.08 in.) long. White (ACEC). Two additional occurrences are inadequate regulatory mechanisms, or pinkish urn-shaped flowers appear partially on BLM lands. Four small, habitat fragmentation, erosion, and from January to February. The fruit is pure populations and several smaller, random events threaten the occurrences cylindric. The species depends almost mixed populations also occur on the of this plant. entirely on periodic fire events to State-owned Apricum Hill Ecological Previous Federal Action promote seed germination (Wood and Reserve managed by the California Parker 1988). Arctostaphylos myrtifolia Department of Fish and Game (CDFG) Federal government actions on both can be distinguished from other species (Wood and Parker 1988). plants began as a result of section 12 of in the same genus by its smaller stature Eriogonum apricum comprises two the Endangered Species Act of 1973, as and the color of its leaves. varieties—Eriogonum apricum var. amended (16 U.S.C. 1531 et seq.), which Arctostaphylos myrtifolia is reported apricum and E. apricum var. directed the Secretary of the from 17 occurrences (CNDDB 1997). prostratum. Descriptions are provided Smithsonian Institution to prepare a Because most of these occurrences are below for each of the varieties. report on those plants considered to be based on the collection localities of Howell (1955) described the species endangered, threatened, or extinct in the individual specimens, it is uncertain Eriogonum apricum (Ione buckwheat) in United States. The Smithsonian how many stands these 17 occurrences 1955 based on a specimen collected in Institution presented this report, represent. Arctostaphylos myrtifolia the foothills of the Sierra Nevada near designated as House Document No. 94– may occur in about 100 individual Ione, Amador County, California. Myatt 51, to Congress on January 9, 1975. The stands which cover a total of about (1970) described a variety of the Ione report included Arctostaphylos 404.7 ha (1,000 ac) (Roy Woodward, buckwheat, E. apricum var. prostratum myrtifolia, Eriogonum apricum var. Bechtel, in litt. 1994). It occurs (Irish Hill buckwheat) in 1970. apricum and E. apricum var. prostratum primarily on outcrops of the Ione According to the rules for botanical as endangered species. We published a Formation within an area of about 91 nomenclature, when a new variety is notice on July 1, 1975 (40 FR 27823), of square (sq.) km (35 sq. mi) in Amador described in a species not previously our acceptance of the report of the County. In addition, a few disjunct divided into infraspecific taxa, an Smithsonian Institution as a petition populations occur in Calaveras County. autonym (an automatically generated within the context of section 4(c)(2) The populations range in elevation from name) is created. In this case, the (petition provisions are now found in 60 to 580 m (190 to 1900 ft), with the autonym is Eriogonum apricum var. section 4(b)(3) of the Act) and our largest populations occurring at apricum. intention thereby to review the status of elevations between 90 and 280 m (280 Both varieties, Eriogonum apricum the plant taxa named therein. We and 900 ft) (Wood and Parker 1988). vars. apricum and prostratum, are included the above three taxa in the July Arctostaphylos myrtifolia is the perennial herbs in the buckwheat family 1, 1975, notice. On June 16, 1976, we dominant and characteristic species of (Polygonaceae). Eriogonum apricum var. published a proposal (41 FR 24523) to Ione chaparral, where it occurs in pure apricum is glabrous (smooth, without determine approximately 1,700 vascular stands. It also occurs in an ecotone hairs or glands) and grows upright to 8 plant species to be endangered species (transition area between two adjacent to 20 centimeters (cm) (3 to 8 in.) in pursuant to section 4 of the Act. The list ecological communities) with height. Its leaves are basal, round to of 1,700 plant taxa was assembled on surrounding taller chaparral types, but it oval, and 3 to 5 mm (0.1 to 0.2 in.) wide. the basis of comments and data received does not persist if it is shaded (R. The calyx (outer whorl of flower parts) by the Smithsonian Institution and us in Woodward, in litt. 1994). Mining, is white with reddish midribs. response to House Document No. 94–51 disease, clearing of vegetation for Eriogonum apricum var. apricum and the July 1, 1975, Federal Register agriculture and fire protection, habitat flowers from July to October, and is publication. We included fragmentation, residential and restricted to nine occurrences occupying Arctostaphylos myrtifolia, E. apricum commercial development, changes in a total of approximately 4 ha (10 ac) var. apricum, and E. apricum var. fire frequency, and ongoing erosion (The Nature Conservancy (TNC) 1984) prostratum in our June 16, 1976, threaten various populations of this on otherwise barren outcrops within the proposal. plant (CNDDB 1997; Ed Bollinger, Ione chaparral. Of the nine known We summarized general comments we Acting Area Manager, BLM, Folsom occurrences of E. apricum var. apricum, received in response to the 1976

VerDate 06-MAY-99 16:08 May 25, 1999 Jkt 183247 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 E:\FR\FM\26MYR1.XXX pfrm01 PsN: 26MYR1 Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations 28405 proposal in an April 26, 1978, rule (43 4(b)(3)(C)(i) of the Act. We reviewed the or commercial data and assumptions FR 17909). The Endangered Species Act finding annually in October of 1983 relating to the taxonomy, population Amendments of 1978 required that we through 1994. status, and supportive biological and withdraw all proposals over 2 years old. We published a proposal to list ecological information for the three The Act gave proposals already more Eriogonum apricum (inclusive of vars. proposed plants. than 2 years old a 1-year grace period. apricum and prostratum) as endangered Only one of the three requested In a December 10, 1979, Federal and to list Arctostaphylos myrtifolia as reviewers provided comments. This Register notice (44 FR 70796), we threatened on June 25, 1997 (62 FR reviewer supported the listing of both withdrew our June 16, 1976, proposal, 34188). We based the proposal on species addressed in this rule and along with four other proposals that had information supplied by reports to the commented specifically on expired. CNDDB, and observations and reports Arctostaphylos myrtifolia. The reviewer We published a notice of review for by numerous botanists. wished to clarify any confusion that plants on December 15, 1980 (45 FR Processing of this final rule conforms readers of the proposed rule may have 82480), that identified those plants with our Listing Priority Guidance for had regarding the taxonomy of A. currently being considered for listing as Fiscal Years 1998 and 1999, published myrtifolia given the numerous name endangered or threatened. We included on May 8, 1998 (63 FR 25502). The changes since 1887. The reviewer Arctostaphylos myrtifolia, E. apricum guidance clarifies the order in which we emphasized that this taxon is distinct var. apricum, and E. apricum var. will process rulemakings giving highest and cannot be confused with any other prostratum as category 1 candidates for priority (Tier 1) to processing manzanita. The numerous name Federal listing in this document. emergency rules to add species to the changes stem from differing opinions Category 1 taxa were those taxa for Lists of Endangered and Threatened among botanists regarding the which we had on file sufficient Wildlife and Plants (Lists); second relationship of this species to other information on biological vulnerability priority (Tier 2) to processing final rules California manzanitas. to add species to the Lists, processing and threats to support preparation of The reviewer stated that proposed rules to add species to the listing proposals but for which we are Arctostaphylos myrtifolia is adapted to Lists, processing administrative findings precluded from issuing proposed rules periodic fire, more specifically, fire on petitions (to add species to the Lists, by higher priority listing actions. Our recurring probably every 5 to 20 years. delist species, or reclassify listed November 28, 1983, supplement to the Recent suppression of the historic fire species), and processing a limited notice of review (48 FR 53640) made no frequency has facilitated the changes to the designation for these number of proposed or final rules to establishment of fungal pathogens taxa. delist or reclassify species; and third contributing to the demise of A. We revised the plant notice of review priority (Tier 3) to processing proposed myrtifolia. The reviewer emphasized again on September 27, 1985 (50 FR or final rules to designate critical that the species could face serious 39526), February 21, 1990 (55 FR 6184), habitat. Processing of this final rule is a decline in the future without proper fire and September 30, 1993 (58 FR 51144). Tier 2 action. In these three notices, we again We updated this rule to reflect any management, that is, controlled burning included Arctostaphylos myrtifolia, changes in distribution, status, and during the appropriate time of the year Eriogonum apricum var. apricum and E. threats that occurred since publication and under proper climatic conditions. apricum var. prostratum as category 1 of the proposed rule and to incorporate We incorporated the comments of the candidates. In our February 28, 1996, information obtained during the public reviewer into the ‘‘Summary of Factors combined animal and plant notice of comment period. This additional Affecting the Species’’ section of this review (61 FR 7596), we discontinued information did not alter our decision to rule. the designation of multiple categories of list the two species. During the comment period, we candidates, and only former category 1 received comments (i.e., letters, phone Summary of Comments and species are now recognized as calls, and facsimiles) from a total of 16 Recommendations candidates for listing purposes. We individuals or agency or group included all three taxa as candidates in In the proposed rule published in the representatives concerning the proposed that notice. June 25, 1997, Federal Register (62 FR rule. Some people submitted more than Section 4(b)(3)(B) of the Act requires 34188), we requested all interested one comment to us. Seven commenters the Secretary to make certain findings parties to submit factual reports or supported the listing, four commenters on pending petitions within 12 months information that might contribute to the opposed the listing, and five of their receipt. Under section 2(b)(1) of development of a final rule. The public commenters were neutral. One the 1982 amendments, all petitions comment period closed on August 25, commenter stated his willingness to pending on October 13, 1982, are treated 1997. We contacted appropriate State work with Amador County, larger as having been newly submitted on that agencies, county and city governments, landowners, including mine operators, date. This was the case for Federal agencies, scientific and us to develop a habitat conservation Arctostaphylos myrtifolia, Eriogonum organizations, and other interested plan for the long-term benefit of both apricum var. apricum and E. apricum parties and requested comments. We species. We organized opposing var. prostratum, because we accepted published a newspaper notice in the comments and other comments the 1975 Smithsonian report as a Calaveras Enterprise on July 8, 1997, the questioning the proposed rule into petition. On October 13, 1982, we found Calaveras Prospect and Stockton Record specific issues. We summarized these that the petitioned listing of these on July 10, 1997, and in the Amador issues and our response to each as species was warranted, but precluded Ledger Dispatch on July 11, 1997, which follows: by other pending listing actions, in invited general public comment. Issue 1: Several commenters accordance with section 4(b)(3)(B)(iii) of In accordance with interagency policy questioned the adequacy and the Act. We published a notice of this published on July 1, 1994 (59 FR completeness of the scientific evidence finding on January 20, 1984 (49 FR 34270), we solicited the expert opinions reported in the proposed rule. 2485). Such a finding requires recycling of three independent and appropriate Commenters stated that listing the two the petition, pursuant to section specialists regarding pertinent scientific plants was premature due to the lack of

VerDate 06-MAY-99 16:08 May 25, 1999 Jkt 183247 PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 E:\FR\FM\26MYR1.XXX pfrm01 PsN: 26MYR1 28406 Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations comprehensive and current science to occurrence of this species within 1,000 species that can be considered in new support the listing. m (3,280.8 ft) of the Sacramento County reclamation plans.’’ Service Response: In Accordance with line northwest of the city of Carbondale Service Response: We agree that the ‘‘Interagency Cooperative Policy on on the Ione Formation. The Ione residential development poses a Information Standards under the Formation occurs in Sacramento County significant long-term threat to these Endangered Species Act,’’ published in within the general vicinity of the species given the substantial the Federal Register on July 1, 1994 (59 reported sighting. We believe that commercial and residential growth of FR 34271), we impartially review all undocumented populations of E. nearby Sacramento. However, the more scientific and other information to apricum var. apricum likely occur immediate threat to the Ione buckwheat ensure that any information used to within Sacramento County, but given and Ione manzanita is the continued promulgate a regulation to add a species the limited amount of potential habitat extraction of mineral resources from to the list of threatened and endangered in Sacramento County, we do not soils that support these species. Ninety- species is reliable, credible, and believe that these potential occurrences five percent of all lands that support represents the best scientific and represent a significant expansion of the Eriogonum apricum and Arctostaphylos commercial data available. We used overall range of the species, or that they myrtifolia are in private ownership information received from the CNDDB, warrant a change in the status of the subject to ongoing and future mining knowledgeable botanists, and from species. activities. Mining operations are not studies specifically directed at gathering Issue 3: Several commenters stated required under State law to include information on distribution and threats that Eriogonum apricum vars. apricum locally native plants into their to the species addressed in this final and prostratum and Arctostaphylos reclamation plans if these species are rule. We received information from myrtifolia are not restricted to ‘‘laterite’’ not compatible with the desired land Federal, State, and local agencies, and (containing an iron-rich subsoil layer) use of the reclaimed site (e.g., grazing, consulted professional botanists during soils as presented in the proposed rule. water storage, or intensive agriculture). the preparation of the proposed rule. We In addition, several commenters stated For a more detailed description of the documented destruction and loss of that the proposed rule inaccurately threats these species face, see factors A habitat and extirpation of populations of stated that the soil on which the two and D in the ‘‘Summary of Factors these two plants from a variety of species grow was developed during the Affecting the Species’’ section. causes. We sought comments on the Eocene. Issue 5: A few commenters stated that proposed rule from Federal, State, and Service Response: We received there are good opportunities to county entities, species experts, and substantial evidence during the reestablish Arctostaphylos myrtifolia on other individuals. We have incorporated comment period to document that reclaimed mining areas when a natural into the final rule all substantive new Eriogonum apricum vars. apricum and seed source occurs nearby or through data received during the public prostratum and Arctostaphylos the spreading of seeds by mine comment period. Specific information myrtifolia occur on a much wider range operators. received that supports listing the two plant species is summarized in the of substrates than was thought at the Service Response: We are unaware of ‘‘Summary of Factors Affecting the time we prepared the proposed rule. any studies that document successful Species’’ section. However, none of this new information long-term reestablishment of Issue 2: One commenter stated that contradicts the claim that all three taxa Arctostaphylos myrtifolia populations the total extent of known populations of occur predominantly on soils developed on reclaimed mining areas. Mining Eriogonum apricum as cited in the on various strata of the Ione Formation, operations in the Ione area typically proposed rule is incorrect. This or that the plants are restricted to a remove the kaolinitic clay minerals and commenter further stated that there are narrow range in western Amador quartz sand that the species requires for 10 populations of E. apricum alone at County. The relationship between long-term viability. Arctostaphylos the Irish Hill project site. Two substrate and the distribution of these myrtifolia has been shown to reestablish commenters stated that several plants, however strong the correlation, on fire breaks and similar situations populations of E. apricum var. apricum is not the reason we proposed these where the original substrate was not have been discovered growing in plants for listing. The specific threats removed, and plants have also Sacramento County, several miles north these taxa face are identified in the established on waste rock piles. We are of the city of Ione, along the Amador/ ‘‘Summary of Factors Affecting the not aware of any scientific studies on Sacramento County line. Species’’ section. the success of transplanting or seeding Service Response: Neither commenter Issue 4: One commenter stated that the plants under field conditions. provided site-specific information. We the greatest potential threat to Moreover, the long-term viability of the are aware of the 10 populations of E. Eriogonum apricum is residential plants which have established on apricum at the Irish Hill project site; we development. The commenter further disturbed areas is unknown. Attempts to referred to these populations in the stated that well-planned mining with grow both Eriogonum apricum and proposed rule as one occurrence in the reclamation plans that take E. apricum Arctostaphylos myrtifolia off of their ‘‘Discussion of the Two Species’’ into account may be the best chance for specialized substrate have been section. An occurrence may have the species’ survival. Another unsuccessful. Transplanted seedlings of several populations within it. Because commenter asserted that the statement E. apricum grew for only about 3 years we have received only anecdotal reports in the proposed rule that the Ione before dying. Arctostaphylos myrtifolia of new locations, we cannot confirm or buckwheat and Ione manzanita are seedlings have survived only about 10 refute the reports of E. apricum var. imperiled by mining is an inaccurate years (Roger Raiche, Horticulturalist, apricum in Sacramento County. The statement. The same commenter also Univ. of California Botanical Garden, discovery of new populations of E. noted, however, that ‘‘because of Berkeley, in litt. 1997). For a more apricum var. apricum in Sacramento requirements of species diversity and complete discussion on this topic, County, north of the city of Ione, along percent of vegetative cover on mined please see factors D and E in the the Amador/Sacramento County line, lands disturbed since 1976 . . . Ione ‘‘Summary of Factors Affecting the however, is consistent with a verified manzanita and Ione buckwheat are not Species’’ section.

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Issue 6: Two commenters stated that technical assistance. We seek listing provisions of the Act. A species there are adequate regulatory cooperation with private landowners on may be determined to be endangered or mechanisms to protect Eriogonum surveys or other conservation efforts. threatened due to one or more of the apricum vars. apricum and prostratum The complete file for this rule is five factors described in section 4(a)(1). and Arctostaphylos myrtifolia. These available for public inspection, and does These factors and their application to commenters believe that, through contain general information about Arctostaphylos myrtifolia C. Parry (Ione compliance with the California Surface where the species occur. We are always manzanita) and Eriogonum apricum J. Mining and Reclamation Act (SMARA) willing to assist the public in matters Howell (inclusive of vars. apricum and and the California Environmental aimed at protecting sensitive species. prostratum R. Myatt) (Ione buckwheat) Quality Act (CEQA), Amador County See the ‘‘Critical Habitat’’ section for are as follows: has created ordinances and permitting further discussion of our decision not to A. The Present or Threatened procedures that adequately protect these designate critical habitat for these Destruction, Modification, or species. species. Service Response: We believe that the Issue 9: One commenter inquired Curtailment of Their Habitat or Range existing regulatory mechanisms whether private landowners would be Nearly all populations of both plant provided in the State, local, and county allowed to participate in the species occur on private or non-Federal regulations are inadequate to protect development of a recovery plan for land. The primary threat facing both these three plants. Both CEQA and these species. species is the ongoing and threatened SMARA can allow the destruction of Service Response: The recovery destruction and modification of their these three plant taxa without adequate planning process will involve species habitat by mining for silica sand, clay, mitigation or avoidance. For a complete experts, scientists, and interested lignite, common sand and gravel; and discussion on this topic, see factor D in members of the public in accordance reclamation of mined lands involving the ‘‘Summary of Factors Affecting the with the interagency policy on recovery establishment of vegetation with which Species’’ section and the ‘‘Available plans under the Act, published on July these species cannot co-exist. A lesser Conservation Measures’’ section. 1, 1994 (59 FR 34272). The information degree of threat is posed by commercial Issue 7: One commenter stated that and public education needs for or residential development, clearing for listing will inevitably move private successful recovery of these species are agriculture and fire protection, and property into government ownership. many, and we will address these needs continued erosion due to previous Another commenter questioned what in the recovery plan. fireline construction and driver training sorts of activities could continue on Issue 10: One commenter stated that for California Department of Forestry private land should these species be the proposed rule should be withdrawn and Fire Protection (CDFFP) employees. formally listed. because we lack the authority under the The habitat of Arctostaphylos Service Response: The Act does not Commerce Clause of the Constitution to myrtifolia and Eriogonum apricum restrict the damage or destruction of regulate species that are found solely in occurs in areas that contain valuable listed plants due to otherwise lawful one State and are neither harvested for minerals. Clay mining began in the Ione private activities on private land beyond commercial purposes nor transported area around 1860. Since that time, the any level of protection that may be across state lines. Ione area has produced about a third of provided under State law. Listing the Service Response: A recent decision the fire clay in California (Chapman and two species as threatened or endangered in the United States Court of Appeals Bishop 1975). Lignite, a low-grade coal, will not regulate mining or land clearing for the District of Columbia Circuit also has been mined in the Ione area for farming, grazing, or fire protection (National Association of Homebuilders since the early 1860s, initially for fuel, on private land with no Federal v. Babbitt, 130 F. 3d 1041, D.C. Cir. but more recently for wax used for involvement. Other activities that do not 1997) makes it clear in its application of industrial purposes. Chapman and violate the taking prohibitions of section the test used in the United States Bishop (1975) reported the Ione lignites 9(a)(2) of the Act, along with prohibited Supreme Court case, United States v. were the only lignites used activities, are discussed further in the Lopez, 514 U.S. 549 (1995), that commercially in the United States in the ‘‘Available Conservation Measures’’ regulation of species limited to one production of a specialized wax section. Those populations of plant State under the Act is within Congress’ (montan wax). Quartz sand used in species that occur on Federal lands may commerce clause power. On June 22, making glass containers, and laterite or may not be affected by some human 1998, the Supreme Court declined to used for making cement also are activities. If a Federal agency makes the accept an appeal of this case (118 S. Ct. commercially mined in the Ione area determination that an activity may affect 2340 1998). Therefore, our application (Chapman and Bishop 1975). Common a population of a listed plant species, of the Act to Arctostaphylos myrtifolia sands and gravels are also mined for the Federal agency is required to consult and Eriogonum apricum is various uses. Mining of all of these with us on the effects of the proposed constitutional. deposits has resulted in the direct action. removal of habitat for both plant species Issue 8: One commenter questioned Summary of Factors Affecting the (Wood and Parker 1988; V. Thomas how landowners will know if their land Species Parker, Professor of Biology, San uses will affect the three plants if After a thorough review and Francisco State University, in litt. 1994; critical habitat is not designated. consideration of all information M. Wood, in litt. 1994). Strip mining of Service Response: The public has available, we have determined that silica for glass and clay for ceramics and access to general locational information Arctostaphylos myrtifolia should be industrial filters has extirpated (caused on all three of these plants through the classified as a threatened species and extinction of) populations of A. CNDDB. In addition, individuals Eriogonum apricum (inclusive of vars. myrtifolia north and south of Highway owning land in these counties who apricum and prostratum) should be 88 (Roof 1982). believe that their actions or activities classified as an endangered species. We By 1982, a significant amount of may result in harm to one of these followed the procedures found at habitat already had been lost (Roof plants may, if they desire to help section 4(a)(1) of the Act and regulations 1982, Stebbins 1993; M. Wood, in litt. conserve these species, contact us for (50 CFR part 424) implementing the 1994). The exact amount of habitat loss

VerDate 06-MAY-99 16:08 May 25, 1999 Jkt 183247 PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 E:\FR\FM\26MYR1.XXX pfrm01 PsN: 26MYR1 28408 Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations to date cannot be quantified because This area of about 75 ha (185 ac) is back of partial or entire stands of much information regarding the total proposed to be developed over the next Arctostaphylos myrtifolia throughout its mineral production as well as the total 10 years (Ron Mittlebrunn, Amador range (Wood and Parker 1988; M. Wood, acreage of land newly disturbed by a Council of Economic Development, in litt. 1994). The majority of mining operation is proprietary (M. pers. comm. 1994). Zoning for most populations of A. myrtifolia show signs Showers, pers. comm. 1994). Fifteen lands outside the city of Ione permits a of die-back. The fungal disease is a active surface mines on private land density of one house on 16 ha (40 ac) serious problem for the populations near Ione continue to remove the habitat (Gary Clark, Amador County Planning south of Ione (M. Wood, pers. comm. of both plants; approved reclamation Department, in litt. 1994). Habitat loss 1994). Stands along Highway 88 that plans identify surface removal of greater and degradation outside the city of Ione were healthy a few years ago are than 1,400 ha (3,500 ac) (CDFG 1991, results from development of small apparently being killed with little Mining Reports 1976–1993; V.T. Parker, ranchettes and associated clearing for evidence of seedling regeneration (Neil in litt. 1994; M. Wood, in litt. 1994). fire protection, pastures, buildings, and Havlik, Solano County Farmland and Based on an estimate derived from infrastructure (G. Clark, in litt. 1994). Open Space Foundation, pers. comm. mining reports on file at California Clearing destroys individual plants of 1994). The fungal problems are clearly Department of Geology and Mines, over both species and fragments and due to senescence (extreme aging) of half of the Ione chaparral habitat, degrades the remaining habitat. older individuals and pathogen loads numerous stands of Arctostaphylos Mining operations, land clearing for that build up with crowding and myrtifolia, and most of the occurrences agriculture, and commercial and accumulation of organic debris due to of Eriogonum apricum occur within residential development, have fire suppression (R. Raiche, in litt. areas that will be impacted by the 15 fragmented and continue to fragment 1997). To learn more about the mines (Mining Reports 1976–1993). and isolate the habitat of Arctostaphylos management needs of A. myrtifolia, Mining has eliminated several myrtifolia in Amador County. Habitat Wood and Parker conducted a series of populations of A. myrtifolia south of fragmentation may disrupt natural controlled burns to test the regeneration Ione since 1990 (V.T. Parker, in litt. ecosystem processes by changing the of stands that had no, partial, and 1994). If approved, the East Lambert amount of incoming solar radiation, complete die-back. Stands that the Project, a proposed open pit to mine water, wind, and/or nutrients (Saunders fungus completely killed before burning clay, lignite, and silica, would remove et al. 1991), and further exacerbates the did not regenerate. Healthy and partially part of a population of A. myrtifolia. impacts of mining, off-road vehicle use, affected stands regenerated, but study Clay mining threatens one of the two and other human activities. results did not determine whether this remaining occurrences of E. apricum Training activities by the CDFFP regeneration will result in healthy var. prostratum (CDFG 1991). The caused the degradation of the stands (M. Wood, in litt. 1994). second occurrence is not protected and population of Arctostaphylos myrtifolia D. The Inadequacy of Existing potentially could be mined (CDFG occurring on the BLM Ione Manzanita Regulatory Mechanisms 1991). Most of the nine occurrences of ACEC. Building firelines and E. apricum var. apricum occur on conducting driver training courses Eriogonum apricum vars. apricum private land that is not protected and resulted in a criss-crossing of roads and and prostratum are listed as endangered could be mined. trails within the ACEC that reduced and under the California Endangered As discussed in factor D of this fragmented the habitat (BLM 1989). Species Act (CESA) (chapter 1.5 section section, mining results in conversion of Although these practices were 2050 et seq. of the California Fish and former habitat to rangeland, pasture, discontinued in 1991, the roads have Game Code and Title 14 California Code and other agricultural uses; landowners not revegetated naturally, and continued of Regulations 670.2). Individuals are do not restore the original plant erosion of the roads and adjacent habitat required to obtain a management community that was lost when the area remains a concern (E. Bollinger, in litt. authorization from CDFG to possess or was mined. Additionally, once the area 1994). The BLM has requested our ‘‘take’’ a listed species under the CESA. is mined, the specialized substrate technical assistance regarding the Although the ‘‘take’’ of State-listed required by the plants may no longer be restoration of A. myrtifolia to the ACEC plants is prohibited (California Native present. This type of disturbance (E. Bollinger, in litt. 1994). Plant Protection Act, chapter 10 sec. permanently precludes restoration of 1908 and CESA, chapter 1.5 sec. 2080), habitat suitable for Arctostaphylos B. Overutilization for Commercial, State law exempts the taking of such myrtifolia and Eriogonum apricum. To a Recreational, Scientific, or Educational plants via habitat modification or land lesser extent, land conversion to grazing Purposes use changes by the owner. This State and agriculture also has degraded or Overutilization is not currently law does not necessarily prohibit destroyed the habitat for these plants known to be a factor for the two plants. activities that could extirpate this (Wood and Parker 1988; V.T. Parker, in However, increased publicity from the species. After CDFG notifies a litt. 1994; M. Wood, in litt. 1994). Both proposed and final listing rules may landowner that a State-listed plant activities continue to pose threats to the result in unrestricted collecting of grows on his or her property, State law habitat of the subject plant taxa. Eriogonum apricum for scientific or requires only that the landowner notify Commercial and residential horticultural purposes or excessive the agency ‘‘at least 10 days in advance development also threatens the habitat visits (and possibly trampling) by of changing the land use to allow of Arctostaphylos myrtifolia. In 1993, a individuals interested in seeing rare salvage of such a plant’’ (Native Plant 43 ha (106 ac) parcel in the city of Ione plants. Protection Act, chapter 10 sec. 1913). reported to have A. myrtifolia was Ten days may not allow adequate time cleared, presumably to facilitate future C. Disease or Predation for agencies to coordinate the salvage of development (Randy L. Johnsen, Ione Livestock graze where one population the plants. Moreover, salvage is an City Administrator, in litt. 1994). The of Eriogonum apricum var. prostratum outdated and biologically inappropriate Amador County master plan has zoned occurs, but grazing is not considered as mitigation that is inconsistent with an area in the northern Ione chaparral harmful (CNDDB 1997). An unidentified measures implemented through section near Carbondale for industrial uses. fungal pathogen has caused major die- 7 of the Act. California Senate Bill 879,

VerDate 06-MAY-99 16:08 May 25, 1999 Jkt 183247 PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 E:\FR\FM\26MYR1.XXX pfrm01 PsN: 26MYR1 Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations 28409 passed in 1997 and effective January 1, chapter 9 sec. 2710 et seq.) requires cubic yards) in any location of 0.4 ha (1 1998, requires individuals to obtain a preventing or minimizing adverse ac) or less. section 2081(b) permit from CDFG to environmental effects and reclaiming In addition, SMARA is also take a listed species incidental to mined lands to a useable condition that inadequate for protection of these otherwise lawful activities, and requires is readily adaptable for alternative land species because reclamation plans are full mitigation of all impacts and uses. Although SMARA requires required to be submitted only for successful implementation of all reclamation for mining activities, the operations conducted after January 1, measures feasible. The ability of these standards for reclamation and the 1976. Surface mining operations that requirements to protect species has not success of any revegetation is judged on were permitted or authorized prior to been tested, and we will need several the approved end use of the land. January 1, 1976, are not required to years to evaluate their effectiveness in Approved examples of these end uses submit reclamation plans as long as no conserving species. for mining activities within the Ione substantial changes are made in their The California Environmental Quality area include water storage for irrigation, operation. The lead agency is Act of the California Public Resources grazing, rangeland, seeding with grasses responsible for determining what Code (chapter 2 sec. 21050 et seq.) for pasture, and intensive agriculture constitutes a substantial change in requires a full disclosure of the potential (Mining Reports 1976–1993). SMARA operation. Although the city of Ione General Plan environmental impacts of proposed does not require replacement of the and the Environmental Impact Report of projects. The public agency with same vegetation type, species, or the Banks annexation to the city of Ione primary authority or jurisdiction over percentage of vegetation cover as the includes the protection of the project is designated as the lead habitat that is lost. No approved mining agency and is responsible for Arctostaphylos myrtifolia and reclamation plans included measures to conducting a review of the project and Eriogonum apricum as a goal, the City attempt restoration of either consulting with the other agencies has no regulatory mechanism to stop Arctostaphylos myrtifolia or Eriogonum concerned with the resources affected land clearing and/or preserve natural apricum or the Ione chaparral plant by the project. Section 15065 of the habitat (R. Johnsen, in litt. 1994). The community, although one plan CEQA guidelines, now undergoing County of Amador has taken steps indicated an intention to allow A. amendment, requires a finding of toward protecting rare plants that grow myrtifolia, known to occur on the site, significance if a project has the potential along Ione area roadsides through the to re-establish itself (Mining Reports to ‘‘reduce the number or restrict the designation of surveyed sites as range of a rare or endangered plant or 1976–1993). We received a description Environmentally Sensitive Areas. The animal.’’ Species that are eligible for of a reclamation project during the California Department of Transportation listing as rare, threatened, or public comment period on the proposed (Caltrans) has also designated a segment endangered are given the same rule (Mike Kizer, Ione Minerals & of State Route 88 near Ione as a protection as species officially listed Refractories, in litt. 1997). An area Botanical Management Area (Hartwell under the State or Federal governments. previously stripped of all soil, 1997). Caltrans manages this segment to Once significant effects are identified, vegetation, and overburden is contoured encourage regrowth of native plants that the lead agency has the option of to a 3:1 slope. All vegetation growing on grow on the highway right-of-way requiring mitigation for effects through another area where A. myrtifolia is (Hartwell 1997). changes in the project or deciding that growing is crushed with a bulldozer. Two preserves support occurrences of overriding considerations make The crushed vegetation and soil is Arctostaphylos myrtifolia and mitigation infeasible. In the latter case, scraped and spread directly on the Eriogonum apricum var. apricum. The the State may approve projects that newly established slope. The site is then Apricum Hill Ecological Reserve, cause significant environmental seeded with a mixture of non-native managed by the CDFG, is about 15.2 ha damage, such as the destruction of legumes and grasses and fertilized and (37.5 ac). The Ione Manzanita ACEC, State-listed endangered species. The limed. Mulch is then applied for erosion managed by BLM, covers 35 ha (86 ac). protection of Eriogonum apricum var. control. Based on this description of Both preserves provide some protection apricum, E. apricum var. prostratum, what is presumably a typical of three occurrences of A. myrtifolia and and Arctostaphylos myrtifolia under reclamation project, we maintain that one occurrence of E. apricum var. CEQA is, therefore, dependent upon the land reclamation under SMARA apricum; however, they are small sites discretion of the lead agency. establishes only a goal of revegetation of and subject to edge effects such as Section 21080(b) of CEQA allows the site without regard to the original shading by taller shrubs or competition certain projects to be exempted from the species composition and structure, not with invasive vegetation (see factors A CEQA process. The State may approve restoration of the original plant and E of this section for more detail). or carry out ministerial projects, those community that was lost when the area projects that the public agency must was mined. Even though such efforts E. Other Natural or Manmade Factors approve after the applicant shows may result in the reestablishment of A. Affecting Its Continued Existence compliance with certain legal myrtifolia on reclaimed sites, they are The effects on Arctostaphylos requirements, without undertaking inadequate to meet the purpose of the myrtifolia of changing the frequency of CEQA review. Examples of ministerial Act, as stated in section 2(b), to occurrence of fire have not been well- projects include final subdivision map ‘‘provide a means whereby the studied. Arctostaphylos myrtifolia lacks approval and most building permits ecosystems upon which endangered the ability to crown sprout and is killed (Bass and Herson 1994). In addition, species and threatened species depend outright by fire. It must, therefore, recent proposed revisions to CEQA may be conserved.’’ Moreover, SMARA reproduce by seed. Roof (1982) and guidelines, if made final, may weaken does not apply to many activities, Woodward (in litt. 1994) reported protection for threatened, endangered, including the prospecting or extraction abundant post-fire seed germination. and other sensitive species. of minerals for commercial purposes, or Woodward also reported successful The California Surface and Mining the removal of material that lies above reestablishment of the species on Reclamation Act (SMARA) of 1975 or between natural mineral deposits in ground scraped by tractors during a fire (California Public Resources Code amounts less than 764.6 cubic m (1,000 suppression operation. The response of

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A. myrtifolia to fire appears, however, to in litt. 1994). Arctostaphylos viscida fire frequency. Although A. myrtifolia be irregular and unpredictable (Wood (white-leaf manzanita), a more rapidly faces many of the same threats as E. and Parker 1988). growing, taller manzanita, encroaches apricum, the significantly wider range Wood reports fire suppression results along the edge of stands of A. myrtifolia. and greater number of populations and in stand die-off without regeneration Arctostaphylos myrtifolia is eliminated individuals of A. myrtifolia moderate (M. Wood, in litt. 1994). Scientists have when A. viscida grows tall enough to the threats. Thus, A. myrtifolia is not observed mature individuals in well- shade it (M. Wood, pers. comm. 1994; now in danger of extinction throughout established, undisturbed natural stands R. Woodward, in litt. 1994). This is not a significant portion of its range, as is E. die. The species appears to have a low likely to be a significant threat to the apricum, but is likely to become regenerative potential in closed stands species, however, because most stands endangered within the foreseeable (Wood and Parker 1988). Individual occur on substrates from which taller future. Therefore, the preferred action is plants are thought to live not much shrubs are excluded. to list A. myrtifolia as threatened. longer than 50 years (Gankin and Major As discussed in factor A, habitat 1964). Individuals maintained in fragmentation may alter the physical Critical Habitat cultivation for many years have died environment. Plant species may Section 3 of the Act defines critical suddenly for no apparent reason (S. disappear from chaparral fragments that habitat as: (i) the specific areas within Edwards, cited in Wood and Parker are from 10 to 100 ha (24.7 to 247 ac) the geographical area occupied by a 1988). in size due to persistent disturbance and species, at the time it is listed in Fire, therefore, appears to be potentially due to change in fire accordance with the Act, on which are necessary for the long-term maintenance frequency (Soule´ et al. 1992). In found those physical or biological of the Ione chaparral community. addition, habitat fragmentation features (I) essential to the conservation Controlled burning may be a viable increases the risks of extinction due to of the species and (II) that may require means of ensuring adequate random environmental, demographic, or special management consideration or reproduction of Arctostaphylos genetic events (Soule´ et al. 1992). The protection; and (ii) specific areas myrtifolia, or perhaps even controlling two, small, isolated populations of outside the geographical area occupied or preventing loss due to the fungal Eriogonum apricum var. prostratum, by a species at the time it is listed, upon pathogen (V.T. Parker, in litt. 1994; M. makes random extinction more likely. a determination that such areas are Wood, in litt. 1994). Field observations Chance events, such as disease essential for the conservation of the and controlled experiments to date, outbreaks, reproductive failure, species. ‘‘Conservation,’’ as it is defined however, suggest exercising caution in extended drought, landslides, or a in section 3(3) of the Act, means the use the use of fire until the reasons for the combination of several such events, of all methods and procedures needed variability in the response of A. could destroy part of a single population to bring the species to the point at myrtifolia are better understood. or entire populations. A local which listing under the Act is no longer Progress toward better understanding of catastrophe also could decrease a necessary. the response of A. myrtifolia to fire was population to so few individuals that Section 4(a)(3) of the Act, as thwarted when long term study sites the risk of extirpation due to genetic and amended, and implementing regulations established to study this response were demographic problems inherent to small (50 CFR 424.12) require that, to the graded and cleared by the landowner populations would increase. maximum extent prudent and (V.T. Parker, in litt. 1994; M. Wood, in We have carefully assessed the best determinable, the Secretary designate litt. 1994). scientific and commercial information critical habitat at the time the species is Reestablishment on mined areas may available regarding the past, present, determined to be endangered or be difficult for the Ione chaparral plant and future threats faced by these species threatened. The regulations (50 CFR community in general, and for in making this final determination. 424.12(a)(2)) state that designation of Arctostaphylos myrtifolia in particular, Eriogonum apricum (inclusive of vars. critical habitat is not determinable when due to a lack of the required specialized apricum and prostratum) is verified one or both of the following situations substrate and an absence of proven from 11 occurrences on approximately exist—(1) information sufficient to propagation methods (E. Bollinger, in 4.4 ha (11 ac) in Amador County, perform required analysis of the impacts litt. 1994). Researchers have attempted a California. The species is endangered by of the designation is lacking, or (2) the variety of germination and seed bank mining, clearing of vegetation for biological needs of the species are not experiments on A. myrtifolia without agriculture and for fire protection, sufficiently well known to permit success (Wood and Parker 1988). Others inadequate regulatory mechanisms, identification of an area as critical have also attempted to cultivate the habitat fragmentation, residential and habitat. The regulations (50 CFR species with little or no success (R. commercial development, ongoing 424.12(a)(1)) state that designation of Gankin, cited in Wood and Parker erosion, and random events. Eriogonum critical habitat is not prudent when one 1988). Although the plant has a limited apricum is in danger of extinction or both of the following situations capacity to root from its lower branches, throughout all or a significant portion of exist—(1) the species is threatened by Roof (1982) reported that he was its range and the preferred action is, taking or other human activity, and unaware of even a single plant that had therefore, to list it as endangered. identification of critical habitat can be been grown or cultivated from a rooted Arctostaphylos myrtifolia is reported expected to increase the degree of threat branch. The only report of successful from 17 sites, and estimated to occur in to the species, or (2) such designation of cultivation indicates that the plant a total of about 100 stands covering critical habitat would not be beneficial requires high soil-acidity and heavy about 404.7 ha (1,000 ac) in Amador to the species. supplements of soluble aluminum (Roof County, with a few occurrences in We find that designation of critical 1982). Calaveras County. It is threatened by habitat is not prudent for Throughout its range, on habitat edges mining, disease, clearing of vegetation Arctostaphylos myrtifolia and where better soil development occurs, for agriculture and for fire protection, Eriogonum apricum, because of Arctostaphylos myrtifolia is being out- inadequate regulatory mechanisms, increased degree of threat to each competed by other native vegetation (M. habitat fragmentation, increased species and lack of benefit. The Wood, pers. comm. 1994; R. Woodward, residential development, and changes in detriment to the species outweighs any

VerDate 06-MAY-99 16:08 May 25, 1999 Jkt 183247 PO 00000 Frm 00078 Fmt 4700 Sfmt 4700 E:\FR\FM\26MYR1.XXX pfrm01 PsN: 26MYR1 Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations 28411 benefit that such designation may apricum is especially vulnerable to designated. Regulations implementing provide. The reasons for not designating impacts from loss of individuals or this interagency cooperation provision critical habitat for these species is habitat damage due to vandalism. of the Act are codified at 50 CFR part discussed below. The publication of precise maps and 402. Section 7(a)(4) of the Act requires All three occurrences of descriptions of critical habitat in the Federal agencies to confer with us on Arctostaphylos myrtifolia on Federal Federal Register, as required for the any action that is likely to jeopardize lands are managed by the BLM; one of designation of critical habitat, however, the continued existence of a species these occurrences lies within the Ione would further increase the degree of proposed for listing or result in Manzanita ACEC. On Federal lands, threat to these species from vandalism destruction or adverse modification of modification of occupied habitat by any and could contribute to their decline by proposed critical habitat. If we action authorized by the BLM is making locational information readily subsequently list a species, section unlikely to occur without consultation available. Critical habitat designation 7(a)(2) requires Federal agencies to under section 7 of the Act because BLM requires publication of proposed and ensure that activities they authorize, managers are well-aware of the presence final rules in the Federal Register fund, or carry out are not likely to and locations of A. myrtifolia (BLM including both maps and specific jeopardize the continued existence of 1989; E. Bollinger, in litt. 1994). descriptions of critical habitat using the species or to destroy or adversely Establishment of the ACEC indicates reference points and lines that can be modify its critical habitat. If a Federal that the BLM will give the protection of matched to standard topographic maps action may affect a listed species or its the rare plant community on this parcel of the area (see 16 U.S.C. critical habitat, the responsible Federal the highest priority in all management 1533(b)(5)(A)(I) and (6)(A); 50 CFR agency must enter into formal decisions (E. Bollinger, in litt. 1994). 424.12(c), 424.16(a) and 424.18(a)). consultation with us. The BLM prohibits grazing in the ACEC, Once published in the Federal Register, Almost all of the occurrences for both and has implemented erosion control proposed and final rules are readily species are on private land. Three measures on an off-road vehicle course available over the Internet, where occurrences of Arctostaphylos myrtifolia previously used by CDFFP. In addition, complete copies, including maps, may and one occurrence of Eriogonum the BLM has functionally withdrawn be downloaded. The Act also requires apricum var. apricum exist entirely or the ACEC and other habitats known to us to publish a notice of any critical partially on Federal land managed by be occupied by the species from mineral habitat proposal in a newspaper of the BLM. Other potential Federal entry (E. Bollinger, in litt. 1994; Al general circulation and hold a public involvement includes the construction Franklin, Botanist, BLM, Folsom hearing upon request (16 U.S.C. and maintenance of roads and highways Resource Area, pers. comm. 1998) and 1533(b)(5)(D) and (E)). While the listing by the Federal Highway Administration has developed a management plan for process provides the public with general (two populations of E. apricum var. the ACEC (BLM 1989). The BLM has information about the habitat of a apricum occur along rights-of-way also authorized experimental species and where a species might occur owned by Caltrans). transplantation studies on the ACEC in general terms, critical habitat Listing these two plant species would (Garland 1997). We believe, therefore, designation makes more specific provide for development of a recovery that designation of critical habitat on locational information readily available plan (or plans) for them. Such plan(s) Federal land would confer no additional to any would-be vandal. would bring together both State and benefit to the species beyond that which We find, therefore, that the increased Federal efforts for conservation of the is already afforded by current degree of threat to Arctostaphylos plants. The plan(s) would establish a management. myrtifolia and Eriogonum apricum from framework for agencies to coordinate Arctostaphylos myrtifolia faces vandalism and habitat destruction activities and cooperate with each other human-caused threats (see factors A and outweigh any benefits that might derive in conservation efforts. The plan(s) E in ‘‘Summary of Factors Affecting the from the designation of critical habitat. would set recovery priorities and Species’’ section) and occurs estimate costs of various tasks necessary Available Conservation Measures predominately on private lands. to accomplish them. It also would Vandalism of A. myrtifolia has already Conservation measures provided to describe site-specific management occurred. A 43-hectare (106-acre) parcel species listed as endangered or actions necessary to achieve of land previously identified in a public threatened under the Act include conservation and survival of the two document as occupied habitat for this recognition, recovery actions, plants. Additionally, pursuant to section species was cleared in 1993, presumably requirements for Federal protection, and 6 of the Act, we would be more likely to facilitate future development (R. prohibitions against certain activities. to grant funds to affected States for Johnsen, in litt. 1994). A second Recognition through listing encourages management actions promoting the incident of vandalism occurred in July and results in conservation actions by protection and recovery of these species. 1997 shortly after the proposed listing Federal, State, local agencies, private The Act and its implementing rule was published in the Federal organizations, and individuals. The Act regulations set forth a series of general Register (Garland 1997). In this second provides for possible land acquisition prohibitions and exceptions that apply incident, unknown vandals destroyed a and cooperation with the States and to all endangered or threatened plants. scientific propagation study plot for A. requires development of recovery plans All prohibitions of section 9(a)(2) of the myrtifolia on lands managed by the for all listed species. We discuss the Act, implemented by 50 CFR 17.61 for BLM. protection required of Federal agencies endangered plants and 17.71 for Eriogonum apricum is known from and the prohibitions against certain threatened plants, apply. These only 11 verified populations covering an activities involving listed plants below. prohibitions, in part, make it illegal for estimated total of 4.5 ha (11 ac) of Section 7(a) of the Act requires any person subject to the jurisdiction of habitat. Eriogonum apricum occurs in Federal agencies to evaluate their the United States to import or export, the same general area and on similar actions with respect to any species that transport in interstate or foreign substrates as Arctostaphylos myrtifolia is proposed or listed as endangered or commerce in the course of a commercial which has been vandalized as described threatened and with respect to its activity, sell or offer for sale in interstate above. Because of its few populations, E. critical habitat, if any is being or foreign commerce, or remove and

VerDate 06-MAY-99 16:08 May 25, 1999 Jkt 183247 PO 00000 Frm 00079 Fmt 4700 Sfmt 4700 E:\FR\FM\26MYR1.XXX pfrm01 PsN: 26MYR1 28412 Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations reduce the species to possession from (including irrigation) around one’s those already approved under the areas under Federal jurisdiction. In personal residence. Direct questions Paperwork Reduction Act, 44 U.S.C. addition, for plants listed as regarding whether specific activities 3501 et seq., and assigned Office of endangered, the Act prohibits malicious will constitute a violation of section 9 Management and Budget clearance damage or destruction on areas under to the Field Supervisor of the number 1018–0094. An agency may not Federal jurisdiction, and the removal, Sacramento Field Office (see ADDRESSES conduct or sponsor, and a person is not cutting, digging up, or damaging or section). required to respond to, a collection of destroying of such plants in knowing The Act and 50 CFR 17.62 (for information unless it displays a violation of any State law or regulation, endangered plants) and 17.72 (for currently valid control number. For including state criminal trespass law. threatened plants) also provide for the additional information concerning Section 4(d) of the Act allows for the issuance of permits to carry out permit and associated requirements for provision of such protection to otherwise prohibited activities endangered and threatened plants, see threatened species through regulation. involving endangered or threatened 50 CFR 17.62 and 17.72. This protection may apply to plants under certain circumstances. Arctostaphylos myrtifolia in the future if Such permits are available for scientific References Cited purposes and to enhance the regulations are promulgated. Seeds from A complete list of all references cited propagation or survival or the species. cultivated specimens of threatened herein is available upon request from For threatened plants, permits also are plants are exempt from these the Field Supervisor, Sacramento Field available for botanical or horticultural prohibitions provided that their Office (see ADDRESSES section). containers are marked ‘‘Of Cultivated exhibition, educational purposes, or Origin’’ on the shipping containers. special purposes consistent with the Author. The primary authors of this Certain exceptions to the prohibitions purposes of the Act. It is anticipated final rule are Kirsten Tarp and Jason apply to our agents and agents of State that few trade permits would ever be Davis, Sacramento Field Office (see conservation agencies. sought or issued for Arctostaphylos ADDRESSES section). myrtifolia and Eriogonum apricum, It is our policy (59 FR 34272) to List of Subjects in 50 CFR Part 17 identify to the maximum extent because these species are not common practicable at the time a species is listed in cultivation or in the wild. You can Endangered and threatened species, those activities that would or would not obtain copies of the regulations Exports, Imports, Reporting and constitute a violation of section 9 of the regarding listed species and inquire recordkeeping requirements, Act. The intent of this policy is to about prohibitions and permits by Transportation. contacting the U.S. Fish and Wildlife increase public awareness of the effect Regulations Promulgation of the listing on proposed and ongoing Service, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon activities within a species’ range. Less 97232–4181 (telephone 503/231–2063; For the reasons given in the preamble, than five percent of the occurrences of facsimile 503/231–6243). we amend 50 CFR part 17 as set forth the two species occur on public below: (Federal) lands. Collection, damage, or National Environmental Policy Act destruction of these species on Federal We have determined that PART 17Ð[AMENDED] lands is prohibited, although in Environmental Assessments and appropriate cases a Federal endangered Environmental Impact Statements as 1. The authority citation for part 17 species permit may be issued to allow defined under the authority of the continues to read as follows: collection for scientific or recovery National Environmental Policy Act of Authority: 16 U.S.C. 1361–1407; 16 U.S.C. purposes. Such activities on non- 1969, need not be prepared in 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Federal lands would constitute a connection with regulations adopted 625, 100 Stat. 3500, unless otherwise noted. violation of section 9 when conducted pursuant to section 4(a) of the Act. We in knowing violation of California State published a notice outlining our reasons 2. In § 17.12(h) add the following to law or regulations or in violation of for this determination in the Federal the List of Endangered and Threatened State criminal trespass law. Register on October 25, 1983 (48 FR Plants in alphabetical order under Activities that are unlikely to violate 49244). ‘‘FLOWERING PLANTS:’’ section 9 include light to moderate § 17.12 Endangered and threatened plants. livestock grazing, clearing a defensible Paperwork Reduction Act space for fire protection around one’s This rule does not contain any new * * * * * personal residence, and landscaping collections of information other than (h) * * *

SPECIES Historic Range Family Status When listed Critical habi- Special Scientific name Common Name tat rules

FLOWERING PLANTS

******* Arctostaphylos Ione manzanita ...... U.S.A. (CA) ...... EricaceaeÐHeath .. T 661 NA NA myrtifolia.

******* Eriogonum apricum Ione buckwheat U.S.A. (CA) ...... PolygonaceaeÐ E 661 NA NA (=Irish Hill buck- Buckwheat. wheat).

VerDate 06-MAY-99 16:08 May 25, 1999 Jkt 183247 PO 00000 Frm 00080 Fmt 4700 Sfmt 4700 E:\FR\FM\26MYR1.XXX pfrm01 PsN: 26MYR1 Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / Rules and Regulations 28413

SPECIES Historic Range Family Status When listed Critical habi- Special Scientific name Common Name tat rules

(inclusive of vars. apricum and prostratum).

*******

Dated: April 16, 1999. aboriginal subsistence use of bowhead in this paragraph for its native group are Jamie Rappaport Clark, whales from the Bering-Chukchi- not exceeded. The two sides plan to Director, U.S. Fish and Wildlife Service. Beaufort Seas stock, and gray whales confer on monitoring of the 2000 quota, [FR Doc. 99–13250 Filed 5–25–99; 8:45 am] from the Eastern stock in the North including any strikes that may be BILLING CODE 4310±55±P Pacific. The bowhead quota was based carried forward from 1999. The AEWC on a joint request by the United States will allocate these strikes among the 10 and the Russian Federation, villages whose cultural and subsistence DEPARTMENT OF COMMERCE accompanied by documentation needs have been documented in past concerning the needs of 2 Native requests for bowhead quotas from the National Oceanic and Atmospheric groups, Alaska Eskimos and Chukotka IWC. Administration Natives in the Russian Far East. The The IWC also set a 5-year block quota gray whale quota was also based on a (1998 through 2002) of 620 gray whales, CFR Part 230 joint request by the Russian Federation with an annual cap of 140 animals [I.D. 012099C] and the United States, again with taken. The IWC regulation does not documentation of the needs of 2 Native address the number of allowed strikes. Whaling Provisions: Aboriginal groups, the Chukotka Natives and the The requested quota and accompanying Subsistence Whaling Quotas Makah Indian Tribe in Washington documentation assumed an average State. AGENCY: National Marine Fisheries annual harvest of 120 whales by the These actions by the IWC thus Chukotka people and an average annual Service (NMFS), National Oceanic and authorized aboriginal subsistence Atmospheric Administration (NOAA), harvest of 4 whales by the Makah Indian whaling by the AEWC for bowhead Tribe. Commerce. whales and by the Tribe for gray whales. The United States and the Russian ACTION: Notification of aboriginal The harvests will be conducted in Federation are concluding an subsistence whaling quotas. accordance with cooperative agreements arrangement to ensure that the block between NOAA and the AEWC, and SUMMARY: NMFS announces aboriginal quota and annual cap for gray whales between NOAA and the Makah Tribal subsistence whaling quotas and other are not exceeded. So that the 1999 quota Council (Council); these agreements are limitations deriving from regulations of gray whales is not exceeded, the the means by which NOAA recognizes adopted at the 1997 Annual Meeting of bilateral arrangements concluded that the AEWC and the Tribe as Native the International Whaling Commission the Makah Indian Tribe may take no American whaling organizations under (IWC). For 1999, the quotas are 75 more than five gray whales, and the 50 CFR part 230. bowhead whales struck, and 5 gray Russian natives may take no more than whales landed. These quotas and other Quotas 135 gray whales. Each side will ensure limitations will govern the harvest of The IWC set a 5-year block quota of that the numbers specified in this bowhead whales by members of the 280 bowhead whales landed. For each paragraph for its native group are not Alaska Eskimo Whaling Commission of the years 1998 through 2002, the exceeded. The two sides plan to confer (AEWC) and the harvest of gray whales number of bowhead whales struck may on monitoring of the 2000 quota. by members of the Makah Indian Tribe not exceed 67, except that any unused Thus, in accordance with this (Tribe). portion of a strike quota from any year, bilateral arrangement and the agreement DATES: Effective May 26, 1999. including 15 unused strikes from the between NOAA and the Council, the ADDRESSES: International Fisheries 1995–1997 quota, may be carried Makah hunters will take no more than Division, National Marine Fisheries forward. No more than 15 strikes may be 5 gray whales in any 1 year. The Service, 1315 East West Highway, Silver added to the strike quota for any 1 year. Council will manage the harvest to use Spring, MD 20910. At the end of the 1998 harvest, there no more than 33 strikes over the 5-year FOR FURTHER INFORMATION CONTACT: were 15 unused strikes available for period, and will take measures to ensure Catherine Corson, (301) 713–2276. carry-forward, so the combined strike that the overall ratio of struck whales to SUPPLEMENTARY INFORMATION: Aboriginal quota for 1999 is 82 (67 + 15). landed whales does not exceed 2:1. subsistence whaling in the United States The United States and the Russian Because the U.S. request for a gray is governed by the Whaling Convention Federation are concluding an whale quota was not based on the needs Act, (16 U.S.C. 916 et seq.) which arrangement to ensure that the total of separate whaling villages, but rather requires the Secretary of Commerce quota of bowhead whales landed and on the needs of the Tribe as a whole, the (Secretary) to publish, at least annually, struck will not exceed the quotas set by Council will allocate the quota among aboriginal subsistence whaling quotas the IWC. So that the 1999 quota of whaling captains to whom permits have and any other limitations on aboriginal bowhead strikes is not exceeded, the been issued. subsistence whaling deriving from Russian natives may use no more than Other Limitations regulations of the IWC. 7 strikes, and the Alaska Eskimos may At the 1997 Annual Meeting of the use no more than 75 strikes. Each side The IWC regulations, as well as the IWC, the Commission set quotas for will ensure that the numbers specified NOAA rule at 50 CFR 230.4(c), forbid

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