[Federal Register Volume 60, Number 148 (Wednesday, August 2, 1995)]
[Proposed Rules]
[Pages 39309-39314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18813]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD35


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Status for Arctostaphylos Pallida (Pallid Manzanita), a 
Plant From the Northern Diablo Range of California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) proposes to list 
Arctostaphylos pallida (pallid manzanita) as a threatened species, 
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 species is threatened by 
shading and competition from native and non-native plants, fire 
suppression, habitat fragmentation, hybridization, disease, herbicide 
spraying, unauthorized tree cutting, inadequate regulatory mechanisms, 
and stochastic events by virtue of the small isolated nature of the 
remaining populations. This proposal, if made final, would extend 
Federal protection and recovery provisions afforded by the Act for this 
species.

DATES: Comments from all interested parties must be received by October 
9, 1995. Public hearing requests must be received by September 25, 
1995.

ADDRESSES: Comments and materials concerning this proposal should be 
sent 

[[Page 39310]]
to the Field Supervisor, U.S. Fish and Wildlife Service, 2800 Cottage 
Way, Room E-1803, Sacramento, California 95825-1846. Comments and 
materials received and information used to support this proposal will 
be available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Dale Pierce, Assistant Field 
Supervisor, Sacramento Field Office (see ADDRESSES section) (telephone 
916/979-2710; facsimile 916/979-2723).

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 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 comprised of rock in the Franciscan series. The soils 
formed from Franciscan rock are believed to control partially the 
present distribution of plant species in the Diablo Range (Sharsmith 
1982). Serpentine rock, which is a frequent component of Franciscan 
rock, yields a soil rich in heavy metals and low in the nutrients 
required for plant growth (Kruckeberg 1984). Because of the distinctive 
serpentine soil and the long exposure of this land mass to colonization 
by plants, a distinctive group of plant species has developed in the 
Diablo Range.
    Alice Eastwood described Arctostaphylos pallida in 1933 from 
specimens collected in 1902 by W.W. Carruth in the ``East Oakland 
Hills.'' This area is believed to be Huckleberry Ridge in Alameda and 
Contra Costa Counties, California. Arctostaphylos pallida is a member 
of the A. andersonii complex, a group of Arctostaphylos species found 
in central coastal California. The species is considered by some 
taxonomists to be A. andersonii var. pallida Adams ex McMinn (Amme and 
Havlik 1987a); McMinn reduced the species to the varietal level in 
1939. However, Wells (1993) treats the species 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. Flowering period is from December to March. Arctostaphylos 
tomentosa ssp. crustacea commonly co-occurs with A. pallida but is a 
burl-forming species with spreading leaves (Amme et al. no date, Wells 
1993).
    Arctostaphylos pallida continues to occupy its original range in 
Alameda and Contra Costa Counties, where it is known from approximately 
13 populations. The two largest populations are located at Huckleberry 
Ridge, the type locality in Alameda and Contra Costa Counties, and at 
Sobrante Ridge in Contra Costa County. Several other small, natural and 
planted populations occur in Alameda and Contra Costa Counties. 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 manzanita chaparral habitat 
that frequently is surrounded by oak woodlands and coastal scrub (Amme 
et al. no date). The two largest occurrences occupy an area of 
approximately 34 hectares (ha) (82 acres (ac)). These two populations 
are found in maritime chaparral, a habitat with mesic soil conditions 
and a maritime influence. Many of the smaller populations occur in 
coastal scrub (B. Olson, East Bay Chapter, California Native Plant 
Society (CNPS), in litt. 1994). Arctostaphylos pallida is threatened by 
shading and competition from other plant species, fire suppression, 
hybridization with other Arctostaphylos species, herbicide spraying, 
habitat fragmentation resulting from past housing and road 
construction, unauthorized tree cutting, fungal disease, inadequate 
regulatory mechanisms, and stochastic events.

Previous Federal Action

    Federal government action on this 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, and 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 
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 (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 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 along 
with four other proposals that had expired.
    The Service published a 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 taxa are 
those for which the Service has on file sufficient information on 
biological vulnerability and threats to support preparation of listing 
proposals. On November 28, 1983, the Service published a supplement to 
the Notice of Review (48 FR 53640). This supplement changed this taxon 
from a Category 1 to a Category 2 candidate species. Category 2 taxa 
are those for which data in the Service's possession indicate listing 
is 

[[Page 39311]]
possibly appropriate, but for which sufficient data on biological 
vulnerability and threats are not currently known or on file to support 
proposed 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 included as 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, 
1982, 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 in October of 1983 through 1992. 
In 1993, the Service found that the petitioned listing of 
Arctostaphylos pallida was again warranted but precluded by other 
higher priority listing actions. Publication of this proposal 
constitutes the final finding for the petitioned action for this 
species.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (Act) and regulations (50 
CFR part 424) promulgated to implement the listing provisions of the 
Act set forth the procedures for adding species to the Federal lists. 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 their habitat or range. The current range of 
Arctostaphylos pallida is unchanged from what was known to exist at the 
time the species was described in 1933; however, the present 
populations of this species are thought to be smaller due to habitat 
fragmentation by urbanization (B. Olson, CNPS, in litt. 1994). The 
distribution of A. pallida consists of 2 large populations and 
approximately 11 smaller populations in Alameda and Contra Costa 
Counties, California. Both large populations occur on lands owned by 
the East Bay Regional Park District (EBRPD) (Amme and Havlik 1987b) 
with the smaller populations occurring on other park lands or on 
privately owned land (B. Olson, in litt. 1994). Up to 50 percent of the 
original A. pallida population on Huckleberry Ridge, which occurs in 
both Alameda and Contra Costa Counties, has been developed for housing 
or is privately owned. This residential development has eliminated a 
large number of A. pallida plants and fragmented and reduced the amount 
of habitat at this site (Amme and Havlik 1987b). Splitting the habitat 
into smaller, more isolated units has and may further alter the 
physical environment of the habitat, 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 is subject to influences of external factors 
(e.g., invasion of non-native plants, foot traffic, and increased 
erosion) that disrupt natural ecosystem processes.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Although this species is not known to be sought 
after by collectors, A. pallida is commercially cultivated (Wells 
1993). Many members of this genus are considered desirable for 
landscape use and are collected for cultivation. Overutilization is not 
currently known to be a threat to this species, but unrestricted 
collecting for scientific or horticultural purposes or excessive visits 
by individuals interested in seeing rare plants could result from 
increased publicity as a result of this proposal.
    C. Disease or predation. Approximately 50 percent of the 
Huckleberry Ridge population of Arctostaphylos pallida was affected by 
a fungal infection in the 1980's that attacked the roots of the plants, 
causing branch and stem dieback (Amme and Havlik 1987a, CDFG 1987). 
This population remains in poor condition (Amme and Havlik 1987a). 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).
    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 670.2). Listing by the 
State of California requires individuals to obtain a memorandum of 
understanding with the California Department of Fish and Game (CDFG) to 
possess or ``take'' a listed species. Although the ``take'' of State-
listed plants is prohibited (California Native Plant Protection Act, 
chapter 10, division 2, Sec. 1908 and California Endangered Species 
Act, chapter 1.5, division 3, Sec. 2080), State law exempts 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, State law only requires that the landowner 
notify the agency ``at least 10 days in advance of changing the land 
use to allow salvage of such a plant'' (Native Plant Protection Act, 
Fish and Game Code, chapter 10, Sec. 1900 et seq.).
    The California Environmental Quality Act (CEQA) requires full 
disclosure of the potential environmental impacts of proposed projects. 
The public agency with primary authority or jurisdiction over the 
project is designated as the lead agency and is responsible for 
conducting a review of the project and consulting with the other 
agencies concerned with the resources affected by the project. Section 
15065 of the CEQA Guidelines requires a finding of significance if a 
project has the potential to ``reduce the number or restrict the range 
of a rare or endangered plant or animal.'' Species that are eligible 
for listing as rare, threatened, or endangered but are not so listed 
are given the same protection as those species that are officially 
listed with the State or Federal governments. Once significant effects 
are identified, the lead agency has the option to require mitigation 
for effects through changes in the project or to decide that overriding 
considerations make mitigation infeasible. In the latter case, projects 
may be approved that cause significant environmental damage, such as 
destruction of endangered species. Protection of listed species through 
CEQA is, therefore, dependent upon the discretion of the lead agency.
    CDFG and EBRPD jointly developed the Alameda Manzanita Management 
Plan in 1987. This plan has not, however, been adopted completely. 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 39312]]
and Havlik 1987b). Currently, EBRPD is reducing the amount of flammable 
dead plant material in the Huckleberry Ridge population (E. Leong, 
EBRPD, pers. comm. 1994). The reduction in plant litter, in turn, has 
helped to stimulate germination of the species (D. Amme, pers. comm. 
1994).
    E. Other natural or manmade factors affecting their continued 
existence. Fragmentation of Arctostaphylos pallida habitat caused by 
residential development at Huckleberry Ridge has also resulted in 
introduced exotic landscape and weedy plant species that compete with 
the remnant population (Amme and Havlik 1987b). Although no current 
residential construction threatens the remaining Huckleberry Ridge 
populations of A. pallida, the populations of fewer than 10 plants in 
this area are threatened by stochastic events due to the small number 
of plants in combination with competition with aggressive plant species 
and loss of habitat from past urbanization. These small populations are 
threatened by shading from planted eucalyptus (Eucalyptus sp.), 
Monterey pines (Pinus radiata), and cypresses (Cupressus sp.) and by 
competition with aggressive non-native plant species including French 
broom (Cytisus monspessulanus), periwinkle (Vinca major), and German 
ivy (Senecio mikanioides) (Amme et al. no date).
    The genetic integrity of Arctostaphylos pallida is threatened by 
hybridization resulting from the introduction of other species of 
Arctostaphylos 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 Manzanita Way, a road that borders the 
Huckleberry Ridge Preserve. Hybridization of A. pallida with at least 
two other species is known to have occurred (Amme and Havlik 1987a). 
Hybridization could result in a hybrid manzanita swarm taking the place 
of A. pallida (Amme and Havlik 1987b, Amme et al. no date).
    Alteration of the natural fire regime threatens Arctostaphylos 
pallida by inhibiting seed germination and nutrient recycling that 
occurs naturally after fires. Fires are currently suppressed on 
Huckleberry Ridge and Sobrante Ridge to protect the surrounding 
residential areas (D. Amme, pers. comm. 1994; A. Olivera, Park 
Supervisor, Sobrante Ridge Preserve, EBRPD, pers. comm. 1994). For non-
burl-forming manzanitas such as A. pallida, fire is a necessary part of 
reproduction (Keeley 1992). Following fire or other disturbance, 
regeneration occurs from seed rather than from burls.
    The accumulated leaf and bark litter, fallen fruits, and roots of 
Arctostaphylos species, however, have a self-inhibitory effect on seed 
germination (Amme and Havlik 1987b). Fire is believed to remove these 
toxic materials and promote subsequent germination of Arctostaphylos 
and other herbs and shrubs (Amme et al. no date). Fire also is 
necessary to the species to recycle limited nutrients in the soil (Amme 
and Havlik 1987b).
    The roadside spraying of herbicides has had negative effects on 
regeneration of Arctostaphylos pallida along Skyline Boulevard (Amme 
and Havlik 1987a). Unauthorized tree cutting also poses a threat to A. 
pallida. At least two mature A. pallida plants have been killed by 
unauthorized cutting of eucalyptus trees, for unknown purposes, that 
subsequently fell on the A. pallida plants (Amme and Havlik 1987b).
    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 
propose this rule. This species is not now in immediate danger of 
extinction throughout all or a significant portion of its range. 
Arctostaphylos pallida exists as 2 major and 11 small occurrences and 
is located almost entirely on EBRPD property. The largest occurrences 
of A. pallida are protected from habitat loss resulting from 
urbanization or land use conversion. However, A. pallida is threatened 
by shading and competition from native and non-native plant species, 
fire suppression, hybridization, herbicide spraying, disease, tree 
cutting, habitat fragmentation resulting from past urbanization, 
stochastic events, and inadequate regulatory mechanisms.
    Although not in immediate danger of extinction at this time, 
Arctostaphylos pallida is likely to become an endangered species in the 
foreseeable future if the present threats persist and population 
declines continue. As a result, the preferred action is to list 
Arctostaphylos pallida as a threatened species. Critical habitat is not 
being proposed for this taxon at this time, as discussed below.

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. ``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 
the species is listed. The Service finds that designation of critical 
habitat is not prudent for this species at this time. 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.
    Arctostaphylos pallida faces anthropogenic threats (see Factors A 
and E in ``Summary of Factors Affecting the Species'') and occurs 
entirely on non-Federal land. All of the 13 occurrences of A. pallida 
are located near or adjacent to residential areas and public roads. The 
publication of precise maps and descriptions of critical habitat in the 
Federal Register would make this plant vulnerable to incidents of 
vandalism and, therefore, could contribute to the decline of the 
species. Although this species is not known to be sought after by 
collectors, A. pallida is commercially cultivated (Wells 1993). Many 
members of this genus are considered desirable for landscape use and 
are collected for cultivation. The desirability and accessibility of 
the species, therefore, could make the plants subject to collection if 
their precise location was publicized.
    In addition, critical habitat designation for the species is not 
prudent due to lack of benefit. At present, all known populations occur 
on non-Federal land, with no Federal action, authorization, licensing, 
or funding currently occurring on these lands. Due to the small, 
fragmented populations of this species, any future Federal actions, 
authorizations, or funded projects that would appreciably diminish the 
value of the known habitat for the survival and recovery of the species 
may also jeopardize its continued existence. A jeopardy opinion would 
require formal agency 

[[Page 39313]]
consultation with the Service on virtually any federally-related 
project. Therefore, the Service finds that designation of critical 
habitat for this plant is not prudent at this time, because such 
designation would likely provide no benefit beyond that the species 
would receive by virtue of its designation as a threatened species. 
Further discussion of jeopardy opinions and consultation is included in 
the following section.

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; however, some populations occur on protected non-Federal lands. 
The EBRPD owns and manages the land where both major populations of A. 
pallida occur. 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 where the species occurs (D. Amme, pers. comm. 
1944; Ed Leong, EBRPD, pers. comm. 1994).
    Listing this plant species would necessitate 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 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. The 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 few trade permits would ever be sought or issued because the 
species is not common in the wild.
    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. Arctostaphylos 
pallida is not known to occur on any Federal lands; however, such 
activities on non-Federal lands would constitute a violation of section 
9, if conducted in knowing violation of State law or regulations or in 
violation of State criminal trespass law. The Service is not aware of 
any otherwise lawful activities being conducted or proposed by the 
public that would be affected by this listing and result in 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).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:

    (1) Biological, commercial, or other relevant data concerning 
any threat (or lack thereof) to Arctostaphylos pallida;
    (2) The location of any additional populations of this species 
and the reasons why any habitat should or should not be 

[[Page 39314]]
determined to be critical habitat as provided by section 4 of the Act;
    (3) Additional information concerning the range, distribution, 
and population size of the species; and
    (4) Current or planned activities in the subject areas and their 
possible impacts on the species.

    The Service specifically solicits expert opinion from independent 
specialists regarding pertinent scientific or commercial data and 
assumptions relating to taxonomy, population models, and supportive 
biological and ecological information.
    Final promulgation of the regulation on this species will take into 
consideration the comments and any additional information received by 
the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Endangered Species Act provides for a public hearing on this 
proposal, if requested. Requests must be received by September 25, 
1995. Such requests must be made in writing and be addressed to the 
Field Supervisor, Sacramento Field Office (see ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments or 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).

References Cited

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

    The primary author of this proposed rule is Elizabeth Warne, 
Sacramento Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

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

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

    2. Section 17.12(h) is amended by adding the following, in 
alphabetical order under FLOWERING PLANTS, to the List of Endangered 
and Threatened Plants, to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

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

    Dated: July 5, 1995.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 95-18813 Filed 8-1-95; 8:45 am]
BILLING CODE 4310-55-P