3866 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

your request via e-mail to: oppdocket@epa.gov. Please use an ASCII

file format and avoid the use of special

characters and any form of encryption.

Copies of electronic objections and

hearing requests will also be accepted

on disks in WordPerfect 6.1/8.0 file

format or ASCII file format. Do not

include any CBI in your electronic copy.

You may also submit an electronic copy

of your request at many Federal

Depository Libraries.

B. When Will the Agency Grant a

Request for a Hearing?

A request for a hearing will be granted

if the Administrator determines that the

material submitted shows the following:

There is a genuine and substantial issue

of fact; there is a reasonable possibility

that available evidence identified by the

requestor would, if established resolve

one or more of such issues in favor of

the requestor, taking into account

uncontested claims or facts to the

contrary; and resolution of the factual

issues(s) in the manner sought by the

requestor would be adequate to justify

the action requested (40 CFR 178.32).

VIII. Regulatory Assessment

Requirements

This final rule establishes time

limited tolerances under FFDCA section

408. The Office of Management and

Budget (OMB) has exempted these types

of actions from review under Executive

Order 12866, entitled Regulatory

Planning and Review (58 FR 51735,

October 4, 1993). This final rule does

not contain any information collections

subject to OMB approval under the

Paperwork Reduction Act (PRA), 44

U.S.C. 3501 et seq., or impose any

enforceable duty or contain any

unfunded mandate as described under

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA) (Public

Law 104–4). Nor does it require any

prior consultation as specified by

Executive Order 13084, entitled

Consultation and Coordination with

Indian Tribal Governments (63 FR

27655, May 19, 1998); special

considerations as required by Executive

Order 12898, entitled Federal Actions to

Address Environmental Justice in

Minority Populations and Low-Income

Populations (59 FR 7629, February 16,

1994); or require OMB review or any

Agency action under Executive Order

13045, entitled Protection of Children

from Environmental Health Risks and

Safety Risks (62 FR 19885, April 23,

1997). This action does not involve any

technical standards that would require

Agency consideration of voluntary

consensus standards pursuant to section

12(d) of the National Technology

Transfer and Advancement Act of 1995

(NTTAA), Public Law 104–113, section

12(d) (15 U.S.C. 272 note). Since

tolerances and exemptions that are

established on the basis of a FIFRA

section 18 petition under FFDCA

section 408, such as the tolerances in

this final rule, do not require the

issuance of a proposed rule, the

requirements of the Regulatory

Flexibility Act (RFA) (5 U.S.C. 601 et

seq.) do not apply. In addition, the

Agency has determined that this action

will not have a substantial direct effect

on States, on the relationship between

the national government and the States,

or on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, entitled

Federalism (64 FR 43255, August 10,

1999). Executive Order 13132 requires

EPA to develop an accountable process

to ensure ‘‘meaningful and timely input

by State and local officials in the

development of regulatory policies that

have federalism implications.’’ ‘‘Policies

that have federalism implications’’ is

defined in the Executive Order to

include regulations that have

‘‘substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government.’’ This final rule

directly regulates growers, food

processors, food handlers and food

retailers, not States. This action does not

alter the relationships or distribution of

power and responsibilities established

by Congress in the preemption

provisions of FFDCA section 408(n)(4).

IX. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of this final

rule in the Federal Register. This final

rule is not a ‘‘major rule’’ as defined by

5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

Environmental protection,

Administrative practice and procedure,

Agricultural commodities, Pesticides

and pests, Reporting and recordkeeping

requirements.

Dated: January 7, 2000.

James Jones,

Director, Registration Division, Office of

Pesticide Programs.

Therefore, 40 CFR chapter I is

amended as follows:

PART 180–[AMENDED]

1. The authority citation for part 180

continues to read as follows:

Authority: 21 U.S.C. 321(q), 346(a) and

371.

2. Section 180.442 is amended, by

adding and alphabetically inserting the

following entries to the table under

paragraph (b) to read as follows:

§ 180.442 Bifenthrin; tolerances for

residues.

* * * * *

(b) * * *

Commodity Parts per

million

Expiration/

revocation

date

* ****

Grapes .................. 0.2 12/31/01

* ****

Peanuts, nutmeats 0.05 12/31/01

* ****

*****

[FR Doc. 00–1667 Filed 1–24–00; 8:45 am]

BILLING CODE 6560–50–F

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.

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

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 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 selfpollination. 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-MedfordTakilma, and all known naturallyoccurring 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,

3868 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

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

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 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 fieldcollected 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

3870 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

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 (m2) (108 square feet (ft2)), 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 m2 (108

ft2). 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

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 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

3872 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

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 nonnative 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 nonnative 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.

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 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

3874 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

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 greenhousegrown 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

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 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 § 17.12(h) by adding the

following, in alphabetical order under

FLOWERING PLANTS, to the List of

Endangered and Threatened Plants:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When

listed

Critical

habitat

Special

rules Scientific name Common name

*******

Flowering plants

*******

Plagiobothrys

hirtus.

Rough popcornflower U.S.A. (OR) ............... Boraginaceae ............ E 678 NA NA

*******

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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE53

Endangered and Threatened Wildlife

and Plants; Endangered Status for

‘‘Erigeron decumbens’’ var.

‘‘decumbens’’ (Willamette Daisy) and

Fender’s Blue Butterfly (‘‘Icaricia

icarioides fenderi’’) and Threatened

Status for ‘‘Lupinus sulphureus’’ ssp.

‘‘kincaidii’’ (Kincaid’s Lupine)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (‘‘Service’’ or ‘‘we’’) determines

endangered status pursuant to the

Endangered Species Act (Act) of 1973,

as amended, for a plant and a butterfly,

Erigeron decumbens var. decumbens

(Willamette daisy) and Fender’s blue

butterfly (Icaricia icarioides fenderi),

and determines threatened status for a

plant, Lupinus sulphureus ssp. kincaidii

(Kincaid’s lupine). These species are

restricted primarily to native prairie in

the Willamette Valley of Oregon and are

known currently from a few small

remnants of a formerly widespread

distribution. In addition to its Oregon

occurrences, L. sulphureus ssp.

kincaidii is known also from two small

sites in southern Washington.

Commercial and/or residential

development, agriculture, silvicultural

practices, road improvement, overcollection, herbicide use, and naturally

occurring demographic and random

environmental events threaten these

three taxa. This final rule invokes the

Federal protection and recovery

provisions of the Act, as applicable for

these plant and butterfly species.

EFFECTIVE DATES: February 24, 2000.

ADDRESSES: You may inspect the

complete file for this rule, by

appointment, during normal business

hours at the U.S. Fish and Wildlife

Service, Oregon State Office, 2600 SE

98th Ave, Suite 100, Portland, Oregon

97266.

FOR FURTHER INFORMATION CONTACT: Dr.

Andrew F. Robinson, Jr., Botanist; or

Diana Hwang, Fish and Wildlife

Biologist, U.S. Fish and Wildlife Service

(see ADDRESSES section or telephone

503–231–6179, Facsimile 503–231–

6195).

SUPPLEMENTARY INFORMATION:

Background

Fender’s blue butterfly (Icaricia

icarioides fenderi), Lupinus sulphureus

ssp. kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy) are restricted

primarily to the Willamette Valley of

Oregon. The valley is a 209-kilometer

(km) (130 miles (mi)) long and 32–64-

km (20–40-mi) wide alluvial floodplain

with an overall northward gradient (Orr

et al. 1992). The valley is narrow and

flat at its southern end, widening and

becoming hilly near its northern end at

the confluence of the Willamette and

Columbia Rivers. We know of four sites

containing L. sulphureus ssp. kincaidii

approximately 60 km (38 mi) south of

the Willamette Valley and within the

Umpqua Valley of Douglas County,

Oregon. In addition to its Oregon

occurrences, L. sulphureus ssp.

kincaidii is known from two small sites

in Lewis County, southern Washington,

70 km (40 mi) north of the Willamette

Valley.

The alluvial soils of the Willamette

Valley and southern Washington host a

mosaic of grassland, woodland, and

forest communities. Fender’s blue

butterfly, Lupinus sulphureus ssp.

kincaidii, and Erigeron decumbens var.

decumbens occupy native grassland

habitats within the Willamette Valley.

Based on the limited available evidence,

most Willamette Valley grasslands are

early seral (one stage in a sequential