[Federal Register Volume 65, Number 16 (Tuesday, January 25, 2000)]
[Rules and Regulations]
[Pages 3866-3875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1562]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE44


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Plant Plagiobothrys hirtus (Rough Popcornflower)

AGENCY:  Fish and Wildlife Service, Interior.

ACTION:  Final rule.

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SUMMARY:  We, the U.S. Fish and Wildlife Service, have determined 
endangered status pursuant to the Endangered Species Act of 1973 (Act), 
as amended, for the plant Plagiobothrys hirtus (rough popcornflower). 
This species is restricted to wet swales and meadows in Douglas County, 
Oregon, where only 17 habitat patches exist for this species. Most 
populations are small with few individuals. The total

[[Page 3867]]

estimated number of plants is about 7,000 individuals within a combined 
area of about 18 hectares (45 acres). Threats to this species include 
destruction and/or alteration of habitat by development and 
hydrological changes (e.g., wetland fills, draining, construction); 
spring and summer grazing by domestic cattle, horses, and sheep; 
roadside maintenance; and competition from native and non-native plant 
species. This rule implements the Federal protection afforded by the 
Act for this plant.

EFFECTIVE DATE:  February 24, 2000.

ADDRESSES:  The complete file for this rule is available for 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Oregon State Office, 2600 S.E. 98th Ave., 
Suite 100, Portland, Oregon 97266.

FOR FURTHER INFORMATION CONTACT:  Andrew Robinson, Botanist, at the 
above address, or by telephone at 503/231-6179.

SUPPLEMENTARY INFORMATION:

Background

    Plagiobothrys hirtus is endemic to seasonal wetlands in the 
interior valley of the Umpqua River in southwestern Oregon (Amsberry 
and Meinke 1997b). P. hirtus was first collected by Thomas Howell in 
1887 and described the following year as Allocarya hirta (Greene 1888). 
Subsequent taxonomic classification included A. scouleri var. hirta, P. 
scouleri var. hirtus, A. calycosa, and P. hirtus (Gamon and Kagan 
1985). Johnston recognized two varieties of the species, P. hirtus var. 
hirtus and P. hirtus var. collaricarpus (Gamon and Kagan 1985). Later, 
Chambers (1989) considered the material included in the variety 
collaricarpus to be a variety of P. figuratus, which elevated the 
material assigned to P. hirtus var. hirtus to the full species P. 
hirtus.
    A member of the borage family (Boraginaceae), Plagiobothrys hirtus 
is an annual herb on drier sites or perennial herb on wetter sites 
(Amsberry and Meinke 1997a). It reaches 30-70 centimeters (cm) (1-2 
feet (ft)) in height and has a fairly stout stem with widely spreading, 
coarse, firm hairs on the upper part. The leaves of the main stem are 
opposite (paired), and the inflorescence (flower) is paired and without 
bracts (small leaf). The individual flowers are 1-2 millimeters (mm) 
(0.04-0.08 inches (in)) wide and white in color (Gamon and Kagan 1985). 
It grows in scattered groups and reproduces largely by insect-aided 
cross-pollination and partially by self-pollination. The species is 
distinguished from other Plagiobothrys species by coarse, sparse hairs 
on the stem and branches (Gamon and Kagan 1985).
    Plagiobothrys hirtus grows in open, seasonal wetlands in poorly-
drained clay or silty clay loam soils (Gamon and Kagan 1985) at 
elevations ranging from 30 to 270 meters (m) (98 to 886 ft) (Amsberry 
and Meinke 1997b). The species appears to be closely associated with 
the soil type Ruch-Medford-Takilma, and all known naturally-occurring 
populations occupy this soil type. The taxon is considered dependent on 
seasonal flooding and/or fire to maintain open habitat and to limit 
competition with invasive native and non-native plant species, such as 
Himalayan blackberry (Rubus discolor), Oregon ash (Fraxinus latifolia), 
teasel (Dipsacus fullonum), and pennyroyal (Mentha pulegium) (Gamon and 
Kagan 1985, Almasi and Borgias 1996). P. hirtus occurs in open 
microsites within the one-sided sedge (Carex unilateralis)--meadow 
barley (Hordeum brachyantherum) community type within interior valley 
grasslands. Other frequently associated species include tufted 
hairgrass (Deschampsia cespitosa), American slough grass (Beckmannia 
syzigachne), great camas (Camassia leichtlinii var. leichtlinii), water 
foxtail (Alopecurus geniculatus), baltic rush (Juncus balticus), wild 
mint (Mentha arvensis), Willamette downingia (Downingia yina), and 
bentgrass (Agrostis alba) (Gamon and Kagan 1985).
    The species was collected only four times between 1887 and 1961, 
all at sites within Douglas County, Oregon (Gamon and Kagan 1985). The 
taxon was considered possibly extinct (Meinke 1982) until it was 
rediscovered in 1983 as a result of intensive field surveys (Jimmy 
Kagan, Oregon Natural Heritage Program, pers. comm. 1997). The location 
of the first specimen, collected by Thomas Howell, was given only as 
the Umpqua Valley (Greene 1888). The sites of collections from 1932 and 
1939 were from 16 kilometers (km) (10 miles (mi)) east of Sutherlin and 
3 km (2 mi) north of Yoncalla, respectively (Siddall and Chambers 
1978). Both of these sites were surveyed in 1983, but no plants were 
found (Gamon and Kagan 1985). At the time, the sites were heavily 
grazed by sheep, which led the botanists to speculate that grazing was 
the probable cause of extirpation of the species (Gamon and Kagan 
1985). In 1961, a collection was made adjacent to Interstate 5 south of 
Yoncalla, a site which remains in existence today (J. Kagan, pers. 
comm. 1997).
    Despite the few pre-1961 collections, Plagiobothrys hirtus was 
probably widespread historically on the floodplains of the interior 
valleys of the Umpqua River. Because P. hirtus occurs in low-lying 
areas, seeds were likely dispersed by flood waters, resulting in a 
patchy, clumped distribution on the floodplains (Gamon and Kagan 1985). 
Natural processes such as flooding and fire maintained open, wetland 
habitat (Gamon and Kagan 1985). Draining of wetlands for urban and 
agricultural uses and road and reservoir construction, however, has 
altered the original hydrology of the valley to such an extent that the 
total area of suitable habitat for P. hirtus has been significantly 
reduced. Gamon and Kagan (1985) indicate that fire suppression allows 
the invasion of woody and herbaceous species into formerly open wetland 
habitats.
    Plagiobothrys hirtus is now limited to 17 isolated patches of 
habitat in the vicinity of Sutherlin and Yoncalla, Oregon (Oregon 
Natural Heritage Program 1996). These disjunct habitat patches range in 
size from 0.04 to 6.9 hectares (ha) (0.1 to 17 acres (ac)) with 
population sizes for an individual patch ranging from 1 to 3,000 
plants. The 17 habitat patches are estimated to have a total of about 
7,000 plants and a combined area of less than 18 ha (45 ac). Of the 17 
habitat patches, 1 site is 7 ha (17 ac), 3 sites are between 2 and 4 ha 
(5 and 10 ac), 4 are between 0.4 and 2 ha (1 and 5 ac), and 9 are less 
than 0.4 ha (1 ac) in size. The size of the habitat patch had no 
correlation with the number of plants occupying the patch. For example, 
3,000 plants occupied a 4 ha (1 ac) habitat patch and the 7 ha (17 ac) 
habitat patch had only 50 scattered plants.
    All existing populations are at risk of extirpation due to a 
variety of threats (Almasi and Borgias 1996; J. Kagan, pers. comm. 
1997; Robert Meinke, Oregon State University, pers. comm. 1997). In 
addition to the ongoing threat of direct loss of habitat from 
conversion to urban and agricultural uses, hydrological alterations, 
and fire suppression, other threats to the species include spring and 
summer livestock grazing, roadside mowing, spraying, competition with 
non-native vegetation, and landscaping (Gamon and Kagan 1985; J. Kagan, 
pers. comm. 1995).
    Fifteen of the 17 occupied habitat patches occur on private or 
commercial land. Three of these parcels are owned and managed by The 
Nature Conservancy. The other 12 habitat patches have no protective 
management for the species and are at risk of extirpation from 
development,

[[Page 3868]]

incompatible grazing and farming practices, and recreational activities 
(J. Kagan, pers. comm. 1997; R. Meinke, pers. comm. 1997). The two 
remaining known sites occur on public land owned by the Oregon 
Department of Transportation (ODOT), with a portion of one site 
partially occurring on private land as well.

Previous Federal Action

    Federal action on Plagiobothrys hirtus began as a result of section 
12 of the Act, which directed the Secretary of the Smithsonian 
Institution to prepare a report on those plants considered to be 
endangered, threatened, or extinct in the United States. This report, 
designated as House Document No. 94-51, was presented to Congress on 
January 9, 1975. On July 1, 1975, we published a notice in the Federal 
Register (40 FR 27823) of our acceptance of the report as a petition 
within the context of section 4(c)(2) (now section 4(b)(3) of the Act) 
and our intention to review the status of the plant species named in 
the report. As a result of this review, we published a proposed rule in 
the Federal Register on June 16, 1976 (41 FR 24523), to determine 
approximately 1,700 vascular plant species to be endangered pursuant to 
section 4 of the Act. This list, which included P. hirtus, was 
assembled on the basis of comments and data received by the Smithsonian 
Institution and us in response to House Document No. 94-51 and the July 
1, 1975, Federal Register publication. In 1978, amendments to the Act 
required that all proposals over 2 years old be withdrawn. A 1-year 
grace period was given to proposals already over 2 years old. On 
December 10, 1979, we published a notice in the Federal Register (44 FR 
70796) of the withdrawal of that portion of the June 16, 1976, proposal 
that had not been made final, along with four other proposals that had 
expired.
    We published an updated notice of review for plants on December 15, 
1980 (50 FR 82480), including Plagiobothrys hirtus as a category 1 
candidate species. At that time, category 1 candidates (now referred to 
as candidates) were those for which we believed we had substantial 
information to support a proposal to list the species as threatened or 
endangered. We changed the status of P. hirtus to category 2 in the 
November 28, 1983, supplement to the notice (45 FR 53657), and this 
species remained a category 2 in the September 27, 1985, notice of 
review (50 FR 39527). Category 2 candidates were those species for 
which we have enough information suggesting that listing is possibly 
appropriate, but conclusive data on vulnerability and threat were not 
available to support a proposed rule. In the February 21, 1990, notice 
of review (55 FR 6185), we designated P. hirtus as a candidate. On 
February 28, 1996, we published a notice of review in the Federal 
Register (61 FR 7596) that discontinued the designation of category 2 
species as candidates. In that notice of review, we retained P. hirtus 
as a candidate species.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
findings on pending petitions within 12 months of their receipt. 
Section 2(b)(1) of the 1982 amendments further requires that all 
petitions pending on October 13, 1982, be treated as having been newly 
submitted on that date. This provision applied to Plagiobothrys hirtus 
because of the acceptance of the 1975 Smithsonian Report as a petition. 
On October 13, 1983, we found that the petitioned listing of this 
species was warranted but precluded by other pending listing actions, 
in accordance with section 4(b)(3)(B)(iii) of the Act; notice of this 
finding was published on January 20, 1984 (49 FR 2485). Such a finding 
requires the petition to be reevaluated annually pursuant to section 
4(b)(3)(C)(i) of the Act. The finding was reviewed annually in October 
of 1984 through 1996. On November 20, 1997, we published a proposed 
rule (62 FR 61953) for this species, and on January 22, 1998, we 
announced a notice of public hearing and extension of the comment 
period (63 FR 3301). Publication of this rule constitutes the final 
determination for the petitioned action.
    The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and imminent 
risk to its well-being (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of critical habitat 
determinations (prudency and determinability decisions) and proposed or 
final designations of critical habitat will no longer be subject to 
prioritization under the Listing Priority Guidance. This final rule is 
a Priority 2 action and is being completed in accordance with the 
current Listing Priority Guidance.

Summary of Comments and Recommendations

    In the November 20, 1997, proposed rule (62 FR 61953) and 
associated notifications, we requested interested parties to submit 
factual reports or information that might contribute to the development 
of a final listing decision. We sent announcements of the proposed rule 
and notice of a public hearing to appropriate State and Federal 
agencies, county governments, city governments, scientific 
organizations, private land owners, industrial land owners and other 
interested parties and requested comments. We also published 
announcements of the proposed rule in the Oregonian on December 8, 
1997, and the Roseburg News-Review on December 8, 1997. We held a 
public hearing on February 10, 1998, in Roseburg, Oregon, and extended 
the public comment period to February 23, 1998 (63 FR 3301).
    We received six written comments during the comment period 
following the publication of the proposed rule. One individual who 
submitted a set of written comments also testified at the public 
hearing. Three commenters opposed and three favored the listing of 
Plagiobothrys hirtus as endangered. Several commenters provided 
information on the status of and threats to various populations of P. 
hirtus that updated the information presented in the proposed rule. We 
considered all comments and incorporated the information provided into 
the Background and Summary of Factors sections of this final rule. 
Comments of a similar nature or point regarding the proposed rule have 
been grouped into issues and are discussed below.
    Issue 1: One commenter stated the Federal regulation of the rough 
popcornflower under the Act fails to meet the constitutional test of 
substantial impact upon interstate commerce, and thus the rule should 
be withdrawn.
    Our Response: The Federal government has the authority under the 
commerce clause of the U.S. Constitution to protect this species, for 
the reasons given in Judge Wald's opinion and Judge Henderson's 
concurring opinion in National Association of Home Builders v. Babbitt, 
130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). 
That case involved a challenge to application of the Act's prohibitions 
to protect the listed Delhi Sands flower-loving fly (Rhaphiomidas 
terminatus abdominalis). As with Plagiobothrys

[[Page 3869]]

hirtus, the Delhi Sands flower-loving fly is endemic to only one State. 
Judge Wald held that application of the Act's prohibition against 
taking of endangered species to this fly was a proper exercise of 
Commerce Clause power to regulate--(1) use of channels of interstate 
commerce; and (2) activities substantially affecting interstate 
commerce, because it prevented destructive interstate competition and 
loss of biodiversity. Judge Henderson upheld protection of the fly 
because doing so prevents harm to the ecosystem upon which interstate 
commerce depends and regulates commercial development that is part of 
interstate commerce.
    Moreover, a substantial amount of interstate commerce arises from 
the efforts of conservation organizations to protect rare species. The 
Nature Conservancy, a national organization that engages in substantial 
interstate commerce through fund-raising and sale of its publications, 
has sought to protect Plagiobothrys hirtus through voluntary agreements 
and land acquisitions.
    Issue 2: A second commenter opposed listing Plagiobothrys hirtus 
until a thorough scientific search has been conducted for additional 
populations in an area east of Sutherlin called the Nonpareil area.
    Our Response: We have used previously published soil maps for the 
State of Oregon (United States Department of Agriculture 1991) as a 
tool to assess the likelihood of locating additional populations of 
Plagiobothrys hirtus in the Nonpareil area. Although there is a 
possibility that additional populations of P. hirtus occur in the 
vicinity based on soil types, land use patterns in the Nonpareil area 
are similar to those found south of Sutherlin. Thus, if additional 
occupied habitat is found in the Nonpareil area, it probably would be 
facing similar threats and would not reduce the need for listing P. 
hirtus. The Act requires us to list species based upon the threats 
facing the species and not on the number of plants or populations, as 
in this case.
    Issue 3: The same commenter suggested captive propagation 
techniques should be developed and used to prevent the endangerment of 
Plagiobothrys hirtus.
    Our Response: We concur that captive propagation may be an 
important technique used to recover Plagiobothrys hirtus. In fact, 
biologists have initiated monitoring, life history studies, and 
transplantation experiments using field-collected seed within some 
habitat patches. However, the Act requires us to conserve the 
ecosystems upon which endangered and threatened species depend and 
although these techniques are tools used by us and our cooperators to 
help reduce the threats to the species, these tools will not remove or 
reduce the threats to the level that the species will not require the 
protections of the Act.
    Issue 4: The same commenter recommended additional public outreach 
and education, assuming the public will then come forward with 
information and locations of populations of Plagiobothrys hirtus 
presently unknown to us.
    Our Response: In the proposed rule to designate Plagiobothrys 
hirtus as an endangered species published on November 20, 1997 (62 FR 
61953), we requested public comments on ``(2) The location of any 
additional occurrences of this species . . .''. The comment period was 
extended on January 22, 1998 (63 FR 3301). We also continually seek 
information from the public on possible new locations of rare and 
endangered species. We have developed a public outreach plan to inform 
the public of this listing concurrent with the publication of this 
rule.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited the expert opinions of appropriate and independent 
specialists regarding pertinent scientific or commercial data relating 
to the biological and ecological information for Plagiobothrys hirtus. 
Two individuals responded to our request and supported the listing 
based upon the scientific data. We incorporated the comments as 
appropriate in this final rule.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we determine that Plagiobothrys hirtus should be classified 
as an endangered species. We followed procedures found at section 
4(a)(1) of the Act and the regulations (50 CFR part 424) implementing 
the listing provisions of the Act. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to 
Plagiobothrys hirtus Greene (rough popcornflower) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of habitat or range. Plagiobothrys hirtus has been, and 
continues to be, threatened by destruction and modification of its 
wetland habitat (R. Meinke, pers. comm. 1997). Although the species is 
believed to have been more abundant in the past throughout the interior 
valleys of the Umpqua River, it is now limited to 17 small, isolated 
habitat patches. Direct loss of habitat from hydrological alterations, 
wetland filling, livestock grazing, or conversion to other uses pose a 
threat to all 17 occupied habitat patches.
    Five habitat patches were recently known to occur on private land 
within the urban boundary of the town of Sutherlin, but only two 
populations continue to exist, and they make up about 4.5 percent of 
the remaining occupied habitat. Since 1997, 34 percent of P. hirtus 
urban populations have been lost to development. Plant populations in 
both remaining sites have continued to decline in recent years (J. 
Kagan, pers. comm. 1995, 1997; Amsberry and Meinke 1997b).
    Two sites were, at one time, a single large habitat patch of about 
5 ha (13 ac) with about 300 to 500 plants growing in openings when 
discovered in 1983 (J. Kagan, pers. obs. 1983). By 1985, this site had 
fill dirt dumped in the wetlands, and a series of drainage ditches 
installed (John Gamon, Washington Natural Heritage Program and J. 
Kagan, pers. obs. 1985). As a result, the population was divided into 
two, with the second population occurring a few hundred feet from the 
first population, just south of a trailer park in a commercially viable 
vacant lot. In 1997, biologists estimated the total amount of habitat 
occupied by the 2 populations as 1 ha (2.5 ac). Additionally, in 1997 
biologists observed survey markers at the sites, and both sites are 
frequently mown. A local resident indicated that the property was for 
sale and that unspecified development plans were being formulated 
(Kelly Amsberry, Oregon State University and R. Meinke, pers. obs. 
1997). In 1998, one population was eliminated by grading and dumping 
with fill. The other population continues to exist, though only a few 
plants are left (K. Amsberry, pers. comm. 1998). It is likely that the 
drainage ditches are contributing to the loss of habitat by changing 
the hydrology of the sites.
    The other existing urban population was found in 1983 with 60 to 
100 plants. This undeveloped site is located adjacent to two highways 
in an area that is considered to be very valuable for commercial 
development. The population was estimated to have about 40 to 50 plants 
in 1997 (K. Amsberry and R. Meinke, pers. obs. 1997). The current owner 
plans to develop the site

[[Page 3870]]

eventually into a mall (Danny Lang, landowner, pers. comm. 1997).
    A fourth population located in 1986 in a horse pasture with 30 to 
40 Plagiobothrys hirtus plants no longer exists (J. Kagan, pers. obs. 
1986). A visit in 1997 found that the site was now a housing 
development with a single P. hirtus plant residing in a vacant lot that 
was for sale (K. Amsberry, pers. obs. 1997). This last remaining plant 
was lost when developers constructed a new house in late 1997 or early 
1998 (K. Amsberry, pers. comm. 1998).
    A fifth urban population was also known to exist until recently. In 
1983, J. Gamon and J. Kagan discovered the site which consisted of 100 
to 500 plants in 1985. The presence of sewer and storm drains above 
ground level at that time suggested there were plans to fill the site 
by about 1.5 m (3 ft). Construction workers plowed or graded the site 
and, by 1997, only one plant remained (K. Amsberry and R. Meinke, pers. 
obs. 1997). In 1998, the remaining plant was lost due to development 
(K. Amsberry, pers. comm. 1998).
    Ten occupied habitat patches are known from private land just south 
of the town of Sutherlin to just north of Wilbur. Three of these 10 
populations (or 56 percent of the remaining occupied habitat) of 
Plagiobothrys hirtus occur on TNC lands, and have exhibited wide 
variations in numbers of plants over the recent past. The population on 
TNC land at Popcorn Swale demonstrated a particularly volatile pattern 
of change in abundance. TNC did their first count in 1995 and estimated 
more than 16,000 individuals. However, in 1996, the population 
plummeted to only 394 plants, a drop attributed to an extensive period 
of standing water on the preserve that year due to a wet spring (Almasi 
and Borgias 1996). In 1997, TNC estimated a population size of 3,630 
individuals. These large fluctuations are not unexpected for a species 
with a primarily annual life cycle. The dramatic fluctuation over the 
period from 1995 to 1997 appears to correspond to the variation in 
spring season precipitation received and subsequent depth and duration 
of inundation observed on the preserve over that period (Darren 
Borgias, TNC, in litt. 1998). P. hirtus prefers shallow, seasonal pools 
in open grassland (Almasi and Borgias 1996), and all three populations 
are threatened by shading and competition by non-native and native 
shrubs and trees.
    Four of the 10 Plagiobothrys hirtuspopulations on TNC land occur 
south of Sutherlin and make up about 21 percent of the remaining 
occupied habitat. Agricultural land conversion and livestock grazing 
have degraded the habitat of these populations. All four of these 
populations occur within fenced livestock pastures and are subjected to 
heavy grazing pressure (see Factor C).
    The remaining 3 out of the 10 habitat patches south of Sutherlin 
account for approximately 3 percent of occupied habitat. Biologists 
have documented a decline over time at 1 site from 50 to 60 plants, to 
10 to 20 plants. The other two sites tend to fluctuate in numbers. 
These three sites, as well as the TNC sites, are threatened by 
competition from invasion of non-native weedy vegetation and 
succession, which is causing a closure of the forest canopy (see Factor 
E).
    Three other sites are known to occur outside of the town of 
Sutherlin. Two known habitat patches are located east of Sutherlin on 
private land. One site, about 2 ha (5.5 ac) in size, is by a road in an 
agricultural field and is estimated to be about 12.5 percent of the 
total remaining occupied habitat. The location of the site is in a wet 
depression in a hayfield. The hayfield was plowed and planted in grass 
hay, and biologists observed tractor tracks in the depression in which 
Plagiobothrys hirtus occurred after the grass hay was cut and baled. 
Cattle are turned out into the field in the fall. This population has 
at least 1,000 individual plants and is threatened by plowing, haying, 
and livestock grazing. The other site is much smaller, occupying less 
than 10 square meters (m<SUP>2</SUP>) (108 square feet 
(ft<SUP>2</SUP>)), and occurs in a seasonally wet roadside ditch along 
a private driveway. Only four or five individual plants occur at this 
site. Mowing and herbicide sprays threaten this population (K. 
Amsberry, pers. comm. 1998).
    The third site is located west of Sutherlin, also in a roadside 
ditch, similar to the second population. This site contains a couple 
hundred plants, and site totals approximately 10 m<SUP>2</SUP> (108 
ft<SUP>2</SUP>). Threats to this population are also mowing and 
herbicide spraying.
    The last two habitat patches, which contain about 3 percent of the 
occupied habitat, occur in a marshy area on public and private land 
about 22 km (14 mi) north of Sutherlin, near the town of Yoncalla. In 
1983, the Oregon Department of Agriculture rediscovered the collection 
made in 1961 at this site (see ``Background'' section). About 200 
plants were present in 1988 in 2 separate habitat patches. The northern 
patch is completely managed by ODOT. The southern patch is partially 
managed by ODOT, but a portion also occurs on private land. Overall, 
the population has continued to increase under management by ODOT. 
Although the population on public land appears vigorous, a portion of 
the population on the adjacent private land appears to have vanished 
(J. Kagan, pers. comm. 1997). The northern habitat patch contains 500 
plants in a 2 by 20 m (6 by 65 ft) area (Amsberry and Meinke 1997b). 
The northern population appears stable; however, its small size and 
precarious location make predictions of its future stability risky 
(Amsberry and Meinke 1997b). Counts in 1997 estimated the number of 
plants in the southern patch to be 3,000 (Amsberry and Meinke 1997b).
    Alterations in site hydrology pose the primary threat to the plants 
(R. Meinke, pers. comm. 1997). Right-of-way management also poses a 
threat to these two populations. For example, in early July of 1995, 
damage to the marked study plots of transplanted Plagiobothrys hirtus 
plants, established by the Oregon Department of Agriculture, occurred 
by ODOT maintenance activities. Inspection of the sites documented 
damage to the plants, revealing a near complete loss of all 
transplanted material and relevant plot location markers. The naturally 
occurring population received only superficial impacts (Nicholas Testa, 
ODOT, pers. comm. 1995). Since then ODOT has taken steps to prevent 
this situation from reoccurring (see ``Available Conservation 
Measures'' section and Factor D of this section for additional 
information).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. It is not known if the species is currently being 
collected. However, listing a species can precipitate commercial or 
scientific interest, both legal and illegal, which can threaten the 
species through unauthorized and uncontrolled collection for both 
commercial and scientific purposes. Listing species as threatened or 
endangered publicizes their rarity and may make them more susceptible 
to collection or trampling by researchers or plant enthusiasts (Mariah 
Steenson, Portland Nursery, Inc., pers. comm. 1997; Mark Bosch, U.S. 
Forest Service, in litt. 1997). This species occurs in locations that 
are easily accessed by road, and the small population sizes make them 
vulnerable to overcollection by botanical enthusiasts.
    Plagiobothrys hirtus is an attractive plant with flowers similar in 
appearance to forget-me-nots. The species is easily propagated in an 
artificial setting and transplanted. The species is conspicuous when in 
massed populations (Amsberry and Meinke 1997b). As a member of the

[[Page 3871]]

Boraginaceae, a family which contains numerous traditional medicinal 
herbs, P. hirtus could have pharmaceutical potential, though no 
research has been conducted on this subject (Amsberry and Meinke 
1997b). The species may be sought for collection if its rarity and 
population locations become well known. Also, many species of 
Plagiobothrys look very much alike, and collectors could confuse P. 
hirtus with other more common Plagiobothrys species (Amsberry and 
Meinke 1997b). Most of the remaining populations of the species are so 
small that even limited collecting pressure could have significant 
adverse impacts.
    Vandalism seems to be a potential threat for some populations. For 
example, after Plagiobothrys hirtus was listed as endangered by the 
State of Oregon, a landowner contacted the Oregon Division of State 
Lands to obtain a permit to develop the wetlands on his property to put 
in a small housing development. In processing his permit, the State 
informed the landowner of a P. hirtus population occupying that site. 
State-employed botanists contacted the landowner about protective 
measures for the population. The landowner allegedly responded by 
blading the site to level the swale the population was occupying and 
destroyed the population (J. Kagan, pers. comm. 1997).
    Vandalism also occurred at a site near Sutherlin a few years ago. 
The Nature Conservancy informed a landowner of Plagiobothrys hirtus 
growing on his property and offered to purchase the property. The 
landowner declined the offer and dumped fill onto a portion of the 
population (J. Kagan, pers. comm. 1998).
    C. Disease or predation. Past grazing has likely been a 
contributing factor to declining Plagiobothrys hirtus numbers 
throughout its historic range (Gamon and Kagan 1985). The timing and 
intensity of grazing are important factors in the effect of grazing on 
the plant. Livestock grazing during spring and early summer likely 
causes the most damage to this species. When herbivores eat the flower 
or seed head of the plant, the reproductive output for the year for 
that individual is destroyed. This activity may be more significant at 
sites where the species functions as an annual (Gamon and Kagan 1985). 
Biologists believe that sheep grazing may have been the main reason why 
at least two historical P. hirtus locations were extirpated.
    Livestock graze in pastures containing four of the known habitat 
patches (Amsberry and Meinke 1997b). Currently, the grazing pressure is 
heavy at three of those sites, as evidenced by Plagiobothrys hirtus 
plants being restricted to bare ground between clumps of Juncus 
(Amsberry and Meinke 1997b). One site is grazed by horses, rather than 
by sheep or cattle, and the grazing pressure appears less intense than 
at the other sites as evidenced by larger, more vigorous patches of P. 
hirtus (Amsberry and Meinke 1997b).
    However, where fires and flooding no longer occur, grazing may 
benefit the species. This species prefers open canopies and does not 
compete well with woody and non-native vegetation (Amsberry and Meinke 
1997b). Fall grazing, in particular, may benefit the plant because it 
is dormant at this time and grazing can keep the habitat open by 
reducing the growth of weedy species (Gamon and Kagan 1985).
    Herbivory due to small rodents has been observed on overwintering 
Plagiobothrys hirtus plants, but the long-term effects of this damage 
is not known (Amsberry and Meinke 1997b). This is particularly a 
problem in areas that have dense and overgrown vegetation. Amsberry and 
Meinke (1997b) documented aphids, which appear to prevent normal seed 
development and dispersal in some cases although rarely causing 
extensive damage, on scattered shoots and flowers. Amsberry and Meinke 
observed caterpillars on leaves and flowers of P. hirtus, but the 
effects are not believed to be significant (Amsberry and Meinke 1997b).
    D. Inadequacy of existing regulatory mechanisms. Under the Oregon 
Endangered Species Act (ORS 564.100-564.135) and regulations (OAR 603, 
Division 73), the Oregon Department of Agriculture has listed 
Plagiobothrys hirtus as endangered (OAR 603-73-070). This statute 
prohibits the ``take'' of State-listed plants on State, county, and 
city owned or leased lands only. Most occurrences of P. hirtus occur on 
private land and are not subject to any current regulations. An 
occurrence adjacent to Interstate Highway 5, on lands managed by ODOT, 
was designated by the agency as a Special Management Area. The ODOT 
modified its mowing and spraying practices to protect the species at 
this site where the plant appears to be stable or increasing (N. Testa, 
pers. comm. 1997).
    Section 404 of the Clean Water Act could provide some protection 
for Plagiobothrys hirtus under certain circumstances. Section 404 
requires that a person proposing to discharge dredged or fill material 
into waters of the United States, including wetlands, must first obtain 
a permit from the U.S. Army Corps of Engineers (Corps). The Corps can 
deny or restrict such permits where necessary to prevent adverse 
effects on various resources, including water supplies, fisheries, and 
wildlife.
    Section 404 is not, however, adequate to ensure protection of the 
wetland habitat upon which Plagiobothrys hirtus depends. First, section 
404 does not regulate all discharges that may harm wetlands. Section 
404 exempts from the permit requirement many farming, ranching, and 
silvicultural practices; construction of certain farm, forest and 
mining roads; construction of stock ponds and irrigation ditches; and 
several other activities. Second, section 404 does not regulate 
activities that may alter wetland habitats but do not involve 
discharges of dredged or fill material, such as application of 
herbicides or introduction of competing vegetation. Third, even where 
section 404 does apply, many activities are permitted by regulation 
under ``nationwide permits'' issued by the Corps (December 13, 1996; 61 
FR 65873; 63 FR 36040). Under several of these nationwide permits, 
persons are allowed to fill wetlands without giving prior notice to the 
Corps, provided the fill is within certain volume or acreage limits. 
Many of the sites where P. hirtus occurs are small wetlands that could 
fall below these acreage limits. Section 404 would provide greater 
protection if P. hirtus were listed, because nationwide permits are not 
applicable where a discharge would jeopardize or adversely modify the 
critical habitat of a listed species (33 CFR 330.4(f)).
    E. Other natural or manmade factors affecting its continued 
existence. Five of 10 existing habitat patches of Plagiobothrys hirtus 
occur adjacent to major highways (Interstate 5 and/or State Route 99), 
and another 2 populations occur in roadside ditches. Herbicide and 
pesticide spraying and mowing are often a part of routine maintenance 
of roadways. As with livestock grazing, mowing or pesticide spraying 
during the spring and summer have a direct effect by reducing seed set, 
which negatively affects populations of the species. Pesticides and 
herbicides have an indirect effect on the species because most P. 
hirtus plants rely on insect pollinators to reproduce, and these insect 
pollinators are vulnerable to pesticides and herbicides (Amsberry and 
Meinke 1997b). In addition, roadside occurrences are at risk of toxic 
chemical spills and runoff containing oil and grease (N. Testa, pers. 
comm. 1997). Vehicle accidents also increase the risk of fuel 
contamination or fire; such an accident recently occurred adjacent to 
the ODOT population, but

[[Page 3872]]

the species was not affected (N. Testa, pers. comm. 1997).
    With the exception of the Plagiobothrys hirtus populations in 
ODOT's Special Management Area and TNC's Popcorn Swale, none of the 
roadside occurrences are protected from herbicide spraying, 
landscaping, or early season mowing. Herbicide spraying and mowing has 
affected and reduced at least one P. hirtus population (J. Kagan, pers. 
comm. 1995). A landowner at another known site reported that the ditch 
line along the State Route 99 has been sprayed 20 times or more in the 
last 28 years (James and Florence Klingler, landowners, in litt. 1998). 
Late season mowing has benefited the P. hirtus population at the ODOT 
site, probably by reducing competition from other plants and herbivory 
by voles (R. Meinke, pers. comm. 1997).
    Encroachment by native and non-native plant species increases when 
natural processes like fire or flooding are altered (J. Kagan, pers. 
comm. 1997; R. Meinke, pers. comm. 1997). Invasion of vernal pools and 
wet areas by exotic grasses and herbs, as well as encroachment by 
native ash that increase shading, has caused the decline of this 
species in at least two populations. This taxon prefers full exposure 
to sun, and succession in some locations has increased shading by 
Oregon ash, willow (Salix), and the non-native common pear tree (Pyrus) 
(Amsberry and Meinke 1997b). In an experimental transplanting of this 
species into two sites on Bureau of Land Management (BLM) lands in 
1998, the plants located in an open wet area did well, but the 
population planted in a wet area in shade died out, indicating that the 
species does not tolerate shading (K. Amsberry, pers. comm. 1998).
    After a 1985 fire at one of the sites in Sutherlin, the plants 
responded the following year with vigorous growth (J. Kagan, pers. 
comm. 1997). As with late season grazing or mowing, late season fire is 
likely to be of benefit to the species by reducing encroaching 
vegetation. Fire occurring prior to seed set may have negative effects 
on Plagiobothrys hirtus. The encroachment of weedy, and especially 
woody, species may also alter site hydrology by capturing more of the 
available water, an alternative explanation for the dramatic collapse 
of the population at the TNC preserve between 1995 and 1996 (R. Meinke, 
pers. comm. 1997). The apparent population decline at another habitat 
patch may be due to trees shading much of the site (Amsberry and Meinke 
1997b). However, the dramatic fluctuation in abundance, both up and 
down, appears to correspond more closely to dramatic annual fluctuation 
in precipitation and hydrology.
    Because of the small, isolated nature of the occurrences and the 
few individuals present in most of them, Plagiobothrys hirtus is also 
more susceptible to random events, such as fires during the growing 
season, insect or disease outbreaks, or toxic chemical spills. The 
rapid, and as yet unexplained, collapse of the population at the TNC 
preserve argues for the protection of numerous patches to shield the 
species from random events that could cause the extinction of the 
species. Small, isolated populations may also have an adverse effect on 
pollinator activity, seed dispersal, and gene flow. Currently, 58 
percent or 9 of the habitat patches are less than 0.4 ha (1 ac). Only 
the Popcorn Swale population is greater than 4 ha (10 ac). The 
existence of both annual and perennial populations in P. hirtus 
suggests that some local genetic differentiation may already exist 
among populations of the species. Genetic drift within small, isolated 
populations can lead to a loss of genetic variability and a reduced 
likelihood of long-term viability (Franklin 1980; Soule 1980; Lande and 
Barrowclough 1987).
    We have carefully assessed the best scientific and commercial 
information available concerning the past, present, and future threats 
faced by this species in developing this final rule. Plagiobothrys 
hirtus is imperiled by the filling of wetland habitat for development, 
livestock grazing, invasion by competitive plant species as a result of 
hydrological alteration and fire suppression, and roadside spraying and 
mowing, all of which continue to reduce plant numbers and habitat. The 
small, isolated occurrences, with few individuals, make the species 
more vulnerable to all threats. Much of the habitat where this species 
occurs is unprotected from these threats. In addition, continued 
decreases in the number of occurrences and individuals could result in 
decreased genetic variability. The varied and cumulative threats to P. 
hirtus indicate the species is in danger of extinction throughout its 
range and meets the Act's definition of endangered. Because of the high 
potential for these threats, if realized, to result in the extinction 
of P. hirtus, the preferred action is to list P. hirtus as endangered. 
Threatened status is not appropriate because all of the existing 
occurrences of P. hirtus are small, and 15 of 17 habitat patches have 
no protection from mowing, herbicide application, imminent 
urbanization, and grazing threats. In addition, one of the protected 
occurrences recently suffered a precipitous, and as yet unexplained, 
reduction in numbers.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that designation of critical habitat is not prudent 
when one or both of the following situations exist--(i) the species is 
threatened by taking or other activity and the identification of 
critical habitat can be expected to increase the degree of threat to 
the species or (ii) such designation of critical habitat would not be 
beneficial to the species. We find that designation of critical habitat 
is prudent for the for the Plagiobothrys hirtus.
    In the proposed rule, we indicated that designation of critical 
habitat was not prudent for Plagiobothrys hirtus because of a concern 
that publication of precise maps and descriptions of critical habitat 
in the Federal Register could increase the vulnerability of this 
species to incidents of collection and vandalism. We also indicated 
that designation of critical habitat was not prudent because we 
believed it would not provide any additional benefit beyond that 
provided through listing as endangered.
    In the last few years, a series of court decisions have overturned 
Service determinations regarding a variety of species that designation 
of critical habitat would not be prudent (e.g., Natural Resources 
Defense Council v. U.S. Department of the Interior, 113 F. 3d 1121 (9th 
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp.

[[Page 3873]]

2d 1280 (D. Hawaii 1998)). Based on the standards applied in those 
judicial opinions, we have reexamined the question of whether critical 
habitat for Plagiobothrys hirtus would be prudent.
    Due to the small number of populations, Plagiobothrys hirtus is 
vulnerable to unrestricted collection, vandalism, or other disturbance. 
We remain concerned that these threats might be exacerbated by the 
publication of critical habitat maps and further dissemination of 
locational information. We have examined the evidence available for P. 
hirtus and have found two documented cases of vandalism to two P. 
hirtus populations when the landowners were informed that the species 
occurred on their land (see factor B). No other specific evidence of 
taking, vandalism, collection, or trade of this species or any 
similarly situated species is available. Consequently, consistent with 
applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we 
do not expect that the identification of critical habitat will further 
increase the degree of threat of taking or other human activity above 
that of the listing of the species. The two documented cases of 
vandalism occurred as a result of the listing of the species as 
endangered by the State of Oregon. We don't expect that a designation 
of critical habitat will increase the threat of taking by landowners 
since they are already aware of the species presence on their property.
    In the absence of a finding that designation of critical habitat 
would increase threats to a species, if there are any benefits to 
critical habitat designation, then a prudent finding is warranted. In 
the case of this species, there may be some benefits to designation of 
critical habitat. The primary regulatory effect of critical habitat 
designation is the section 7 requirement that Federal agencies refrain 
from taking any action that destroys or adversely modifies critical 
habitat. While a critical habitat designation for habitat currently 
occupied by this species would not be likely to change the section 7 
consultation outcome because an action that destroys or adversely 
modifies such critical habitat would also be likely to result in 
jeopardy to the species, there may be instances where section 7 
consultation would be triggered only if critical habitat is designated. 
Examples could include unoccupied habitat or occupied habitat that may 
become unoccupied in the future. There may also be some educational or 
informational benefits to designating critical habitat. Therefore, we 
find that designation of critical habitat is prudent for Plagiobothrys 
hirtus.
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states, ``The processing of critical habitat determinations (prudency 
and determinability decisions) and proposed or final designations of 
critical habitat will no longer be subject to prioritization under the 
Listing Priority Guidance. Critical habitat determinations, which were 
previously included in final listing rules published in the Federal 
Register, may now be processed separately, in which case stand-alone 
critical habitat determinations will be published as notices in the 
Federal Register. We will undertake critical habitat determinations and 
designations during FY 2000 as allowed by our funding allocation for 
that year.'' As explained in detail in the Listing Priority Guidance, 
our listing budget is currently insufficient to allow us to immediately 
complete all of the listing actions required by the Act. Deferral of 
the critical habitat designation for Plagiobothrys hirtus has allowed 
us to concentrate our limited resources on higher priority critical 
habitat (including court ordered designations) and other listing 
actions, while allowing us to put in place protections needed for the 
conservation of Plagiobothrys hirtus without further delay. However, 
because we have successfully reduced, although not eliminated, the 
backlog of other listing actions, we anticipate in FY 2000 and beyond 
giving higher priority to critical habitat designation, including 
designations deferred pursuant to the Listing Priority Guidance, such 
as the designation for this species, than we have in recent fiscal 
years.
    We plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. We will develop a 
proposal to designate critical habitat for the Plagiobothrys hirtus as 
soon as feasible, considering our workload priorities. Unfortunately, 
for the immediate future, most of Region 1's listing budget must be 
directed to complying with numerous court orders and settlement 
agreements, as well as due and overdue final listing determinations 
(like the one at issue in this case).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing can encourage and result in 
public awareness and conservation actions by Federal, State, and local 
agencies, private organizations, and individuals. The Act provides for 
possible land acquisition and cooperation with the States and requires 
that recovery actions be carried out for all listed species. The 
protection required by Federal agencies and the prohibitions against 
certain activities involving listed plants are discussed, in part, 
below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with us 
on any action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. If a species is subsequently 
listed, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with us.
    None of the known naturally occurring populations of Plagiobothrys 
hirtus occurs on Federal lands. Because P. hirtus occurs in wetlands, 
regulatory mechanisms under the Clean Water Act apply to this species. 
As part of our outreach efforts, we notify the Corps of known 
populations of P. hirtus.
    Other Federal agencies' actions that may require consultation 
include the National Resource Conservation Service projects and 
Department of Housing and Urban Development and Veterans' 
Administration mortgage programs (Federal Home Administration loans). 
The Federal Highway Administration will become involved with 
Plagiobothrys hirtus when highway maintenance is funded, even in part, 
by the Federal government. Any State highway activity being implemented 
by ODOT that is partly funded by the

[[Page 3874]]

Federal government will be subject to consultation under the Act. In 
addition, sections 2(c)(1) and 7(a)(1) of the Act require Federal 
agencies to utilize their authorities in furtherance of the purposes of 
the Act to carry out conservation programs for endangered and 
threatened species.
    Listing of this plant will provide for development of a recovery 
plan for the plant. Such a plan will bring together both State and 
Federal efforts for conservation of the plant. The plan will establish 
a framework for agencies to coordinate activities and cooperate with 
each other in conservation efforts. The plan will set recovery 
priorities, assign responsibilities, and estimate costs of various 
tasks necessary to accomplish them. It will also describe site-specific 
management actions necessary to achieve conservation and survival of 
the plant. Additionally, pursuant to section 6 of the Act, we will be 
able to grant funds to affected States for management actions promoting 
the protection and recovery of this species.
    Five of the 17 habitat patches currently receive some protective 
management. Two patches are owned and managed by ODOT and are conserved 
under State law. The ODOT physically delineated the sites with plastic 
markers and signs designating them as Special Management Areas 
(Amsberry and Meinke 1997b). Mowing is restricted to late in the fall 
when Plagiobothrys hirtus is dormant (N. Testa, pers. comm. 1997). 
Three patches are in private, protective ownership, owned and managed 
by TNC. These patches, which currently contain about 3,630 individual 
plants, are being actively managed for the protection and development 
of P. hirtus habitat (Almasi and Borgias 1996) by reducing grazing of 
sites and eliminating exotic vegetation. The Nature Conservancy and 
ODOT have initiated monitoring, life history studies, and 
transplantation experiments using field-collected seed within these 
five habitat patches. The objectives of these efforts are to increase 
population sizes, and establish protocols for seed collection, 
greenhouse propagation, and transplantation techniques (Amsberry and 
Meinke 1997b).
    During the spring of 1998, we assisted the BLM with experimental 
introductions using 1,000 greenhouse-grown plants that were planted at 
2 different sites on BLM lands in suitable wetland habitats. We 
established the plants on an upland soil type with which Plagiobothrys 
hirtus is not typically associated and in an area that is outside the 
historic range of the species. One of these populations did well 
following the transplanting (K. Amsberry, pers. comm. 1998), but the 
plants need to persist for at least five years before the transplant 
can be considered a success. During the fall of 1998, the site was 
found to be under about 0.6 m (2 ft) of water, so the plantings may not 
survive. Two other transplants occurred at sites on ODOT and TNC 
properties into established populations to augment them.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61, apply. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to import 
or export, transport in interstate or foreign commerce in the course of 
a commercial activity, sell or offer for sale in interstate or foreign 
commerce, or remove and reduce the species to possession from areas 
under Federal jurisdiction. In addition, for plants listed as 
endangered, the Act prohibits the malicious damage or destruction on 
areas under Federal jurisdiction and the removal, cutting, digging up, 
or damaging or destroying of such plants in knowing violation of any 
State law or regulation, including State criminal trespass law. Certain 
exceptions to the prohibitions apply to our agents and State 
conservation agencies.
    As published on July 1, 1994 (59 FR 34272), our policy is to 
identify, to the maximum extent practicable, those activities that 
would or would not constitute a violation of section 9 of the Act at 
the time of listing. The intent of this policy is to increase public 
awareness of the effect of the listing on proposed and ongoing 
activities within a species' range. Collection, damage, or destruction 
of this species on Federal land is prohibited, although in appropriate 
cases, we may issue a Federal endangered species permit for scientific 
or recovery purposes. We believe that, based upon the best available 
information, you can take the following actions without resulting in a 
violation of section 9, only if these activities are carried out in 
accordance with existing regulations and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., wetland modification; powerline construction, 
maintenance, and improvement; highway construction, maintenance, and 
improvement; and permits for mineral exploration and mining) when such 
activity is conducted in accordance with any reasonable and prudent 
measures given by us according to section 7 of the Act.
    (2) Normal agricultural and silvicultural practices, including 
pesticide and herbicide use, that are carried out in accordance with 
any existing regulations, permit and label requirements, and best 
management practices.
    (3) Normal landscape activities around your own personal residence.
    We believe that the following might potentially result in a 
violation of section 9; however, possible violations are not limited to 
these actions alone:
    (1) Removal, cutting, digging up, damaging, or destroying 
endangered plants on non-Federal land if conducted in knowing violation 
of Oregon State law or regulations or in violation of State criminal 
trespass law.
    (2) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be addressed to the State Supervisor of 
the Oregon State Office (see ADDRESSES section).
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plants under certain circumstances. Such permits are 
available for scientific purposes and to enhance the propagation or 
survival of the species. Requests for copies of the regulations 
concerning listed plants and animals and general inquiries regarding 
prohibitions and permits may be addressed to the U.S. Fish and Wildlife 
Service, Ecological Services, Endangered Species Permits, 911 N.E. 11th 
Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063; facsimile 
503/231-6243).

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance

[[Page 3875]]

number 1018-0094. An agency may not conduct or sponsor, and a person is 
not required to respond to a collection of information, unless it 
displays a currently valid control number. For additional information 
concerning permit and associated requirements for endangered species, 
see 50 CFR 17.62.

References Cited

    A complete list of all references cited herein is available upon 
request from the Oregon State Fish and Wildlife Office (see ADDRESSES 
section).

Author

    The primary author of this final rule is Dr. Andrew F. Robinson, 
Jr., U.S. Fish and Wildlife Service, Oregon State Office (see ADDRESSES 
section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec. 17.12(h) by adding the following, in alphabetical 
order under FLOWERING PLANTS, to the List of Endangered and Threatened 
Plants:


Sec. 17.12  Endangered and threatened plants.

* * * * *

    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species
---------------------------------------------------   Historic range         Family           Status       When  listed      Critical      Special rules
        Scientific name             Common name                                                                               habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
Flowering plants
 
                   *                  *                  *                  *                  *                  *                  *
    Plagiobothrys hirtus.......  Rough              U.S.A. (OR)......  Boraginaceae.....  E               678             NA              NA
                                  popcornflower.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: November 30, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-1562 Filed 1-24-00; 8:45 am]
BILLING CODE 4310-55-P