6332 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

both anti-lock and regenerative system,

the letters and background of each

separate indicator lamp shall be of

contrasting colors, one of which is red.

The letters and background of a separate

lamp for an anti-lock system, a

regenerative system, or a lamp

displaying both an anti-lock and a

regenerative system shall be of

contrasting colors, one of which is

yellow.

§ 571.135 [Amended]

3. Section 571.135 is amended by:

a. Revising S5.5.1(g);

b. Revising S5.5.5(d)(6);

c. Adding S5.5.5(d)(7);

d. Amending S7.7.1 to add a second

sentence;

e. Revising S7.7.3(h); and

f. Removing S7.11.3(n).

The revisions, additions, and

amendments read as follows:

§ 571.135 Standard No. 135; Passenger car

brake systems.

* * * * *

S5.5.1. Activation. * * *

(g) For an EV with a regenerative

braking system that is part of the service

brake system, failure of the RBS.

* * * * *

S5.5.5. Labeling. * * *

(d) * * *

(6) If a separate indicator is provided

for the condition specified in S5.5.1(g),

the letters and background shall be of

contrasting colors, one of which is

yellow. The indicator shall be labeled

with the symbol ‘‘RBS.’’ RBS failure in

a system that is part of the service brake

system may also be indicated by a

yellow lamp that also indicates ‘‘ABS’’

failure and displays the symbol ‘‘ABS/

RBS.’’

(7) If a separate indicator is provided

for any other function, the display shall

include the word ‘‘Brake’’ and the

appropriate additional labeling.

* * * * *

S7.7 * * *

S7.7.1 General information. * * *

This test is also for EVs.

* * * * *

S7.7.3. * * *

(h) For an EV, this test is conducted

with no electrical power supplied to the

vehicle’s propulsion motor(s), but with

the RBS and brake power or power

assist still operating, unless cutting off

the supply of electrical power to the

propulsion motor(s) also disables those

systems.

Issued on: January 19, 2000.

Frank Seales, Jr.,

Acting Administrator.

[FR Doc. 00–2923 Filed 2–8–00; 8:45 am]

BILLING CODE 4910–59–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE55

Endangered and Threatened Wildlife

and Plants; Determination of

Endangered Status for the Plant

Thlaspi californicum (Kneeland Prairie

Penny-Cress) From Coastal Northern

California

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), determine

endangered status pursuant to the

Endangered Species Act of 1973, as

amended (Act), for Thlaspi californicum

(Kneeland Prairie penny-cress). Thlaspi

californicum is known only from

Kneeland Prairie in Humboldt County,

California, where it grows in coastal

prairie on serpentine outcrops. We

consider the occurrences of T.

californicum reported from Mendocino

County to be T. montanum, a widely

distributed species. Habitat loss,

potential road realignment, and

proposed airport expansion activities

imperil the continued existence of T.

californicum. The restricted range of

this species, limited to a single

population, increases the risk of

extinction from naturally occurring

events such as fire. This action

implements the protection of the Act for

this plant species.

DATES: This rule is effective on March

10, 2000.

ADDRESSES: The complete file for this

rule is available for public inspection,

by appointment, during normal business

hours at the U.S. Fish and Wildlife

Service, Sacramento Fish and Wildlife

Office, 2800 Cottage Way, Suite W2605,

Sacramento, California 95825.

FOR FURTHER INFORMATION CONTACT:

Kirsten Tarp or Jan Knight, Sacramento

Fish and Wildlife Office (see ADDRESSES

section) (telephone number 916/414–

6645; facsimile 916/414–6710).

SUPPLEMENTARY INFORMATION:

Background

The single known population of

Thlaspi californicum (Kneeland Prairie

penny-cress) is found on serpentine

soils at a coastal prairie in Humboldt

County, California. Serpentine soils are

derived from ultramafic rocks (rocks

with unusually large amounts of

magnesium and iron) such as

serpentinite, dunite, and peridotite,

which are found in discontinuous

outcrops in the Sierra Nevada and Coast

Ranges of California from Santa Barbara

County to Humboldt County. The chief

constituent of the parent rock is a

variant of iron-magnesium silicate. Most

serpentine soils are formed in place over

the parent rock and are, therefore,

shallow, rocky, and highly erodible.

Serpentine soils, because of the parent

material, tend to have high

concentrations of magnesium,

chromium, and nickel and low

concentrations of calcium, nitrogen,

potassium, and phosphorus (Kruckeberg

1984). Serpentine soils alter the pattern

of vegetation and plant species

composition nearly everywhere they

occur. While serpentine soils are

inhospitable for the growth of most

plants, some plants are wholly or largely

restricted to serpentine substrates

(Kruckeberg 1984).

Sereno Watson (1882) described

Thlaspi californicum based on a

collection made by Volney Rattan from

Kneeland Prairie at 760 meters (m)

(2,500 feet (ft)) elevation in Humboldt

County, California. Payson (1926)

maintained it as a full species in his

monograph of the genus, whereas it was

referred to as T. alpestre var.

californicum in Jepson’s (1925) manual

and T. glaucum ssp. californicum by

Munz (1959). Holmgren (1971) assigned

the name Thlaspi montanum var.

californicum and gave its range as

Kneeland Prairie (including a 1952

specimen from a serpentine rockpile

toward Ashfield Butte). She noted that

the plant had last been collected in

1962. Rollins (1993a, 1993b) has

elevated it to a full species—Thlaspi

californicum.

Thlaspi californicum is a perennial

herb in the mustard family

(Brassicaceae) that grows from 9.5 to

12.5 centimeters (cm) (3 to 6 inches (in))

tall, with a basal cluster of leaves that

develops at the base of the plant prior

to the flowering stage. The margins of

the basal leaves range from entire to

toothed. The white flowers have

strongly ascending pedicels (flower

stalks). The fruit is a sharply pointed

silicle (a short fruit typically no more

than 2 to 3 times longer than wide).

Thlaspi californicum flowers from May

to June. Characteristics that separate T.

californicum from T. montanum include

the orientation of the pedicel, shape and

notching of the fruit, and length/width

ratio of the fruit. Thlaspi montanum has

pedicels perpendicular to the stem, not

strongly ascending, and the silicles are

either truncate or shallowly notched,

but not as acute at the apex as they are

in T. californicum (Meyers 1991).

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations 6333

Rollins (1993a, 1993b) and Holmgren

(1971) considered Thlaspi californicum

to occur only at Kneeland Prairie. Smith

and Wheeler (1991), in their ‘‘Flora of

Mendocino County,’’ reported two

additional occurrences of T.

californicum located on Mendocino

National Forest in Mendocino County.

These sites have been examined by

David Isle, Mendocino National Forest

botanist; Dave Imper, Environmental

Specialist with SHN Consulting

Engineers and Geologists; and Service

staff. In addition, all of the herbarium

specimens for T. californicum and T.

montanum at Humboldt State

University, including those collected in

Mendocino County, have been

examined by Imper and Service staff.

The only collections considered by

Imper and the Service to be T.

californicum are from Kneeland Prairie

in Humboldt County (Imper 1997; Larry

Host and Kirsten Tarp, U.S. Fish and

Wildlife Service (USFWS), pers.

comms., 1997). Plants from Blue Banks

and near the Spruce Grove campground

on the Mendocino National Forest have

pedicels that are perpendicular to the

stem and silicles that are truncate and

notched, characteristic of T. montanum.

Additionally, the habitat and elevation

are different from Kneeland Prairie.

Other herbarium specimens, housed at

the Humboldt State University

herbarium and collected from Blue

Banks and from Spruce Grove

campground, are identified as T.

montanum. McCarten and Rogers (1991)

did not find any T. californicum in their

habitat management study of rare plants

and communities associated with

serpentine soils on the Mendocino

National Forest. The Mendocino

National Forest botanist and the

botanical consultant for Humboldt

County concurred with this conclusion

(Imper 1997; David Isle, botanist,

Mendocino National Forest, pers.

comm., 1997; L. Host and K. Tarp, pers.

comms., 1997).

The California Natural Diversity

Database (CNDDB) includes one

occurrence for Thlaspi californicum

based on Constance & Rollins’ collection

#2877 from 1942 (5 mi S of Hoopa

Valley), housed at the Humboldt State

University herbarium. The specimen

had been annotated as T. californicum

in 1976 by T. Nelson, then the

herbarium’s curator. A duplicate of this

specimen, housed at another herbarium,

had been assigned to T. montanum var.

montanum by Patricia Holmgren in her

1971 biosystematic study of North

American T. montanum and its allies.

The specimen has since been examined

by Imper and Service staff, who concur

that it is T. montanum (Meyers 1991,

Imper 1997).

The only known population of

Thlaspi californicum is scattered within

an area of 0.25 hectare (ha) (0.6 acre

(ac)), with a total of about 11,000

individuals at Kneeland Prairie in

Humboldt County (Dave Imper,

Environmental Specialist, SHN

Consulting Engineers and Geologists,

pers. comm., 1997). The Kneeland

Prairie population is bisected into two

colonies by the Kneeland Prairie

Airport. Both colonies occur on private

land immediately adjacent to the

Kneeland Prairie Airport. At Kneeland

Prairie, the habitat for T. californicum

has been reduced by approximately 60

to 70 percent within the past 33 years

through development of the site for the

Kneeland Prairie Airport, a county road

realignment, and a helitack base

(CNDDB 1997, Meyer 1991, Imper

1997). This population is currently

threatened by the proposed expansion

of the County airport and potential

additional realignment of the adjacent

road. Because of its extremely restricted

range, the plant is also vulnerable to

extinction from naturally occurring

events such as fire (CNDDB 1997).

To assess the significance of the

Kneeland Prairie population to the

species, Imper (1997) inspected

potentially suitable habitat for Thlaspi

californicum in other areas near

Kneeland Prairie and to the south. He

found no other occurrences.

Additionally, T. californicum has been

targeted for surveys by the Bureau of

Land Management (BLM) and U.S.

Forest Service staff. The Six Rivers

National Forest has no documented

occurrences (Lisa Hoover, botanist, Six

Rivers National Forest, pers. comm.,

1997). A search for the species has not

revealed any T. californicum on the

serpentine at Iaqua Buttes on BLM lands

(Jennifer Wheeler, botanist, BLM, Arcata

Resource Area, pers. comm., 1997).

Previous Federal Action

Federal Government action on

Thlaspi californicum began when we

published an updated Notice of Review

(NOR) for plants on December 15, 1980

(45 FR 82480), that identified those

plants currently being considered for

listing as endangered or threatened. We

included T. californicum (then known

as T. californicum var. montanum) as a

category 2 candidate for Federal listing

in this document. Category 2 candidates

were those taxa for which data on

biological vulnerability and threats in

our possession indicated that listing was

possibly appropriate but was not

sufficient to support proposed rules.

Our November 28, 1983, supplement to

the NOR (48 FR 53640) as well as the

subsequent revision on September 27,

1985 (50 FR 39526), included T.

californicum as a category 2 candidate.

We revised the plant NOR again on

February 21, 1990 (55 FR 6184), and

September 30, 1993 (58 FR 51144). In

both notices, we included Thlaspi

californicum as a category 1 candidate.

Category 1 candidates were those taxa

for which we had on file sufficient

information on biological vulnerability

and threats to support preparation of

listing proposals, but issuance of the

proposed rule was precluded by other

pending listing proposals of higher

priority. In our February 28, 1996,

Federal Register Notice of Review of

Plant and Animal Taxa that are

Candidates for Listing as Endangered or

Threatened Species (61 FR 7596), we

discontinued designation of multiple

categories of candidates, and only those

taxa meeting the definition of former

category 1 are now considered

candidates for listing. Thlaspi

californicum was included as a

candidate species in the February 28,

1996, notice. We published a proposed

rule on February 11, 1998, to list this

species as endangered. We based the

proposal on information supplied by

reports to the CNDDB and observations

and reports by numerous botanists.

Based on all available information

including comments received in

response to the proposal (see the

Summary of Comments and

Recommendations section of this final

rule), we have now determined Thlaspi

californicum to be endangered. 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 Listing Priority

Guidance. This final rule is a Priority 2

action. We have updated this rule to

reflect any changes in information

6334 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

concerning distribution, status, and

threats since the publication of the

proposed rule.

Summary of Comments and

Recommendations

In the proposed rule published

February 11, 1998, in the Federal

Register (63 FR 7112) and associated

notifications, we requested all interested

parties to submit factual reports or

information that might contribute to

development of a final rule. The public

comment period closed on April 13,

1998. We contacted appropriate Federal

agencies, State agencies, county and city

governments, scientific organizations,

and other interested parties and

requested comments. We also sent

copies of the proposed rule and the

letter for request of comment to three

local libraries for public display. We

published a newspaper notice in the

Eureka Times-Standard on February 25,

1998, which invited general public

comment. We received no requests for a

public hearing.

Six individuals or agencies submitted

comments. Two commenters supported

the listing, three commenters opposed

the listing, and one commenter was

neutral. We received supporting

comments from the California Native

Plant Society and BLM. We received

opposing comments from the

Washington Legal Foundation, Pacific

Legal Foundation, and a private citizen.

We organized opposing comments and

other comments questioning the

proposed rule into specific issues,

grouped comments of a similar nature

by issue, and summarized them as

follows:

Issue 1: One respondent asserted that

listing this species would exceed the

scope of the Federal commerce power

under the Commerce Clause of Article I,

section 8 of the U.S. Constitution.

Response: We maintain that we do

have the authority to list plants such as

the one in this final rule pursuant to the

Act. A recent decision in the United

States Court of Appeals for the District

of Columbia Circuit (National

Association of Home Builders of the

U.S. v. Babbitt, 130 F.3d 1041, D.C. Cir.

1997) makes it clear in its application of

the test used in the United States

Supreme Court case, United States v.

Lopez, 514 U.S. 549 (1995), that

regulation of species limited to one

State under the Act is within Congress’

commerce clause power. On June 22,

1998, the Supreme Court declined to

accept an appeal of this case (118 S. Ct.

2340 1998). Therefore, our application

of the Act to Thlaspi californicum is

constitutional.

Issue 2: One respondent wanted to

know the full economic impact of the

listing of this plant.

Response: Under section 4(b)(1)(A) of

the Act, a listing determination must be

based solely on the best scientific and

commercial data available. The

legislative history of this provision

clearly states the intent of Congress to

‘‘ensure’’ that listing decisions are

‘‘based solely on biological criteria and

to prevent non-biological considerations

from affecting such decisions,’’ H.R.

Rep. No. 97–835, 97th Cong. 2d Sess. 19

(1982). As further stated in the

legislative history, ‘‘Applying economic

criteria * * * to any phase of the

species listing process is applying

economics to the determinations made

under section 4 of the Act and is

specifically rejected by the inclusion of

the word ‘‘solely’’ in this legislation,’’

H.R. Rep. No. 97–835, 97th Cong. 2d

Sess. 19 (1982). Because we are

specifically precluded from considering

economic impacts in a final decision on

a proposed listing, we have not

examined such impacts and cannot

respond to comments and requests

concerning possible economic

consequences of listing this plant.

Issue 3. One respondent stated that

the Service does not have sufficient

scientific data to support a

determination of endangered and that

the Service did not cite any studies that

might question the validity of the

proposal.

Response: The Act requires us to

reach a decision based on the best

scientific and commercial information

available. We believe that botanical

study of the appropriate habitats on

public lands in Humboldt and nearby

counties has been adequate to show that

this plant is indeed extremely rare. The

threats to this species discussed under

the Summary of Factors Affecting the

Species section of this rule are also

based on the best information available

and are well documented or reasonably

foreseeable. By their nature, threats are

descriptions of events that have not yet

taken place but are likely to occur in the

foreseeable future. All information

received from all sources was carefully

evaluated.

Criteria for what information may be

considered are discussed in the

Summary of Factors Affecting the

Species section. We have attempted to

check all substantive information for

accuracy and believe that the

information included in this rule is

reliable.

Issue 4: One respondent asked a series

of questions about the CNDDB including

its function, sources of information and

funding, and review process.

Response: The CNDDB is a

computerized inventory with

information on the location and

condition of special status plants,

animals, and natural communities. The

CNDDB receives funding through the

State of California and receives its

information from a variety of sources

including consultants, academia, State

and Federal agency biologists, and

knowledgeable lay people. The

information submitted to CNDDB is

reviewed by CNDDB staff for general

accuracy before it is entered into the

database.

Peer Review

We have routinely solicited comments

from parties interested in, and

knowledgeable of, species that have

been proposed for listing as threatened

or endangered. The July 1, 1994, Peer

Review Policy (59 CFR 34270)

established the formal requirement that

a minimum of three independent peer

reviewers be solicited to review our

listing decisions. We received no

responses to our requests for peer

review of this listing action.

Summary of Factors Affecting the

Species

After a thorough review and

consideration of all information

available, we have determined that

Thlaspi californicum should be

classified as an endangered species. We

followed procedures found at section

4(a)(1) of the Act and 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 Thlaspi californicum are

as follows:

A. The present or threatened

destruction, modification, or

curtailment of its habitat or range. The

habitat of Thlaspi californicum has been

significantly reduced within the past 33

years. Just before 1964, an estimated 2.0

to 2.25 ha (5 to 6 ac) of habitat existed

at Kneeland Prairie (Meyers 1991).

Approximately 60 to 70 percent of the

habitat at Kneeland Prairie has been lost

since 1964, due to construction of the

Kneeland Prairie Airport, realignment of

the county road that runs through

Kneeland Prairie, and construction of

the California Department of Forestry

(CDFFP) helitack base (Meyers 1991;

Imper 1990; Imper, pers. comm., 1997).

Additional habitat and plants are

currently threatened by the proposed

expansion of the Kneeland Prairie

Airport and potential road realignment.

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations 6335

The Kneeland Prairie Airport serves

principally as the backup airport for

Rohnerville, Murray, Eureka Municipal,

and Arcata-Eureka airports. Small

single-engine and occasionally twinengine planes use Kneeland Prairie

Airport. This airfield is especially

important when airports at lower

elevations are fogged in, a frequent

occurrence in the region (Hodges &

Shutt 1993). Kneeland Prairie Airport is

the only airport in the Humboldt Bay

area that can be used when the bay is

fogged in (Don Tuttle, Resource

Specialist, Humboldt County Public

Works, pers. comm., 1997). The airport

is particularly important for commercial

express mail and air freight carriers, as

well as other couriers (Ray Beeninga,

Airports Manager, Humboldt County,

pers. comm., 1997).

Humboldt County contracted a study

to evaluate its airports and prepare

appropriate planning documents

(Hodges & Shutt 1993). The study

provided an assessment of Kneeland

Airport’s role and associated airfield

requirements. The report also discussed

land use compatibility issues and

descriptions of capital projects and

provided documentation required to

upgrade Kneeland Prairie Airport from

temporary to permanent inclusion in the

National Plan for Integrated Airport

Systems. That designation allows the

county to receive Federal funding for

airport modifications through the

Federal Aviation Administration (FAA).

Recommendations in the report

included development of a complete

geotechnical study of specific

engineering designs to stabilize the

airport and construction of a new

parking area meeting FAA setback

standards. The report discussed design

constraints for placement of the new

parking area. The location of the CDFFP

helitack base limits the ability of the

airport to expand the existing parking

area to the northwest (Hodges & Shutt

1993). The recommended location for

the new parking area is on the eastern

side of the airport (Hodges & Shutt

1993), adjacent to the eastern colony of

Thlaspi californicum. Construction of

the parking facility at Kneeland Prairie

Airport could adversely affect the

habitat and individuals of the eastern

colony due to the proximity of the

plants to the potential site.

Humboldt County is also contracting

an initial study to evaluate the

geotechnical feasibility and cost of

modifying Kneeland Prairie Airport.

The study, currently in progress (D.

Tuttle and D. Imper, pers. comms.,

1997), is evaluating ways to solve

problems involving subsidence of the

runway, slope stabilization, and the

safety issue that the runway is too short

(Dave Dietz, Project Manager, ShuttMoen Associates, pers. comm., 1997).

Possible options include leaving the

airport configuration as is (i.e., repairing

current subsidence, but not extending

the runway), finding a different site for

a new airport, or modifying the existing

airport (D. Dietz, pers. comm., 1997).

Financial constraints could influence

the choice among the alternatives (R.

Beeninga, pers. comm., 1997). In

addition, exploratory soil boring is

needed to determine how to stabilize

the airport and to determine the cost of

extending the runway (D. Dietz, pers.

comm., 1997). Thlaspi californicum

occurs on the slopes immediately

adjacent to the airfield. Exploratory

boring may affect individuals located

immediately adjacent to airport lands

(L. Host and K. Tarp, pers. obs. 1997).

Modification of the existing airport is

anticipated to occur in the year 2000 (R.

Beeninga, pers. comm., 1997).

The realignment of the county road

adjacent to the airport could affect the

western occurrence of Thlaspi

californicum at Kneeland Prairie (D.

Imper, pers. comm., 1997). The road

currently runs along the southwest edge

of the runway and serves areas beyond

the airport. The aviation manager would

not be authorized to modify the road

except as necessary for slope

stabilization or as the result of possible

runway extension at the south end of

the airport. The extension of the runway

to the south is not expected to directly

impact T. californicum. However, if the

runway is extended 30 to 65 m (90 to

200 ft) (R. Beeninga, pers. comm., 1997),

the runway will run through the current

road. The road would then either need

to go under the runway via a tunnel or

be realigned. The western colony of T.

californicum occurs just downslope of

the current road. Road realignment

could result in impacts to habitat and

individual plants.

For safety reasons, it is likely that

Humboldt County will undertake

straightening and/or widening the road,

either independent of or concurrent

with runway expansion (L. Host, in litt.,

1997). The road adjacent to the airport

is narrow; a blind, 90-degree curve in

the road around the end of the runway

limits safe speeds to only 10 to 15 miles

per hour. These conditions could

warrant a county decision to realign the

road to achieve a safer curve radius at

the end of the runway. Unless the

approach to that portion of the road is

moved outward beyond the plants

(which would require extra length and

expense), the realignment would cross

the remaining serpentine habitat and

eliminate about half of the remaining

plants in the western colony. We

anticipate that such roadwork would

occur during airport construction to

avoid the expense of bringing necessary

machinery to the site twice.

B. Overutilization for commercial,

recreational, scientific, or educational

purposes. Overutilization is not known

to be a threat for this plant.

C. Disease or predation. We know of

no threats to Thlaspi californicum from

disease. Cattle grazing occurs

throughout the prairie and the area

surrounding the airport (Imper 1997).

Cattle trails run through T. californicum

habitat (Meyers 1991), but current levels

of grazing do not appear to threaten the

species.

D. The inadequacy of existing

regulatory mechanisms. The California

Environmental Quality Act (CEQA)

(chapter 2, section 21050 et seq. of the

California Public Resources Code)

requires full disclosure of the potential

environmental impacts of proposed

projects. The public agency with

primary authority or jurisdiction over

the project is designated as the lead

agency and is responsible for

conducting a review of the project and

consulting with the other agencies

concerned with the resources affected

by the project. Section 15065 of the

CEQA guidelines requires a finding of

significance if a project has the potential

to reduce the number or restrict the

range of a rare or endangered plant or

animal. Species that are eligible for

listing as rare, threatened, or

endangered but are not so listed are

given the same protection as those

species that are officially listed with the

State or Federal governments. Once

significant effects are identified, the

lead agency has the option of requiring

mitigation for effects through changes in

the project or to decide that overriding

considerations make mitigation

infeasible. In the latter case, projects

may be approved that cause significant

environmental damage, such as

destruction of endangered species.

Protection of listed species through

CEQA is therefore dependent upon the

discretion of the agency involved.

When the CDFFP constructed the

Kneeland Helitack Base in 1980, a

botanical assessment was required by

the Humboldt County Planning

Department for issuance of a conditional

use permit. However, CDFFP did not

include any analysis of potential

impacts to Thlaspi californicum,

although records of its California Native

Plant Society 1B status and CNDDB

documentation of the species’ presence

were available at that time (Imper 1990,

Meyers 1991).

6336 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

E. Other natural or manmade factors

affecting its continued existence.

Thlaspi californicum has never been

found anywhere other than at Kneeland

Prairie, where the single population

occupies 0.25 ha (0.6 ac), bisected by

the Kneeland Airport. This plant

occupies serpentine prairie habitat that

is quite restricted in extent. The

combination of a single population and

restricted habitat makes T. californicum

susceptible to destruction of all or a

significant portion of its range from

naturally occurring events such as fire,

drought, or severe erosion (Shaffer 1981,

Primack 1993). Chance events causing

population fluctuations or even

population extirpations are not usually

a concern until the number of

individuals or geographic distribution

becomes as limited as with T.

californicum (Primack 1993). The single

known locality of the species also makes

the population at Kneeland Prairie

particularly susceptible to extinction

due to fire or an erosional event causing

slope failure. Even one such event has

the potential to seriously impact the

sole population of the species.

We have carefully assessed the best

scientific and commercial information

available regarding the past, present,

and future threats faced by this species

in determining to propose this rule.

Airport expansion activities, potential

road realignment, inadequate regulatory

mechanisms, and naturally occurring

events such as fire imperil the

continued existence of this plant. The

one known population of Thlaspi

californicum includes approximately

11,000 individual plants scattered

within a 0.25 ha (0.6 ac) area. The

species is in danger of extinction

throughout all of its known range. Based

on this evaluation, the preferred action

is to list T. californicum as endangered.

Other alternatives to this action were

considered but not preferred. A

conservation agreement could not be

negotiated with the private land owners

(D. Imper, in litt., 1994), and listing T.

californicum as threatened would not

provide adequate protection and would

not be consistent with the Act. Listing

T. californicum as endangered would

provide additional protection and is

consistent with the Act’s definition of

endangered.

Critical Habitat

Critical habitat is defined in section 3

of the Act as: (i) The specific areas

within the geographical area occupied

by the 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. The 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—(1) the species is threatened by

taking or other human activity, and

identification of critical habitat can be

expected to increase the degree of threat

to the species, or (2) such designation of

critical habitat would not be beneficial

to the species.

In the proposed rule, we indicated

that designation of critical habitat was

not prudent for Thlaspi californicum

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.

2d 1280 (D. Hawaii 1998)). Based on the

standards applied in those judicial

opinions, we have reexamined the

question of whether critical habitat for

Thlaspi californicum would be prudent.

Due to the small number of

populations, Thlaspi californicum 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.

However, we have examined the

evidence available for Thlaspi

californicum and have not found

specific evidence of taking, vandalism,

collection, or trade of this species or any

similarly situated species.

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 increase the degree

of threat to this species of taking or

other human activity.

In the absence of a finding that critical

habitat would increase threats to a

species, if a critical habitat designation

would provide any benefits, then a

prudent finding is warranted. In the

case of this species, designating critical

habitat may provide some benefits. The

primary regulatory effect of critical

habitat is the section 7 requirement that

Federal agencies refrain from taking any

action that destroys or adversely

modifies critical habitat (see Available

Conservation Measures section). 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. Designating critical habitat may

also provide some educational or

informational benefits. Therefore, we

find that critical habitat is prudent for

Thlaspi californicum.

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 Thlaspi

californicum 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 Thlaspi

californicum without further delay.

However, because we have successfully

reduced, although not eliminated, the

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations 6337

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 Thlaspi

californicum 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 activities.

Recognition through listing results 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 of Federal agencies and the

prohibitions against certain activities

involving listed plants are discussed, in

part, below.

Section 7(a) of the Act 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 any is 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 the

Service on any action that is likely to

jeopardize the continued existence of a

proposed species or result in

destruction or adverse modification of

proposed critical habitat. If a species is

listed subsequently, 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 such a species or

to 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 formal consultation with

us.

All of the occurrences of Thlaspi

californicum are on privately owned

land. However, impacts of modifying

the adjacent airport have the potential to

adversely affect T. californicum, due to

the proximity of the plants to the

proposed parking apron. Funds from the

FAA have been used to partially finance

a planning document for the Kneeland

Prairie Airport and are proposed to be

used for airport modifications. Private

sector funding is not anticipated to be

available for Kneeland Prairie Airport

(Hodges & Shutt 1993). Realignment of

a county road adjacent to the airport

may be required if the runway is

extended. This work could be partially

funded by Federal Highway

Administration grants, thereby

providing another avenue for section 7

consultation.

Listing Thlaspi californicum would

provide for development of a recovery

plan for this plant. Such a plan would

bring together both State and Federal

efforts for conservation of the plant

species. The plan would establish a

framework for agencies to coordinate

activities and cooperate with each other

in conservation efforts. The plan would

set recovery priorities and estimate costs

of various tasks necessary to accomplish

recovery. It also would describe sitespecific management actions necessary

to achieve conservation and survival of

the plant. Additionally, under section 6

of the Act, we would be able to grant

funds to the State for management

actions promoting the protection and

recovery of this species.

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 for

endangered plants, apply. These

prohibitions, in part, make it illegal for

any person subject to the jurisdiction of

the United States to import or export an

endangered plant, transport such a plant

in interstate or foreign commerce in the

course of a commercial activity, sell or

offer for sale an endangered plant in

interstate or foreign commerce, or

remove and reduce an endangered plant

to possession from areas under Federal

jurisdiction. In addition, for plants

listed as endangered, the Act prohibits

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 or in the course of any

violation of a State criminal trespass

law. Certain exceptions to the

prohibitions apply to agents of the

Service and State conservation agencies.

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 plant

species under certain circumstances.

Such permits are available for scientific

purposes and to enhance the

propagation or survival of the species. It

is anticipated that few trade permits

would ever be sought or issued because

this species is not common in

cultivation or common in the wild.

Information collections associated with

these permits are approved under the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq., and assigned Office of

Management and Budget clearance

number 1018–0094. For additional

information concerning these permits

and associated requirements, see 50 CFR

17.62. Requests for copies of the

regulations concerning listed plants and

general inquiries regarding prohibitions

and permits may be addressed to the

U.S. Fish and Wildlife Service,

Endangered Species Permits, 911 N.E.

11th Avenue, Portland, Oregon 97232–

4181 (telephone 503/231–2063;

facsimile 503/231–6243).

It is our policy, published in the

Federal Register (59 FR 34272) on July

1, 1994, to identify to the maximum

extent practicable those activities that

would or would not be likely to

constitute a violation of section 9 of the

Act if a species is listed. The intent of

this policy is to increase public

awareness of the effect of the species’

listing on proposed and ongoing

activities within its range. Collection of

listed plants or activities that would

damage or destroy listed plants on

Federal lands are prohibited without a

Federal endangered species permit.

Such activities on non-Federal lands

would constitute a violation of section

9 of the Act if they were conducted in

knowing violation of California State

law or regulation, or in the course of

violation of California State criminal

trespass law. Otherwise such activities

would not constitute a violation of the

Act on non-Federal lands.

Questions on whether specific

activities would likely constitute a

violation of section 9 should be directed

to the Field Supervisor of the Carlsbad

Fish and Wildlife Office (see ADDRESSES

section).

6338 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

Regulatory Planning and Review

This rule is not subject to review by

the Office of Management and Budget

under Executive Order 12866.

National Environmental Policy Act

We have determined that an

environmental assessment and

environmental impact statement, 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

Endangered Species Act of 1973, as

amended. 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

information collection requirements for

which Office of Management and

Budget (OMB) approval under the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq. is required. An information

collection related to the rule pertaining

to permits for endangered and

threatened species has OMB approval

and is assigned clearance number 1018–

0094. For additional information

concerning permits and associated

requirements for endangered plants, see

50 CFR 17.62 and 17.63.

References Cited

A complete list of all references cited

in this rule is available upon request

from the Field Supervisor, Sacramento

Fish and Wildlife Office (see ADDRESSES

section).

Author

The primary author of this final rule

is Kirsten Tarp, Sacramento Fish and

Wildlife 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 hereby amend part

17, subchapter B of chapter I, title 50 of

the Code of Federal Regulations, as set

forth below:

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

*******

Thlaspi californicum Kneeland Prairie

penny-cress.

U.S.A. (CA) ............. Brassicaceae .......... E 684 NA NA

*******

Dated: January 13, 2000.

Jamie Rapport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 00–2950 Filed 2–8–00; 8:45 am]

BILLING CODE 4310–55–U