[Federal Register Volume 63, Number 77 (Wednesday, April 22, 1998)]
[Rules and Regulations]
[Pages 19842-19850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10662]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD35


Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status for One Plant, Arctostaphylos pallida (Pallid 
Manzanita), From the Northern Diablo Range of California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Fish and Wildlife Service (Service) determines threatened 
status for Arctostaphylos pallida (pallid manzanita) pursuant to the 
Endangered Species Act of 1973, as amended (Act). This plant species is 
found only in the northern Diablo Range of California in Alameda and 
Contra Costa Counties. The primary threats to the species are the 
effects of fire suppression, and shading and competition from native 
and alien plants. To a lesser extent, the species is threatened by 
disease, herbicide spraying, hybridization, and the ongoing effects of 
habitat loss and fragmentation. This rule implements the Federal 
protection and recovery provisions afforded by the Act for this 
species.

DATES: Effective May 22, 1998.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Sacramento Field Office, 3310 El Camino, 
Suite 130, Sacramento, CA 95821-6340.

FOR FURTHER INFORMATION CONTACT: Dwight Harvey, at the above address or 
by telephone (916/979-2725).

SUPPLEMENTARY INFORMATION:

Background

    Arctostaphylos pallida (pallid manzanita) is found only in the 
northern Diablo Range of California. The Diablo Range is part of the 
inner South Coast Range of California. The Diablo Range extends in a 
northwest to southeast direction as a more or less continuous mountain 
chain, 32 to 48 kilometers (km) (20 to 30 miles (mi)) wide, for 
approximately 300 km (190 mi) from San Pablo Bay in central California 
to Polonio Pass in northeast San Luis Obispo County. The altitude of 
the Diablo Range varies from 600 to 1,280 meters (m) (2,000 to 4,200 
feet (ft)) and is broken by four or five east to west passes. These 
passes divide the Diablo

[[Page 19843]]

Range into several distinct units: Contra Costa Hills, Mt. Diablo, Mt. 
Hamilton Range, Panoche Hills, San Carlos Range, and Estrella Hills 
(Sharsmith 1982). Arctostaphylos pallida occurs in the Contra Costa 
Hills section of the Diablo Range.
    Portions of the Diablo Range are thought to have been surrounded by 
marine embayments since the middle Miocene era, when modern flora and 
fauna were developing (Sharsmith 1982). Much of the surface of the 
Diablo Range is composed of rock in the Franciscan series. The soils 
formed from Franciscan rock are believed to partially control the 
present distribution of plant species in the Diablo Range (Sharsmith 
1982). Arctostaphylos pallida seems to prefer to grow in limited 
locations of the East Bay Hills on north and east facing slopes where 
bare, siliceous, mesic soils with low fertility exist (Amme and Havlik 
1987a).
    Alice Eastwood described Arctostaphylos pallida in 1933 from 
specimens collected in 1902 by W.W. Carruth in the ``East Oakland 
Hills,'' an area believed to be Huckleberry Ridge in Alameda and Contra 
Costa Counties, California. A. pallida  is a member of the A. 
andersonii complex, a group of Arctostaphylos species found in central 
coastal California. Though McMinn reduced the taxon to a variety of A. 
andersonii in 1939, Wells (1993) treated it as A. pallida.
    Arctostaphylos pallida is an upright, non-burl-forming shrub in the 
heath family (Ericaceae). Arctostaphylos pallida grows from 2 to 4 m 
(6.5 to 13.0 ft) high or more with rough, gray or reddish bark. The 
twigs are bristly. The ovate to triangular leaves are bristly, strongly 
overlapping, and clasping; they are 2.5 to 4.5 centimeters (cm) (1.0 to 
1.8 inches (in.)) long and 2 to 3 cm (0.8 to 1.2 in.) wide. The dense, 
white flowers are urn-shaped and 6 to 7 millimeters (mm) (0.2 to 0.3 
in.) long. The flowering period is from December to March.
    The overall current range of Arctostaphylos pallida is similar to 
that known at the time the species was described in 1933. The extant 
populations of this species are thought to be smaller, however, due to 
habitat destruction and fragmentation by urbanization (B. Olson, in 
litt. 1994). Although A. pallida occupies most of its historic range, 
local habitat destruction due to residential development has resulted 
in losses of up to 50 percent in some locations along Manzanita Way in 
the Oakland Hills (B. Olson, in litt. 1994). Only two large populations 
are known, one at Huckleberry Ridge, the presumed type locality in 
Alameda and Contra Costa Counties, and the other at Sobrante Ridge in 
Contra Costa County. The remaining occurrences, all located in Alameda 
or Contra Costa Counties, are all small, and most have fewer than ten 
individuals. Of the 13 documented occurrences of A. pallida, six are 
considered to be declining, while the trend of the remaining seven is 
uncertain or unknown (CNDDB 1997). One of the latter populations has 
fewer than 50 plants and was planted outside of its native habitat, 
where its long-term survival is not likely (CNDDB 1997). Two other 
occurrences are considered to have been planted (CNDDB 1997).
    The species is found from 200 to 445 m (656 to 1,460 ft) in 
elevation, primarily on thin soils composed of chert and shale (Amme 
and Havlik 1987a). Generally, the plants are found in Arctostaphylos 
dominated chaparral that is often surrounded by oak woodlands and 
coastal shrub (Amme et al. 1986). The two largest occurrences occupy a 
total area of 12 hectares (ha) (29 acres (ac)) (Amme et al. 1986). 
These two populations are found in maritime chaparral, a habitat with 
mesic environmental conditions due to a maritime influence. The smaller 
of the two, at Sobrante Ridge, has the least human impact of all known 
populations. It had an estimated 1,700 to 2,000 plants in the mid-1980s 
and the status and vigor of the plants appeared good (Amme et al. 1986, 
Amme and Hovik 1987). The population remains in good shape and, 
although some management is needed, the potential for long term 
viability is high (David Amme, pers. comm. 1997, Neil Havlik, pers. 
comm. 1997). The Sobrante Ridge site has more open space than other 
occurrences and recruitment of Arctostaphylos pallida is taking place 
in areas with bare and exposed gravel (Steve Edwards, Tilden Botanic 
Garden, pers. comm. 1997).
    The largest known population of Arctostaphylos pallida occurs at 
Huckleberry Ridge, although an estimated 50 percent of the original 
habitat at this site has either been developed for housing or is 
privately owned. Development eliminated a large number of A. pallida 
plants and fragmented the remaining habitat at this site (Amme and 
Havlik 1987b, B. Olson, in litt. 1994). An estimated 2,400 to 2,700 
plants were present in this population during the mid 1980s (Amme et 
al. 1986). A fungal infection during the early 1980s resulted in branch 
and stem dieback in over 50 percent of the plants at Huckleberry Ridge, 
and the condition of the population was described as poor (Amme and 
Havlik 1987c). Disease is discussed in further detail under factor C in 
the ``Summary of Factors Affecting the Species'' section below.
    Many of the smaller populations occur in coastal scrub (Brad Olson, 
California Native Plant Society, in litt. 1994). These occurrences of 
Arctostaphylos pallida are all small with few individuals and their 
long term viability is questionable. The largest is estimated to have 
65 individuals, some of which were planted (CNDDB 1997). Several other 
occurrences were also planted, and many small populations are located 
along roadcuts where plants appear to have established naturally after 
the soil was disturbed (Amme et al. 1986). Some of these occurrences 
have only one or several individuals and are in poor condition (CNDDB 
1997). Many of these smaller populations are shaded by planted and 
naturalized Pinus radiata and Cupressus spp. (Amme and Havlik 1987a). 
Shading and competition are discussed in more detail under factor E 
below in the ``Summary of Factors Affecting the Species'' section 
below.
    More than half of the remaining habitat for the species, including 
both large populations and numerous smaller populations, occur on lands 
owned by the East Bay Regional Park District (EBRPD)(Brad Olson, EBRPD, 
in litt. 1997). Other small populations occur on lands owned by the 
East Bay Municipal Utility District (EBMUD), the City of Oakland, 
Pacific Gas and Electric power line easements, or on other privately 
owned lands (B. Olson, in litt. 1994, Robert Nuzum, EBMUD, in litt. 
1997). The primary threats to Arctostaphylos pallida are the effects of 
fire suppression, and shading and competition from native and alien 
plants. To a lesser extent, the species is threatened by disease, 
herbicide spraying, hybridization, and the ongoing effects of habitat 
loss and fragmentation.

Previous Federal Action

    Federal government actions on the species began as a result of 
section 12 of the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.), which directed the Secretary of the Smithsonian 
Institution to prepare a report on those plants considered to be 
endangered, threatened, or extinct in the United States. This report, 
designated as House Document No. 94-51, was presented to Congress on 
January 9, 1975. This document included Arctostaphylos pallida (as 
Arctostaphylos andersonii var. pallida) as endangered. The Service 
published a notice in the July 1, 1975, Federal Register (40 FR 27823) 
of its acceptance of the report of the Smithsonian Institution as a 
petition within the

[[Page 19844]]

context of section 4(c)(2) (petition provisions are now found in 
section 4(b)(3) of the Act) and its intention thereby to review the 
status of the plant taxa named therein. The above taxon was included in 
the July 1, 1975, notice. On June 16, 1976, the Service published a 
proposal in the Federal Register (42 FR 24523) to determine 
approximately 1,700 vascular plant species to be endangered species 
pursuant to section 4 of the Act. The 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. Arctostaphylos pallida 
was included in the June 16, 1976, publication.
    General comments received in relation to the 1976 proposal were 
summarized in the April 26, 1978, Federal Register (43 FR 17909). The 
Endangered Species Act Amendments of 1978 required that all existing 
proposals over 2 years old be withdrawn. A 1-year grace period was 
given to those proposals already more than 2 years old. In a December 
10, 1979, notice (44 FR 70796), the Service withdrew the June 6, 1976, 
proposal that had not been made final, 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 Arctostaphylos 
pallida as a Category 1 candidate species for Federal listing. Category 
1 were those taxa for which the Service had on file sufficient 
information to support issuance of proposed listing rules. On November 
28, 1983, the Service published a supplement to the Notice of Review 
(48 FR 53640). This supplement changed this taxon from Category 1 to 
Category 2. Category 2 species were those taxa for which the Service 
had information indicating that listing may be warranted but for which 
it lacked sufficient information on status and threats to support 
issuance of listing rules. The plant notice was revised on September 
27, 1985 (50 FR 39526). Arctostaphylos pallida was again included as a 
Category 2 candidate species. In the revision of the plant notice 
published on February 21, 1990 (55 FR 6184), A. pallida was elevated to 
a Category 1 candidate species. In the revision of the plant notice 
published on September 30, 1993 (58 FR 51144), this category remained 
unchanged.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
findings on 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 Arctostaphylos pallida because the 
1975 Smithsonian report had been accepted as a petition. On October 13, 
1983, the Service found that the petitioned listing of this species was 
warranted but precluded by other pending listing actions, in accordance 
with section 4(b)(3)(B)(iii) of the Act; notification of this finding 
was published on January 20, 1984 (49 FR 2485). Such a finding requires 
the petition to be recycled annually, pursuant to section 4(b)(3)(C)(i) 
of the Act. The finding was reviewed annually from October of 1983 
through 1993. Publication of the proposed rule to list A. pallida as a 
threatened species on August 2, 1995 (60 FR 39309) constituted the 
final warranted finding for this species.
    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) and the extension of the guidance published in 
the Federal Register on October 23, 1997 (62 FR 55268). The guidance 
clarifies the order in which the Service will process listing actions 
following two related events: (1) The lifting, on April 26, 1996, of 
the moratorium on final listings imposed on April 10, 1995 (Pub. L. 
104-6), and (2) the restoration of funding for listing through passage 
of 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 
outstanding proposed listings. A lower priority is assigned to 
resolving the conservation status of candidate species and processing 
administrative findings on petitions to add species to the lists or 
reclassify species from threatened to endangered status (Tier 3). The 
lowest priority actions are in Tier 4, a category which includes 
processing critical habitat determinations, delistings, or other types 
of reclassifications. Processing of this final rule is a Tier 2 action.

Summary of Comments and Recommendations

    In the August 2, 1995, proposed rule (60 FR 39309) and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might contribute to the development of a 
final rule. Appropriate State and Federal agencies and representatives, 
City and County governments, scientific organizations, and other 
interested parties were contacted and requested to comment. Newspaper 
notices were published in the Daily Review (Hayward, California), the 
Ledger Dispatch and the Brentwood News (Antioch, California), and the 
Oakland Tribune on August 9, 1995, which invited public comment. No 
public comments or requests were received during this public comment 
period. Work on the final rule to list Arctostaphylos pallida as a 
threatened species was suspended due to the moratorium. After the 
moratorium was lifted in April 1996, the public comment period was 
reopened on February 27, 1997, for 30 days to update the proposed 
listing (62 FR 8417). In accordance with Service policy (59 FR 34270), 
four independent specialists were solicited to review pertinent 
scientific or commercial data and assumptions relative to the proposed 
rule. No response was received from the four independent specialists.
    In a letter dated March 25, 1997, Mr. Brad Olsen of the East Bay 
Regional Park District requested that the comment period be reopened an 
additional time because all affected and interested parties and 
agencies may not have had sufficient time to convey important 
information pertaining to all the known Arctostaphylos pallida 
populations. The notice opening the additional comment period was 
published in the Federal Register (62 FR 24388) on May 5, 1997. The 
public comment period closed on June 4, 1997. Comments were solicited 
from an additional eight experts pertaining to--(1) The known or 
potential effects of fire suppression and general fire management 
practices on the pallid manzanita and its habitat, (2) other 
biological, commercial, or other relevant data on any threats (or the 
lack thereof) to the species; and (3) the size, number, or distribution 
of populations of the species.
    During the last two comment periods, the Service received a total 
of eight comments (letters and personal phone conversations) from seven 
people. One commenter supported the listing and the other six were 
neutral. Several commenters provided additional information that has 
been incorporated into this rule. No commenters were opposed to the 
rule.

Summary of Factors Affecting the Species

    After a thorough review and consideration of the best available 
scientific and commercial information,

[[Page 19845]]

the Service has determined that Arctostaphylos pallida should be 
classified as a threatened species. Section 4 of the Endangered Species 
Act and regulations (50 CFR part 424) promulgated to implement the 
listing provisions of the Act set forth the procedures to be followed 
for adding species to the list of threatened and endangered species. 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 Arctostaphylos pallida Eastw. (pallid 
manzanita) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    In its proposal to list the pallid manzanita (60 FR 39311), the 
Service identified residential development as a threat. However, the 
Service no longer considers it to be a significant threat. Although 
residential development eliminated a large number of Arctostaphylos 
pallida plants on Huckleberry Ridge, further direct habitat destruction 
is not anticipated. Up to 50 percent of the original habitat of A. 
pallida on Huckleberry Ridge has been developed for housing or is 
privately owned. However, most of the remaining population at 
Huckleberry Ridge, as well as the other large A. pallida population on 
Sobrante Ridge, is on lands now owned by the East Bay Regional Park 
District and is protected from further direct habitat destruction 
resulting from urbanization or land use conversion. The smaller A. 
pallida populations occur either on other park lands or on privately 
owned lands that have already been developed. The ongoing effects of 
prior development are discussed in detail under factor E.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Although this species is not known to be sought after by 
collectors, Arctostaphylos pallida is commercially cultivated (Wells 
1993). Many members of this genus are considered desirable to use for 
interior decoration because of their attractive bark, leaves, and hard 
wood. In addition, they are often used in residential landscapes and 
local horticulturalists sometimes collect the seeds for cultivation 
(Keeley and Keeley 1992, Smith 1988). Overutilization is not currently 
known to be a threat to this species, but unrestricted collecting for 
scientific or horticultural purposes or excessive trampling of 
seedlings by individuals interested in seeing rare plants could result 
from increased publicity as a result of listing this species. Possible 
unauthorized cutting of A. pallida was evident at the Sobrante Ridge 
Regional Preserve population where public access trails and 
photographic displays of this species are established throughout 
manzanita habitat (Dwight Harvey and Elizabeth Warne, USFWS, in litt. 
1997).

C. Disease or Predation

    Approximately 50 percent of the Huckleberry Ridge population of 
Arctostaphylos pallida was affected in the 1980s by a fungal infection 
that attacked the roots of the plants, causing branch and stem dieback 
(Amme and Havlik 1987a, CDFG 1987). The Huckleberry Ridge population 
remains in poor condition (Amme and Havlik 1987c, CNDDB 1997). If the 
wet, cold weather conditions that induced the fungal infection are 
repeated, another infection could occur, resulting in reduced vigor of 
the population (D. Amme, pers. comm. 1994).
    Botryosphaeia fungal infections can cause changes in leaf 
pigmentation thus affecting the plant's photosynthetic capabilities, 
destroy branches, and lead to the eventual death of whole plants (Smith 
1985, Amme and Havlik 1987, Wood and Parker 1988). Pale chlorotic 
leaves, possibly due to Botryosphaeia fungi, were evident at the East 
Ridge population on EBMUD land, where 14 mature A. pallida plants grow 
under a canopy dominated by Umbellularia californica, Arbutus 
menziesii, and introduced Pinus radiata (D. Harvey and E. Warne, in 
litt. 1997, R. Nuzum, in litt. 1997). In addition, urban expansion has 
resulted in the planting and subsequent spread of many exotic and 
native species of trees and shrubs (Amme and Havlik 1987a). Many of 
these species grow faster than Arctostaphylos pallida and, in some 
locations, completely shade them. Excessive shade and overcrowding can 
cause a slow decline in the plant's overall health and vigor that can 
lead to the spread of Botryosphaeia fungi and an unknown root fungus 
(Smith 1985, Amme and Havlik 1987a).

D. The Inadequacy of Existing Regulatory Mechanisms

    The State of California Fish and Game Commission has listed 
Arctostaphylos pallida as an endangered species under the California 
Endangered Species Act (chapter 1.5 Sec. 2050 et seq. of the California 
Fish and Game Code, and title 14 California Code of Regulations 
Sec. 670.2). The State of California requires that individuals obtain 
authorization from the California Department of Fish and Game (CDFG) to 
possess or ``take'' a listed species. Although the take of State-listed 
plants is prohibited by the California Native Plant Protection Act and 
the California Endangered Species Act (California Fish & Game Code, 
chapter 10, division 2, Sec. 1908 and California Fish & Game Code, 
chapter 1.5, division 3, Sec. 2080), State law does not prohibit the 
taking of such plants via habitat modification or land use changes by 
the owner. After 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 land owner notify the agency ``at least ten 
days in advance of changing the land use to allow salvage of such a 
plant'' (California Fish and Game Code, chapter 10, Sec. 1900 et seq.).
    The California Environmental Quality Act (CEQA) requires a full 
disclosure of the potential environmental impacts of proposed projects. 
The public agency with primary authority or jurisdiction over the 
project is designated as the lead agency and is responsible for 
conducting a review of the project and consulting with the other 
agencies concerned with the resources affected by the project. Section 
15065 of the CEQA Guidelines requires a finding of significance if a 
project has the potential to ``reduce the number or restrict the range 
of a rare or endangered plant or animal.'' Species that are eligible 
for listing as rare, threatened, or endangered but are not so listed 
are given the same protection as those species that are officially 
listed with the State or Federal governments. Once significant effects 
are identified, the lead agency has the option of requiring mitigation 
for effects through changes in the project or to decide that overriding 
considerations make mitigation infeasible. In the latter case, projects 
may be approved that cause significant environmental damage, such as 
destruction of listed or rare species. Protection of listed species 
through CEQA is, therefore, dependent upon the discretion of the agency 
involved. In addition, CEQA guidelines recently have been revised in 
ways that, if made final, may weaken protections for threatened, 
endangered, and other sensitive species.
    California Department of Fish and Game (CDFG) and EBRPD jointly 
developed the Alameda Manzanita Management Plan in 1987. Since then, 
due to limited funding, and conflicting fire management policies, this 
plan has only partially been carried out. The mission of the plan was 
to determine and implement management activities that would improve the 
condition of the species and help in its recovery (Amme

[[Page 19846]]

and Havlik 1987b). EBRPD has reduced the amount of flammable dead plant 
material in the Huckleberry Ridge population (Ed Leong, EBRPD, pers. 
comm. 1994, in litt. 1997). The reduction in plant litter, and the 
pruning of some competing exotics, has helped to stimulate germination 
and growth of the species at Sobrante Ridge, Huckleberry Ridge and two 
other lesser locations (D. Amme, pers. comm. 1994, N. Havlik, pers. 
comm. 1997). The potential effects of fire management policies on A. 
pallida are further discussed under factor E below.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

    Due to past and present fire suppression policies and inactive or 
ineffective fire management plans, the long-term viability of 
Arctostaphylos pallida is in doubt. In the 1800s, before the expansion 
of urban areas into the East Bay Hills, major natural or human-caused 
fires periodically burned through manzanita habitat mainly from east to 
west driven by dry ``Diablo Winds'' during the late summer and fall 
(EBRPD 1996, R. Nuzum, in litt. 1997). These fires rarely threatened 
the lower lying communities of Berkeley and Oakland. Fire management 
practice from about 1900 to 1940 changed from unrestricted burning to 
permitted burning only (Sampson 1944, J. Dunne et al. 1991). The 
California Department of Forestry and Fire Protection (CDFFP) currently 
has a policy of immediate suppression of all wildfires (B. Harrington, 
CDFFP, pers. comm. 1996).
    Due to the expansion of homes up to the crest of the East Bay Hills 
during the 1940s and 1950s, human-caused fires, such as the Oakland 
Hills fire of 1991, are now a major threat to human safety (EBRPD 
1996). Over the last 10 years, urban development has expanded to 
approach the two largest populations of Arctostaphylos pallida at 
Sobrante and Huckleberry Ridges. At Sobrante Ridge, homes come within 
30 m (100 ft) of the population and at Huckleberry Ridge some homes 
along Manzanita Drive have A. pallida within their landscaping (Amme 
and Havlik 1987a, D. Harvey and E. Warne, in litt. 1997).
    Fire suppression in the East Bay Hills, in combination with 
increased browsing of tree and shrub seedlings and acorns by deer and 
livestock, has led to structural and compositional change in habitats 
within the range of Arctostaphylos pallida. Open-canopied oak woodlands 
maintained historically by frequent fire have been converted, in the 
absence of fire, into closed-canopied woodland-forests dominated by 
Umbellularia californica (California bay), other native trees, or alien 
conifer or Eucalyptus forests (McBride 1974, B. Olson, in litt. 1994 
Safford 1995). Because of their denser canopies, these forests and 
woodlands create a microclimate unsuitable for healthy A. pallida 
plants. For example, the small population of A. pallida at upper East 
Ridge persists in the understory of a closed-canopy forest of 
California bay and Arbutus menziesii (madrone) (R. Nuzum, in litt. 
1997). No signs of recent fire are present at this site (D. Harvey and 
E. Warne, in litt. 1997 as per J. Dunne) and it is estimated that the 
site may not have burned in more than 100 years (R. Nuzum, in litt. 
1997). Most of the 14 adult pallid manzanita in this population are 
unhealthy and show signs of fungal infections and bark striping. Bark 
striping may be a sign that excessive canopy shading is affecting A. 
pallida. Bark striping was first thought to have a pathological origin 
but is now believed to be a stress response by some species of 
manzanita to the absence of fire (Davis 1973 in Hanes 1995). On shaded 
sites, such as upper East Ridge, the ability of the shade intolerant A. 
pallida plants to maintain live tissue is thought to lessen, resulting 
in the partial shutdown of growing cells and tissue sloughing that 
manifests as bark striping (Davis 1973 in Hanes 1995, Amme and Havlik 
1987a). At the Huckleberry Ridge population, A. pallida plants are 
generally wider than they are tall, a consequence of growing away from 
the overstory canopy to reach light, and all of the A. pallida plants 
displayed bark striping (Amme and Havlik 1987a).
    Fire suppression can also alter the reproductive dynamics of 
Arctostaphylos pallida stands. Based on differing survival responses of 
chaparral plants to fire, manzanitas can be divided into burl-forming 
and non-burl-forming (Sampson 1944, Roof 1976, Keeley and Keeley 1977). 
Burls lay at the base of the main stem of the plant and contain stored 
nutrients and shoot-forming embryonic tissues. The burl-forming types 
are capable of surviving fire by resprouting from these burls. The 
second group does not form burls. Instead, stand persistence is based 
on the establishment and maintenance of a seed bank in the soil. This 
seed bank may lay dormant within the soil for as much as 100 years or 
more (Keeley 1987, 1991). When a fire passes through an area, the seeds 
are scarified and thus become capable of germinating (Amme and Havlik 
1987a). However, fire is not the only way seeds can be scarified. 
Mechanical disturbances, such as crushing, can also crack the seed coat 
and enable the seeds to germinate (S. Edwards, pers. comm. 1997). Both 
types of manzanita can also regenerate by layering, a method that does 
not require fire. Branches sprout roots at points at which they are 
covered by soil and leaf litter. This produces a clone of the original 
plant (Amme and Havlik 1987b). Of the three methods of regeneration, 
only seed reproduction results in genetic recombination and it is, 
therefore, important to the maintenance of genetic diversity.
    Stand regeneration in Arctostaphylos pallida is based primarily on 
seed reproduction. At the Sobrante Ridge population, A. pallida is 
closely associated with open stands of Quercus chrysolepis (canyon live 
oak) and Q. wislizenii var. fructescens (interior live oak) and 
recruitment of both pallid manzanita and oaks is occurring on bare and 
exposed gravel (Amme et al. 1986, S. Edwards, pers. comm. 1997). The 
effects of fire are evident at this site and fire may have occurred 20 
to 30 years ago (N. Havlik, pers. comm. 1997).
    In contrast, the effects of fire are not evident at the Huckleberry 
Ridge population and fire may have not occurred there for 70 years or 
longer (R. Nuzum, in litt. 1997, D. Harvey and E. Warne, in litt. 
1997). The Arctostaphylos pallida population is unhealthy due to the 
negative effects of a dense California bay-madrone canopy and 
reproduction is poor (N. Havlik, pers. comm. 1997, R. Nuzum, in litt. 
1997, S. Edwards, pers. comm. 1997, D. Harvey and E. Warne, in litt. 
1997). In a 1993 fuel management and habitat improvement experiment at 
the Huckleberry Ridge site, a small area overgrown with a dense stand 
of A. pallida was cleared, and the cut vegetation piled and burned. 
Seedlings of A. pallida were present the following year. Hand pulling 
of the invasive alien, Genista monspessulana (French broom), was 
necessary during 1994 and 1995. During a site visit in March of 1997, 
40 to 50 A. pallida were present. Most were 10-15 cm (4-6 in) tall, 
vigorous, and well-branched. The seedlings were found on the barer soil 
areas. In addition to continued invasion by French broom, native 
Baccharis pilularis (coyote brush) had begun to invade the site (E. 
Leong, pers. comm. 1997) .
    The importance of fire in relation to this manzanita's reproductive 
strategy is uncertain, however, since seed reproduction can also occur 
as a result of site soil disturbance. Evidence exists that mechanical 
scarification, such as crushing, stimulates germination in several 
manzanita species, including A. pallida (Keeley 1987, Keeley 1991, S. 
Edwards, pers. comm. 1997). New

[[Page 19847]]

seedlings of A. pallida have appeared in areas where mechanical 
scarification had recently taken place including exposed gravel 
clearings and fire breaks at the Sobrante Ridge (S. Edwards, pers. 
comm. 1997, N. Havlik, pers. comm. 1997), at several road cuts along 
Skyline Boulevard (D. Amme, pers. comm. 1997), and at Huckleberry Ridge 
where grading and removal of plants has occurred for residential 
development (N. Havlik, pers. comm. 1997).
    However, fire is thought to have been the primary historical 
process by which seed regeneration was initiated and it has other 
valuable effects beyond seed scarification. The accumulated leaf and 
bark litter, fallen fruits, and roots of Arctostaphylos species have a 
self-inhibitory effect on seed germination (Amme and Havlik 1987b). 
Fire is believed to remove these toxic materials and promote 
germination of Arctostaphylos and other herbs and shrubs (Amme et al. 
1986). Fire also recycles nutrients in the soil (Amme and Havlik 
1987b). The excessive accumulation of dead leaf and bark material also 
results in the retention of soil moisture. Higher soil moisture levels 
allows fires to conduct heat through the soil more effectively; this 
has the potential to destroy the existing Arctostaphylos pallida seed 
bank. (Wood and Parker 1988).
    The fire management policy of the CDFFP has superseded EBRPD fire 
management policy on park lands (J. Di Donato, EBRPD, pers. comm. 
1996). However, fire management can be modified in specific areas for 
listed species (B. Harrington, pers. comm. 1996). On EBRPD and EBMUD 
lands, where the majority of Arctostaphylos pallida populations occur, 
A. pallida habitat has been managed by fire suppression and brush 
removal (B. Olson, in litt. 1994, J. Di Donato, pers. comm. 1996, B. 
Harrington, pers. comm. 1996). Mechanical removal of exotic plants has 
been the primary method used to improve growing conditions mostly for 
isolated individual plants (Amme and Havlik 1987). Due to the continued 
expansion of urbanization adjacent to A. pallida habitat, and the 
catastrophic Oakland Hills fire of 1991, mechanical removal of highly 
flammable vegetation remains the predominant method used to reduce the 
fuel load in A. pallida chaparral habitat. A fire management plan that 
includes the possibility of prescribed burns to address the needs of A. 
pallida for germination and seedling establishment is currently being 
developed by the EBRPD in cooperation with CDFG and CDFFP (EBRPD 1996, 
J. Di Donato, in litt. 1996).
    The genetic integrity of Arctostaphylos pallida is threatened by 
hybridization with other species of Arctostaphylos introduced into the 
vicinity of A. pallida populations (D. Amme, pers. comm. 1994). At 
least three other species of Arctostaphylos have been used for 
landscaping on private lands along Manzanita Way, a road that borders 
the Huckleberry Ridge Preserve. Hybrids between a common associate of 
A. pallida, A. tomentosa ssp. crustacea (brittle leaf manzanita), are 
known to occur in two separate populations (Amme et al. 1986, D. Harvey 
and E. Warne, in litt. 1997 as per J. Dunne). Hybrids have also been 
observed between A. pallida and A. glauca (bigberry manzanita) in 
Oakland parks (D. Amme, pers. comm. 1997 as per S. Edwards). 
Arctostaphylos pallida closely resembles A. pajaroensis (Pajaro 
manzanita), a species native to the Pajaro River area. Hybrids may be 
occurring between these two species in areas where residents have 
planted A. pajaroensis along Huckleberry Ridge (D. Amme, pers. comm. 
1997). Hybridization with any of these taxa could result in a hybrid 
manzanita swarm replacing pure A. pallida (Amme and Havlik 1987b, Amme 
et al. 1986).
    Herbicides have been used to eradicate Eucalyptus associated with 
Arctostaphylos pallida in many areas of EBRPD lands in the Oakland 
Hills. The exact effect herbicide spraying has on Arctostaphylos 
pallida has not been studied, however, roadside spraying has had 
negative effects on regeneration of A. pallida along Skyline Boulevard 
(Amme and Havlik 1987a).
    Urban development in the East Bay Hills has fragmented the natural 
habitat of Arctostaphylos pallida. Splitting the habitat into smaller, 
more isolated units can alter the physical environment by changing the 
amount of incoming solar radiation, water, wind, or nutrients for the 
remnant vegetation (Saunders et al. 1991). In addition, a higher 
proportion of these fragmented natural areas are subject to external 
factors (e.g., invasion of nonnative plants, foot traffic, and 
increased erosion) that disrupt natural ecosystem processes (B. Olson, 
in litt. 1994).
    Residential development at Huckleberry Ridge has contributed to the 
introduction of exotic landscape and weedy plant species that compete 
with the remnant population (Amme and Havlik 1987b). Small populations, 
in particular, are threatened by shading from planted Eucalyptus spp., 
Pinus radiata, and Cupressus spp. (cypresses), and by competition with 
other aggressive alien plant species including French broom, Vinca 
major (periwinkle), and Senecio mikanioides (German ivy) (Amme et al. 
1986, B. Olson, in litt. 1994, N. Havlik, pers. comm. 1997). Eventually 
the taller growing species will block necessary light to the few 
scattered A. pallida resulting in unhealthy, dying and diseased plants 
as demonstrated at some areas of the Huckleberry Ridge and East Ridge 
populations (R. Nuzum, in litt. 1997, N. Havlik, pers. comm. 1997, E. 
Leong, in litt. 1997). In 1985 several large bay trees were cut at the 
base to improve light conditions for some A. pallida. As a result, many 
A. pallida responded with new growth (N. Havlik, pers. comm. 1997).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by Arctostaphylos pallida in determining to make 
this rule final. Based on this evaluation, the preferred action is to 
list A. pallida as threatened. This species is not now in immediate 
danger of extinction throughout all or a significant portion of its 
range. A. pallida exists at two large and eleven small occurrences. The 
majority of its habitat is on EBRPD property. The two largest 
occurrences of A. pallida are protected from further direct habitat 
destruction resulting from urbanization or land use conversion. 
However, all occurrences of A. pallida remain threatened by 
compositional and structural changes due to fire suppression that 
result in shading and competition from native and alien plant species, 
disease, the ongoing effects of habitat fragmentation resulting from 
past urbanization, and chance events due to the small size of the few 
remaining populations. Some populations are also threatened by 
hybridization, and herbicide spraying. Furthermore, the existing 
regulatory mechanisms do not provide A. pallida adequate protection 
from these threats. Arctostaphylos pallida, therefore, fits the 
definition of a threatened species. For the reasons discussed below, 
critical habitat has not been designated.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration 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 conservation of the 
species.

[[Page 19848]]

``Conservation'' means the use of all methods and procedures needed to 
bring the species to the point at which listing under the Act is no 
longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
a species is determined to be endangered or threatened. Critical 
habitat is not determinable when one or both of the following 
situations exist--(1) Information sufficient to perform required 
analyses of the impacts of the designation is lacking, or (2) the 
biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat (50 CFR 
424.12(a)(2)). Service regulations (50 CFR 424.12(a)(1)) state that 
designation of critical habitat is not prudent when one or both of the 
following situations exist--(1) The species is threatened by taking or 
other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    Critical habitat designation for this species is not prudent due to 
lack of benefit. Critical habitat only applies to Federal actions on 
Federal lands or federally-permitted actions on private lands. All 
known populations occur on non-Federal land, and no Federal lands are 
known to occur within the historical range of the species. No Federal 
actions, authorizations, or licensing currently occurs, or is likely to 
occur, on lands where the species occurs. Therefore, designation of 
critical habitat is not likely to benefit A. pallida.
    Moreover, such designation could increase the degree of threat to 
the species. The publication of precise maps and descriptions of 
critical habitat in the Federal Register would make this plant 
vulnerable to incidents of vandalism or collection and, therefore, 
could contribute to the decline of the species. All of the 13 
occurrences of A. pallida are located near or adjacent to residential 
areas and public roads where they are easily accessible. A. pallida is 
commercially cultivated (Wells 1993). Many members of this genus, 
including numerous San Francisco Bay area taxa, are considered 
desirable for interior decoration and landscape plantings and are 
collected for cultivation for these purposes (Roof 1976, Smith 1985, 
1988). The desirability and accessibility of the species, therefore, 
could make the plants subject to collection if their precise location 
was publicized. Most of the populations have so few individuals that 
even limited collection could contribute significantly to their 
decline. Designation of critical habitat for A. pallida could, 
therefore, interfere with recovery efforts for the species.
    The Service finds, therefore, that the designation of critical 
habitat for Arctostaphylos pallida is not prudent at this time, because 
such designation would likely provide no conservation benefit beyond 
that the species would receive by virtue of its designation as a 
threatened species. This finding is based on the fact that the species 
does not occur on Federal lands, nor does it occur on non-Federal lands 
where there is likely to be any Federal agency involvement. Moreover, 
designation of critical habitat would facilitate trespassing and 
increased collection or damage to the species or its habitat, and 
thereby interfere with recovery efforts. Any minor, unforeseen benefits 
that might derive from designation of critical habitat would be 
outweighed by the increased threat to the species that would result 
from such designation.

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 plans be 
developed for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a proposed species or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with the Service. None of the populations 
of Arctostaphylos pallida occur on Federal lands and no Federal actions 
have been identified that are likely to occur on non-Federal lands with 
populations of the species.
    Some populations occur on non-Federal lands protected from 
development. EBRPD owns the sites of both major populations of A. 
pallida. The EBRPD and CDFG jointly developed the Alameda Manzanita 
Management Plan in 1987. Although this plan was not adopted by Alameda 
or Contra Costa County governments, portions of the plan are in use by 
the EBRPD (D. Amme, pers. comm. 1994, E. Leong, pers. comm. 1994, in 
litt 1997). A specific management plan does not exist for the small 
population on EBMUD land at upper East Ridge. The Service has not 
pursued any conservation agreements on public or private land regarding 
this species.
    Listing this plant species necessitates the development of a 
recovery plan. Such a plan would bring together both State and Federal 
efforts for conservation of the plant. The plan would establish a 
framework for agencies to coordinate activities and cooperate with each 
other in conservation efforts. The plan would set recovery priorities 
and estimate costs of various tasks necessary to accomplish them. It 
also would describe site-specific management actions necessary to 
achieve conservation and survival of the plant species. Additionally, 
pursuant to section 6 of the Act, the Service would be able to grant 
funds to the State for management actions promoting the protection and 
recovery of the species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
species. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 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

[[Page 19849]]

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. This 
protection may apply to this species in the future if regulations are 
promulgated. Seeds from cultivated specimens of threatened plants are 
exempt from these prohibitions provided that their containers are 
marked ``Of Cultivated Origin.'' Certain exceptions to the prohibitions 
apply to agents of the Service and State conservation agencies.
    The Act and 50 CFR 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
species. For threatened plants, permits are also available for 
botanical or horticultural exhibition, education purposes, or special 
purposes consistent with the purposes of the Act. It is anticipated 
that some trade permits may be sought or issued for cultivated 
specimens to enhance the propagation and survival of the species.
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable at the time a species is listed 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 this 
listing on proposed and ongoing activities within the species' range. 
Collection, damage, or destruction of listed species on Federal lands 
is prohibited, although in appropriate cases a Federal endangered 
species permit may be issued to allow collection. However, 
Arctostaphylos pallida is not known to occur on any Federal lands. Such 
activities on non-Federal lands would constitute a violation of section 
9, however, if conducted in knowing violation of State law or 
regulations or in violation of State criminal trespass law. Interstate 
or foreign commerce, or offering for sale in interstate or foreign 
commerce, or importing or exporting pallid manzanita without a 
threatened species permit would be a violation of section 9. Questions 
regarding whether specific activities would constitute a violation of 
section 9 should be directed to the Field Supervisor of the Service's 
Sacramento Field Office (see ADDRESSES section). Requests for copies of 
the regulations concerning listed plants and general inquiries 
regarding prohibitions and permits may be addressed to the U.S. Fish 
and Wildlife Service, Ecological Services, Endangered Species Permits, 
911 N.E. 11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-
2063; facsimile 503/231-6243).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, as defined under the 
authority of the National Environmental Policy Act of 1969, need not be 
prepared in connection with regulations adopted pursuant to section 
4(a) of the Endangered Species Act of 1973, 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

    This rule does not require collection of information that requires 
approval by the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

References Cited

    A complete list of all references cited herein is available upon 
request from the Field Supervisor of the Service's Sacramento Field 
Office (see ADDRESSES section).

Author

    The primary author of this final rule is Dwight Harvey, Sacramento 
Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

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


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * *  *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                                                                                         
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special  
         Scientific name                Common name                                                                               habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants                                                                                                                               
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Arctostaphylos pallida...........  pallid manzanita....  U.S.A. (CA)........  Ericaceae--heath...  T                       635           NA           NA
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 19850]]

    Dated: March 4, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-10662 Filed 4-21-98; 8:45 am]
BILLING CODE 4310-55-P