[Federal Register Volume 62, Number 224 (Thursday, November 20, 1997)]
[Proposed Rules]
[Pages 61953-61959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30473]


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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; Proposed 
Endangered Status for the Plant Plagiobothrys Hirtus (Rough 
Popcornflower)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes 
endangered

[[Page 61954]]

species status pursuant to the Endangered Species Act of 1973, as 
amended (Act) for the plant Plagiobothrys hirtus (rough popcornflower). 
This species is restricted to wet swales and meadows in Douglas County, 
Oregon, where only 10 occurrences are known. Most populations are small 
with few individuals. The total estimated number of plants is 3,000 
within a combined area of about 4 hectares (ha) (10 acres (ac)). 
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 alien plant species. This proposal, if made final, would implement 
the Federal protection and recovery programs of the Act for this plant.

DATES: Comments from all interested parties must be received by January 
20, 1998. Public hearing requests must be received by January 5, 1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the State Supervisor, U.S. Fish and Wildlife Service, Oregon 
State Office, 2600 S.E. 98th Ave., Suite 100, Portland, Oregon 97266. 
Comments and materials received will be available for public inspection 
by appointment during normal business hours at the above address.

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

SUPPLEMENTARY INFORMATION:

Background

    Plagiobothrys hirtus was first collected by Thomas Howell in 1887 
and described the following year as Allocarya hirta (Greene 1888). 
Subsequent taxonomic treatments 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 a full species.
    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 1997). 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 racemes are paired and without bracts. The 
individual flowers are 1-2 millimeters (0.4-0.6 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). The taxon 
is considered dependent on seasonal flooding and/or fire to maintain 
open habitat and to limit competition with invasive native and alien 
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). 
Plagiobothrys 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).
    Plagiobothrys hirtus is endemic to the interior valley of the 
Umpqua River in southwestern Oregon. The species was collected only 
four times between 1887 and 1961, all at sites within Douglas County 
(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 
(ONHP), pers. comm. 1997). The location of the first specimen, 
collected by Howell on June 25, 1887, 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 
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 lead 
the botanists to speculate that grazing was the probable cause of 
extirpation at these sites (Gamon and Kagan 1985). In 1961, a 
collection was made adjacent to Interstate 5 south of Yoncalla, a site 
which remains extant 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. In addition, fire suppression has allowed the invasion of 
woody and herbaceous species into formerly open wetland habitats (Gamon 
and Kagan 1985).
    Plagiobothrys hirtus is now limited to 10 known occurrences in the 
vicinity of Sutherlin and Yoncalla, Oregon (ONHP 1996). All extant 
populations of this species are small (i.e., fewer than 500 
individuals) and occur in disjunct habitat. The 10 occurrences are 
estimated to have a total of about 3,000 individuals and a combined 
area of less than 4 ha (10 ac) (Amsberry and Meinke 1997).
    All extant populations are at risk of extirpation due to a variety 
of threats (Almasi and Borgias 1996; J. Kagan, pers. comm. 1997; R. 
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, and roadside mowing, spraying and landscaping (Gamon and Kagan 
1985, J. Kagan, pers. comm. 1995). Six of the 10 extant occurrences are 
adjacent to highways. The other four occurrences are in urban or 
agricultural areas.
    Nine of the 10 known occurrences are on private land. The other 
population is on public land owned by the Oregon Department of 
Transportation (ODOT). One of the private parcels is owned and managed 
for the species by The Nature Conservancy (TNC). The other eight 
occurrences on private lands have no protective management for the 
species and are at risk of extirpation from development, incompatible 
grazing practices, and recreational activities (J.

[[Page 61955]]

Kagan, pers. comm, 1997; R. Meinke, pers. comm., 1997)

Previous Federal Action

    Federal action on Plagiobothrys hirtus began when the Secretary of 
the Smithsonian Institute prepared a report on plants considered to be 
endangered, threatened, or extinct, pursuant to section 12 of the Act. 
That report, designated as House Document No. 94-51, was presented to 
Congress on January 9, 1975. On July 1, 1975, the Service published a 
notice in the Federal Register (40 FR 27823) accepting the report as a 
petition within the context of section 4(c)(2) (now section 4(b)(3)(A)) 
of the Act. The notice further indicated the Service's intention to 
review the status of the plant species named therein. As a result of 
this review, the Service 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 Institute and 
the Service 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, the Service 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.
    The Service published an updated Notice of Review for plants on 
December 15, 1980 (50 FR 82480), including Plagiobothrys hirtus as a 
category 1 candidate species. Category 1 species were those for which 
the Service had on file substantial information on biological 
vulnerability and threats to support preparation of listing proposals. 
This status was changed to category 2 in the November 28, 1983, 
supplement to the notice (48 FR 53657), and remained as such in the 
September 27, 1985, Notice of Review (50 FR 39527). Category 2 species 
were those for which conclusive data on biological vulnerability and 
threats were not currently available to support proposed rules. In the 
February 21, 1990, Notice of Review (55 FR 6185), this status was 
changed back to category 1. Upon publication of the February 28, 1996, 
Notice of Review in the Federal Register (61 FR 7596), the Service 
ceased using category designations and included P. hirtus as a 
candidate species. Candidate species are those for which the Service 
has on file sufficient information on biological vulnerability and 
threats to support proposals to list the species as threatened or 
endangered.
    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 was the case for P. hirtus because of the 
acceptance of the 1975 Smithsonian Report as a petition. On October 13, 
1983, the Service found that the petitioned listing of this species was 
warranted, but precluded by other pending listing actions, in 
accordance with section 4(b)(3)(B)(iii) of the Act; notice of this 
finding was published on January 20, 1984 (49 FR 2485). Such a finding 
requires the petition to be recycled pursuant to section 4(b)(3)(C)(I) 
of the Act. The finding was reviewed annually in October of 1984 
through 1995. Publication of this proposal constitutes the final 1-year 
finding for the petitioned action.
    Plagiobothrys hirtus has a listing priority number of 2. Processing 
of this rule is a Tier 3 activity under the current listing priority 
guidance.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (16 U.S.C. 1533) 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 an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1) of the Act. 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 is 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 10 small, isolated occurrences. Direct loss 
of habitat from hydrological alterations, wetland filling, or 
conversion to other uses pose a threat to all 10 extant occurrences.
    Two sites occur on private land within the urban boundary of the 
town of Sutherlin. When first discovered in 1983, these sites were the 
largest known occurrences (ONHP 1996). One site, with approximately 200 
individuals in 1983, has since been destroyed and only 1 plant was 
found in 1996; development of this site is imminent (J. Kagan, pers. 
comm. 1997). The other site, estimated to have 300-500 plants when 
discovered in 1983, has been declining since that time. In 1994, a 
portion of the wetland at the site was filled, and the remaining area 
was observed to be significantly impacted by mountain bike recreation; 
only about 50-100 plants were present (J. Kagan, pers. comm. 1995). 
Urban development of this site is considered likely (J. Kagan, pers. 
comm. 1997, R. Meinke, pers. comm. 1997).
    Three sites are known on private land about 1.6 km (1 mi) east of 
Sutherlin. One of these, when discovered in 1983, had about 30-35 
plants within an area of about 200 square meters (m2) (2,200 
square feet (ft2)). The site lies within the Sutherlin urban 
growth boundary and is slated for development (ONHP 1996). The other 
two sites were discovered in 1986. One of these had 200 plants in 1986, 
but by 1988 had only 30-40 plants scattered over an area of 25 
m2 ( 275 ft2). Habitat conditions on this site 
are described as marginal (ONHP 1996). The other site also had about 
200 plants when first observed in 1986, but by 1988 had decreased to 
about 100 plants (ONHP 1996). During the most recent site survey in 
1993, only 50-100 plants were seen (J. Kagan, pers. comm. 1997).
    Four additional sites are known on private land several kilometers 
south of the town of Sutherlin. One of these, when discovered in 1983, 
consisted of about 150 plants growing in an area of about 50 
m2 (550 ft2). In 1996, only about 50 plants 
remained. Two other sites were both discovered in 1984. One consisted 
of 50-60 plants in a 30 m2 (330 ft2) area, and 
the other had 200-300 plants (ONHP 1996). Both occurrences had 
generally decreasing numbers of individuals through the late 1980's. 
TNC acquired a portion of the larger of the two occurrences and began 
formal monitoring in 1995. Individuals were too numerous for a complete 
census in 1995 with the total population on the site estimated at over 
16,000 individuals. In 1996, however, 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). See Factor E discussion for further details on this population 
decline. The fourth site, when discovered in 1990, had fewer than 50 
plants (J. Kagan, pers. comm. 1995).

[[Page 61956]]

    The last site is on public land and private land about 22 km (14 
mi) north of Sutherlin near the town of Yoncalla. This site is the 
locality of the 1961 collection that was relocated in 1983. About 200 
plants were present in 1988, and the population size 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). 
Alterations in site hydrology pose the primary threat to the plants (R. 
Meinke, Oregon State University, pers. comm. 1997).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. No evidence of overutilization of this taxon for 
any purpose exists at this time. However, the plants are easily 
accessible by road, and the small population sizes make them vulnerable 
to overcollection by botanical enthusiasts.
    C. Disease or predation. Grazing has likely been a contributing 
factor in declining Plagiobothrys hirtus numbers throughout its 
historic range (Gamon and Kagan 1985). Livestock graze in pastures 
containing four of the occurrences (ONHP 1996). The timing and 
intensity of grazing, however, determine the effects of grazing on the 
plant. Grazing during spring and early summer likely threatens P. 
hirtus. 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). However, where fires and flooding 
no longer occur, grazing may benefit the species. Fall grazing, in 
particular, may be of benefit because the plant is dormant during at 
this time and grazing can keep the habitat open by reducing the growth 
of competing species (Gamon and Kagan 1985). By reducing vegetative 
growth, fall grazing or mowing (see factor E discussion) may also lower 
the suitability of the habitat for voles and, thereby, reduce herbivory 
on the plant.
    D. Inadequacy of existing regulatory mechanisms. Under the Oregon 
Endangered Species Act (ORS 564.100-564.135) and pursuant 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. Most occurrences of P. hirtus occur on 
private land and are not subject to any current regulations. One site 
is adjacent to State Route 99 on lands managed by ODOT and has been 
designated by the agency as a Special Management Area. Mowing and 
spraying practices have been modified to protect the species at this 
site where the plant appears to be stable or increasing (N. Testa, 
Oregon Department of Transportation, pers. comm. 1997).
    E. Other natural or manmade factors affecting its continued 
existence. Nine of 10 extant sites of Plagiobothrys hirtus occur 
adjacent to major highways (Interstate 5 and/or State Route 99) or 
railroad beds. Herbicide spraying and highway landscaping has affected 
and reduced at least one P. hirtus population (J. Kagan, pers. comm. 
1995). Mowing is also part of the routine maintenance of roadways. As 
with livestock grazing, mowing or pesticide spraying during the spring 
may reduce seed set and thereby negatively affect populations of the 
plant. 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). With the exception of 
the P. hirtus populations in ODOT's Special Management Area and The 
Nature Conservancy's Popcorn Swale, none of the roadside occurrences 
are protected from herbicide spraying, landscaping or early season 
mowing. 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 the plant was not affected (N. Testa, pers. comm. 
1997).
    Encroachment by native and alien plant species increases when 
natural processes like fire or flooding are altered (J. Kagan, pers. 
comm. 1997; R. Meinke, pers. comm. 1997). 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, while 
fire which occurs prior to seed set may have negative consequences to 
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 (see Factor 
A; R. Meinke, pers. comm. 1997).
    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 all extant sites to shield the 
species from random events that could cause its extinction. Small, 
isolated populations may also have an adverse effect on pollinator 
activity, seed dispersal, and gene flow. 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 
(Soule in Lesica and Allendorf 1992).
    The Service has carefully assessed the best scientific and 
commercial information available concerning the past, present, and 
future threats faced by this species in determining to propose this 
rule. Based on this evaluation, the preferred action is to list 
Plagiobothrys hirtus as endangered. Filling of its wetland habitat for 
development, livestock grazing during its growing season, invasion by 
competitive plant species as a result of hydrological alteration and 
fire suppression, and roadside spraying and mowing continue to reduce 
plant numbers and habitat. The small, isolated occurrences with few 
individuals make the species more vulnerable. 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. For these reasons, the Service believes that listing P. hirtus 
as endangered is the most appropriate action. Failure to list this 
species would likely result in extinction of the species. Threatened 
status is not appropriate because all of the extant occurrences of P. 
hirtus are small, and 8 of 10 occurrences 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. 
Not listing the taxon or listing it as threatened would not provide 
adequate protection and would not be consistent with the Act.

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

[[Page 61957]]

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, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for P. 
hirtus. 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.
    Although overutilization is not considered to be a threat to 
Plagiobothrys hirtus at this time, listing of this species as 
endangered would publicize its rarity and, thus, can make it more 
attractive to researchers or collectors of rare plants. Most 
occurrences are small enough that even limited collecting pressure 
could have adverse impacts. The Service is also aware of a report that, 
after the species was listed by the State of Oregon, a landowner 
contacted by State botanists to discuss protective measures for a 
population on his property allegedly responded by blading the site and 
destroying the population (J. Kagan, pers. comm. 1997). The publication 
of precise maps and descriptions of critical habitat in the Federal 
Register would make this plant more vulnerable to incidents of 
collection and/or vandalism and, therefore, contribute to the decline 
of this species and increase enforcement problems.
    Further, designation of critical habitat for Plagiobothrys hirtus 
is not prudent for lack of benefit. This plant does not occur on 
Federal land, and it is not believed to have historically occurred on 
Federal land. Although a potential nexus for Federal action exists for 
all occurrences within section 404 of the Clean Water Act and for some 
occurrences in which the Federal Highway Administration may become 
involved (see ``Available Conservation Measures'' section below), any 
such Federal involvement would also require consultation under section 
7 of the Act. Any action that would adversely modify critical habitat 
would also jeopardize the continued existence of the species. Most 
occurrences of this plants are of such small size that a wetland fill 
less than the 0.13 ha (0.34 ac) regulatory threshold (see ``Available 
Conservation Measures'' section below) would eliminate it. The 
designation of critical habitat would not provide additional benefits 
for this species beyond the protection afforded by listing.
    The Service finds, therefore, that designation of critical habitat 
for this species is not prudent because such designation would likely 
increase the degree of threat to the species from vandalism and would 
provide no additional benefit to the species' protection. Protection of 
the species' habitat will be addressed primarily through the recovery 
process.

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 results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the states and requires that recovery 
actions be carried out for all listed species. The protection required 
by 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 species proposed for listing 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 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 the Service.
    Because Plagiobothrys hirtus occurs in wetlands, regulatory 
mechanisms under the Clean Water Act apply to this species. Under 
section 404 of the Clean Water Act, the U.S. Army Corps of Engineers 
(Corps) regulates the discharge of fill material into the waters of the 
United States, including wetlands. To be in compliance with the Clean 
Water Act, potential applicants are required to notify the Corps prior 
to undertaking any activity that would result in the fill of wetlands 
under the Corps' jurisdiction (e.g., grading, discharge of soil or 
other fill material, etc.). Nationwide Permit Number 26 (33 CFR 330.5 
and 33 CFR 330, App. A) has been issued to regulate the fill of 
wetlands that are not larger than 1.2 ha (3 ac), nor cause the loss of 
waters of the United States for a distance of more than 150 linear m 
(500 linear ft) of streambed (61 FR 65874). Where fill would occur in a 
wetland less than 0.13 ha (0.34 ac) in size, no requirement exists to 
notify the Corps prior to fill activities. Where fill would occur in a 
wetland of 0.13 ha (0.34 ac) to 1.2 ha (3 ac) in size, the Corps 
circulates for agency comment a predischarge notification to the 
Service and other interested parties prior to determining whether or 
not the proposed fill activity qualifies under Nationwide Permit 26. 
Individual permits are required for the discharge of fill into wetlands 
that are greater than 1.2 ha (3 ac) in size. The review process for the 
issuance of individual permits is more extensive, and conditions may be 
included that require the avoidance or mitigation of environmental 
impacts. The Corps has discretionary authority and can require an 
applicant to seek an individual permit if the Corps believes that the 
resources are sufficiently important, regardless of the wetland's size. 
In practice, the Corps rarely requires an individual permit when a 
project would qualify for a Nationwide Permit, unless a federally 
threatened, endangered, or proposed species occurs on the site. If a 
federally threatened or endangered species or a proposed species may be 
affected by a proposed project, the Corps must ensure that it does not 
authorize, fund or carry out any action that is likely to jeopardize 
the species' continued existence, pursuant to section 7(a)(2) of the 
Endangered Species Act. Therefore, if an applicant's project site has 
one or more listed species on it, the Corps would be required to enter 
into

[[Page 61958]]

consultation with the Service. Should P. hirtus become listed, the 
species may be afforded increased protection through consultation on 
Corps permits.
    In addition, the Federal Highway Administration would 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 Federal 
government would be subject to review under the Act. In addition, 
Department of Housing and Urban Development projects and Natural 
Resources Conservation Service projects in areas that presently support 
P. hirtus would also be subject to review under section 7 of the Act.
    Listing of this plant would provide for development of a recovery 
plan for the plant. Such a plan would bring together State, Federal and 
private 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, note responsible parties, and estimate costs of various 
tasks necessary to accomplish them. It would also describe site-
specific management actions necessary to achieve conservation and 
survival of the plant. Additionally, pursuant to section 6 of the Act, 
the Service would be able to grant funds to Oregon for management 
actions promoting the protection and recovery of this species.
    Two sites currently receive some protective management. The site 
owned and managed by ODOT has been designated as a Special Management 
Area. Mowing is restricted to late in the fall when Plagiobothrys 
hirtus is dormant (N. Testa, pers. comm. 1997). The other site in 
protective ownership is owned and managed by TNC. This site, which 
currently contains about 400 individual plants, is being actively 
managed for the protection and development of P. hirtus habitat (Almasi 
and Borgias 1996). Monitoring, life history studies, and 
transplantation experiments using field-collected seed have been 
initiated at these two sites. The objectives of these efforts are to 
increase population sizes, and establish protocols for seed collection, 
greenhouse propagation, and transplantation techniques (Amsberry and 
Meinke 1997).
    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 agents of the Service and State 
conservation agencies.
    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 the 
listing on proposed and ongoing activities within a species' range. 
Activities that would constitute a violation of section 9 of the Act 
include removing, damaging or destroying Plagiobothrys hirtus in 
violation of State law. In addition, collection on Federal lands 
without a permit and other actions considered to be malicious damage to 
the species on Federal lands would be prohibited, although P. hirtus is 
not currently known to occur on Federal lands. Activities that are not 
likely to violate section 9 of the Act include routine landscape 
maintenance, clearing of vegetation for firebreaks, and livestock 
grazing on privately-owned land. Questions regarding whether specific 
activities may constitute a violation of section 9 should be addressed 
to the State Supervisor of the Service's 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 (503/231-2063; FAX 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 are 
particularly sought concerning:

    (1) Biological, commercial trade, or other relevant data 
concerning any threat (or lack thereof) to Plagiobothrys hirtus;
    (2) The location of any additional occurrences of this species 
and the reasons why any habitat should or should not be determined 
to be critical habitat pursuant to section 4 of the Act;
    (3) Additional information concerning the range, distribution, 
and population size of this species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on Plagiobothrys hirtus.

    Any final decision on this proposal 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 Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and addressed to the State Supervisor, Oregon State 
Office (see ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, as defined under the 
authority of the National Environmental Policy Act of 1969, need not be 
prepared in connection with regulations adopted pursuant to section 
4(a) of the Endangered Species Act of 1973, as amended. A notice 
outlining the Service's reasons for this designation was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995, and found it to contain no information 
collection requirements.

[[Page 61959]]

References Cited

Almasi, K. and D. Borgias. 1996. Monitoring plan: Plagiobothrys 
hirtus ssp. hirtus. Unpublished report by The Nature Conservancy, 
Southwestern Oregon Office, Ashland, OR. 5 pp.
Amsberry, K. and R.J. Meinke. 1997. Restoring the Popcorn-flower. 
U.S. Fish and Wildlife Service Endangered Species Bulletin. 
22(2):12-13.
Chambers, K. 1989. The Taxonomic Relationships of Allocarya 
corallicarpa (Boraginaceae). Madrono 36(4):280-281.
Gamon, J., and J. Kagan. 1985. Status report for Plagiobothrys 
hirtus. Unpublished report submitted to U.S. Fish and Wildlife 
Service. 58 pp.
Greene, E.L. 1888. New or noteworthy species. Pittonia 1:161.
Lesica, P. and F. Allendorf. 1992. Are small populations of plants 
worth preserving? Conservation Biology 6(1):135-139.
Meinke, R.J. 1982. Threatened and Endangered Vascular Plants of 
Oregon: An Illustrated Guide. Unpublished report to the U.S. Fish 
and Wildlife Service. 352 pp.
Oregon Natural Heritage Program. 1996. Biological Conservation 
Database: Plagiobothrys hirtus Element Occurrence Records. 
Unpublished report of the Oregon Natural Heritage Program, Portland, 
Oregon. 12 pp.
Siddall, J.L. and K.L. Chambers. 1978. Status report for 
Plagiobothrys hirtus ssp. hirtus. Unpublished report submitted to 
the U.S. Fish and Wildlife Service. 10 pp.

    Authors: The primary authors of this proposed rule are Josh Millman 
and Cat Brown, 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.

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. Amend Sec. 17.12(h) 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            Status      When listed    Critical     Special  
         Scientific name                Common Name                                                                               habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
         Flowering Plants                                                                                                                               
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Plagiobothrys hirtus.............  Rough popcornflower.  U.S.A. (OR)........  Boraginaceae/borage  E               ...........           NA           NA
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: October 22, 1997.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 97-30473 Filed 11-19-97; 8:45 am]
BILLING CODE 4310-55-P