Federal Register, Volume 65 Issue 16 (Tuesday, January 25, 2000)

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE44

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

[[Page 3867]]

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

EFFECTIVE DATE: February 24, 2000.

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

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

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 3868]]

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

Previous Federal Action

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

Summary of Comments and Recommendations

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

[[Page 3869]]

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

Peer Review

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

Summary of Factors Affecting the Species

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

[[Page 3870]]

eventually into a mall (Danny Lang, landowner, pers. comm. 1997).
A fourth population located in 1986 in a horse pasture with 30 to
40 Plagiobothrys hirtus plants no longer exists (J. Kagan, pers. obs.
1986). A visit in 1997 found that the site was now a housing
development with a single P. hirtus plant residing in a vacant lot that
was for sale (K. Amsberry, pers. obs. 1997). This last remaining plant
was lost when developers constructed a new house in late 1997 or early
1998 (K. Amsberry, pers. comm. 1998).
A fifth urban population was also known to exist until recently. In
1983, J. Gamon and J. Kagan discovered the site which consisted of 100
to 500 plants in 1985. The presence of sewer and storm drains above
ground level at that time suggested there were plans to fill the site
by about 1.5 m (3 ft). Construction workers plowed or graded the site
and, by 1997, only one plant remained (K. Amsberry and R. Meinke, pers.
obs. 1997). In 1998, the remaining plant was lost due to development
(K. Amsberry, pers. comm. 1998).
Ten occupied habitat patches are known from private land just south
of the town of Sutherlin to just north of Wilbur. Three of these 10
populations (or 56 percent of the remaining occupied habitat) of
Plagiobothrys hirtus occur on TNC lands, and have exhibited wide
variations in numbers of plants over the recent past. The population on
TNC land at Popcorn Swale demonstrated a particularly volatile pattern
of change in abundance. TNC did their first count in 1995 and estimated
more than 16,000 individuals. However, in 1996, the population
plummeted to only 394 plants, a drop attributed to an extensive period
of standing water on the preserve that year due to a wet spring (Almasi
and Borgias 1996). In 1997, TNC estimated a population size of 3,630
individuals. These large fluctuations are not unexpected for a species
with a primarily annual life cycle. The dramatic fluctuation over the
period from 1995 to 1997 appears to correspond to the variation in
spring season precipitation received and subsequent depth and duration
of inundation observed on the preserve over that period (Darren
Borgias, TNC, in litt. 1998). P. hirtus prefers shallow, seasonal pools
in open grassland (Almasi and Borgias 1996), and all three populations
are threatened by shading and competition by non-native and native
shrubs and trees.
Four of the 10 Plagiobothrys hirtuspopulations on TNC land occur
south of Sutherlin and make up about 21 percent of the remaining
occupied habitat. Agricultural land conversion and livestock grazing
have degraded the habitat of these populations. All four of these
populations occur within fenced livestock pastures and are subjected to
heavy grazing pressure (see Factor C).
The remaining 3 out of the 10 habitat patches south of Sutherlin
account for approximately 3 percent of occupied habitat. Biologists
have documented a decline over time at 1 site from 50 to 60 plants, to
10 to 20 plants. The other two sites tend to fluctuate in numbers.
These three sites, as well as the TNC sites, are threatened by
competition from invasion of non-native weedy vegetation and
succession, which is causing a closure of the forest canopy (see Factor
E).
Three other sites are known to occur outside of the town of
Sutherlin. Two known habitat patches are located east of Sutherlin on
private land. One site, about 2 ha (5.5 ac) in size, is by a road in an
agricultural field and is estimated to be about 12.5 percent of the
total remaining occupied habitat. The location of the site is in a wet
depression in a hayfield. The hayfield was plowed and planted in grass
hay, and biologists observed tractor tracks in the depression in which
Plagiobothrys hirtus occurred after the grass hay was cut and baled.
Cattle are turned out into the field in the fall. This population has
at least 1,000 individual plants and is threatened by plowing, haying,
and livestock grazing. The other site is much smaller, occupying less
than 10 square meters (m²) (108 square feet
(ft²)), and occurs in a seasonally wet roadside ditch along
a private driveway. Only four or five individual plants occur at this
site. Mowing and herbicide sprays threaten this population (K.
Amsberry, pers. comm. 1998).
The third site is located west of Sutherlin, also in a roadside
ditch, similar to the second population. This site contains a couple
hundred plants, and site totals approximately 10 m² (108
ft²). Threats to this population are also mowing and
herbicide spraying.
The last two habitat patches, which contain about 3 percent of the
occupied habitat, occur in a marshy area on public and private land
about 22 km (14 mi) north of Sutherlin, near the town of Yoncalla. In
1983, the Oregon Department of Agriculture rediscovered the collection
made in 1961 at this site (see ``Background'' section). About 200
plants were present in 1988 in 2 separate habitat patches. The northern
patch is completely managed by ODOT. The southern patch is partially
managed by ODOT, but a portion also occurs on private land. Overall,
the population has continued to increase under management by ODOT.
Although the population on public land appears vigorous, a portion of
the population on the adjacent private land appears to have vanished
(J. Kagan, pers. comm. 1997). The northern habitat patch contains 500
plants in a 2 by 20 m (6 by 65 ft) area (Amsberry and Meinke 1997b).
The northern population appears stable; however, its small size and
precarious location make predictions of its future stability risky
(Amsberry and Meinke 1997b). Counts in 1997 estimated the number of
plants in the southern patch to be 3,000 (Amsberry and Meinke 1997b).
Alterations in site hydrology pose the primary threat to the plants
(R. Meinke, pers. comm. 1997). Right-of-way management also poses a
threat to these two populations. For example, in early July of 1995,
damage to the marked study plots of transplanted Plagiobothrys hirtus
plants, established by the Oregon Department of Agriculture, occurred
by ODOT maintenance activities. Inspection of the sites documented
damage to the plants, revealing a near complete loss of all
transplanted material and relevant plot location markers. The naturally
occurring population received only superficial impacts (Nicholas Testa,
ODOT, pers. comm. 1995). Since then ODOT has taken steps to prevent
this situation from reoccurring (see ``Available Conservation
Measures'' section and Factor D of this section for additional
information).
B. Overutilization for commercial, recreational, scientific, or
educational purposes. It is not known if the species is currently being
collected. However, listing a species can precipitate commercial or
scientific interest, both legal and illegal, which can threaten the
species through unauthorized and uncontrolled collection for both
commercial and scientific purposes. Listing species as threatened or
endangered publicizes their rarity and may make them more susceptible
to collection or trampling by researchers or plant enthusiasts (Mariah
Steenson, Portland Nursery, Inc., pers. comm. 1997; Mark Bosch, U.S.
Forest Service, in litt. 1997). This species occurs in locations that
are easily accessed by road, and the small population sizes make them
vulnerable to overcollection by botanical enthusiasts.
Plagiobothrys hirtus is an attractive plant with flowers similar in
appearance to forget-me-nots. The species is easily propagated in an
artificial setting and transplanted. The species is conspicuous when in
massed populations (Amsberry and Meinke 1997b). As a member of the

[[Page 3871]]

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

[[Page 3872]]

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

Critical Habitat

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

[[Page 3873]]

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

Available Conservation Measures

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

[[Page 3874]]

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

[[Page 3875]]

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

References Cited

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

Author

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

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

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
--------------------------------------------------- Historic range Family Status When listed Critical Special rules
Scientific name Common name habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Flowering plants

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

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

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