54346 Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations

[FR Doc. 96–26901 Filed 10–17–96; 8:45 am] List of Subjects in 48 CFR Part 219 status for Senecio layneae (Layne’s BILLING CODE 6712±01±P Government procurement. butterweed). These species all occur on gabbroic or serpentine-derived soils in Michele P. Peterson, the central Sierran foothills of California Executive Editor, Defense Acquisition DEPARTMENT OF DEFENSE within chaparral or oak woodland Regulations Council. communities. Urbanization and the 48 CFR Part 219 and Appendix I to Therefore, 48 CFR Part 219 and ensuing habitat fragmentation, road Chapter 2 Appendix I to Chapter 2 are amended as construction and maintenance, follows: herbicide spraying, change in fire [DFARS Case 96±D317] frequency, off-road vehicle use, PART 219Ð[AMENDED] Defense Federal Acquisition unauthorized dumping, horse Regulation Supplement; Pilot Mentor- 1. The authority citation for 48 CFR overgrazing, competition from invasive ProteÂge Program Part 219 continues to read as follows: alien vegetation, and mining imperil these five species. This rule implements AGENCY: Department of Defense (DoD). Authority: 41 U.S.C. 421 and 48 CFR Federal protection and recovery Chapter 1. ACTION: Final rule. provisions afforded by the Act for these 219.7104 [Amended] five plants. SUMMARY: The Director of Defense 2. Section 219.7104 is amended in the EFFECTIVE DATE: November 18, 1996. Procurement is amending the Defense last sentence of paragraph (b) by ADDRESSES: The complete file for this Federal Acquisition Regulation revising the date ‘‘October 1, 1996’’ to rule is available for public inspection, Supplement (DFARS) to extend the read ‘‘October 1, 1999’’. by appointment, during normal business dates for application into, and hours at the Sacramento Field Office, reimbursement of costs under, the DoD Appendix I to Chapter 2 [Amended] U.S. Fish and Wildlife Service, 3310 El Pilot Mentor-Prote´ge´ Program. 3. Appendix I to Chapter 2 is Camino Avenue, Sacramento, California EFFECTIVE DATE: October 18, 1996. amended in section I–102, paragraphs 95825. FOR FURTHER INFORMATION CONTACT: (a) and (b), and in section I–103, FOR FURTHER INFORMATION CONTACT: Defense Acquisition Regulations paragraph (a), by revising the date Kirsten Tarp, Sacramento Field Office Council, Attn: Ms. Susan Schneider, ‘‘September 30, 1996’’ to read (see ADDRESSES section) (telephone 916/ PDUSD (A&T) DP (DAR), 3062 Defense ‘‘September 30, 1998’’. 979–2122; facsimile 916/979–2128). Pentagon, Washington, DC 20301–3062. 4. Appendix I to Chapter 2 is SUPPLEMENTARY INFORMATION: Telephone (703) 602–0131; telefax (703) amended in section I–103, paragraph (b) 602–0350. Please cite DFARS Case 96– introductory text, by revising the date Background D317 in all correspondence related to ‘‘September 30, 1996’’ to read Calystegia stebbinsii (Stebbins’ this issue. ‘‘September 30, 1999’’. morning-glory), Ceanothus roderickii SUPPLEMENTARY INFORMATION: [FR Doc. 96–26533 Filed 10–17–96; 8:45 am] (Pine Hill ceanothus), Fremontodendron BILLING CODE 5000±04±M californicum ssp. decumbens (Pine Hill A. Background flannelbush), Galium californicum ssp. This final rule implements Section sierrae (El Dorado bedstraw), and 802 of the National Defense DEPARTMENT OF THE INTERIOR Senecio layneae (Layne’s butterweed) Authorization Act for Fiscal Year 1997 occur primarily on the Pine Hill (Public Law 104–201). Section 802: (1) Fish and Wildlife Service intrusion, an area of approximately extends, to September 30, 1998, the date 10,400 hectares (ha) (25,700 acres (ac)), by which an interested company must 50 CFR Part 17 in western El Dorado County, California, apply for participation as a mentor firm ranging in elevation from 138 to 628 RIN 1018±AC47 under the DoD Pilot Mentor-Prote´ge´ meters (m) (453 to 2,060 feet (ft)). In Program; and (2) extends to September Endangered and Threatened Wildlife addition, C. stebbinsii and S. layneae 30, 1999, the date by which mentor and Plants; Determination of have a few known isolated occurrences firms must incur costs in order to be Endangered Status for Four Plants and in El Dorado, Nevada, and/or Tuolumne eligible for reimbursement under the Threatened Status for One Plant From counties, California. All of the species Program. the Central Sierran Foothills of included in this final rule exhibit California substrate preferences. Ceanothus B. Regulatory Flexibility Act roderickii, F. californicum ssp. This final rule does not constitute a AGENCY: Fish and Wildlife Service, decumbens, and G. californicum ssp. significant revision within the meaning Interior. sierrae are endemic to gabbro-derived of FAR 1.501 and Public Law 98–577, ACTION: Final rule. soils on the Pine Hill intrusion, and C. and publication for public comment is stebbinsii and S. layneae occur on not required. However, comments from SUMMARY: The U.S. Fish and Wildlife gabbro and serpentine-derived soils. small entities concerning the affected Service (Service) determines One known occurrence of S. layneae DFARS subparts will be considered in endangered status pursuant to the was found on metamorphic-derived accordance with 5 U.S.C. 610. Endangered Species Act of 1973, as soils. amended (Act) for four plants— Gabbro-derived soils originate from C. Paperwork Reduction Act Calystegia stebbinsii (Stebbins’ mafic rocks (gabbrodiorite) that are The Paperwork Reduction Act does morning-glory), Ceanothus roderickii mildly acidic, are rich in iron and not apply because the final rule does not (Pine Hill ceanothus), Fremontodendron magnesium, and often contain other contain any information collection californicum ssp. decumbens (Pine Hill heavy metals such as chromium (Wilson requirements that require Office of flannelbush), and Galium californicum 1986). Gabbro, a dark large-crystalled Management and Budget approval ssp. sierrae (El Dorado bedstraw). The rock, is formed when liquid magma under 44 U.S.C. 3501 et seq. Service also determines threatened cools slowly underground. A red soil is Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations 54347 formed when the rock is exposed and within several plant communities in dumping, road maintenance, change in weathers at the earth’s surface (EIP California. Historically, fire occurred in fire frequency, and competition with Associates 1991). These soils are well- chaparral on the average of 3 to 5 times invasive alien vegetation (CNDDB 1994). drained and are underlain by every 100 years (Boyd 1985). Fire is Beecher Crampton first collected gabbrodiorite rocks at a depth of more important for seed germination and Ceanothus roderickii in 1956 from Pine than 1 meter (3.28 feet) (U.S. seedling reestablishment by eliminating Hill in El Dorado County, California. Department of Agriculture, Soil competition and shading, as well as Walter Knight described C. roderickii in Conservation Service 1974). replenishing nutrients to the soil. 1968, naming it after Wayne Roderick, Serpentine-derived soils are formed Without periodic fires, the previously who first suspected the horticultural through a process similar to formation mentioned plants either do not value of this endemic shrub (Knight of gabbro-derived soils. Serpentine soils reproduce by seed or may become 1968). Knight (1968) considered C. are derived from ultramafic rocks (e.g., shaded by other plants. roderickii to be most closely related to serpentinite, dunite, and peridotite). C. cuneatus, which also grows They tend to have high concentrations Discussion of the Five Species throughout the area. Ceanothus of magnesium, chromium, and nickel, G. Ledyard Stebbins collected the roderickii can be differentiated from its and low concentrations of calcium, type specimen of Calystegia stebbinsii congeners by its blue-tinged flowers, nitrogen, potassium, and phosphorus in 1970, 17 kilometers (km) (10 miles prostrate habit, and inconspicuously (Kruckeberg 1984). ‘‘Gabbro soils are (mi)) west of Placerville in El Dorado horned fruit. considered to be edaphically similar to County, California. Richard K. Brummitt Ceanothus roderickii is a prostrate serpentine because of their mineral (1974) described the species using evergreen shrub of the buckthorn family composition and because they appear to specimens collected by Stebbins as the (Rhamnaceae) that generally grows to 3 influence plant distributions in much type. m (9.84 ft) in diameter. The smooth the same way’’ (Wilson 1986). Calystegia stebbinsii is a leafy gray-brown branches radiate from a The three plant communities perennial herb in the morning-glory central axis and root when they come occurring on the Pine Hill intrusion are family (Convolvulaceae). Its stems range into contact with the ground. The leaves chaparral, oak woodland, and savanna. up to 1 m (3.28 ft) in length and of the species are semi-erect with entire The vegetation type of this area is generally lie flat on the ground. The margins. Small whitish flowers tinged distinctive enough that Robert Holland leaves are palmately lobed with the two with blue appear from May through (1986), based upon Wilson (1986), outermost lobes being divided again. June. Its fruit is an inconspicuously designated a community known as The leaf lobes are narrow and lance- horned globe-shaped capsule. gabbro-derived northern mixed shaped. White flowers, which appear in Ceanothus roderickii is restricted to chaparral. This community is May through June, are on stalks 3 to 13 gabbro-derived soil in openings in characterized by being ‘‘edaphically cm (1 to 5 in) long and bear two leaf- chaparral or more infrequently on restricted to ultramafic gabbro in a like bracts. The fruit is a slender previously disturbed sites within mixed chaparral which is dominated by capsule. Its distinctively shaped leaves, chaparral (Wilson 1986). The species is Adenostoma fasiculatum (chamise), and each having 7 to 9 narrow lance-shaped restricted to one localized area of usually occurring on rather xeric lobes, distinguish C. stebbinsii from approximately 10 known extant exposures’’ (Holland 1986). Calystegia other California morning-glories. occurrences discontinuously scattered stebbinsii, Ceanothus roderickii, Calystegia stebbinsii occurs in two in the Pine Hill intrusion (CNDDB Fremontodendron californicum ssp. localized areas. Most occurrences of C. 1994). Residential and commercial decumbens, and Senecio layneae occur stebbinsii are discontinuously scattered development, inadequate regulatory in fire-dependent chaparral habitat; F. within two population centers in the mechanisms, off-road vehicle use, road- californicum ssp. decumbens and S. northern and southern portions of the widening, change in fire frequency, and layneae also occur in the ecotone Pine Hill intrusion. Calystegia stebbinsii other human-caused conditions are between chaparral and oak woodland; does not occur at the center of the responsible for the decline of C. Galium californicum ssp. sierrae and S. intrusion on Pine Hill. It recently was roderickii. Commercial development has layneae occur in oak woodland (Wilson discovered in Nevada County near the extirpated two known occurrences 1986). None of the plants in this rule County landfill, where it was sparsely (CNDDB 1994). Ceanothus roderickii occur within savanna, which makes up scattered over a distance of 6.5 km (3.5 occurs primarily on private land. BLM approximately 27 percent of the mi) (California Diversity Database owns part of one site and the California vegetation on the Pine Hill intrusion. (CNDDB) 1994). In El Dorado County, Department of Forestry (CDF) owns Loss of habitat, fragmentation, and the species is associated with chaparral another site. alteration of natural ecosystem on gabbro-derived soils. In Nevada Beecher Crampton made the first processes have resulted from residential County it occurs on serpentine. The collection of Fremontodendron and commercial development. Housing species may have been transplanted californicum ssp. decumbens in 1956. and commercial development, road from El Dorado County by the transport Robert Lloyd (1965) described F. maintenance, grading, change in fire of soil to the Nevada County Sanitary californicum ssp. decumbens as F. frequency, unauthorized dumping, off- Landfill (Carla DeCrona, California decumbens based on the type specimen road vehicle use, overgrazing practices, Department of Fish and Game (CDFG), Lloyd collected in May 1964 from herbicide spraying, mining, competition pers. comm. 1992; The Union 1991). ‘‘California, El Dorado Co., Pine Hill, ca. from invasive alien vegetation, and Calystegia stebbinsii occurs primarily 3 km north of Rescue.’’ Philip Munz other human-caused conditions threaten on privately owned land, although, the (1968) reduced F. decumbens to a the remaining occurrences of these Bureau of Land Management (BLM) subspecies of F. californicum. Walter plants. manages land harboring some Kelman (1991), in his revision of These plants occur within a fire- occurrences. Development has Fremontodendron, recognized F. adapted plant community, either within extirpated at least one-third of the californicum ssp. decumbens as a full chaparral or on the ecotone between known occurrences (CDFG 1990a). species based upon morphological chaparral and woodland. Change in fire Other threats to these populations variation. Nonetheless, the plant is frequency alters the natural processes include off-road vehicle use, grading, treated as F. californicum ssp. 54348 Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations decumbens in the Jepson Manual Galium californicum ssp. sierrae is a land. Some populations of S. layneae (Whetstone and Atkinson 1993). softly hairy perennial herb in the coffee also occur on Federal land managed Fremontodendron californicum ssp. family (Rubiaceae). Four narrow leaves either by the Forest Service or BLM. decumbens is a branched spreading are arranged at each node. The pale One site is on land managed by CDF and shrub of the cacao family (Sterculiaceae) yellow flowers, which are clustered at CDFG. Residential and commercial growing to 1.3 m (4 ft) tall. Dense star- the tips of stems, appear in May and development, road maintenance, change shaped hairs cover the leaves and the June. Minute hairs cover the fleshy fruit. in fire frequency, off-road vehicle use, younger twigs and branchlets. The Galium californicum ssp. sierrae can be competition with invasive alien leaves of the subspecies are elliptic- distinguished from other subspecies of vegetation, excessive horse grazing ovate to ovate, shallowly or deeply G. californicum by its very narrow practices, mining, and other human- palmately lobed with 5 to 7 lobes. leaves. caused conditions threaten and are Showy light-orange to reddish-brown Galium californicum ssp. sierrae is responsible for the declining trend for S. flowers appear from late April to early restricted to one localized area—Pine layneae (CDFG 1990b, CNDDB 1994). July. Its fruit is a capsule. Hill and surrounding ridges to the west Fremontodendron californicum ssp. within a distance of approximately 4 km Previous Federal Action decumbens can be distinguished from F. (2.5 mi) (Baad and Hanna 1987). The Federal government actions on the californicum ssp. californicum and F. subspecies grows in oak woodland five plants began as a result of section mexicanum by its decumbent growth areas, including sites with ponderosa 12 of the Act of 1973, as amended (16 habit, its relatively long peduncles, and pine and gray pine (Wilson 1986). U.S.C. 1531 et seq.), which directed the its copper-orange flowers. Galium californicum ssp. sierrae occurs Secretary of the Smithsonian Institution Fremontodendron californicum ssp. primarily on private land. BLM manages to prepare a report on those plants decumbens occurs on scattered rocky the land where at least one population considered to be endangered, outcrops either in chaparral or in the occurs. CDF and CDFG manage one site threatened, or extinct in the United ecotone between woodland and as well. Residential development, road States. This report, designated as House chaparral. The subspecies depends on construction, grazing by horses, and Document No. 94–51, was presented to fire to promote seed germination, and irrigation threaten G. californicum ssp. Congress on January 9, 1975, and Boyd (1996) documented that seeds are sierrae. Restricted distribution and included Fremontodendron decumbens dispersed by ants. It is only known from limited numbers of individuals make it (now known as Fremontodendron one localized area near Pine Hill in susceptible to catastrophic events such californicum ssp. decumbens), Galium western El Dorado County scattered as disease or pest outbreak, severe californicum ssp. sierrae, and Senecio within an area of approximately 2,000 drought, or other natural disasters. layneae as endangered and Ceanothus ha (5,000 ac). Although there are some Kate Brandegee Layne-Curran roderickii as threatened. The Service reports of F. californicum ssp. collected the type specimen for Senecio published a notice on July 1, 1975, (40 decumbens occurring in some small layneae in May 1883 from El Dorado FR 27823) of its acceptance of the report scattered populations in Yuba or County, California, on Sweetwater of the Smithsonian Institution as a Nevada County, other reports describe Creek, not far from Folsom. E. L. Greene petition within the context of section these individuals as aberrant F. first described S. layneae in 1883 4(c)(2) (petition provisions are now californicum ssp. californicum. (Greene 1883). Although Asa Gray found in section 4(b)(3) of the Act) and Fremontodendron californicum ssp. reduced S. layneae to a variety of S. its intention thereby to review the status decumbens occurs primarily on private fastigiatus (1884), the species currently of the plant taxa named therein. The land, but one site is on BLM land. CDF is known as S. layneae (Barkley 1993). above four taxa were included in the and CDFG also own another site. The type population is now thought to July 1, 1975, notice. On June 16, 1976, The largest population of be extirpated due to inundation by the Service published a proposal (41 FR Fremontodendron californicum ssp. Folsom Lake. 24523) to determine approximately decumbens is on the Pine Hill Senecio layneae is a perennial herb of 1,700 vascular plant species, including Ecological Reserve managed by CDFG. the aster family (Asteraceae) that Calystegia stebbinsii, F. decumbens, G. The proximity of this plant to human sprouts from a rootstock. Its mostly californicum ssp. sierrae, and S. population centers and intensive basal lance-shaped leaves are 8 to 24 cm layneae, to be endangered species development activities renders F. (3 to 10 in) long. The several flower pursuant to section 4 of the Act. The list californicum ssp. decumbens vulnerable heads are 4 to 6 cm (2 to 3 in) wide each of 1,700 plant taxa was assembled on to the long-term effects of fire having 5 to 8 orange-yellow ray flowers the basis of comments and data received suppression. The restricted distribution and numerous yellow disk flowers. by the Smithsonian Institution and the of the subspecies increases its Senecio layneae flowers between April Service in response to House Document susceptibility to catastrophic events and June. No. 94–51 and the July 1, 1975, Federal such as disease or pest outbreak, severe Senecio layneae grows in open rocky Register publication. drought, or other natural or human- areas within chaparral plant General comments received in caused disasters. In addition, residential communities, primarily on gabbro- relation to the 1976 proposal were and commercial development derived soil formations and occasionally summarized in an April 26, 1978, (including unregulated grading for on serpentine soils. Most known sites publication (43 FR 17909). The Act homes or barns on existing large are scattered within a 16,200 ha (40,000 Amendments of 1978 (Amendments) parcels), and trash dumping threaten F. ac) area in western El Dorado County required the Secretary to withdraw all californicum ssp. decumbens. that includes the Pine Hill intrusion and proposals not adopted as final The type specimen for Galium adjacent serpentine. A few other regulations within two years from their californicum ssp. sierrae was collected colonies occur in the Eldorado National publication in the Federal Register. 1.7 km (1 mi) north of Pine Hill Lookout Forest in El Dorado County and in the Proposals published before the date of in western El Dorado County, California. BLM Red Hills Management Area in enactment of the Amendments could be Lauramay Dempster and G. Ledyard Tuolumne County (BioSystems withdrawn before the end of a 1-year Stebbins (1968) described G. Analysis, Inc. 1984). Senecio layneae grace period. On December 10, 1979, the californicum ssp. sierrae. primarily occurs on privately owned Service published a notice of Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations 54349 withdrawal (44 FR 70796) of the June 4(b)(3)(B)(iii) of the Act. Notification of of Supervisors, BLM, California 16, 1976, proposal, along with four this finding was published on January Cattlemen’s Association, California other proposals that had expired. 20, 1984 (49 FR 2485). Such a finding Department of Forestry and Protection, The Service published an updated requires the petition to be recycled, and California Native Plant Society Notice of Review for plants on pursuant to section 4(b)(3)(C)(I) of the (CNPS), submitted comments. Several December 15, 1980 (45 FR 82480). This Act. The finding was reaffirmed individuals commented more than once. notice included Calystegia stebbinsii, annually in October of 1983 through Ten commenters supported, 25 Fremontodendron decumbens, Galium 1993. Publication of the proposed rule opposed, and three were neutral on the californicum ssp. sierrae, and Senecio constituted the final finding for the proposed action. layneae as category 1 candidates for petitioned action. In response to the publication of the Federal listing, and Ceanothus A proposal to list Calystegia proposed rule, Daniel Macon, Director roderickii as a category 2 candidate. stebbinsii, Ceanothus roderickii, of Industry Affairs, California Category 1 taxa were those for which the Fremontodendron californicum ssp. Cattlemen’s Association; William Service had on file substantial decumbens, and Galium californicum Hazeltine, Environmental Consultant, information on biological vulnerability ssp. sierrae as endangered and Senecio Oroville, California; and Robert Feusi, and threats to support preparation of layneae as threatened was published on Gardner-Feusi Company, Sacramento, listing proposals. Category 2 taxa were April 20, 1994 (59 FR 18774). The California requested a public hearing in those for which data in the Service’s proposal was based on information letters dated May 2, 1994, April 4, 1994, possession indicated listing was supplied by reports to the California and June 3, 1994 respectively. Notice of possibly appropriate, but for which Diversity Database; observations and the public hearing was published in the substantial data on biological studies by numerous botanists; and Sacramento Bee (June 14, 1994), a vulnerability and threats were not reports by EIP associates, Jones & Stokes newspaper with a large circulation, as known or on file to support proposed Associates, and Biosystems Analysis, well as in the Placerville Mountain rules. On November 28, 1983, the Inc. Democrat (June 15, 1994), and the Grass Service published a supplement to the The processing of this final listing Valley Union (June 14, 1994). A public Notice of Review (48 FR 53640). This rule conforms with the Service’s final hearing was held at the Radisson Hotel supplement changed C. stebbinsii, F. listing priority guidance published on in Sacramento on June 30, 1994, from 6 decumbens, G. californicum ssp. sierrae, May 16, 1996 (61 FR 24722). The pm. to 8 pm. Twenty people presented and S. layneae from category 1 to guidance clarifies the order in which the oral and written testimony. category 2 candidates. Service will process rulemakings Written comments and oral The September 27, 1985 (50 FR following two related events, the lifting, statements presented at the public 39526), plant Notice of Review included on April 26, 1996, of the moratorium on hearing and received during the Calystegia stebbinsii, Ceanothus final listings imposed on April 10, 1995 comment period are addressed in the roderickii, Fremontodendron (Public Law 104–6) and the restoration following summary. Comments of a californicum ssp. decumbens (as of significant funding for listing through similar nature are grouped together into Fremontodendron decumbens), Galium passage of the omnibus budget general issues. These issues and the californicum ssp. sierrae, and Senecio reconciliation law on April 26, 1996, Service’s responses are presented below. layneae as category 2 candidates. The following severe funding constraints Issue 1: Many commenters expressed February 21, 1990 (55 FR 6184), and imposed by a number of continuing concern that the listing would September 30, 1993 (58 FR 51144), plant resolutions between November 1995 negatively impact property owners’ notices of review included C. roderickii and April 1996. The guidance calls for ability to clear vegetation from around and F. californicum ssp. decumbens (as giving highest priority to handling their homes for fire protection. One F. decumbens) as category 1 candidates emergency situations (Tier 1) and commenter stated the listing may be in and C. stebbinsii, G. californicum ssp. second highest priority (Tier 2) to opposition to the State fire codes sierrae, and S. layneae as category 2 resolving the listing status of the requiring ‘‘defensible space’’ for fire candidates. On February 28, 1996, the outstanding proposed listings. This final protection. Others thought that Service published a Notice of Review in rule falls under Tier 2. ‘‘homeowners who removed vegetation the Federal Register (61 FR 7596) that Summary of Comments and around their homes for fire protection discontinued the use of categories and Recommendations could be deemed criminals.’’ removed former category 2 species from Service Response: Removing listed candidate status. In the April 20, 1994, proposed rule plants from one’s own land is not Section 4(b)(3)(B) of the Act requires and associated notifications, all prohibited by the Act. Listing the five the Secretary to make certain findings interested parties were requested to plants as endangered or threatened on pending petitions within 12 months submit factual reports or information would not prohibit the cutting of a of their receipt. Section 2(b)(1) of the that would contribute to the defensible space around an individual’s 1982 amendments further required that development of a final rule. A 90-day residence. Other activities that do not all petitions pending on October 13, comment period closed on July 19, violate section 9(a)(2) of the Act, as well 1982, be treated as having been newly 1994. Appropriate Federal and State as prohibited acts, are discussed further submitted on that date. This was the agencies, county and city governments, under ‘‘Conservation Measures.’’ case for Ceanothus roderickii, scientists, and interested parties were Issue 2: Several people expressed Fremontodendron californicum ssp. contacted and requested to comment. concerns regarding the adverse decumbens, Galium californicum ssp. The Service published notices in the economic impact listing would have on sierrae, and Senecio layneae because the Sacramento Bee on May 6 and 12, 1994, the economy of El Dorado County. 1975 Smithsonian report was accepted Placerville Mountain Democrat on May Service Response: Under section as a petition. On October 13, 1982, the 9, 1994, and Grass Valley Union on May 4(b)(1)(A), a listing determination must Service found that the petitioned listing 6, 1994, inviting general public be based solely on the best scientific of these species was warranted but comment. Thirty-eight individuals or and commercial data available. The precluded by other pending listing agencies, including State and Federal legislative history of this provision actions in accordance with section congressmen, El Dorado County Board clearly states the intent of Congress to 54350 Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations

‘‘ensure’’ that listing decisions are requires mitigation for projects that development and implementation of ‘‘based solely on biological criteria and adversely affect listed species as well as recovery plans, Service policy (59 FR to prevent non-biological considerations those that qualify for State listing; 34270) solicits active participation by from affecting such decisions,’’ H. R. however, many mitigation attempts do the scientific community, local, State, Rep. No. 97–835, 97th Cong. 2d Sess. 19 not secure long-term protection for such and Federal agencies, Tribal (1982). As further stated in the plants (Howald 1993). The failure of governments, and other interested legislative history, ‘‘Applying economic existing regulatory mechanisms to parties. criteria * * * to any phase of the adequately protect the plants are further Issue 8: A few commenters stated that species listing process is applying discussed under Factor D. the Service had not adequately notified economics to the determinations made Issue 5: Several commenters the public regarding the proposed rule. under section 4 of the Act and is questioned the necessity for listing the Another commenter requested to have specifically rejected by the inclusion of species now, since the species have the hearings held locally. the word ‘‘solely’’ in this legislation,’’ H. been under consideration for Federal Service Response: The Service R. Rep. No. 97–835, 97th Cong. 2d Sess. listing for 19 years, and contended that published a notice of the proposed rule 19 (1982). Because the Service is the reason the taxa were being proposed regarding these five plants in the precluded from considering economic was because of a lawsuit settlement Federal Register on April 20, 1994 (59 impacts in a final decision on a agreement between the Service and FR 18774). The Service mailed 50 proposed listing, the Service has not CNPS rather than on purely scientific notifications of the proposed rule to examined such impacts. grounds. Federal, State, county entities, species Issue 3: Several commenters stated Service Response: While the CNPS experts, and other individuals to solicit that specific data used in preparation of lawsuit settlement may have brought their input. Additionally, the Service the proposed rule were unavailable for more public attention to declining paid for the publication of public review and comment. California plant species, the suit does notices regarding the proposed rule in Service Response: The proposed rule not change the standards by which the following newspapers—Sacramento summarized and cited available species are evaluated for potential Bee, Placerville Mountain Democrat and scientific and commercial information. listing. As stated under Issue 2 above, the Grass Valley Union. In response to The supporting documentation was the Endangered Species Act directs the the requests for a public hearing, the available during the public comment Service to list species on the basis of Service announced the scheduling of a period for review as stated in the biological vulnerability. public hearing in the Federal Register proposed rule. Two individuals Issue 6: A few commenters stated that on June 9, 1994 (59 FR 29778), and requested to review this documentation. the Service must prepare an shortly thereafter published additional Issue 4: Several commenters Environmental Impact Statement (EIS), notices in the Sacramento Bee, a local requested either no further action be pursuant to the National Environmental newspaper with a large circulation, the undertaken with the listing process of Policy Act (NEPA), on this rule. Placerville Mountain Democrat, and the these five plants because of the Service Response: For the reasons set Grass Valley Union. The Service also existence of the El Dorado County out in the NEPA section of this mailed notification of the public hearing preserve system plan, or that efforts be document, the Service has determined to a variety of interested parties. postponed until local attempts to that the rules issued pursuant to section Issue 9: One commenter stated that conserve the species are completed. 4(a) of the Act do not require the the Service needs to complete a Several commenters also contended that preparation of an EIS. The Federal Regulatory Impact Analysis, as directed adequate regulatory mechanisms courts have held in Pacific Legal by Presidential Executive Order 12630, currently are in place to protect the Foundation v. Andrus, 657 F.2d 829 for the proposed rule to list the five plants, through the California (6th Circuit 1981), that an EIS is not plants. Three commenters were Environmental Quality Act (CEQA) and required for listing under the Act. The concerned about the listing violating the California Endangered Species Act Sixth Circuit decision noted that private property rights within the Fifth (CESA). preparing an EIS on listing actions does and Fourteenth Amendments to the U.S. Service Response: As discussed in not further the goals of NEPA or the Act. Constitution. Factor D, in the ‘‘Summary of Factors Issue 7: Many commenters indicated Service Response: Regarding Affecting the Species’’ section, the that the Service should designate Executive Order 12630, Governmental preserve system approved in concept by critical habitat. One commenter stated Actions and Interference with the El Dorado County Board of ‘‘without the process of assessing and Constitutionally Protected Property Supervisors generates no habitat designating critical habitat, the public Rights, the Attorney General has issued acquisition funding, provides no clear will be denied its statutory right to implementation guidelines to the mechanism to protect habitat, and fails participate in the development of a Department of the Interior (Department). to include a preserve in the southern rational and effective recovery plan.’’ Under these guidelines, a special rule part of the gabbro-derived soil Service Response: The Service has applies when an agency within the formation. The Service agrees that local concluded that, at this time, the danger Department is required by law to act ecosystem planning can be an effective posed to the five plant species by without exercising its usual discretion— way to coordinate conservation and designating critical habitat outweighs that is, to act solely upon specified development objectives, and we any potential benefit. As discussed in criteria that leave the agency no encourage El Dorado County in its the ‘‘Summary of Factors Affecting the discretion. planning effort. However, the present Species’’ section, all five plants could be In this context, an agency’s action status of the County plan does not adversely affected by acts of vandalism might be subject to legal challenge if it provide sufficient assurances for habitat if the sites become known through the did not consider or act upon economic protection. critical habitat designation process. In information. In these cases, the Attorney The only protection given to State- addition, as discussed further under the General’s guidelines state that Taking listed species is the requirement that ‘‘Critical Habitat’’ section, the potential Implications Assessments (TIAs) shall landowners give CDFG 10 days notice of benefit gained by designating critical be prepared after, rather than before, the any land use change. The CEQA habitat is limited. Regarding agency makes the decision upon which Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations 54351 its discretion is restricted. The purpose Issue 12: One commenter stated that et al. 1975). The Service agrees that of the TIAs in these special listing the species would cause needless cattle and other domestic livestock can circumstances is to inform policy duplication with the State process. be managed to achieve natural resource makers of areas where unavoidable Service Response: Federal and State objectives, including a diversity of taking exposures exist. Such TIAs shall regulations often complement each habitats for many species of plants and not be considered in the making of other. For example, as discussed in wildlife. administrative decisions that must, by Factor D in the ‘‘Summary of Factors To determine the effects of grazing, law, be made without regard to their Affecting the Species’’ section, the site specifics of the management regime economic impact. In enacting the CEQA and CESA apply only to actions need to be considered and evaluated. Endangered Species Act, Congress on private and State lands. Whereas, the Grazing by cattle in rangeland situations required that listings be based solely Act primarily covers Federal land and currently does not appear to be affecting upon scientific and commercial data Federal actions that may affect proposed these plants on the Pine Hill intrusion. indicating whether or not the species and listed species. As discussed in Factor C, the principal are in danger of extinction. Thus, by law Issue 13: Some commenters believed impact on the plants under and U.S. Attorney General guidelines, no specific justification for listing exists, consideration is consumption that the Service is forbidden to conduct such or questioned the adequacy of the data. results when horses are paddocked on TIAs prior to listing. One commenter believed that many of small rural residential lots of Regarding personal property rights the items listed in the proposed rule insufficient size to provide adequate within the Fifth and Fourteenth were wholly inaccurate and did not forage or pasture. amendments, the mere promulgation of support the listing. One commenter Issue 15: One commenter stated that a regulation is rarely sufficient to stated the listing should be based on there has been no further degradation or establish that private property has been good science and local peer review. destruction of habitat of any kind since Service Response: Specific taken unless the regulation denies the 1989. justification for listing the five plant Service Response: While public property owner all economically viable species is summarized in Factors A awareness of the importance of use of personal property. Listing through E. The Service used information protecting plant habitat has increased, pursuant to the Act does not restrict all received from the CNDDB, botanical as discussed in Factors A and E, the uses of one’s land. Property owners collections, knowledgeable botanists, primary threat facing these plants cannot establish that their properties and from studies specifically directed at remains habitat destruction and have been taken as a result of a gathering the information on the fragmentation from urbanization, road regulatory action such as the listing of distribution and threats to the five construction, and increased human a species until development proposals plants. Additionally, information was activity. are denied. Property owners must apply received from Federal, State, and local Issue 16: One commenter was for all available permits and waivers agencies, and professional botanists concerned about what happens when a before takings potentially could be during the preparation of the proposed species that is thought to be rare is established. rule. Destruction, loss of habitat, and listed and new populations are Issue 10: One commenter believes the extirpation of populations of these subsequently found. only threat to the plants is the natural plants from a variety of causes have Service Response: If scientific or progression of chaparral and change in been documented. As discussed in Issue commercial information indicates a fire frequency. 8, the Service sought comments on the species is much more abundant or Service Response: As discussed proposed rule from Federal, State, widely spread than is currently thought further in the ‘‘Summary of Factors county entities, species experts, and and/or a species is no longer Affecting the Species’’ section, other individuals. All substantive new endangered or threatened by any of the numerous threats imperil these five data received during the public five factors, a species may be delisted. species including urbanization and its comment period have been incorporated The process for delisting a species is ensuing habitat fragmentation, road into the final rule. similar to the process for listing a construction and maintenance, grading, Issue 14: One commenter stated that species. Although additional herbicide spraying, off-road vehicle use, grazing by cattle and other ungulates populations of the five proposed plants change in fire frequency, unauthorized has been a historical and integral could be found, it is unlikely that many dumping, overgrazing by horses, component of the central Sierran populations would contain large competition from invasive alien ecosystem, and that properly managed numbers. As discussed in the vegetation, and mining. grazing by cattle and other domestic ‘‘Introduction’’ and ‘‘Summary of the Issue 11: One commenter stated livestock can create the habitat Factors Affecting the Species’’ sections, Calystegia stebbinsii should not be conditions and vegetative diversity these plants are habitat specific listed because it needs disturbance. This required by many species of plants and endemics that are exposed to range- commenter also noted that this plant wildlife. wide human related threats. would not be around after 5 to 10 years Service Response: The commenter did Issue 17: One commenter stated that without disturbance. not provide specific information on the managing fire on smaller rather than Service Response: Limited surface role of domestic livestock in the gabbro- larger units is both practical and often disturbance benefits Calystegia derived/serpentine habitat of the five more ecologically beneficial due to the stebbinsii in certain circumstances by plants. However, assuming the area greater control that can be achieved. promoting initial establishment, though, referred to includes chaparral, wild Service Response: The Service agrees the type and amount of disturbance the ungulates and other herbivores, such as that fire can be applied in a more plant can tolerate is important. Whereas deer and rabbit species, have been an precise way on smaller units than larger occasional disturbance for scarification integral component of the ecosystem. units. The Service desires to work of seed may be beneficial, other types of Chaparral characteristically does not cooperatively with local fire disturbance, such as mowing once the produce high amounts of grass and, management agencies in designing plant is growing, or construction, would typically, is not an important source of prescriptions that accommodate public be detrimental to the species’ survival. forage for domestic livestock (Stoddart safety and plant conservation objectives. 54352 Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations

Issue 18: One commenter claimed that determine whether or not listing is least 80 percent of the occurrences for the Service has no jurisdiction over the appropriate. these five plant species are on private five proposed species because at least 80 Section 7(a)(2) requires Federal land. They primarily occur on the Pine percent of the existing populations agencies to insure that activities they Hill intrusion, an area of approximately occur on private land. authorize, fund, or carry out are not 10,400 ha (25,700 ac) in western El Service Response: Section 4 of the Act likely to jeopardize the continued Dorado County. A few isolated directs the Service to evaluate species existence of listed species or to destroy occurrences of Calystegia stebbinsii or for listing based on biological or adversely modify its critical habitat. Senecio layneae are known from El information only. The five factors on If a Federal action may affect a listed Dorado, Nevada, and/or Tuolumne which the biological vulnerability of species or its critical habitat, the counties (EIP Associates 1991, CNDDB species are evaluated are discussed in responsible Federal agency must enter 1994). The primary threat facing these the ‘‘Summary of Factors Affecting the into formal consultation with the five species and their associated habitat Species’’ section. Land ownership is not Service. is the ongoing and threatened a factor used to determine whether Issue 21: Two commenters noted destruction and modification of habitat listing is appropriate. confusion regarding the amount of by one or more of the following— Issue 19: Two commenters were habitat that is federally owned. urbanization and the ensuing habitat Service Response: The Service wishes concerned about the additional time fragmentation, road construction and to clarify the figures within the that might be added to implementing a maintenance, off-road vehicle use, and proposed rule. The Service arrived at controlled burn program due to the mining. the reported 80 percent of occurrences section 7 consultation process. One Nearly all the remaining occurrences being on private land at by dividing the commenter wanted the Public Agencies of the five species are threatened by number of occurrences on private land Prescribed Burn Plan and destruction of habitat through by the total number of occurrences. It is Environmental Review to be accepted in residential or commercial development. not a percentage of the habitat that is lieu of the section 7 process. The other The human population of the four federally owned. The 10,400 ha (25,700 commenter wanted special rules to counties just east of the Sacramento ac) referred to in the rule is the area of metropolitan area (Nevada, Placer, El advocate professionally planned and the gabbro-derived soils. The 16,200 ha implemented prescribed burning. Dorado, and Amador) increased 375 (40,000 ac) within the rule refers to an percent between 1960 and 1992 Service Response: The Service area that includes the gabbro-derived (Engellenner 1993). El Dorado County, recognizes the importance of properly soils plus adjacent serpentine soils in which has a projected population timed prescribed burns as a western El Dorado County. Within this growth of 54 percent between 1990 and conservation measure, not only for 16,200 ha area, 95 percent of the land 2005, is one of the most rapidly growing maintaining habitat, but also for is outside Federal ownership (John counties in California (California protecting human life and personal Upton, County of El Dorado, in litt. Department of Finance 1991, Jones and property. At least 80 percent of the 1994). Stokes Associates 1992). In 1991, the occurrences of these plants are on population grew by 4.2 percent; faster private land. No special rules are Summary of Factors Affecting the Species than the projected growth rate of 3.6 needed to facilitate private land percent (California Department of burning. Prescribed burning on private After a thorough review and Finance 1992). Western El Dorado land would not be subject to section 7 consideration of all information County is becoming a bedroom consultation. Section 7 of the Act available, the Service has determined community, as it is easily accessible by requires Federal agencies to evaluate that Calystegia stebbinsii, Ceanothus freeway from several nearby cities their actions with respect to any species roderickii, Fremontodendron including Sacramento. Most of the new that is proposed or listed as endangered californicum ssp. decumbens, Galium residential growth in El Dorado County or threatened. A programmatic section 7 californicum ssp. sierrae should be is expected to occur within western El consultation could be performed for classified as endangered species and Dorado County near Highway 50 (Jones prescribed burns on Federal lands to Senecio layneae should be classified a and Stokes Associates 1992), which eliminate the need to consult on each threatened species. Procedures found at crosses the southern portion of the Pine prescribed burn activity. section 4(a)(1) of the Act and regulations Hill intrusion. Issue 20: A few commenters implementing the listing provisions of Within the gabbro-derived soil and expressed concern regarding the impact the Act (50 CFR part 424) were adjacent serpentine formations in of listing the plants to private property followed. A species may be determined western El Dorado County, 39 proposed owners when Federal funding to be endangered or threatened species development projects, which variously permitting is required. A couple of due to one or more of the five factors threaten to fragment the habitat of all commenters stated the listing would described in section 4(a)(1). These five species, are currently on file with infringe on local water rights issues, factors and their application to El Dorado County. Development including Federal involvement in any Calystegia stebbinsii Brummitt currently is planned for approximately Auburn Dam work. (Stebbins’ morning-glory), Ceanothus 8.5 percent of this 16,200 ha (40,000 ac) Service Response: Section 4 of the Act roderickii Knight (Pine Hill ceanothus), area. In addition, the El Dorado County directs the Service to evaluate species Fremontodendron californicum ssp. General Plan update proposes the for listing based on biological decumbens (Lloyd) Munz (Pine Hill conversion of vacant and agricultural information only. The five factors on flannelbush), Galium californicum H. & land to various residential uses within which the biological vulnerability of A. ssp. sierrae Dempster & Stebbins (El the 38,400 ha (95,000 ac) western species are evaluated are discussed in Dorado bedstraw), and Senecio layneae service area of the El Dorado County the ‘‘Summary of Factors Affecting the Greene (Layne’s butterweed) are as Irrigation District (EID) (Jones and Species’’ section. Impact to private follows: Stokes Associates 1992), which landowners when Federal funding is A. The present or threatened encompasses nearly the entire Pine Hill involved, or infringement on local water destruction, modification, or intrusion. It is estimated that at least 50 rights issues are not factors used to curtailment of its habitat or range. At percent of the Pine Hill intrusion is Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations 54353 within the EID boundary (Kirsten Tarp, due to change in fire frequency (Soule´ Road-widening also threatens the Fish and Wildlife Service, pers. comm. et al. 1992). These and other effects of habitat of C. roderickii at one site 1996). fragmentation are discussed further. (CNDDB 1994). Off-road vehicle use The proposed land uses within the Twelve potential preserve sites were degrades the habitat at three sites in the western service area of the EID include identified as the best remaining habitat northern part of the area (CNDDB 1994). a 1,000 percent increase in single family for the five plants on the Pine Hill Construction of houses on and near residences (from a current level of 1,857 intrusion and adjacent serpentine (EIP Pine Hill resulted in the loss of many ha (4,589 ac) to 20,254 ha (50,047 ac)) Associates 1991). Within these 12 sites, individuals of Fremontodendron and a doubling of the rural residential at least 11 residential or commercial californicum ssp. decumbens (George uses (from 7,630 ha (18,860 ac) to projects (Bass Lake Estates, Cameron Clark, in litt. 1993). Land clearing 15,780 ha (39,000 ac)) (Jones and Stokes Ridge, Fremont’s Peak, Kanaka Valley, activities that occur with road Associates 1992). The El Dorado County Pinnacles, Ponderosa 50, Sunset construction also threaten F. Water Agency proposed the Heights, Woodleigh Ridge, and three californicum ssp. decumbens. In 1968, construction of either additional dams, approved parcel splits) are proposed (El all the vegetation along the Pine Hill water storage facilities, or water Dorado County Planning Staff 1992). approach road was cut. In 1969, the conveyance lines on the South Fork of These projects threaten all five plants to west slope of Pine Hill was cleared by the American River (Jones and Stokes varying degrees by directly destroying the CDF, demolishing 80 percent of the Associates 1992, El Dorado County individual plants or further fragmenting F. californicum ssp. decumbens within Water Agency 1993). The subsequent and destroying their habitat. the boundaries of the current Pine Hill induced growth would affect all five Activities often associated with rural Ecological Reserve (Baad and Hanna species in both the northern and residential areas, such as clearing 1987). Most of these shrubs have southern portions of the Pine Hill chaparral for fire protection around resprouted. Presently, the Pine Hill intrusion and adjacent serpentine, either houses, bulldozing land (to build houses Ecological Reserve, managed by CDFG, by further fragmenting the habitat (as or other structures), planting fruit trees, has the largest occurrence of F. discussed below) or by directly and irrigation, also have modified the californicum ssp. decumbens. destroying habitat. The expanding habitat within western El Dorado No known extirpations of Galium number of people and changes in land County (James Jokerst, Jones and Stokes californicum ssp. sierrae due to uses will continue to place an Associates, pers. comm. 1993; Jo Van residential or commercial development increasing strain on undeveloped areas Ess, California State University, have occurred. However, as discussed through activities such as off-road Sacramento, pers. comm. 1993). The above, residential or commercial vehicle traffic, unauthorized garbage ongoing repetitive clearing of chaparral development and activities associated dumping, and changes in the pattern of destroys the habitat. Irrigation involved with rural residential areas threaten G. wildfires. with lawn maintenance also adversely californicum ssp. sierrae within the Historical gold rush activities and affects these species (Jo Van Ess, pers. potential reserve area identified as the clearing for agriculture reduced and comm. 1993; James Jokerst, pers. comm. best remaining habitat. Galium fragmented habitat of the five plants. 1993). californicum ssp. sierrae has a small Currently, these plants face threats from Commercial and residential population size and a restricted habitat fragmentation associated with development has extirpated at least one- distribution almost entirely on private commercial and residential third of the known occurrences of land. development and road construction. Calystegia stebbinsii (CDFG 1990a, Commercial and residential Fragmentation splits habitat into CNDDB 1994). Most of the remaining development extirpated two smaller, more isolated units and has two occurrences for C. stebbinsii are on the occurrences of Senecio layneae (CNDDB primary effects. First, habitat Pine Hill intrusion. All of these sites, 1994). Many of the remaining fragmentation may alter the physical except for those in the northern part, are occurrences of S. layneae are in areas environment, changing the amount of in areas threatened by rapid residential undergoing rapid commercial and incoming solar radiation, water, wind, and commercial development as residential development. Senecio or nutrients for the remnant vegetation discussed above. Habitat for C. layneae is also potentially threatened by (Saunders et al. 1991). Second, a higher stebbinsii in Nevada County is a variety of disturbances including road proportion of these fragmented natural threatened by a proposed County works maintenance, vegetation removal, and areas is subject to influences from project (CDFG 1990a). off-road vehicle use (CNDDB 1994). external factors (e.g., additional Other human activities also destroy or Road widening occurs in the vicinity of development, lawn and garden damage habitat of Calystegia stebbinsii. development within El Dorado County, watering, herbicide drift, and off-road One occurrence was adversely impacted and this activity has already extirpated vehicular use) that disrupt natural by grading for construction (CNDDB one occurrence and threatens an ecosystem processes. 1994). Off-road vehicle use has additional five sites (CNDDB 1994). The vegetation structure on the Pine adversely impacted the habitat of C. Intensive off-road vehicle use threatens Hill intrusion has changed significantly stebbinsii at one site (CNDDB 1994). In two additional occurrences of this due to commercial and residential the northern part of the Pine Hill species (CNDDB 1994). Off-road vehicle development, road construction, and intrusion, several hills are scarred with use occurred historically in Tuolumne historical fragmentation. Hunter and off-road vehicle tracks. Erosion County on BLM land, but this activity Horenstein (1991) characterized promoted by scarring adversely no longer occurs there. Currently, off- vegetation structure on the Pine Hill modifies the habitat. Road maintenance road vehicle use occurs on two sites intrusion and estimated the median and herbicide spraying potentially within the Pine Hill intrusion on patch size to be only 11 ha (27 ac). This threaten another site of C. stebbinsii that privately owned land. One site of S. degree of fragmentation is significant occurs along a road cut (CNDDB 1994). layneae in the northern part of the within chaparral because plant species Shopping center construction and intrusion is impacted by heavy off-road will disappear from fragments between other commercial development vehicle use and has been fragmented by 10 and 100 ha (25 to 250 ac) in size due extirpated two occurrences of the numerous roads that traverse the to persistent disturbance and potentially Ceanothus roderickii (CNDDB 1994). entire area. A southern site of S. layneae 54354 Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations that occurs across 89 ha (221 ac) was gardens. Disease is not known to be a with primary authority or jurisdiction cleared in preparation for development factor for any of the other taxa. over the project is designated as the lead and is subject to off-road vehicle use Intense insect and rodent predation agency and is responsible for over part of the site (CNDDB 1994). occurs on Fremontodendron conducting a review of the project and Habitat for Senecio layneae within the californicum ssp. decumbens. Boyd and consulting with the other agencies Traverse Creek Botanical Area in Serafini (1992) studied reproductive concerned with the resources affected Eldorado National Forest historically attrition in F. californicum ssp. by the project. Section 15065 of the was fragmented by serpentine decumbens. They found that less than 2 CEQA Guidelines requires a finding of quarrying. In addition, mining claims percent of flower buds produced fruit significance if a project has the potential for semi-precious stones and gold exist because of predation by insects. In to ‘‘reduce the number or restrict the on S. layneae habitat in the Eldorado addition, rodents destroyed 90 percent range of a rare or endangered plant or National Forest. Although the Eldorado of seeds under shrubs within 8 to 10 animal.’’ Species that are eligible for National Forest is trying to withdraw months (Boyd and Serafini 1992). listing as rare, threatened, or these claims, the withdrawal action may Because F. californicum ssp. decumbens endangered are given the same not be achieved (Mike Foster, Eldorado is very restricted in range and few protection as species officially listed National Forest, pers. comm. 1993). individuals exist, this predation under State or Federal endangered Destruction and fragmentation of increases the chance for extinction as species acts. Once significant effects are habitat by commercial and residential discussed under Factor E. identified, the lead agency has the development is the most significant and Overgrazing by horses in rural option to require mitigation for effects imminent threat facing Calystegia residential areas within the Pine Hill through changes in the project or to stebbinsii, Ceanothus roderickii, intrusion threatens Calystegia stebbinsii, decide that overriding considerations Galium californicum ssp. sierrae, and Fremontodendron californicum ssp. make mitigation infeasible. In the latter Senecio layneae. The horses, when decumbens, Galium californicum ssp. case, projects may be approved that confined, severely graze virtually all sierrae, and Senecio layneae. Proposed cause significant environmental available vegetation. residential or commercial development damage, such as destruction of Documentation of population endangered species and their habitats. within the Pine Hill intrusion, extirpations as a result of disease and combined with growth likely induced Protection of listed species through predation does not exist. However, as CEQA is, therefore, dependent upon the by proposed dams on the South Fork of discussed under Factors A and E, small the American River, threaten the discretion of the lead agency. population size and fragmentation Section 21080(b) of CEQA allows majority of sites within the Pine Hill increases the plants’ vulnerability to certain projects to be exempted from the intrusion and adjacent serpentine in predation. CEQA process. Ministerial projects, western El Dorado County and will D. The inadequacy of existing those projects that the public agency adversely impact most of the range of all regulatory mechanisms. Calystegia must approve after the applicant shows five taxa. Road widening, off-road stebbinsii is listed as an endangered compliance with certain legal vehicle use, garbage dumping, and other species under the CESA (chapter 1.5 requirements, may be approved or human-caused conditions associated sec. 2050 et seq. of the California Fish carried out without undertaking CEQA with increased development threaten and Game Code and Title 14 California review. individual occurrences of these five Code of Regulations 670.2). Ceanothus When development occurs and species throughout their respective roderickii, Fremontodendron individual project effects are mitigated ranges. californicum ssp. decumbens, Galium in accordance with the provisions in B. Overutilization for commercial, californicum ssp. sierrae, and Senecio CEQA, the developer often will set aside recreational, scientific, or educational layneae are listed by the State as rare. small natural areas within the purposes. Overutilization is not Individuals are required to obtain a development. These small ‘‘set asides’’ currently known to be a factor for the memorandum of understanding with the are vulnerable to the problems of habitat five plants, but unrestricted collecting CDFG to possess or ‘‘take’’ a species fragmentation as discussed further for scientific or horticultural purposes, listed under the CESA. Although the under Factors A and E. These small set vandalism, or excessive visits by ‘‘take’’ of State-listed plants is asides are impractical to manage for fire individuals interested in seeing rare prohibited (California Native Plant (discussed further under Factor E). Land plants could result from increased Protection Act, chapter 10 sec. 1908 and development and multiple ownership publicity. Two of the species included CESA, chapter 1.5 sec. 2080), State law makes difficult the planning and in this proposal, Ceanothus roderickii exempts the taking of such plants via implementation of controlled burns at and Fremontodendron californicum ssp. habitat modification or land use changes the appropriate fire frequency necessary decumbens, have been used by the owner. State law does not for the maintenance of chaparral. horticulturally (Schmidt 1993, necessarily prohibit activities that could Within El Dorado County over the Whetstone 1993), but they do not appear extirpate these species. After CDFG past several years, attempts have been to be threatened by collection in the notifies a landowner that a State-listed made to establish a preserve system to wild. plant grows on his or her property, State protect chaparral habitat. An initial C. Disease or predation. Disease is a law requires that the landowner notify report on preserve sites and rare plant potential factor for Fremontodendron the agency ‘‘at least 10 days in advance strategies, completed in November 1991, californicum ssp. decumbens. In of changing the land use to allow identified 12 potential preserve sites. In cultivation F. californicum ssp. salvage of such a plant’’ (Native Plant 1992, El Dorado County held public decumbens is highly susceptible to a Protection Act, chapter 10 sec. 1913). workshops concerning this report. A wilt disease that can kill the plant Ten days may not allow adequate time rare plant advisory committee, almost overnight (Knight 1972). This for agencies to coordinate the salvage of consisting of members from the mortality has not been observed in the the plants. development community, various field. Plants proximate to residences The CEQA requires a full disclosure agencies (CDFG, BLM, Service), El may be vulnerable to supplemental of the potential environmental impacts Dorado County planning staff, CNPS, moisture from irrigation of lawns or of proposed projects. The public agency and others, was established to identify Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations 54355 feasible preserve sites, funding periods. The authors further concluded 10 to 100 ha (25 to 250 ac) in size due mechanisms, and management strategies that these goals could be accomplished to persistent disturbance and potentially for these preserves. by controlled burns. to change in fire frequency (Soule´ et al. The County Board of Supervisors Initial studies also show seeds of 1992). In addition, habitat fragmentation evaluated the preserve sites identified Calystegia stebbinsii need disturbance increases the risks of extinction due to by the rare plant advisory committee by either heat or scarification for environmental, demographic, or genetic and eliminated the large southern germination (Tim Nosal, CDFG, pers. random events. preserve site. It approved in principle comm. 1993; Paul Boch, Nevada County Competition with invasive alien two other large preserve sites and the Agricultural Commissioner, in litt., vegetation and shading from native tree two small satellite sites; however, the 1993). Calystegia stebbinsii also is and shrub species potentially threaten majority of the Board would not associated with fire. At the Nevada Senecio layneae. Several alien plant consider any local funding to establish County landfill site, this species is more species, including Cytisus scoparius or maintain the preserves (George Clark, prevalent in the burned areas than in (Scotch broom), have become in litt. 1993; Kirsten Tarp, U.S. Fish and the unburned areas (Paul Boch, in litt. established within the Traverse Creek Wildlife Service, pers. obs. 1993). The 1993). Calystegia stebbinsii is Botanical Area in Eldorado National establishment and maintenance of a eliminated as soon as the surrounding Forest and potentially threaten this sufficient reserve system likely will not chaparral grows tall enough to shade it. occurrence of S. layneae (Duron 1990, occur without adequate funding. Excessive fire frequency also Pollak 1990). E. Other natural or manmade factors potentially threatens Ceanothus One occurrence of Senecio layneae is affecting its continued existence. roderickii and Fremontodendron thought to have been extirpated by road- Altered periodicity of fire (change in fire californicum ssp. decumbens. These side herbicide application (Oren Pollak, frequency) threatens Calystegia plants need sufficient time between The Nature Conservancy, pers. comm. stebbinsii, Ceanothus roderickii, burns to set enough seed to replenish 1993). This activity may threaten several Fremontodendron californicum ssp. the soil seedbank. Mature plants of F. other occurrences of this species. decumbens, and Senecio layneae. These californicum ssp. decumbens also need The Service has carefully assessed the plants occur within a fire-adapted plant to build up carbohydrate reserves to be best scientific and commercial community, either within chaparral or able to resprout after a fire (Boyd 1985). information available regarding the past, on the ecotone between chaparral and The suppression of fire and other present, and future threats faced by woodland. Fire suppression policies forms of disturbance threatens Senecio these species in determining to finalize have altered natural processes within layneae and Calystegia stebbinsii. this rule. Proposed residential and several plant communities in California. Limited surface disturbance is beneficial commercial development, and habitat Historically, fire occurred in chaparral to these species in certain circumstances fragmentation threaten all occurrences on the average of 3 to 5 times every 100 by promoting initial establishment of Calystegia stebbinsii, Ceanothus years (Boyd 1985). As described below, (James Jokerst, pers. comm. 1993). roderickii, Galium californicum ssp. fire is important for seed germination Senecio layneae appears to be an early sierrae, and Fremontodendron and seedling reestablishment by successional species that occupies californicum ssp. decumbens on the eliminating competition and shading, as temporary openings on gabbro-derived Pine Hill intrusion and adjacent well as replenishing nutrients to the or serpentine and is eliminated as serpentine formations in western El soil. Without periodic fires, the vegetation regrows in the openings Dorado County. Changes in fire previously mentioned four plants either (Baad and Hanna 1987). frequency threaten C. stebbinsii, C. do not reproduce by seed or may Competition with invasive alien roderickii, and F. californicum ssp. become shaded by other plants. In a vegetation, herbicide spraying, and decumbens, throughout their respective study of the effects of controlled unauthorized dumping threaten ranges. Senecio layneae is threatened by burning on three rare plants occurring individual occurrences of Calystegia development or habitat fragmentation on Pine Hill within western El Dorado stebbinsii. An introduced species of throughout a portion of its range and by County, Boyd (1985, 1987) found that field bindweed, Convolvulus sp., changes in fire frequency throughout its fire killed C. roderickii shrubs, but competes with one colony of C. entire range. Road construction and caused a 22-fold increase in seed stebbinsii within Nevada County maintenance, grading, unauthorized germination. He also found that the (CNDDB 1994). Trash dumping also dumping, excessive grazing practices, growth rate of seedlings was greater in threatens three occurrences of C. herbicide spraying, off-road vehicle use, the burned area than in the unburned stebbinsii (CNDDB 1994). Herbicide competition from invasive alien area. spraying potentially threatens a vegetation, shading by native vegetation, Fremontodendron californicum ssp. significant portion of one occurrence of irrigation, and mining affect individual decumbens seeds require heat from fire C. stebbinsii near Shingle Springs and occurrences of the five taxa. to germinate. Fremontodendron several local occurrences adjacent to Calystegia stebbinsii, Ceanothus californicum ssp. decumbens also roads (Tim Nosal, pers. comm. 1993). roderickii, Fremontodendron resprouts vegetatively after a burn. In Herbicide spraying and trash californicum ssp. decumbens, and studying reproductive attrition in F. dumping threaten one occurrence of Galium californicum ssp. sierrae are in californicum ssp. decumbens, Boyd and Ceanothus roderickii (CNDDB 1994). danger of extinction throughout all or a Serafini (1992) found that seeds of F. Habitat degradation from garbage significant portion of their ranges, and californicum ssp. decumbens cannot dumping on ridge-tops around Pine Hill the final action, therefore, is to list them successfully develop and germinate degrades the habitat and is a minor as endangered. Because of its wider without the benefit of fire. They threat to Fremontodendron californicum distribution, Senecio layneae is not now concluded that to maintain genetic ssp. decumbens (James Wilson, Sierra in immediate danger of extinction diversity and establish plants at new College, pers. comm. 1993). throughout all or a significant portion of localities within the boundaries of the As discussed under Factor A, habitat its range; however, unless current current populations, sexual fragmentation may alter the physical human population trends and reproduction versus plant root sprouting environment. Chaparral plants development are reversed it is likely to may be necessary over long time reportedly disappeared from fragments become an endangered species in the 54356 Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations foreseeable future throughout all or a Protection of the habitat of these involved with any or all of these species significant portion of its range. species will be addressed through the as they are responsible for managing Therefore, the final action is to list recovery process and the section 7 land use of areas supporting these Senecio layneae as threatened. consultation process. The Service species. believes that Federal involvement in the The Veterans Administration and the Critical Habitat areas where these plants occur can be U.S. Department of Housing and Urban Critical habitat is defined in section 3 identified without the designation of Development (Federal Home of the Act as: (i) The specific areas critical habitat. Therefore, the Service Administration loans) may become within the geographical area occupied finds that designation of critical habitat involved with these species through by a species, at the time it is listed in for these plants is not prudent at this their administration of Federal mortgage accordance with the Act, on which are time because such designation likely programs. The construction and found those physical or biological would increase the degree of threat from maintenance of roads and highways by features (I) essential to the conservation vandalism, collecting, or other human the Federal Highway Administration, of the species and (II) that may require activities. the relicensing of hydroelectric projects by the Federal Energy Regulatory special management consideration or Available Conservation Measures protection and; (ii) specific areas Commission, and the contracting of outside the geographical area occupied Conservation measures provided to surface waters for irrigation, industrial, by a species at the time it is listed, upon species listed as endangered or or municipal uses by the Bureau of determination that such areas are threatened under the Act include Reclamation would necessitate essential for the conservation of the recognition, recovery actions, involvement with these species under species. ‘‘Conservation’’ means the use requirements for Federal protection, and the Act. Also, the Army Corps of of all methods and procedures needed prohibitions against certain activities. Engineers could potentially become to bring the species to the point at Recognition through listing encourages involved with these species through its which listing under the Act is no longer and results in public awareness and permitting authority under section 404 necessary. conservation actions by Federal, State, of the Clean Water Act. By regulation, and local agencies, private Section 4(a)(3) of the Act and nationwide permits may not be issued organizations, and individuals. The Act implementing regulations (50 CFR where a federally listed threatened or provides for possible land acquisition 424.12) require that, to the maximum endangered species would be affected and cooperation with the State and by a proposed project without first extent prudent and determinable, the requires that recovery plans be completing formal consultation Secretary determine critical habitat developed for all listed species. The pursuant to section 7 of the Act. The concurrently with determining a species protection required of Federal agencies presence of a listed species would to be endangered or threatened. The and the prohibitions against certain highlight the importance of these Service finds that designation of critical activities involving listed plants are resources. Therefore, the Army Corps of habitat is not prudent for Calystegia discussed, in part, below. Engineers would be required to consult stebbinsii, Ceanothus roderickii, Section 7(a) of the Act requires with the Service on any proposed dam Fremontodendron californicum ssp. Federal agencies to evaluate their construction or any proposed permits decumbens, Galium californicum ssp. actions with respect to any species that for fill operations that would adversely sierrae, and Senecio layneae at this is proposed or listed as endangered or affect any of these plants. time. Service regulations (50 CFR threatened and with respect to its Listing Calystegia stebbinsii, 424.12(a)(1)) state that designation of critical habitat, if any is being Ceanothus roderickii, Fremontodendron critical habitat is not prudent when one designated. Regulations implementing californicum ssp. decumbens, and or both of the following situations this interagency cooperation provision Galium californicum ssp. sierrae as exist—(1) the species is threatened by of the Act are codified at 50 CFR part endangered and Senecio layneae as taking or other human activity, and 402. Section 7(a)(4) of the Act requires threatened provides for the identification of critical habitat can be Federal agencies to confer with the development of a recovery plan(s), expected to increase the degree of threat Service on any action that is likely to which will bring together State and to the species, or (2) such designation of jeopardize the continued existence of a Federal efforts for conservation of these critical habitat would not be beneficial proposed species or result in plants. The recovery plan(s) would to the species. destruction or adverse modification of establish a framework for agencies to Because the five plants face numerous proposed critical habitat. If a species is coordinate activities and cooperate with human-caused threats (see Factors A listed subsequently, section 7(a)(2) each other in conservation efforts. The and E in ‘‘Summary of Factors Affecting requires Federal agencies to insure that plan(s) would set recovery priorities and the Species’’) and the five occur activities they authorize, fund, or carry estimate costs of various tasks necessary predominantly on private land, the out are not likely to jeopardize the to accomplish them. It also would publication of precise maps and continued existence of such a species or describe site-specific management descriptions of critical habitat in the to destroy or adversely modify its actions necessary to achieve Federal Register would make these critical habitat. If a Federal action may conservation and survival of these plants more vulnerable to incidents of affect a listed species or its critical species. Additionally, pursuant to vandalism and, therefore, could habitat, the responsible Federal agency section 6 of the Act, the Service would contribute to the decline of these must enter into formal consultation with be more likely to grant funds to affected species and increase enforcement the Service. states for management actions aiding in problems. The listing of these species as At least 80 percent of the occurrences the protection and recovery of these endangered and/or threatened also for these five species are on privately plants. publicizes the rarity of these plants and, owned lands. However, BLM manages The Act and its implementing thus, can make these plants attractive to land supporting populations of all five regulations set forth a series of general researchers, horticulturalists, or plants, and Senecio layneae occurs on prohibitions and exceptions that apply collectors of rare plants, as discussed Federal land managed by the Forest to all endangered or threatened plants. under Factor B. Service. Both agencies would become All prohibitions of section 9(a)(2) of the Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations 54357

Act implemented by 50 CFR 17.61 for Activities that are unlikely to violate Required Determinations endangered plants, and 17.71, for section 9 include horse paddocking and The Service has examined this threatened plants, apply. These other grazing, clearing a defensible regulation under the Paperwork prohibitions, in part, make it illegal for space for fire protection around Reduction Act of 1995 and found it to any person subject to the jurisdiction of personal residences, and landscaping, contain no information collection the United States to import or export, including irrigation around personal requirements. This rulemaking was not transport in interstate or foreign residences. Seeds from cultivated subject to review by the Office of commerce in the course of a commercial specimens of threatened plant taxa also Management and Budget under activity, sell or offer for sale in interstate are exempt from these prohibitions Executive Order 12866. or foreign commerce, or remove and provided that a statement ‘‘of cultivated reduce the species to possession from origin’’ appears on the shipping References Cited areas under Federal jurisdiction. In containers. Certain exceptions apply to A complete list of all references cited addition, for plants listed as agents of the Service and State herein is available upon request from endangered, the Act prohibits the conservation agencies. Questions the Field Supervisor, Sacramento Field malicious damage or destruction of any regarding whether specific activities Office (see ADDRESSES section). such species on areas under Federal will constitute a violation of section 9 jurisdiction and the removal, cutting, should be directed to the Field Author digging, or destroying of such plant Supervisor of the Sacramento Field The primary author of this final rule species on any other area in knowing Office (see ADDRESSES section). violation of any State law or regulation, is Kirsten Tarp, Sacramento Field Office The Act and 50 CFR 17.62, 17.63, and ADDRESSES including a State criminal trespass law. (see section). 17.72 also provide for the issuance of Certain exceptions to the prohibitions List of Subjects in 50 CFR Part 17 apply to agents of the Service and State permits to carry out otherwise conservation agencies. prohibited activities involving Endangered and threatened species, It is the policy of the Service, endangered or threatened plant species Exports, Imports, Reporting and record published in the Federal Register on under certain circumstances. The keeping requirements, and July 1, 1994 (59 FR 34272), to identify Service anticipates few trade permits Transportation. would ever be sought or issued for the to the maximum extent practicable at Regulation Promulgation the time a species is listed those five species because the plants are not activities that would or would not common in cultivation or in the wild. Accordingly, part 17, subchapter B of constitute a violation of section 9 of the Requests for copies of the regulations chapter I, title 50 of the Code of Federal Act. The intent of this policy is to regarding listed plants and inquiries Regulations, is amended as set forth increase public awareness of the effect about prohibitions and permits may be below: of the listing on proposed and ongoing addressed to the U.S. Fish and Wildlife PART 17Ð[AMENDED] activities within a species’ range. Less Service, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon than 20 percent of the occurrences of 1. The authority citation for part 17 97232–4181 (phone 503/231–2063, the five species are on public (Federal) continues to read as follows: lands. Collection, damage, or facsimile 503/231–6243). Authority: 16 U.S.C. 1361–1407; 16 destruction of these species on Federal National Environmental Policy Act lands is prohibited, although in U.S.C. 1531–1544; 16 U.S.C. 4201–4245; appropriate cases a Federal endangered The Fish and Wildlife Service has Pub. L. 99–625, 100 Stat. 3500; unless species permit may be issued to allow determined that an Environmental otherwise noted. collection for scientific or recovery Assessment, as defined under the 2. Section 17.12(h) is amended by purposes. Such activities on non- authority of the National Environmental adding the following, in alphabetical Federal lands would constitute a Policy Act of 1969, need not be order under [FLOWERING PLANTS], to violation of section 9 if conducted in prepared in connection with regulations the List of Endangered and Threatened knowing violation of California State adopted pursuant to section 4(a) of the Plants to read as follows: law or regulations or in violation of a Act. A notice outlining the Service’s State criminal trespass law. California reasons for this determination was § 17.12 Endangered and threatened plants. requires a ten day notice be given before published in the Federal Register on * * * * * taking of plants on private land. October 25, 1983 (48 FR 49244). (h) * * * 54358 Federal Register / Vol. 61, No. 203 / Friday, October 18, 1996 / Rules and Regulations

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

FLOWERING PLANTS ******* Calystegia stebbinsii ...... Stebbins' morning-glory U.S.A. (CA) ...... Convolvulaceae ...... E 596 NA NA ******* Ceanothus roderickii ...... Pine Hill ceanothus ...... U.S.A. (CA) ...... Rhamnaceae ...... E 596 NA NA ******* Fremontodendron Pine Hill flannelbush ...... U.S.A. (CA) ...... Sterculiaceae ...... E 596 NA NA californicum ssp. decumbens. ******* Galium californicum ssp. El Dorado bedstraw ...... U.S.A. (CA) ...... Rubiaceae ...... E 596 NA NA sierrae. ******* Senecio layneae ...... Layne's butterweed ...... U.S.A. (CA) ...... Asteraceae ...... T 596 NA NA *******

Dated: September 23, 1996. John G. Rogers, Acting Director, Fish and Wildlife Service. [FR Doc. 96–26740 Filed 10–17–96; 8:45 am]

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