14338 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

‘‘Magnesium powder or Magnesium

alloys, powder’’ in PG I, in column 8A,

the entry ‘‘151’’ is revised to read

‘‘None’’.

PART 173—SHIPPERS—GENERAL

REQUIREMENTS FOR SHIPMENTS

AND PACKAGINGS

4. The authority citation for Part 173

continues to read as follows:

Authority: 49 U.S.C. 5102–5127; 49 CFR

1.53.

5. In § 173.28, in the table in

paragraph (b)(4)(i), the footnote is

revised to read as follows:

§ 173.28 Reuse, reconditioning and

remanufacture of packagings.

* * * * * 1Metal drums or jerricans with a minimum

thickness of 0.82 mm body and 1.09 mm

heads which are manufactured and marked

prior to January 1, 1997 may be reused. Metal

drums or jerricans manufactured and marked

on or after January 1, 1997, and intended for

reuse, must be constructed with a minimum

thickness of 0.82 mm body and 1.11 mm

heads.

* * * * *

§ 173.170 [Amended]

6. In § 173.170, in the first sentence of

paragraph (c), the wording ‘‘450 g (15.9

ounces)’’ is revised to read ‘‘454 g (16

ounces)’’.

PART 178—SPECIFICATIONS FOR

PACKAGINGS

7. The authority citation for part 178

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

8. In § 178.2, a new paragraph (f) is

added to read as follows:

§ 178.2 Applicability and responsibility.

* * * * *

(f) No packaging may be

manufactured or marked to a packaging

specification that was in effect on

September 30, 1991, and that was

removed from this part 178 by a rule

published in the Federal Register on

December 21, 1990 and effective

October 1, 1991.

Issued in Washington, DC on March 20,

1997, under authority delegated in 49 CFR

part 1.

Kelley S. Coyner,

Deputy Administrator.

[FR Doc. 97–7558 Filed 3–25–97; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AC00

Endangered and Threatened Wildlife

and Plants; Determination of

Endangered Status for Three Plants

and Threatened Status for Five Plants

From Vernal Pools in the Central Valley

of California

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The Fish and Wildlife Service

(Service) determines endangered status

pursuant to the Endangered Species Act

of 1973, as amended (Act) for three

plants, Orcuttia pilosa (hairy Orcutt

grass), Orcuttia viscida (Sacramento

Orcutt grass), and Tuctoria greenei

(Greene’s tuctoria); and threatened

status for five plants, Castilleja

campestris ssp. succulenta (fleshy

owl’s-clover), Chamaesyce hooveri

(Hoover’s spurge), Neostapfia colusana

(Colusa grass), Orcuttia inaequalis (San

Joaquin Valley Orcutt grass), and

Orcuttia tenuis (slender Orcutt grass).

Between publication of the proposed

and final rules for these species, the

Service determined that Orcuttia

inaequalis, which was originally

proposed as endangered, should be

listed as threatened due to lesser

immediacy and magnitude of threats to

its existence. These species grow in the

basins and margins of vernal pools of

the Central Valley of California. Habitat

loss and degradation due to

urbanization, agricultural land

conversion, livestock grazing, offhighway vehicle use, a flood control

project, a highway project, altered

hydrology, landfill projects, and

competition from weedy nonnative

plants imperil the continued existence

of these species. This rule implements

Federal protection and recovery

provisions afforded by the Act for these

eight plants.

EFFECTIVE DATE: April 25, 1997.

ADDRESSES: The complete file for this

rule is available for public inspection,

by appointment, during normal business

hours at the Sacramento Field Office,

U.S. Fish and Wildlife Service, 3310 El

Camino Avenue, Suite #130,

Sacramento, California 95821–6340.

FOR FURTHER INFORMATION CONTACT: Ken

Fuller at the above address or by

telephone at 916/979–2120 or facsimile

at 916/979–2128.

SUPPLEMENTARY INFORMATION:

Background

Vernal pools in the Central Valley of

California were a common and

widespread feature in pre-European

times (Holland and Jain 1977). Although

historic amounts of vernal pool habitat

losses and annual loss rates have been

disputed, Holland estimated that

urbanization and other factors had

eliminated 67 to 88 percent of the vernal

pools in the Central Valley by 1973

(Holland 1978, and Robert Holland,

consultant, in litt. 1992). Public

comments and additional work

regarding the number of remaining acres

of vernal pool habitat in the Central

Valley indicate the loss of vernal pool

habitat is closer to 50 percent than 67

to 88 percent (59 FR 48139; R. Holland,

pers. comm. 1996). The plants discussed

herein grow only in vernal pools in

California and have experienced minor

to major population and habitat

reductions throughout their respective

ranges. California vernal pools are

generally small, seasonally aquatic

ecosystems that are inundated in the

winter and dry slowly in the spring and

summer, making a harsh, unique

environment. Cyclical wetting and

drying create an unusual ecological

situation supporting a unique biota.

Many plants and animals have evolved

to possess such specific characteristics

that these organisms cannot live outside

these temporary pools. Four other listed

species may occur with these plants:

The vernal pool tadpole shrimp

(Lepidurus packardi); conservancy fairy

shrimp (Branchinecta conservatio);

longhorn fairy shrimp (B. longiantenna);

and vernal pool fairy shrimp (B. lynchi).

However, no close associations are

known between any of the listed shrimp

species and the eight plants affected by

this rule.

The Central Valley of California

consists of the Sacramento Valley in the

north half of the State and the San

Joaquin Valley in the south half. Within

the Central Valley, vernal pools are

found in four physiographic settings,

each possessing an impervious soil layer

relatively close to the surface. These

four settings include high terraces with

iron-silicate or volcanic substrates, old

alluvial terraces, basin rims with

claypan soils, and low valley terraces

with silica-carbonate claypans. Due to

local topography and various geological

populations, vernal pools are usually

clustered into pool complexes. Pools

within a complex typically are

separated by a distance of a few to

several meters and may form dense,

interconnected mosaics of small pools

or a more sparse scattering of large
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14339

pools. Vernal pool habitats and the eight

plants discussed herein are found over

a very limited, discontinuous,

fragmented area within the Central

Valley.

Discussion of the Eight Species

Neostapfia colusana (Colusa grass) is

a robust, tufted annual that grows 7 to

30 centimeters (cm) (3 to 12 inches (in))

in height. The stems are decumbent

toward the base with the upper portion

erect and terminating in spike-like

inflorescences that are cylindrical,

dense, and resemble small ears of corn.

Because of this unique inflorescence,

this distinctive plant is not easily

confused with any others. Joseph BurttDavy (1898) collected and first

described N. colusana as a member of

the genus Stapfia. Burtt-Davy (1899)

renamed this genus Neostapfia and

shortly thereafter, Frank Scribner (1899)

submerged Neostapfia within the genus

Anthochloa. Robert Hoover (1940)

placed this species in the resurrected

monotypic genus Neostapfia.

Neostapfia colusana has been

extirpated from its type locality in

Colusa County. Seven populations of N.

colusana in Colusa, Merced, and

Stanislaus counties have been lost.

Three populations in Merced County

and one occurrence in Stanislaus

County have not been seen in many

years and are considered to possibly be

extirpated. The remaining 40

populations in the San Joaquin Valley

are concentrated along a 200 kilometer

(km) (98 mile (mi)) stretch of the eastern

edge of the San Joaquin Valley in

Stanislaus and Merced counties.

Additionally, two separate populations

occur in Solano County in the

Sacramento Valley and another two

populations are found in Yolo County.

All populations exist on private lands,

with the exception of one population

found on Castle Air Force Base (Merced

County) in 1993 and one population

found on McClellan Air Force Base

(Yolo County) in 1993. In addition to

the population on The Nature

Conservancy’s (TNC) Jepson Prairie

Preserve in Solano County, this plant is

afforded some protection via a 970

hectare (ha) (2,400 acre (ac))

conservation easement purchased by

TNC at the Flying M Ranch in Merced

County (R. Alfandre, TNC, pers. comm.

1994). ‘‘The overall trend for Colusa

grass is one of decline’’ (California

Department Fish and Game (CDFG)

1992a).

Orcuttia inaequalis (San Joaquin

Valley Orcutt grass) is a tufted annual

that reaches 5 to 15 cm (2 to 6 in) in

height. The grayish, pilose (bearing soft,

straight hairs) plants have several

spreading to erect stems, each

terminating in a spike-like

inflorescence. At maturity, the spikelets

of the plant are aggregated into a dense,

hat-shaped cluster, which separates

them from other members of the genus

Orcuttia. Additionally, the lemmas

(lower bracts enclosing the grass floret)

are deeply cleft into five prominent

teeth which may be sharp-pointed or

have awns that are 0.5 millimeters (mm)

(0.2 in) long. The middle tooth is

conspicuously longer than the four

laterals. Orcuttia inaequalis does not

occur with any other species of

Orcuttia. The species most closely

resembles O. californica and O. viscida.

The former does not have the long

central lemma tooth and lacks the

grayish appearance, whereas, the

spikelets of the latter are more

congested toward the apex of the

inflorescence, but not as much as in O.

inaequalis. Orcuttia inaequalis has also

smaller lemmas, noncurving lemma

teeth, and smaller seeds. Orcuttia

inaequalis grows with Neostapfia

colusana at five sites in the San Joaquin

Valley.

Klyver first collected and identified

Orcuttia inaequalis as O. californica

near Lane’s Bridge in Fresno County in

1927 (Klyver 1931). Hoover (1936a)

described O. inaequalis as a distinct

species, but reduced the species to a

variety of O. californica in 1941 (Hoover

1941). Reeder (1982) determined O.

inaequalis to be a distinct species based

on seed proteins, chromosome numbers,

and morphological characteristics.

Sixteen populations of O. inaequalis

have been lost in Fresno, Madera,

Merced, and Stanislaus counties.

Additionally, three populations of O.

inaequalis have not been seen in some

years of surveying and are considered

possibly extirpated. The remaining 23

populations, mostly in southeastern San

Joaquin Valley in Fresno, Merced, and

Madera counties, are discontinuously

scattered over a 79 km (36 mi) range.

Two populations are on Federal land,

one managed by the Bureau of Land

Management (BLM) and one

transplanted population by the Bureau

of Reclamation (BOR), while the

remaining 21 populations are found on

private lands. Three populations of O.

inaequalis are protected by a

conservation easement with TNC at the

Flying M Ranch in Merced County.

‘‘The general trend for San Joaquin

Valley Orcutt grass is one of decline’’

(CDFG 1991b).

Orcuttia pilosa (hairy Orcutt grass) is

a densely tufted, usually densely pilose

annual reaching about 5 to 20 cm (2 to

8 in) in height. The stems are erect or

decumbent at the base. The

inflorescence is spike-like and rather

elongate, with the spikelets remote on

the axis below and usually strongly

congested above. The equal-length

lemmas are deeply cleft into fine teeth

that are sharp-pointed or short-awned.

Orcuttia pilosa and O. tenuis grow

together over a portion of their

respective ranges but are readily

distinguished, as the stems of O. pilosa

are simple, tiller freely from the base

and never branch from the upper nodes.

Additionally, the spikelets of O. pilosa

are strongly congested at the apex of the

inflorescence and the stems and leaves

are larger. Orcuttia pilosa occurs

infrequently with Tuctoria greenei, but

these two grasses can be readily

distinguished.

Hoover collected Orcuttia pilosa in

1938 from a single locality in eastern

Stanislaus County, at the time

considering these specimens to be a

more robust form of O. tenuis. He used

one of these specimens as the type for

a new species, O. pilosa, which he

described after examining additional

collections from Merced and Madera

counties in San Joaquin Valley (Hoover

1941). Orcuttia pilosa occurs along a

490 km (223 mi) stretch on the eastern

margin of the San Joaquin and

Sacramento valleys from Tehama

County south to Stanislaus County and

through Merced and Madera counties.

Previously, 34 populations of O. pilosa

were known. Eleven populations

variously have been extirpated or are

presumed extirpated due to agricultural

land conversion, urbanization, and

intensive cattle grazing in Madera,

Merced, Stanislaus, and Tehama

counties. Of the 24 native, extant

populations and 1 introduced

population, only 12 populations are

considered to be stable (Stone et al.

1988; J. Silveira, U.S. Fish and Wildlife

Service (Service), pers. comm. 1994). Of

the 25 populations, 3 ungrazed

populations of O. pilosa occur on the

Sacramento National Wildlife Refuge.

One population of O. pilosa occurs on

BOR lands, and a translocated one

occurs on land owned by California

State Department of Transportation. The

remaining 20 populations occur on

private lands with 1 population of O.

pilosa in Butte County, 4 in Stanislaus

County, 6 in Madera County, and 9 in

Tehama County. Four of the nine

populations of O. pilosa in Tehama

County are located on the TNC’s Vina

Plains Preserve. However, only one of

these sites at the preserve is excluded

from an agreement allowing cattle

grazing by the previous landowner

(Stone et al. 1988). ‘‘The overall trend

for hairy Orcutt grass is one of decline
14340 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

due to loss of vernal pool habitat’’

(CDFG 1991c).

Orcuttia viscida (Sacramento Orcutt

grass) is a densely tufted, pilose annual

that reaches 2 to 10 cm (1 to 4 in) in

height. The erect stems terminate in

spike-like inflorescences that are

congested at the apex. The plants are

viscid (sticky) even when young and

more so at maturity. Orcuttia viscida

develops five-toothed lemmas 6 to 7 mm

(0.2 to 0.3 in) long with the middle

tooth conspicuously longer than the

four laterals. The lemma teeth curve

outward at maturity, giving the

inflorescence a distinct bristly

appearance. Although O. viscida is

geographically isolated from all other

members of the genus, it most closely

resembles O. inaequalis, but can be

separated as described above under the

discussion of O. inaequalis.

Hoover collected Orcuttia viscida in

1941 from a vernal pool near Folsom in

Sacramento County and described it as

a variety of O. californica (Hoover

1941). Reeder elevated O. viscida to

specific rank based on differences in

chromosome number, seed size, and

other morphological characteristics

(Reeder 1980, 1982). Orcuttia viscida

possesses the narrowest range of the

eight species proposed for listing herein.

Orcuttia viscida occurs within a 350

square km (135 square mi) area in

eastern Sacramento County. Only 40 km

(18 mi) separates the northernmost from

the southernmost population. Two of

the nine known populations have been

extirpated. Presently, three populations

are found on private lands and four

populations are located on non-Federal

public lands (one area owned by a

public municipality, one owned by the

County of Sacramento, one by the City

of Fair Oaks, and one by the CDFG).

‘‘The trend for Sacramento Orcutt grass

is one of rapid decline’’ (CDFG 1991d).

Tuctoria greenei (Greene’s tuctoria) is

a tufted, more or less pilose, annual

grass that grows 5 to 15 cm (2 to 6 in)

tall. The plant develops several to many

erect stems, the outermost decumbent to

spreading at the base, with each

terminating in a spike-like inflorescence

that may be partially enveloped by the

uppermost leaf. The lemmas are

strongly curved and more or less

truncate at the apex.

Vasey (1891) described Tuctoria

greenei as Orcuttia greenei from

specimens collected by Edward Greene

near Chico in Butte County in 1890. It

remained in the genus Orcuttia until

Reeder (1982) described the genus

Tuctoria and placed the former O.

greenei into the new genus Tuctoria.

Nineteen populations of T. greenei have

been extirpated or are possibly

extirpated in Fresno, Madera, Merced,

San Joaquin, Stanislaus, Tehama, and

Tulare counties. The 20 remaining

populations of T. greenei occur in Butte,

Glenn, Merced, Shasta, and Tehama

counties. The present range of this

species extends 567 km (258 miles).

With the exception of one small

population of 50 plants on the

Sacramento National Wildlife Refuge,

all populations are on private lands,

including four on the TNC’s Vina Plains

Preserve. ‘‘The general trend for

Greene’s Orcutt grass is one of decline

as a result of habitat alteration and

destruction’’ (CDFG 1991e).

Orcuttia tenuis (slender Orcutt grass)

is a weakly-tufted and sparsely-pilose

annual grass. It grows about 5 to 15 cm

(2 to 6 in) in height, producing one to

several erect stems that often branch

from the upper nodes. The inflorescence

of this plant is elongate, with the

spikelets usually remote along the axis

and slightly, if at all, congested toward

the apex. The lemmas are deeply cleft

into fine, equal-length, prominent teeth

that are sharp-pointed or short-awned.

Orcuttia tenuis and O. pilosa are found

growing together over a portion of their

respective ranges but are readily

distinguished as described in the

discussion of O. pilosa.

Alice Eastwood first collected

Orcuttia tenuis in 1912 in Shasta

County. These specimens were

considered to be O. californica prior to

the description of O. tenuis by

Hitchcock as a new species in 1934,

based upon spikelet arrangement as well

as lemma tooth morphology (Hitchcock

1934). Orcuttia tenuis has been

extirpated from its type locality in

Shasta County and four other sites in

the vicinity of the Redding Municipal

Airport. Disjunct populations occur in

vernal pools on remnant alluvial fans

and high stream terraces and recent

basalt flows across 440 km (220 mi)

(Stone et al. 1988). Orcuttia tenuis is

restricted to northern California, with 2

populations occurring in Lake County, 1

in Lassen County, 2 in Plumas County,

2 in Sacramento County, 19 (including

one translocated) in Shasta County, 2 in

Siskiyou County, and 32 in Tehama

County. Thirty-nine populations are on

private lands. In addition to the

populations on the TNC’s Vina Plains

Preserve in Tehama County, The Trust

for Public Lands has obtained a

conservation easement on the Inks

Creek Ranch in Tehama County to

protect one population of O. tenuis (M.

Kelly, BLM, pers. comm. 1993). The

City of Redding owns lands containing

two populations. The United States

Forest Service (USFS) and the BLM

jointly have prepared a management

guide for one of the ten populations on

lands administered by the BLM and

three of the nine populations on those

lands administered by the Lassen

National Forest (B. Corbin, Lassen

National Forest, pers. comm. 1994; J.

Molter, BLM, pers. comm. 1994;

California Natural Diversity Database

(CNDDB) 1996). ‘‘Although discoveries

of additional populations in recent years

have extended the known range of this

species, the overall trend for slender

Orcutt grass is one of decline as a result

of habitat alteration and loss’’ (CDFG

1991f).

Castilleja campestris ssp. succulenta

(fleshy owl’s-clover) is a glabrous,

hemiparasitic (partly parasitic) annual

herb belonging to the snapdragon family

(Scrophulariaceae). The stems are

simple or branched, generally 5 to 25

cm (2 to 10 in.) tall with brittlesucculent or brittle-fleshy, entire,

alternate leaves. The branches end in a

dense, short, green inflorescence with

bracts equaling or exceeding the bright

yellow to white flowers that appear in

May. Castilleja campestris ssp.

succulenta occurs with C. campestris

ssp. campestris in Stanislaus County,

but the latter can be distinguished by its

usually more brittle leaves, shorter

bracts, larger corollas, and longer

stigmata.

Hoover (1936b) originally described

the plant as Orthocarpus campestris var.

succulentus from specimens at its type

locality in beds of vernal pools near

Ryer, Merced County. He subsequently

elevated it to a full species, O.

succulentus, distinguishing it from O.

campestris on the basis of leaf and bract

shape and flexibility, corolla color, and

anther cell length (Hoover 1968).

Chuang and Heckard (1991)

significantly revised Orthocarpus,

subsuming most of what had been

called Orthocarpus into the genus

Castilleja. They also proposed the new

combination C. campestris ssp.

succulenta. This small annual plant was

formerly more widespread in the

Central Valley and is now extirpated

from its type locality near Ryer in

Merced County. Additionally, three

populations in Fresno County have not

been observed for some years and are

possibly extirpated (CNDDB 1996). The

plant discontinuously occurs in the San

Joaquin Valley over a range of 145 km

(66 mi) extending through northern

Fresno, western Madera, eastern

Merced, southeastern San Joaquin, and

Stanislaus counties. One population

occurs on lands managed by the BOR,

one on lands owned by the California

Department of Transportation, and two

populations on land managed by the

BLM. Thirty-two populations occur on
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14341

private lands. Of these populations,

seven occur at the Flying M Ranch,

where TNC has a conservation easement

(CNDDB 1996). ‘‘The overall trend for

succulent owl’s clover is one of decline’’

(CDFG 1991g).

Chamaesyce hooveri (Hoover’s

spurge), a member of the spurge family

(Euphorbiaceae), is a prostrate, glabrous

annual herb. The leaves are gray-green,

asymmetric at the base, rounded to

kidney-shaped and have small, narrow

white teeth around the margins. The

small flowers occur singly in the leaf

axils. Chamaesyce ocellata can occur in

the same range with C. hooveri but is

readily distinguished by its spreading

rather than prostrate habit, yellowishgreen color, and entire leaf margins.

Chamaesyce serpyllifolia is similar to C.

hooveri. Both species have a gray-green

color and may be prostrate, but C.

serpyllifolia has less rounded leaves,

and the marginal teeth are shorter and

are usually limited to the leaf apex.

Neither C. ocellata nor C. serpyllifolia

have been documented growing together

with C. hooveri in the same vernal pool.

Hoover first collected this plant in

Tulare County in 1937. Wheeler (1940)

described it as Euphorbia hooveri.

Koutnik (1985) placed this species in

the genus Chamaesyce based on the

presence of a sheath around the vascular

bundle, its sympodial (lateral

branching) growth habit, and its

photosynthetic pathway. Chamaesyce

hooveri is found in vernal pools on

remnant alluvial fans and related

depositional stream terraces along a

stretch of 528 km (240 mi) on the

eastern margin of the Central Valley.

Four populations of C. hooveri are

extirpated or are possibly extirpated in

Butte, Tehama, and Tulare counties. Of

the 25 extant populations, 10

populations are known from Glenn,

Merced, Stanislaus, and Tulare

counties. Three populations occur at the

northern end of Butte County and the

remainder are located in Tehama

County. Five of the 12 Tehama County

populations occur on TNC’s Vina Plains

Preserve. All populations are on

privately owned lands, except for the

four populations in Glenn County found

on the Sacramento National Wildlife

Refuge (CNDDB 1996; J. Silveira,

Sacramento National Wildlife Refuge,

pers. comm. 1994).

Previous Federal Action

Federal actions on these eight species

began as a result of section 12 of the

Endangered Species Act of 1973, which

directed the Secretary of the

Smithsonian Institution to prepare a

report on those species 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, and included Castilleja

campestris ssp. succulenta (as

Orthocarpus succulentis [sic]),

Neostapfia colusana, Orcuttia

inaequalis (as O. californica var.

inaequalis), O. pilosa, O. tenuis, and O.

viscida (as O. californica var. viscida) as

endangered, and Chamaesyce hooveri

(as Euphorbia hooveri) as threatened.

The Service published a notice on July

1, 1975, (40 FR 27823) of its acceptance

of the report of the Smithsonian

Institution as a petition within the

context of section 4(c)(2) (petition

provisions are now found in section

4(b)(3) of the Act) and its intention to

review the status of the species named

therein. The seven plants above were

included in the July 1, 1975, notice. On

June 16, 1976, the Service published a

proposal (42 FR 24523) to determine

approximately 1,700 vascular plant

species to be endangered species

pursuant to section 4 of the Act. This

list of 1,700 plant taxa was assembled

on the basis of comments and data

received by the Smithsonian Institution

and the Service in response to House

Document No. 94–51 and the July 1,

1975, Federal Register publication.

Castilleja campestris ssp. succulenta,

Chamaesyce hooveri, Neostapfia

colusana, O. inaequalis, O. pilosa, O.

tenuis, and O. viscida were included in

the June 16, 1976, Federal Register

document.

General comments received in

relation to the 1976 proposal were

summarized in an April 26, 1978,

publication (43 FR 17909). The

Endangered Species Act Amendments

of 1978 required that all proposals over

2 years old be withdrawn. A 1-year

grace period was given to those

proposals already more than 2 years old.

On December 10, 1979, the Service

published a notice (44 FR 70796) of the

withdrawal of the June 16, 1976,

proposal, along with four other

proposals that had expired.

The Service published an updated

Notice of Review for plants on

December 15, 1980 (45 FR 82480). This

notice included Castilleja campestris

ssp. succulentus, Chamaesyce hooveri,

Neostapfia colusana, Orcuttia

inaequalis, O. pilosa, O. tenuis, O.

viscida, and Tuctoria greenei as category

1 candidates. Category 1 candidates

were those species for which the Service

had on file substantial information on

biological vulnerability and threats to

support a proposal to list. On November

28, 1983, the Service published a

supplement to the notice of review (48

FR 53640), which changed Castilleja

campestris ssp. succulentus and N.

colusana to Category 2 candidates.

Category 2 candidates were those

species for which data in the Service’s

possession indicated that listing was

possibly appropriate, but for which

substantial data on biological

vulnerability and threats were not

known or on file to support proposed

rules. The plant notice was again

revised on September 27, 1985 (50 FR

39526) and the status of the eight plants

remained unchanged from the 1983

supplement. In the revision of the plant

notice published on February 21, 1990

(55 FR 6184), N. colusana was returned

to category 1 status. In 1991 and 1992,

the Service received additional

information regarding threats to

Castilleja campestris ssp. succulenta,

and returned this species to category 1

status. As published in the Federal

Register on February 28, 1996 (61 FR

7596), candidate category 2 status was

discontinued and only category 1

species are recognized as candidates for

listing purposes.

Section 4(b)(3)(B) of the Act requires

the Secretary to make certain 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 was the

case for Castilleja campestris ssp.

succulenta, Chamaesyce hooveri,

Neostapfia colusana, Orcuttia

inaequalis, O. pilosa, O. tenuis, and O.

viscida, because the 1975 Smithsonian

report had been accepted as a petition.

In October of 1983 through 1991, the

Service found that the petitioned listing

of the above seven plant species was

warranted but precluded by other higher

priority listing actions.

A proposal to list Orcuttia inaequalis,

O. tenuis, O. viscida, and Tuctoria

greenei as endangered and Castilleja

campestris ssp. succulenta, Chamaesyce

hooveri, Neostapfia colusana, and O.

pilosa as threatened was published on

August 5, 1993 (58 FR 41700). This

proposal primarily was based on

information supplied by reports to the

California Natural Diversity Data Base,

the Status Survey of the Grass Tribe

Orcuttieae and Chamaesyce hooveri

(Euphorbiaceae) in the Central Valley of

California (Stone et al. 1988), and

observations by numerous botanists.

Since publication of the proposed rule

for these species, the Service has

determined that Orcuttia inaequalis,

which was proposed as endangered,

should be listed as threatened due to a

lesser immediacy and magnitude of

threats to its existence.
14342 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

The processing of this final rule

conforms with the Service’s listing

priority guidance published in the

Federal Register on December 5, 1996

(61 FR 64475). The guidance clarifies

the order in which the Service will

process rulemakings following two

related events: (1) The lifting, on April

26, 1996, of the moratorium on final

listings imposed on April 10, 1995

(Public Law 104–6), and (2) the

restoration of funding for listing through

passage of the Omnibus Budget

Reconciliation law on April 26, 1996,

following severe funding constraints

imposed by a number of continuing

resolutions between November 1995

and April 1996. The guidance calls for

giving highest priority to handling

emergency situations (Tier 1) and

second highest priority (Tier 2) to

resolving the listing status of the

outstanding proposed listings. This final

rule falls under Tier 2. At this time there

are no pending Tier 1 actions. This rule

has been updated to reflect any changes

in distribution, status and threats since

the effective date of the listing

moratorium. This additional

information was not of a nature to alter

the Service’s decision to list the species.

Summary of Comments and

Recommendations

Upon the publication of the August 5,

1993, proposed rule and associated

notifications (58 FR 41700), all

interested parties were requested to

submit factual reports or information

that might assist the Service in

determining whether listing is

warranted for these species. A 90-day

comment period closed on November

18, 1993. Appropriate Federal and State

agencies, county and city governments,

scientists, and interested parties were

contacted and requested to comment.

Individual newspaper notices of the

proposed rule were published in the

Lake County Record-Bee, Modesto Bee,

Record Searchlight, Visalia Times-Delta,

Siskiyou Daily News, Madera Tribune,

Chico-Enterprise Record, Daily

Republic, Turlock Daily, Fresno Bee,

and Sacramento Bee on a variety of

dates from August 21 to August 26,

1993.

In response to the publication of the

proposed rule, William Hazeltine,

Environmental Consultant, Oroville,

California, requested a public hearing in

a letter dated August 16, 1993. As a

result, the public comment period was

extended to November 18, 1993. Notice

of the public hearing was published in

the Federal Register (58 FR 52063) and

in the Sacramento Bee, a newspaper

with a large regional circulation. A

public hearing was held at the Hyatt

Regency Hotel in Sacramento on

November 3, 1993, from 6 pm to 8 pm.

Eleven people presented oral and

written comments.

During the comment period, the

Service received comments (letters and

oral testimony) from 27 people.

Numerous people submitted more than

one comment to the Service. Seven

comments supported the listing, 12

comments opposed the listing, and 8

comments are viewed as neutral.

Several commenters provided

clarification and additional detailed

information that have been incorporated

into this rule. Opposing comments and

other comments questioning the

proposed rule have been organized into

specific issues. These issues and the

Service’s response to each are

summarized as follows:

Issue 1. One commenter stated that

the population of Orcuttia viscida in a

vernal pool complex within a preserve

in the proposed Sunrise-Douglas

subdivision is not threatened. Another

commenter stated that this same

population is threatened by human

disturbance.

Service Response: The Service

reported in the proposed rule that one

population of Orcuttia viscida was

threatened by an industrial park

development in eastern Sacramento

County (CNDDB 1993). This industrial

park development project was dropped

from further consideration, and the

Sunrise-Douglas subdivision has been

proposed in the same area (George

Clark, California Native Plant Society, in

litt. 1993). The proposed subdivision

includes a proposed preserve area,

which includes the vernal pools

containing O. viscida and O. tenuis.

Because the preserve is only a proposal,

it does not provide any protection to

these plant populations. Detrimental

effects from herbicide runoff, invasion

of horticultural exotics, bicycle riding,

and other human intrusions have been

observed in other preserves adjacent to

subdivisions, including one preserve for

O. viscida in Sacramento County. The

Service considers the populations at

Sunrise-Douglas to be imperiled by

similar threats as discussed in Factor E

in the ‘‘Summary of Factors Affecting

the Species.’’

Issue 2. One commenter stated that

one population of Orcuttia viscida is not

threatened by the Sacramento County

landfill. Another commenter stated that

the Sacramento County landfill

threatens this same population.

Service Response: Recently, the

Sacramento County landfill has been

expanded because the current use area

was nearly full to capacity. During the

last landfill expansion project, the area

containing the vernal pool complex,

mostly centered on the county-owned

land having one population of Orcuttia

viscida, was avoided. Because the

County currently does not own land

elsewhere for future landfill expansion

and has not announced plans to

purchase additional land, it is

reasonable to expect that any future

expansion will threaten this population.

Moreover, any expansion of the current

landfill area will destroy potential

habitat for O. viscida (Clark, in litt.

1993).

Issue 3. One commenter stated that

loss of vernal pool habitat from many of

the planned housing projects and

aggregate mines in the Central Valley

will be mitigated by vernal pool

creation. Because vernal pool creation

has been successful and is not

experimental, no habitat losses exist as

claimed by the Service.

Service Response: Ferren and Gervitz

(1990) reviewed 21 vernal pool creation

projects and stated that no conclusive

data exist to substantiate the hypothesis

‘‘that vernal pools can be restored or

created to provide functional values

within the range of variability of natural

pools.’’ In a review of 53 mitigationrelated transplantation, relocation, and

reintroduction attempts in California,

Peggy Fiedler (1991) concluded that the

success rate was 8 percent. In a study on

the preservation and management of

vernal pools, Jones and Stokes (1990)

concluded that the science of vernal

pool creation is still in its infancy and

is primarily an experimental technique.

Thus, the Service maintains that

urbanization contributes to on-going

losses of natural vernal pool habitat.

The Service also maintains that vernal

pool habitat creation efforts are

experimental in nature at this time, and

are generally not successful (59 FR

48136). Proposed subdivisions and

aggregate mines continue to threaten

suitable vernal pool habitat and, in

some cases, populations of these eight

vernal pool plants.

Issue 4. One commenter stated that

the Service erroneously calculated the

loss of vernal pool acreage in California

and suggested that the number of acres

of vernal pools lost was far less than

claimed by the Service.

Service Response: The historical

context of vernal pool losses in

California in the proposed rule was not

intended as a thorough, exhaustive

investigation and analysis of vernal pool

losses. Retrospective and contradictory

information and opinions likely will

continue to generate debate on this

point. The relevant issue is that vernal

pool habitat is depleted and fragmented

to render these eight vernal pool plants
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14343

vulnerable to extinction by present and

foreseeable threats across all or a

significant portion of their respective

ranges. The threats to vernal pool

habitat and the eight vernal pool plants

are discussed in the ‘‘Summary of

Factors Affecting the Species.’’

Issue 5. Several commenters

questioned the data that were used in

the proposed rule to determine that

these eight vernal pool plants warrant

listing. One commenter stated that the

data in the proposed rule were in error,

incomplete, and inconclusive. One

commenter stated that the data were

poor because the status survey was done

in 2 drought years.

Service Response: The Service has

received reports from the CNDDB,

knowledgeable botanists, and from a

field status survey specifically directed

at gathering the best available scientific

and commercial information on the

distribution and threats to these eight

vernal pool plants. Information from

botanical collections of these vernal

pool plants that date from the 1890’s

was utilized in the preparation of the

proposed rule. The Service received

information from a request for

information from Federal, State, and

local agencies and consulted

professional botanists during the

preparation of the proposed rule.

Destruction and loss of habitat and

extirpation of populations of these eight

vernal pool plants from a variety of

causes have been documented. These

species of plants have been surveyed in

drought and non-drought years.

Although these vernal pool plants have

variable populations and new

populations may be found in the future,

the same threats are likely to apply to

any newly discovered populations. No

data were provided to substantiate

comments that the findings of the

proposed rule were based on erroneous

or inconclusive data.

Issue 6. Several commenters stated

that livestock grazing had no or little

adverse or possibly a beneficial effect or

was necessary for the survival of these

eight vernal pool plants or that these

plants are stable and thriving as a result

of moderate or heavy grazing. One

commenter stated that drought, not

livestock grazing, was responsible for

the decline of Tuctoria greenei. Another

commenter stated that urbanization and

drought, not livestock grazing, was

responsible for the decline of T. greenei.

Service Response: Livestock grazing

may have adverse, beneficial, or little

effect on vernal pool plants depending

upon a wide variety of circumstances.

Grazing varies in frequency, intensity,

timing, duration, and kind of animal,

resulting in widely varying impacts to

the plant communities involved.

Temperature and effective spring

rainfall moisture contribute to

difficulties in predicting vernal pool

plant growth and reproduction. These

environmental factors influence the

ability to determine vernal pool plant

availability for livestock consumption

and identify what levels of consumption

are not likely to adversely affect longterm plant sustainability. Grazing on

private lands occurs at many of the

locations of these eight vernal pool

plants. The Service is aware of some

populations having no livestock grazing

on them for over 40 years. Additionally,

the Service is aware of numerous

instances where, under a specific set of

circumstances, livestock grazing has

little to no adverse effect on some

populations of these eight vernal pool

plants. For instance, private livestock

grazing in California commonly occurs

in the winter and early spring. Direct

impacts from grazing and trampling are

avoided in many instances because the

plants have yet to emerge from the

vernal pools that are still filled with

water in the winter and early spring.

These populations have been

characterized as stable and thriving and

not threatened by grazing, given a

specific set of management

circumstances (Stone et al. 1988).

However, it would be inaccurate to

characterize these vernal pool plant

populations as stable and thriving as a

result of heavy or moderate grazing.

Documented observations of positive,

neutral, and detrimental effects of

livestock grazing on some populations

of these eight vernal pool plants exist

(Stone et al. 1988).

One population of Tuctoria greenei

may have been extirpated as a result of

cattle grazing from a site on private land

near Farmington, San Joaquin County.

This population was last seen in 1936

(Stone et al. 1988). Three populations of

T. greenei in Merced County, two

populations in Tehama County, and one

population in Stanislaus County are

presumed to be extirpated as a result of

cattle grazing (Stone et al. 1988). The

last time any of these populations was

documented was in 1981. The proposed

rule stated that livestock grazing was

responsible for the damaged and

declining status of five populations of T.

greenei. Alternatively, another five

populations of T. greenei in Tehama

County are not threatened by current

livestock grazing practices and were not

included in the discussion of grazing

threats in the proposed rule. In these

five specific cases in Tehama County,

livestock grazing has little or no adverse

effect and is compatible with the

biological needs for the long-term

persistence of these populations.

No commenter submitted any data to

substantiate their statements that

drought and/or urbanization have

caused of the decline of Tuctoria

greenei. Populations of T. greenei and

the other seven vernal pool plants have

been surveyed in drought and nondrought years. In regard to the

likelihood of extirpation due to drought,

these eight vernal pool plants have

adapted to survive extreme

environmental variations like drought.

Current information suggests extirpation

from drought is unlikely, except for

marginal populations. It is not readily

apparent why populations may not

appear consistently on a given site and

the reasons may be attributed to drought

or other unknown factors.

The best scientific and commercial

information indicates some populations

of these eight vernal pool plants may

have been extirpated as a result of

livestock grazing and that other

populations are adversely impacted by

livestock grazing (Stone et al. 1988). The

Service maintains that current

information suggests that livestock

grazing, under certain conditions, may

be detrimental to some of these eight

vernal pool species. The determination

of whether impacts from livestock

grazing are positive, neutral, or

detrimental to these vernal pool plants

is made on a site-by-site basis for

specific populations and is based upon

documented observations. Livestock

grazing is only one of numerous

activities adversely affecting these eight

vernal pool plants. Additional

information regarding livestock grazing

may be found in ‘‘Factor C’’ in the

‘‘Summary of Factors Affecting the

Species.’’

Issue 7. Several commenters stated

that the listing of these eight vernal pool

plant species will have an adverse

impact on cattle ranching and that the

Service needs to consider the economic

effects of listing.

Service Response: Under section

4(b)(7)(A), 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
14344 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

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 the Service is

precluded from considering economic

impacts in a final decision on a

proposed listing, the Service has not

examined such impacts to the cattle

industry or other business that may be

caused by the listing of these eight

vernal pool species.

Issue 8. One commenter stated that

livestock operators create vernal pool

habitat by building stock ponds.

Service Response: Although some

populations of Orcuttia tenuis are found

in livestock ponds, such habitat is

artificial and does not support the

biological functions and values of

natural vernal pools. Additionally,

artificial livestock stock ponds are only

a temporary feature of surface

hydrology. Lack of maintenance or

changing land uses can cause such a

livestock pond to disappear. The

Service considers that livestock ponds

represent temporary artificial refuge that

is not ecologically viable for the eight

vernal pool plants to sustain

themselves.

Issue 9. One commenter stated the

Service should assess impacts from

grasshopper predation on these eight

vernal pool plants.

Service Response: Grasshopper

predation has been recorded only twice

in the history of monitoring information

on these eight vernal pool plants. The

Service does not consider grasshopper

predation a serious threat to these eight

vernal pool plants.

Issue 10. Several commenters stated

that these vernal pool plant species are

in preserves and do not require more

protection. One commenter stated that

piecemeal protection may not prevent

extinction of these species. Another

commenter stated that, in specific cases,

some of the existing preserves do not

protect these plants.

Service Response: The likelihood of

the long-term survival of any of the

eight vernal pool plants is difficult to

predict with the best scientific methods.

Difficulties and uncertainties in

predicting extinction of species involve

knowledge of many interrelated factors

including; the biological status of the

species, the genetic structure within and

among populations of a species, the

significance of contributions of marginal

populations to the genetics of the

species, the rate and direction of gene

flow, historic or current population

bottlenecks, genetic drift, and

inbreeding. Upon listing of the eight

vernal pool plants, the Service will

undertake preparation of a recovery

plan for vernal pool ecosystems in

California. The recovery plan will

include all federally listed and

candidate vernal pool species and have

the goal to delist the species.

Implementation of the recovery plan

will help provide more than piecemeal

protection.

While a few populations of some of

these vernal pool plants are found on

preserves, most populations are located

on private lands and are not secure. In

the few cases where some of these

species are in preserves on privately

owned lands, the preserves are not

managed specifically for these plants

and threats arise from sources other

than habitat destruction. For example,

one commenter stated that one

population of Neostapfia colusana

located in a preserve, Jepson Prairie,

owned by TNC, is threatened by

competition from a nonnative,

aggressive weed, common frog-fruit

(Phyla nodiflora var. nodiflora).

Furthermore, a population of Orcuttia

viscida, located on a preserve owned by

CDFG, is adversely affected by runoff

from an adjacent housing development

that has changed the hydrology of the

vernal pool complex. For additional

information regarding protection of

individual populations, please refer to

the ‘‘Background’’ and the ‘‘Summary of

Factors Affecting the Species.’’

Issue 11. Several commenters stated

that the Service must complete a

Takings Implication Assessment under

Executive Order 12630.

Service Response: The U.S. Attorney

General has issued guidelines to the

Department of the Interior (Department)

on the implementation of Executive

Order 12630, ‘‘Governmental Actions

and Interference with Constitutionally

Protected Property Rights.’’ Under these

guidelines, a special rule applies when

an agency within the Department is

required by law to act without

exercising its usual discretion. The

provisions in the guidelines relating to

non-discretionary actions clearly are

applicable to the determination of

endangered or threatened status for the

vernal pool plants in this rule.

In this context, an agency’s action

might be subject to legal challenge if it

did not consider or act upon economic

information. In these cases, the Attorney

General’s guidelines state that Takings

Implication Assessments (TIAs) shall be

prepared after, rather than before, the

agency makes the decision upon which

its discretion is restricted. The purpose

of the TIAs in these special

circumstances is to inform policymakers

of areas where unavoidable taking

exposures exist. Such TIAs shall not be

considered in the making of

administrative decisions that must, by

law, be made without regard to their

economic impact. In enacting the

Endangered Species Act, Congress

required that the Department list species

based solely upon scientific and

commercial data indicating whether or

not they are in danger of extinction.

Thus, by law and U.S. Attorney

guidelines, the Service cannot conduct

such TIAs prior to listing. However, the

Service will be preparing a Takings

Implication Assessment regarding this

listing after the listing becomes final.

Issue 12. Several commenters stated

that the Service needs to complete a

Regulatory Impact Analysis, as directed

by Presidential Executive Order 12291,

for the proposed rule for the eight vernal

pool plants.

Service Response: The Endangered

Species Act requires that listing

decisions be made solely on the basis of

biological information. The legislative

history of the 1982 amendments to the

Act states:

‘‘The Committee of Conference * * *

adopted the House language which

requires the Secretary to base

determinations regarding the listing or

delisting of species ‘solely’ on the basis

of the best scientific and commercial

data available to him. As noted in the

House Report, economic considerations

have no relevance to determinations

regarding the status of species and the

economic analysis requirements of

Executive Order 12291, and such

statutes as the Regulatory Flexibility Act

and the Paperwork Reduction Act, will

not apply to any phase of the listing

process.’’ H.R. Conf. Rep. No. 835, 97th

Cong., 2d Sess. 20 (1982); accord, H.R.

Rep. No. 567, 97th Con., 2d Sess. 12,

19–20 (1982); S. Rep. No. 418, 97th

Cong., 2d Sess. 4 (1982).

The Service has concluded that the

analyses required by the Regulatory

Flexibility Act and Executive Order

12291 are not applicable to listing

determinations. Additionally, Executive

Order 12291 was revoked by issuance of

Executive Order 12866 on September

30, 1993.

Issue 13. Several commenters stated

that the Service must prepare an

Environmental Impact Statement (EIS),

pursuant to the National Environmental

Policy Act (NEPA), on this rule.

Service Response: For the reasons set

out in the NEPA section of this

document, the Service has determined

that the rules issued pursuant to section

4(a) of the Act do not require the

preparation of an EIS. The Federal

courts have held in Pacific Legal

Foundation v. Andrus, 657 F2d. 829

(6th Circuit 1981) that an EIS is not

required for listing under the Act. The

court decision noted that preparing an
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14345

EIS on listing actions does not further

the goals of NEPA or the Act.

Issue 14. One commenter stated that

the Service was uncooperative and

inaccessible regarding the notification of

the proposed rule. Another commenter

stated that the Service needs to conduct

a hearing for the proposed rule to list

these eight vernal pool plants in Butte

County because the Butte County Board

of Supervisors passed a resolution that

directs all government agencies to

inform them of any action that may

affect their economics, customs, or

culture.

Service Response: The Service

published a notice of the proposed rule

regarding these eight vernal pool plants

in the Federal Register on August 5,

1993. On August 16, 1993, the Service

mailed out over 125 notifications of the

proposed rule to Federal, State, and

county entities, and individuals.

Additionally, the Service published

public notices regarding the proposed

rule in the following newspapers—

Chico-Enterprise Record, Fresno Bee,

Fairfield Daily Republic, Lake County

Record-Bee, Madera Tribune, Modesto

Bee, Redding Record Searchlight,

Siskiyou Daily News, Sacramento Bee,

Turlock Daily, and Visalia Times-Delta.

In regard to notification of the public

hearing, one request for a public hearing

was received. In accordance with the

Endangered Species Act, the Service

determined that the request for a public

hearing was received during the

comment period and scheduled a public

hearing in a large city, Sacramento, that

is located in the center of the range of

the eight species proposed for listing.

The notification of the public hearing

and extension of the comment period

was published in the Federal Register

on October 6, 1993 (58 FR 52063) and

shortly thereafter published in the

Sacramento Bee, a local newspaper with

a large circulation. The Service also

mailed the notification of public hearing

and extension of comment period to

interested parties. The Service

maintains that adequate public

notification was given in regard to the

notification of the proposed rule, the

public hearing, and extension of

comment period for the eight vernal

pool plants proposed for listing. The

perception of the Service as

uncooperative and inaccessible is

regrettable. We will continue to strive

for complete satisfaction in our

communication with the public.

Issue 15. One commenter stated that

the Service needs to designate critical

habitat. Another commenter stated that

critical habitat should not be

designated. Another commenter stated

that the Service needs to designate

critical habitat for people to find more

populations of these eight vernal pool

plants.

Service Response: The Service

believes that, at this time, the threat

posed by designating critical habitat

outweighs any potential benefit. As

discussed in the ‘‘Summary of Factors

Affecting the Species’’ and ‘‘Critical

Habitat’’ sections of this rule, all eight

vernal pool plants could be adversely

affected by acts of vandalism. The

Service is aware of vernal pools that

contained suitable habitat for other

federally proposed species that

apparently were destroyed to escape

regulatory requirements. Designation of

critical habitat at this time would

increase the threats to these eight vernal

pool plants from similar acts of

vandalism. Within the constraints of

agency budget and priority workload,

the Service is willing to work with

anyone interested in inventorying

vernal pools for undiscovered

populations of these eight vernal pool

plants. Critical habitat is typically

designated for known populations

throughout the range of these species.

Therefore, such a designation would not

aid in the discovery of new populations.

Issue 16. A commenter from a

mosquito abatement district was

concerned about restrictions of

mosquito control activities in vernal

pools. Another commenter stated that

listing would prevent landowners from

abating mosquitos on private lands and,

thereby, could create a public nuisance

that could cause a liability.

Service Response: After the Service

proposed three species of fairy shrimp

and one species of tadpole shrimp for

listing in 1992 (57 FR 19856),

commenters expressed similar concerns.

Although degraded or disturbed vernal

pools may contain abundant mosquito

populations, most natural, nondegraded vernal pools do not provide a

significant breeding source for

mosquitos. Since the Federal listing the

three species of fairy shrimp and one

tadpole shrimp in vernal pools of

California in 1994 (59 FR 48136), the

Service is not aware of any problems or

conflicts that have arisen regarding

treatment of vernal pools for mosquitos

and the need to protect federally listed

fairy shrimp or tadpole shrimp. If the

need for treatment of some vernal pools

occurs, least toxic, benign chemical

alternatives and biological or cultural

controls exist for mosquito control. The

Service recognizes that potential

conflicts may exist with the use of some

of the many chemicals used for

mosquito control that may potentially

be detrimental to vernal pool plants and

biota. The Service does and will

continue to work with recognized

experts, and Federal, State, and local

entities in examining the use of

additional alternatives, such as

including methoprene and the use of

Bacillus thuringiensis var. israelensis

(Bti) and Lagenidium giganteum to

achieve mosquito control. The Service is

confident that Federal listing will

contribute to the survival of the eight

species of vernal pool plants without

threatening public health and safety.

Issue 17. One commenter

recommended that the eight vernal pool

species be listed as threatened because

it would allow for incidental take in

conservation plans.

Service Response: Section 9,

‘‘Prohibited Acts’’, of the Act and the

Code of Federal Regulations (50 CFR

parts 10, 17) address protection of

federally listed endangered and

threatened plants. Incidental take does

not apply to federally listed plants.

However, it is unlawful to remove,

damage or destroy any such species

from areas under Federal jurisdiction, or

to remove, damage or destroy any such

species in knowing violation of any

State law or regulation on other lands.

For further information, please see the

protection section in ‘‘Factor E’’ in the

‘‘Summary of Factors Affecting the

Species.’’

Peer Review

The Service solicited the expert

opinions of more than a dozen

appropriate and independent specialists

regarding pertinent scientific or

commercial data and assumptions

relating to the taxonomy and biological

and ecological information for these

eight species. Two responses from

specialists were received. One specialist

provided information supporting the

position of the Service that Orcuttia

tenuis and O. viscida were facing a

number of threats in Sacramento

County. The other specialist provided

information that clarified overlap in the

distribution of Chamaesyce hooveri, C.

ocellata, and C. serpyllifolia, and

provided additional range, distribution

or threat information for Orcuttia

inaequalis, O. pilosa and Tuctoria

greenei. These comments were

incorporated into the final rule.

Summary of Factors Affecting the

Species

After a thorough review and

consideration of all information

available, the Service has determined

that Orcuttia pilosa Hoover (hairy

Orcutt grass), Orcuttia viscida (Hoover)

J. Reeder (Sacramento Orcutt grass), and

Tuctoria greenei (Vasey) J. Reeder

(Greene’s tuctoria) should be classified
14346 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

as endangered; and Castilleja campestris

(Benth.) Chuang and Heckard ssp.

succulenta (Hoover) Chuang and

Heckard (fleshy owl’s-clover),

Chamaesyce hooveri (Wheeler) Koutnik

(Hoover’s spurge), Neostapfia colusana

(Davy) Davy (Colusa grass), Orcuttia

inaequalis Hoover (San Joaquin Valley

Orcutt grass), and Orcuttia tenuis

Hitchcock (slender Orcutt grass) should

be classified as threatened. Procedures

found at section 4 of the Act and

regulations (50 CFR part 424)

promulgated to implement the listing

provisions of the Act were followed. A

species may be determined to be

endangered or threatened due to one or

more of the five factors described in

section 4(a)(1). These factors and their

application to Orcuttia pilosa, Orcuttia

viscida, Tuctoria greenei, Castilleja

campestris ssp. succulenta, Chamaesyce

hooveri, Neostapfia colusana, Orcuttia

inaequalis, and Orcuttia tenuis are as

follows:

A. The present or threatened

destruction, modification, or

curtailment of habitat or range. The

habitat of these species has been

reduced and fragmented throughout

their respective ranges as vernal pools

continue to be eliminated by

urbanization, flood control projects,

landfill projects, highway development,

and agricultural land conversion. Lands

on the Central Valley floor are closer to

existing and expanding cities and farms

than the valley rim, which is steeper,

less fertile and more removed from

cities. As a result, valley floor vernal

pools, along with open rangeland, have

been and continue to be favored for

urban and agricultural development.

Within the last 20 years, conversion of

land to agricultural use is known to

have eliminated one population of

Chamaesyce hooveri in Tulare County;

five populations of Neostapfia colusana

in Stanislaus County, one in Colusa

County, and one in Merced County; five

populations of Orcuttia inaequalis in

Stanislaus County, four in Madera

County, three in Merced County, and

one in Fresno County; five populations

of O. pilosa in Stanislaus County, two

in Madera County, and one in Merced

County; one population of O. tenuis in

Shasta County; one population of

Tuctoria greenei in Tulare County, three

in Fresno County, one in Madera

County, four in San Joaquin County, two

in Stanislaus County, and two in

Tehama County (Stone et al. 1988,

Rarefind 1996). Agricultural land

conversion now threatens eight

populations of O. pilosa in Madera and

Stanislaus counties; two populations of

Chamaesyce hooveri in Stanislaus

County and three populations in Tulare

County; one population of Castilleja

campestris ssp. succulenta in Madera

County and one in Fresno County;

fourteen populations of N. colusana in

southeastern Stanislaus County; seven

populations of T. greenei in Merced

County; and two populations of O.

inaequalis in Madera County (Stone et

al. 1988, Woodward-Clyde 1992,

CNDDB 1996).

Additionally, numerous activities

associated with agricultural

development have caused habitat

degradation severe enough that many

populations of the species proposed for

listing herein have not been seen for 2

consecutive years or more and are

presumed to be extirpated (Stone et al.

1988, CNDDB 1996). For example,

livestock pond construction has

inundated one population of Neostapfia

colusana in Merced County. Irrigated

agriculture and associated runoff have

likely eliminated one population of

Orcuttia inaequalis in Madera County,

and one population of Tuctoria greenei

in Madera County and one in Merced

County. Overgrazing and hay

production likely have destroyed one

population of O. inaequalis in Tehama

County. Discing combined with grazing

presumably has destroyed one

population of T. greenei in Merced

County. Discing also has destroyed one

population of N. colusana in Tulare

County. Discing has likely eliminated

one population of Castilleja campestris

ssp. succulenta in Fresno County (Stone

et al. 1988, CNDDB 1996). In addition,

5 of the 12 remaining populations of O.

pilosa in Madera, Merced, and

Stanislaus counties have been damaged

by discing or discing combined with

grazing (Stone et al. 1988).

Human activities that alter the

hydrology of vernal pools, including

changes in the amount of water or the

length of inundation, may directly and

indirectly affect vernal pool plants. For

example, a vernal pool known to

contain Orcuttia tenuis was channelized

for mosquito abatement. It is likely that

the population was extirpated as a result

(Stone et al. 1988, CNDDB 1996). Pond

construction for recreational waterfowl

hunting in Colusa County has

presumably eliminated one population

of Neostapfia colusana. Additionally,

hydrological modifications have

destroyed two Merced County and one

Fresno County population of O.

inaequalis, and three populations of O.

tenuis in Shasta County (Stone et al.

1988). Increases in agricultural field

runoff are responsible for possibly

extirpating one population of N.

colusana in Merced County and one in

Stanislaus County (CNDDB 1996). One

population of Chamaesyce hooveri in

Stanislaus County is threatened by

increases in agricultural irrigation

runoff and by grazing (CNDDB 1996).

The U.S. Army Corps of Engineers’

(Corps) Merced County Stream Channel

Project threatens three populations of O.

inaequalis, four populations of N.

colusana, and four populations of

Castilleja campestris ssp. succulenta in

Merced County within the San Joaquin

Valley (R. Keck, Service, pers. comm.

1992; CNDDB 1996).

Because the human population of the

Central Valley is growing rapidly,

numerous populations of Chamaesyce

hooveri, Orcuttia inaequalis, O. pilosa,

O. tenuis, and O. viscida have been

extirpated and continue to be threatened

by urban development projects. For

example, two major proposed urban

developments are likely to adversely

affect significant amounts of vernal pool

habitat in the Central Valley, one for

80,000 people in southwest Placer

County and one for 40,000 people in

southeastern Yolo County. In El Dorado

County, a 730 ha (1,800 ac) community

near Georgetown is proposed as the first

of 15 large-scale urban developments.

Four new cities, projected to house

142,000 people, are proposed for Sutter

County in the Sacramento Valley

(Weigand 1991). Urbanization has

extirpated one population of O.

inaequalis in Fresno County, three

populations of O. pilosa in Madera

County, and one population of Tuctoria

greenei in Tehama County (Stone et al.

1988). In the Sacramento Valley, eight

populations of O. tenuis in Shasta

County are threatened by urbanization

around Redding (Stone et al. 1988).

Numerous proposed housing

developments, golf courses, and

landfills in the Sacramento and San

Joaquin valleys threaten vernal pool

areas that may provide suitable habitat

for O. tenuis and O. viscida, including

Borden Ranch, Evelyn Clipper

Residential Subdivision, Laguna

Commons, Laguna Palms, Lakeview

subdivision, Merced Community Golf

Course, Rio Mesa subdivision, River

Bend Ranch, Sunrise-Douglas, and

Yosemite Estates (June DeWesse, Kelly

Geer, and Mark Littlefield, Service, pers.

comm. 1994; CNDDB 1996). Although

one population of O. viscida in eastern

Sacramento County is within a preserve,

this population remains threatened by a

proposed subdivision (G. Clark, CNPS,

pers. comm. 1993). Housing tract

developments imperil two populations

of Castilleja campestris ssp. succulenta

in Fresno County and one population in

Madera County, and one population of
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14347

O. tenuis in Shasta County (CNDDB

1996).

Proposed gravel and aggregate mining

projects that threaten to destroy vernal

pool habitat containing Orcuttia

inaequalis, O. viscida and Castilleja

campestris ssp. succulenta include

Granite Vineyard Aggregate Mining

Project and Granite 1/Aspen VI, both in

Sacramento County, and Fresno County

Surface Mining (K. Geer, pers. comm.

1994). The University of California

prepared a draft environmental impact

statement for a new 810-ha (2,000-ac)

campus for 25,000 students that will be

located at Lake Yosemite in Merced

County. The site is in valley grassland

that harbors vernal pool habitat (John

Zimmermann, University of California,

in litt. 1994; Geer, pers. comm. 1994)

and contain some of the eight plant

species in this rule.

In addition to the numerous housing

developments discussed above,

increasing urbanization of the Central

Valley can affect vernal pool habitat.

Landfills, highway projects, and a

proposed Federal prison facility on a

former U.S. Air Force base threaten

vernal pool habitat. For example, the 90

ha (200 ac) Merced County Landfill will

destroy vernal pools contained in the

project area. This project area contains

Orcuttia inaequalis, O. pilosa, Castilleja

campestris ssp. succulenta, Neostapfia

colusana, and Tuctoria greenei.

Additionally, a proposed landfill

threatens one population of C.

campestris ssp. succulenta in Fresno

County (CNDDB 1996). One of the seven

Sacramento County populations of O.

viscida is threatened by a public landfill

expansion (G. Clark, in litt. 1993). Three

populations of C. campestris ssp.

succulenta, two populations of O.

inaequalis, and one population of O.

pilosa in Madera County are threatened

by proposed expansion of State

Highway 41 (Brian Apper, California

State Dept. of Transportation, in litt.

1993; CNDDB 1996). One population of

N. colusana in Merced County is

threatened by a proposed Federal prison

on part of the former Castle Air Force

Base (Earth Technology Corporation

1994).

B. Overutilization for commercial,

recreational, scientific, or educational

purposes. Overutilization is not known

to be a factor for any of these species.

Collecting for scientific or horticultural

purposes or uncontrolled visits by

groups or individuals could result in

trampling of vernal pool plants from

increased publicity that may result from

a listing proposal. The Service is aware

of several instances of the destruction of

vernal pool and associated upland

habitats known or likely to contain

species proposed for Federal listing in

the Central Valley of California.

Vandalism is considered a threat to the

eight vernal pool species, as discussed

further in the ‘‘Critical Habitat’’ section

of this rule.

C. Disease or predation. All eight

plants occur mostly on private land,

some Federal rangelands managed by

the USFS and the BLM that are subject

to livestock grazing, and rarely on

National Wildlife Refuge lands managed

by the Service. Livestock grazing and

associated trampling may or may not

adversely affect vernal pool plants

depending on, among other things, the

kind of livestock, stocking level, seasonof-use, and grazing duration. The

intensity and, more importantly, the

timing of this activity affect how

livestock grazing may adversely impact

vernal pool plants (Stone et al. 1988).

However, as long as the land remains in

dry pasture, moderate grazing regimes

appear to have little impact on

populations of Orcuttia, Neostapfia,

Tuctoria, and Chamaesyce hooveri

(Stone et al. 1988). The stems of C.

hooveri exude a latex when broken that

appears to repel herbivores and that

may be poisonous. The impact of

grazing combined with plant

competition probably has an adverse

effect on Tuctoria greenei (see Factor E

below).

D. The inadequacy of existing

regulatory mechanisms. The

Endangered Species Act can

incidentally afford protection to these

plants if they co-exist with species

already listed as threatened or

endangered. Four other listed species

may occur with these plants: The vernal

pool tadpole shrimp (Lepidurus

packardi); conservancy fairy shrimp

(Branchinecta conservatio); longhorn

fairy shrimp (B. longiantenna); and

vernal pool fairy shrimp (B. lynchi).

However, these species are only rarely

and sporadically found in the same

vernal pools or vernal pool complexes

as the eight vernal pool plants.

Under section 404 of the Clean Water

Act, the U. S. Army Corps of Engineers

(Corps) regulates the discharge of fill

into waters of the United States, which

includes navigable and isolated waters,

headwaters, and adjacent wetlands. The

section 404 regulations require that

applicants obtain an individual permit

to place fill for projects affecting greater

than 4 ha (10 ac) of waters of the United

States. Nationwide Permit (NWP) No. 26

(33 CFR part 330) was established by the

Department of the Army to facilitate

authorization of discharges of fill into

isolated waters (such as vernal pools)

that cause the loss of less than 4 ha (10

ac) of waters of the United States, and

that cause only minimal individual and

cumulative environmental impacts.

Projects that qualify for authorization

under NWP 26 and that affect less than

one acre of isolated waters or

headwaters may proceed without

notifying the Corps. Evaluation of

impacts of such projects through the

section 404 permit process is thus

precluded.

Corps District and Division Engineers

may require that an individual section

404 permit be obtained if projects

otherwise qualifying under NWP 26

would have greater than minimal

individual or cumulative environmental

impacts. However, the Corps has been

reluctant to withhold authorization

under NWP 26 unless the existence of

a listed threatened or endangered

species would be jeopardized,

regardless of the significance of the

affected wetland resources.

Additionally, and equally important,

the upland watersheds of vernal pools

are not provided any protection in most

cases. Disturbance or loss of watersheds

have extirpated several populations of

these species as discussed previously in

Factor A. Thus, as a consequence of the

small scale of many vernal pools (most

are less than one acre in size) and the

lack of protection of associated

watersheds, these vernal pool plants

receive insufficient Federal protection

under section 404 of the Clean Water

Act.

The Orcuttia tenuis Species

Management Guide written by the

Lassen National Forest and the

Susanville District of the BLM (1990)

gives long-term management direction

for 5 of 19 Forest Service and BLM plant

and animal populations in Plumas,

Shasta, and Siskiyou counties in

northern California. Since 1990, three of

the five populations of O. tenuis

included in the guide have been fenced

to protect them from impacts from

grazing and off-highway vehicle use.

Since 1990, six additional populations

of O. tenuis located on BLM

administered land, not currently

included in the species management

guide, have been fenced to protect the

populations from grazing. Grazing has

been discontinued in some instances.

The California Fish and Game

Commission has listed Castilleja

campestris ssp. succulenta, Neostapfia

colusana, Orcuttia inaequalis, O. pilosa,

O. tenuis, and O. viscida as endangered,

and has classified Tuctoria greenei as a

rare species under the California

Endangered Species Act (California Fish

and Game Code section 2050 et seq.)

and California Code of Regulations Title

14 § 670.2 (1995). Chamaesyce hooveri

is not State-listed or classified.
14348 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

Although the ‘‘take’’ of State-listed

plants is prohibited under the California

Native Plant Protection Act (California

Fish and Game Code Section 1908 and

California Fish and Game Code Section

2080), State law appears to exempt the

taking of such plants via habitat

modification or land use changes by the

owner. After the CDFG notifies a

landowner that a State-listed plant

grows on his or her property, the

California Native Plant Protection Act

requires only that the landowner notify

the agency ‘‘at least 10 days in advance

of changing the land use to allow

salvage of such a plant’’ (California Fish

and Game Code § 1913(c)).

The California Environmental Quality

Act (CEQA) obligates disclosure of

environmental resources within

proposed project areas and may enhance

opportunities for conservation efforts.

However, CEQA does not guarantee that

such conservation efforts will be

implemented. Additionally, part of the

environmental review under the CEQA

for projects that result in the loss of sites

supporting these species includes the

development of mitigation plans. Such

plans usually involve the

transplantation of the plant species to

another existing vernal pool, or the

artificial creation of vernal pool habitat.

Transplantation and habitat creation

efforts are experimental in nature at this

time, and are generally not successful

(Fiedler 1991, Jones and Stokes 1990).

Following the development of the

transplantation plan, the original site is

destroyed. Therefore, if the mitigation

effort fails, the resource has already

been lost.

The public agency with primary

authority or jurisdiction over the project

(the lead agency) is responsible for

conducting a review of the project and

consulting with other agencies

concerned with the resources affected

by the project. However, the lead agency

may approve projects that cause

significant environmental damage, such

as the destruction of State-listed

endangered species, and does not

always require adequate mitigation for

the replacement or protection of the

affected resources. The protection of

listed species through CEQA is therefore

dependent upon the discretion of the

lead agency.

Conservation easements do not

currently ensure adequate protection for

these vulnerable plant species. First,

fewer than 8 percent of the populations

of these eight species are within existing

conservation easements. Secondly,

although four populations of Orcuttia

pilosa are located on the TNC’s Vina

Plains Preserve, only one of these sites

is excluded from an agreement allowing

continued cattle grazing by the previous

landowner, and the other populations

have all been damaged by grazing (Stone

et al. 1988). Two of the five populations

of Tuctoria greenei on the Vina Plains

Preserve are also damaged and declining

due to grazing (CNDDB 1996).

E. Other natural or manmade factors

affecting its continued existence.

Nonnative annual and perennial plants

have invaded many vernal pools of the

Central Valley. Nonnative annual

grasses such as Hordeum geniculatum,

Phalaris paradoxa, Polypogon

monospeliensis, and Lolium

multiflorum and soil disturbance

associated with cattle grazing appear to

result in low vigor and low seed

production of two populations of

Orcuttia inaequalis in Merced County

(Stone et al. 1988). Additionally, the

nonnative perennial herb, Sida

hederacea, appears to threaten another

O. inaequalis population at a heavily

grazed site in Merced County (Stone et

al. 1988). This same perennial, along

with the three weedy, nonnative grasses

L. multiflorum, H. geniculatum, and P.

monospeliensis, appear to threaten three

populations of O. pilosa, two in Tehama

County and one in Stanislaus County

(Stone et al. 1988). The native

perennials Eleocharis macrostachya and

Eryngium sp. appear to limit

distribution and abundance of three

populations of O. tenuis in Shasta

County and ten populations in Tehama

County in the Sacramento Valley (Stone

et al. 1987, 1988). Five populations of

Chamaesyce hooveri in Tehama County

are threatened by one or more native or

nonnative plant species (CNDDB 1996).

The distribution and abundance of O.

viscida at six of the seven extant sites

is significantly restricted by Eleocharis

macrostachya, which appears to

threaten one population of O. viscida

through competitive exclusion (Stone et

al. 1988). Another population of

Neostapfia colusana on TNC’s Jepson

Prairie Preserve is threatened by

competitive exclusion from the

nonnative, aggressive Phyla nodiflora

var. nodiflora (CNDDB 1996; G. Clark, in

litt. 1993). Initial results from on-going

research regarding controlling or

eradicating Phyla nodiflora var.

nodiflora at the Jepson Prairie Preserve

have indicated that control or

eradication is likely to be very difficult

(CDFG 1991h).

Soil disturbance from cattle grazing

combined with competition from the

introduced annual grasses Crypsis

schoensides, Phalaris paradoxa,

Hordeum geniculatum, and Polypogon

monspeliensis and the nonnative

perennial Lolium multiflorum appear to

adversely affect two populations of

Tuctoria greenei in Tehama County and

one in Butte County within the

Sacramento Valley, and all seven

remaining extant sites in Merced County

in the San Joaquin Valley (Stone et al.

1987, 1988; CNDDB 1996). Tuctoria

greenei appears to be the most

susceptible of the eight plants in this

rule to negative grazing impacts because

its preference to grow in the margin of

a vernal pool (along the outer edges of

the pool) makes it more susceptible to

livestock trampling damage and

competition from nonnative weeds such

as L. multiflorum, Phalaris paradoxa,

and Polypogon monospeliensis (Stone et

al. 1987). All populations of T. greenei

are subject to grazing. One population of

T. greenei in Tehama County, two in

Merced County, and one in Butte

County are damaged and declining due

to grazing (Stone et al. 1988). Because

cattle grazing is likely the primary cause

for extirpation or presumed extirpation

of T. greenei at eight sites and all other

populations are grazed by livestock, the

remaining populations of T. greenei are

potentially threatened by grazing (Stone

et al. 1988). Lastly, the primary threat to

populations of Orcuttia pilosa, O.

tenuis, and T. greenei on TNC’s Vina

Plains Preserve is competition from

nonnative, aggressive weeds, including

Convolvulus arvensis, Proboscidea

louisianica, and Xanthium strumarium

(CDFG 1991i, CNDDB 1996).

A population of Neostapfia colusana

on the McClellan U.S. Air Force Base

radio transmitter site in Yolo County is

severely degraded due to herbicide

runoff from the antenna pads and to

discing of firebreaks (CNDDB 1996; G.

Clark, in litt. 1993).

Off-highway vehicle damage has been

reported to one population of Orcuttia

tenuis in Plumas County and threatens

two additional populations in Shasta

and one population of O. pilosa in

Madera County (CNDDB 1996).

Because vernal pools are fairly

localized habitats in close proximity to

urban and agricultural areas,

uncontrolled visits by groups or

individuals could result in trampling of

vernal pool plants and potentially

threaten all eight species.

The Service has carefully assessed the

best scientific and commercial

information available regarding the

present and future threats faced by these

eight species in determining to issue

this rule. As described under the

‘‘Summary of Factors Affecting the

Species’’ section above, the available

information indicates that many of the

populations of these plants are currently

threatened. Thirty-three populations of

these eight vernal pool plants have been

extirpated and much of the habitat has
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14349

been lost to a variety of human

activities. Large-scale human population

increases and attendant urban growth,

as well as changes in agricultural uses

in adjacent areas, have destroyed and

continue to destroy significant

quantities of the plants’ vernal pool

habitat and continue to eliminate many

plant populations. As a result, all eight

species have fragmented, discontinuous,

highly restricted habitats within the

Central Valley, most of which are

vulnerable to current and future threats.

More than half of the remaining

populations of the plants determined for

listing as endangered face numerous ongoing threats. Although these remaining

populations of O. pilosa, O. viscida, and

Tuctoria greenei vary in size of

occupied habitat, their geographic

distribution near expanding urban areas

and restriction to the Central Valley

floor renders them more vulnerable to

various threats, as described in Factor

‘‘A’’. The Central Valley floor is favored

over the valley rim for urban

development, agricultural activities, and

agricultural land conversion. The

immediacy and magnitude of threats to

these plant populations is, therefore,

greater than those occurring above the

valley floor. Nine populations of O.

pilosa have been lost and two others are

possibly extirpated. Fourteen of the

remaining 25 native extant populations

of O. pilosa are variously threatened by

urbanization, agricultural land

conversion, a highway expansion

project, discing, off-highway vehicle

use, and competition from nonnative

weeds. Of the seven extant populations

of O. viscida, five populations are

threatened by one or more of the

following factors—a landfill project,

urban development, and competition

from nonnative weeds. Approximately

half the known populations of Tuctoria

greenei have been extirpated or are

possibly extirpated by some form of

human activity. With the exception of

the population on the Sacramento

National Wildlife Refuge, the remaining

20 extant populations of T. greenei are

variously threatened by competition

from nonnative weeds, grazing, and

agricultural land conversion. Based

upon the above evaluation, the

proposed action is to list O. pilosa, O.

viscida, and T. greenei as endangered.

The remaining populations of the four

species proposed as threatened and

Orcuttia inaequalis, which was

proposed as endangered, face fewer

existing threats, that are of lesser

magnitude. Moreover, several

populations of these five plants occur in

pool habitats above the Central Valley

floor (up to 1,090 m (3,600 feet) in

elevation) and/or somewhat removed

from expanding urban areas.

Nonetheless, these five species are

likely to become increasingly imperiled

in the foreseeable future unless current

trends of urban development and

agricultural conversion are reversed. Of

the 36 extant populations of Castilleja

campestris ssp. succulenta, nearly half

are threatened by one or more of the

following—urbanization, agricultural

land conversion, discing, trampling, a

flood control project, and a proposed

highway expansion project. About onethird of the 25 remaining populations of

Chamaesyce hooveri are threatened by

agricultural land conversion, a flood

control project, and/or competition with

nonnative weeds. Ten populations of

Neostapfia colusana are lost or

suspected of being lost due to

conversion of habitat. Of the 44

remaining populations of N. colusana,

22 populations are threatened or are

damaged and declining due to

agricultural land conversion, discing, a

flood control project, a proposed

Federal prison, herbicide contaminated

runoff, and/or competition with

nonnative plants. Sixteen populations of

O. inaequalis have been lost and three

other populations are possibly

extirpated. Of the remaining 23 native

extant populations of O. inaequalis, 11

are variously threatened by

urbanization, agricultural land

conversion, and competition with

nonnative weeds. Twenty-three of the

59 native extant populations of O.

tenuis are variously threatened either by

one or more of the following—

urbanization, altered hydrology, offhighway vehicles, and competition from

nonnative weeds. Based on the

evaluation above, the preferred action is

to list Castilleja campestris ssp.

succulenta, Chamaesyce hooveri, N.

colusana, O. inaequalis, and O. tenuis

as threatened.

Alternatives to this action were

considered but not preferred. Not listing

Orcuttia pilosa, O. viscida, and Tuctoria

greenei as endangered or Castilleja

campestris ssp. succulenta, Chamaesyce

hooveri, Neostapfia colusana, O.

inaequalis, and O. tenuis as threatened

would not provide adequate protection

and would not be consistent with the

Act. The Service is not proposing to

designate critical habitat for these plants

species at this time, as discussed below.

Critical Habitat

Critical habitat is defined in section

3(5)(A) 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’’ as defined in section

3(3) of the Act 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 the implementing

regulations (50 CFR 424.12) require that,

to the maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time a species is

determined to be endangered or

threatened. The Service finds that

designation of critical habitat is not

prudent for Orcuttia pilosa, O. viscida,

Tuctoria greenei, Castilleja campestris

ssp. succulenta, Chamaesyce hooveri,

Neostapfia colusana, O. inaequalis, and

O. tenuis. Service regulations (50 CFR

424.12(a)(1)) state that the designation

of critical habitat is not prudent when

one or both of the following situations

exist—(1) the species is imperiled by

taking or other human activity and the

identification of critical habitat can be

expected to increase the degree of such

threat to the species, or (2) such

designation of critical habitat would not

be beneficial to the species. In the case

of the eight vernal pool plants in this

final rule, both criteria are met.

The listing of these plants as

endangered or threatened elevates

awareness of their rarity, making them

more sought after by curiosity seekers,

researchers, rare plant collectors, and

vandals. Because vernal pool habitats

are small and easily identified, the

publication of precise maps and

descriptions of critical habitat in the

Federal Register would increase the

vulnerability of these plant species to

incidents of collection and general

vandalism. Over a period of recent

years, the Service is aware of the discing

or filling of vernal pools and associated

upland habitats known to or likely

containing Federal candidate, proposed

or listed species including vernal pool

fairy shrimp (Branchinecta lynchi),

vernal pool tadpole shrimp (Lepidurus

packardi), California tiger salamander

(Ambystoma californiense), Burke’s

goldfields (Lasthenia burkei), Sonoma

sunshine (Blennosperma bakeri), and

Butte County meadowfoam (Limnanthes

floccosa ssp. californica) (Jim Browning,

Jan Knight, Chris Nagano, Dan Strait,

Service, pers. comms. 1994).
14350 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

Most of the populations of the eight

vernal pool plants occur on private

lands where Federal involvement in

land-use activities does not generally

occur. The most likely Federal

involvement would occur with the

Corps through section 404 of the Clean

Water Act. The Service finds that

Federal involvement in the few areas

where these plants occur on Federal

land has already been identified without

the designation of critical habitat. The

USFS and the BLM jointly have

prepared a species management guide

for Orcuttia tenuis. A few populations

have been fenced to protect them from

off-highway vehicle use and grazing.

The BLM also is aware of the

populations of Castilleja campestris ssp.

succulenta and O. inaequalis and has

fenced several populations of each

species to protect the populations from

trespass grazing. Sacramento National

Wildlife Refuge personnel are also

aware of the few populations of

Chamaesyce hooveri, O. pilosa, and

Tuctoria greenei occurring on Service

land in Glenn County. Protection of a

few populations of several of these

vernal pool plants and their habitats on

Federal land will be addressed through

the recovery process and through the

section 7 consultation process.

Therefore, the Service finds that

designation of critical habitat for these

eight plants is not prudent at this time

because such designation would

increase the threat from vandalism or

other human activities. The Service also

finds that designation of critical habitat

is not beneficial because most of the

populations of the eight vernal pool

plants are found on private lands.

Where they are found on Federal lands,

the agencies are aware of the species

and are already addressing conservation

efforts.

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 encourages

and results in conservation actions by

Federal, State, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the State 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, 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 any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(1) requires Federal

agencies to use their authorities to

further the purposes of the Act by

carrying out programs for listed species.

Section 7(a)(2) of the Act requires

Federal agencies to insure 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 is likely to adversely

affect a listed species, the responsible

Federal agency must enter into formal

consultation with the Service.

The Corps of Engineers will become

involved with these species through its

permitting authority under section 404

of the Clean Water Act as well as water

projects in the Central Valley such as

the Merced County Streams Project. By

regulation, nationwide permits may not

be issued where a federally listed

endangered or threatened species would

be affected by the proposed project

without first completing formal

consultation pursuant to section 7 of the

Act. The presence of a listed species

would highlight the national importance

of these resources. In addition, issuance

of housing loans by the Department of

Housing and Urban Development in

areas that presently support these eight

species would be subject to review by

the Service under section 7 of the Act.

The BOR will become involved under

its Friant water contract renewal

program to the extent that these species

may occur within the 404,700 ha (1

million ac) water delivery area (M. Kohl,

Service, pers. comm. 1992). Other future

BOR contract renewals will provide

additional potential for section 7

involvement. The BLM and the USFS

will become involved as they are

responsible for authorizing grazing and

other land uses in areas containing

vernal pools. Highway construction and

maintenance projects that receive

funding from the Department of

Transportation (Federal Highways

Administration) will be subject to

review under section 7 of the Act. The

Federal Bureau of Prisons could become

involved in discussions with the Service

in the event that part of the reuse of the

former U.S. Castle Air Force Base is

determined to be a Federal prison

facility. Castle Air Force Base is now

closed, but the property is still under

Federal ownership. The U.S. Air Force

may become involved regardless of the

decision of whether a Federal prison is

located on part of the former U.S. Air

Force base.

Listing Orcuttia pilosa, O. viscida,

and Tuctoria greenei as endangered and

Castilleja campestris ssp. succulenta,

Chamaesyce hooveri, Neostapfia

colusana, O. inaequalis, and O. tenuis

as threatened provides for the

development of a recovery plan(s),

which will bring together State and

Federal efforts for conservation of these

plants. The recovery plan(s) would

establish a framework for agencies to

coordinate activities and cooperate with

each other in conservation efforts. The

plan(s) would set recovery priorities and

estimate costs of various tasks necessary

to accomplish them. It also would

describe site-specific management

actions necessary to achieve

conservation and survival of these

species. Additionally, pursuant to

section 6 of the Act, the Service would

be able to grant funds to affected states

for management actions aiding in the

protection and recovery of these plants.

The Act and its implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all endangered and threatened plants.

All prohibitions of section 9(a)(2) of the

Act, implemented by 50 CFR 17.61 and

17.71, 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. Section 4(d) of

the Act allows for the provision of such

protection to threatened species through

regulation. Seeds from cultivated

specimens of threatened plant taxa are

exempt from these prohibitions

provided that a statement ‘‘Of

Cultivated Origin’’ appears on the

shipping containers. Certain exceptions

apply to agents of the Service and State

conservation agencies.

The Act and 50 CFR 17.62, 17.63, and

17.72 also provide for the issuance of

permits to carry out otherwise

prohibited activities involving

endangered or threatened plant species

under certain circumstances. Such

permits are available for scientific

purposes and to enhance the
Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations 14351

propagation or survival of the species.

For threatened plants, permits are also

available for botanical or horticultural

exhibition, educational purposes, or

special purposes consistent with

purposes of the Act. Because none of

these eight plants are common in the

wild or in cultivation, trade permits

likely would not be sought. Requests for

copies of the regulations on plants and

inquiries regarding them may be

addressed to the U.S. Fish and Wildlife

Service, Ecological Services, Permits

Branch, 911 NE 11th Avenue, Portland,

Oregon 97232–4181 (503/231–6241).

It is the policy of the Service (59 FR

34272; July 1, 1994) to identify to the

maximum extent practicable at the time

of listing those activities that would or

would not constitute a violation of

section 9 of the Act. The intent of this

policy is to increase public awareness of

the effect of the listing on proposed or

on-going activities. The Service believes

that the following actions would result

in a violation of section 9, although

possible violations are not limited to

these actions alone: Collection, damage,

or destruction of these species on

Federal lands, except in certain cases

described below; and activities on nonFederal lands conducted in knowing

violation of California State law, which

requires a ten day notice be given before

taking of plants on private land. The

Service believes that, based on the best

available information, the following

actions will not result in a violation of

section 9 on private land provided that

they do not violate State trespass or

other laws: Livestock grazing, ranching

operations (construction or maintenance

of fences, water facilities, corrals; offroad vehicle travel), firebreak

construction and maintenance, nonfederally authorized mining, and

recreational activities. Activities that

occur on Federal land, or on private

land that receive Federal authorization,

permits, or funding, and for which

either a Federal endangered species

permit is issued to allow collection for

scientific or recovery purposes, or a

consultation is conducted in accordance

with section 7 of the Act, would also not

result in a violation of section 9. General

prohibitions and exceptions that apply

to all endangered and threatened plants

in section 9(a)(2) of the Act,

implemented by 50 CFR 17.61 and

17.71, apply as discussed earlier in this

section. Questions regarding whether

specific activities will constitute a

violation of section 9 should be directed

to the Field Supervisor of the Service’s

Sacramento Field Office (see ADDRESSES

section).

National Environmental Policy Act

The Service has determined that

Environmental Assessments and

Environmental Impact Statements, as

defined by 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, as amended. A

notice outlining the Service’s reasons

for this determination was published in

the Federal Register on October 25,

1983 (48 FR 49244).

Required Determinations

The Service has examined this

regulation under the Paperwork

Reduction Act of 1995 and found it to

contain no information collection

requirements. This rulemaking was not

subject to review by the Office of

Management and Budget under

Executive Order 12866. The Department

has determined that these final

regulations meets the applicable

standards provided in Sections 3(a) and

3(b)(2) of Executive Order 12988.

References Cited

A complete list of all references cited

herein is available upon request from

the Field Supervisor of the Sacramento

Field Office (see ADDRESSES section).

Author: The primary author of this

proposed rule is Ken Fuller (see

ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and recordkeeping requirements, and

Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of

chapter I, title 50 of the Code of Federal

Regulations, is amended 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.

§ 17.12 [Amended]

2. Section 17.12(h) is amended by

adding the following, in alphabetical

order under Flowering Plants, to the List

of Endangered and Threatened Plants to

read as follows:

* * * * *

(h) * * *

Species Historic

range Family Status Whenlisted

Critical

habitat

Special

rules Scientific name Common name

Flowering Plants:

* * * * * * *

Castilleja campestris ssp.

succulenta.

Fleshy owl’s-clover ........ U.S.A.

(CA).

Scrophulariaceae ........... T 611 NA NA

* * * * * * *

Chamaesyce hooveri ...... Hoover’s spurge ............ U.S.A.

(CA).

Euphorbiaceae .............. T 611 NA NA

* * * * * * *

Neostapfia colusana ....... Colusa grass ................. U.S.A.

(CA).

Poaceae ........................ T 611 NA NA

* * * * * * *

Orcuttia inaequalis .......... San Joaquin Valley

Orcutt grass.

U.S.A.

(CA).

Poaceae ........................ T 611 NA NA
14352 Federal Register / Vol. 62, No. 58 / Wednesday, March 26, 1997 / Rules and Regulations

Species Historic

range Family Status Whenlisted

Critical

habitat

Special

rules Scientific name Common name

* * * * * * *

Orcuttia pilosa ................. Hairy Orcutt grass ......... U.S.A.

(CA).

Poaceae ........................ E 611 NA NA

* * * * * * *

Orcuttia tenuis ................. Slender Orcutt grass ..... U.S.A.

(CA).

Poaceae ........................ T 611 NA NA

* * * * * * *

Orcuttia viscida ............... Sacramento Orcutt grass U.S.A.

(CA).

Poaceae ........................ E 611 NA NA

* * * * * * *

Tuctoria greenei .............. Greene’s tuctoria ........... U.S.A.

(CA).

Poaceae ........................ E 611 NA NA

* * * * * * *

Offset Folios 7 to 8 Insert Here

Dated: February 24, 1997.

John G. Rogers,

Acting Director, U.S. Fish and Wildlife Service

[FR Doc. 97–7619 Filed 3–25–97; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 640

[Docket No. 970318058–7058–01; I.D.

022597A]

RIN 0648–XX82

Spiny Lobster Fishery of the Gulf of

Mexico and South Atlantic; Rescission

of Control Date

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of rescission of control

date.

SUMMARY: The Gulf of Mexico and South

Atlantic Fishery Management Councils

(Councils) believe that changes in the

management of the spiny lobster fishery

makes a previously announced control

date obsolete. Therefore, on behalf of

the Councils, NMFS announces that the

date of January 15, 1986, is no longer

considered a control date for entry into

the Gulf of Mexico and South Atlantic

spiny lobster fishery.

EFFECTIVE DATE: March 26, 1997.

FOR FURTHER INFORMATION CONTACT:

Georgia Cranmore, 813–570–5305.

SUPPLEMENTARY INFORMATION: The spiny

lobster fishery is managed under the

Fishery Management Plan for the Spiny

Lobster Fishery of the Gulf of Mexico

and South Atlantic (FMP). The FMP was

prepared by the Councils and is

implemented through regulations at 50

CFR part 640, under the authority of the

Magnuson-Stevens Fishery

Conservation and Management Act.

A control date of January 15, 1986,

was established for the spiny lobster

fishery in anticipation of a possible

Federal limited access program for this

fishery (51 FR 5713, February 18, 1986).

The notice announcing this control date

stated that anyone entering the fishery

after January 15, 1986, was not assured

of continued participation if a limited

access system was adopted.

No limited access program was

developed by the Councils. Instead, the

Councils adopted Florida’s management

regime for the exclusive economic zone

(EEZ) off Florida. The commercial

fishery is confined primarily to Florida

waters and the EEZ off Florida.

Commercial and recreational spiny

lobster landings outside Florida are

negligible.

In 1992, NMFS adopted for the EEZ

off Florida, Florida’s spiny lobster trap

certificate, trap reduction, and trap

identification programs (57 FR 56516,

November 30, 1992).

In 1994, NMFS removed the

requirement for Federal vessel permits

in the commercial fishery in the EEZ off

Florida (59 FR 53118, October 21, 1994).

The South Atlantic Council determined

(at its November 1996 meeting) and the

Gulf Council determined (at its July

1996 meeting) that these changes in the

management of the spiny lobster fishery

make the control date obsolete.

Therefore, NMFS announces the

rescission of the January 15, 1986,

control date with respect to this fishery.

Authority: 16 U.S.C. 1801 et seq.

Dated: March 20, 1997.

C. Karnella,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

[FR Doc. 97–7717 Filed 3–25–97; 8:45 am]

BILLING CODE 3510–22–F

50 CFR Part 679

[Docket No. 961107312–7021–02; I.D.

031997A]

Fisheries of the Exclusive Economic

Zone Off Alaska; Offshore Component

Pollock in the Aleutian Islands Subarea

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Modification of a closure.

SUMMARY: NMFS is opening directed

fishing for pollock by vessels catching

pollock for processing by the offshore

component in the Aleutian Islands

subarea (AI) of the Bering Sea and

Aleutian Islands management area

(BSAI). This action is necessary to fully

utilize the total allowable catch (TAC) of

pollock in that area.

EFFECTIVE DATE: 1200 hrs, Alaska local

time (A.l.t.), March 20, 1997, through

1200 hrs, A.l.t., March 22, 1997.

FOR FURTHER INFORMATION CONTACT:

Mary Furuness, 907–586–7228.

SUPPLEMENTARY INFORMATION: The

groundfish fishery in the BSAI exclusive

economic zone is managed by NMFS

according to the Fishery Management

Plan for Groundfish of the Bering Sea