[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Proposed Rules]
[Pages 15820-15825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8516]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE82


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Plant Phlox hirsuta (Yreka Phlox) From 
Northern California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service proposes endangered status 
pursuant to the Endangered Species Act (Act) of 1973, as amended for 
one perennial plant, Phlox hirsuta (Yreka phlox). Phlox hirsuta is 
known only from two locations on serpentine slopes in Siskiyou County, 
California. A third location, near Etna Mills, California, has been 
searched, but no plants or habitat have been found since 1930. 
Urbanization, inadequate State regulatory mechanisms, and extirpation 
from random events due to small number of populations and small range 
of the species threaten Phlox hirsuta. This proposal, if made final, 
would implement the Federal protection and recovery provisions afforded 
by the Act for this plant species.

DATES: Comments from all interested parties must be received by June 1, 
1998. Public hearing requests must be received by May 18, 1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Sacramento Fish and Wildlife Office, U.S. 
Fish and Wildlife Service, 3310 El Camino Avenue, Suite 130, 
Sacramento, California 95821-6340. Comments and materials received, as 
well as the supporting documentation used in preparing the rule, will 
be available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Diane Elam, Sacramento Fish and 
Wildlife Office (see ADDRESSES section) (telephone 916/979-2120; 
facsimile 916/979-2128).

SUPPLEMENTARY INFORMATION:

Background

    Phlox hirsuta (Yreka phlox) is endemic to Siskiyou County, 
California where it grows on serpentine slopes in the vicinity of the 
City of Yreka (California Native Plant Society (CNPS) 1985). Serpentine 
soils are derived from ultramafic rocks (rocks with unusually large 
amounts of magnesium and iron). Ultramafic rocks are found 
discontinuously throughout California, in the Sierra Nevada and in the 
Coast Ranges from Santa Barbara County, California to British Columbia. 
Soils produced from ultramafic rocks have characteristic physical and 
chemical properties, tending to have high concentrations of magnesium, 
chromium, and nickel, and low concentrations of calcium, nitrogen, 
potassium, and phosphorus. Serpentine soils alter the pattern of 
vegetation and plant species composition nearly everywhere they occur. 
While serpentine soils are inhospitable for the growth of most plants, 
some plants are wholly or largely restricted to serpentine substrates 
(Kruckeberg 1984).
    In 1876, Edward Green collected the type specimen of Phlox hirsuta 
8 kilometers (5 miles) southwest of Yreka, California (Wherry 1955). 
Elias Nelson described the species in 1899 (Abrams 1951, CNPS 1985). 
Willis Jepson (1943) reduced the species to varietal status, treating 
the taxon as Phlox stansburyi var. hirsuta. Edgar Wherry returned the 
taxon to full species status in his 1955 revision of the genus Phlox.
    Phlox hirsuta is a perennial subshrub in the phlox family 
(Polemoniaceae). The species grows 5 to 15 centimeters (2 to 5.9 
inches) high from a stout, woody base and is hairy throughout. Narrowly 
lanceolate to ovate leaves with glandular margins are crowded on the 
stem. The leaves are 1.5 to 3 centimeters (0.6 to 1.2 inches) long and 
4 to 7 millimeters (0.2 to 0.3 inch) wide. Pink to purple flowers 
appear from April to June. The corollas of the flowers are 12 to 15 
millimeters (0.5 to 0.6 inch) long and are smooth-margined at the apex 
(CNPS 1977, 1985). The 5 to 8 millimeters (0.2 to 0.3 inch) style is 
contained within the corolla tube (CNPS 1977, 1985; Hickman 1993). 
Several other phlox species may occur within the range of P. hirsuta. 
Of these, P. speciosa (showy phlox) has notched petal lobes and grows 
15 to 40 centimeters (5.9 to 15.8 inches), considerably taller than P. 
hirsuta. Phlox adsurgens (northern phlox) is also larger than P. 
hirsuta (15 to 30 centimeters (5.9 to 11.8 inches)). In addition, P. 
adsurgens blooms later (from June to August) than P. hirsuta and is 
glabrous rather than hairy. Prostrate (lying flat on the ground) to 
decumbent (mostly lying on the ground but with tips curving up) stems 
and herbage lacking glands separate P. diffusa (spreading phlox) from 
P. hirsuta (CNPS 1977, 1985). Although found at the same latitudes, P. 
stansburyi (Stansbury's phlox) occurs 112 kilometers (70 miles) farther 
to the east in Lassen and Modoc Counties (CNPS 1977).
    Phlox hirsuta is found on serpentine soils at elevations from 880 
to 1,340 meters (2,800 to 4,400 feet) in association with Jeffrey pine 
(Pinus jeffreyi), incense cedar (Calocedrus decurrens), and junipers 
(Juniperus sp.)(CNPS 1985; California Department of Fish and Game 
(CDFG) 1986; California Natural Diversity Data Base (CNDDB) 1997). The 
species is known from only two locations in the vicinity of Yreka, 
California. One occurrence is an open ridge in a juniper woodland 
within the City limits of Yreka (CNPS 1977, 1985; CNDDB 1997). 
Estimates of the area occupied by the occurrence range from 
approximately 15 hectares (37 acres) (Grant and Virginia Fletcher, in 
litt. 1995) to approximately 36 hectares (90 acres) (Nancy Kang, U.S. 
Fish and Wildlife Service, in litt. 1995a). Other extreme serpentine 
sites searched in the area do not support additional populations of 
Phlox hirsuta (Adams 1987). The second occurrence is about 8 to 10 
kilometers (5 to 6 miles) southwest of Yreka along California State 
Highway 3 in an open Jeffrey pine forest (CNPS 1977, 1985; CNDDB 1997) 
and includes approximately 65 hectares (160 acres) of occupied habitat 
(USFWS maps on file). A third location, where the species was last 
reported in 1930, is in the vicinity of Mill Creek near Etna Mills. The 
area was searched, but no plants or appropriate habitat were identified 
(CNPS 1985), and the location may be erroneous (CDFG 1986, Adams 1987). 
Surveys have been conducted on 80 percent of the potential habitat 
(defined as the presence of suitable soils) on Klamath National Forest 
(Ken Fuller and Diane Elam, U.S. Fish and Wildlife Service, in litt. 
1997) and Bureau of Land Management (Joe Molter, Bureau of Land 
Management, pers. comm. 1997) lands within the Redding Resource Area; 
no new populations of P. hirsuta have been discovered.
    Land ownership of the two occurrences is a mixture of private land 
owners, the City of Yreka, and the U.S. Forest Service (CNDDB 1997). 
The City of Yreka occurrence is the more vigorous and dense of the two 
occurrences (Linda Barker, Klamath

[[Page 15821]]

National Forest, in litt. 1985; Adams 1987; CNDDB 1997). Part of the P. 
hirsuta occurrence in the City of Yreka is owned by the City of Yreka; 
the remainder is privately owned (Larry Bacon, City of Yreka, pers. 
comm. 1997). The Highway 3 occurrence is partially on U.S. Forest 
Service lands on the Klamath National Forest, partially within a State 
highway right-of-way, and partially privately owned (CDFG 1986, CNDDB 
1997). Approximately 50 percent of occupied habitat at this occurrence 
and 25 percent of the occupied habitat of the species is on land 
administered by the Klamath National Forest (based on maps in USFWS 
files). Phlox hirsuta is threatened by urbanization at the City of 
Yreka location and by inadequate regulatory mechanisms throughout its 
range. The small number of populations and small range of the species 
also make it vulnerable to decline or extirpation due to random events 
throughout its range.

Previous Federal Action

    Federal government actions on Phlox hirsuta began as a result of 
section 12 of the original Endangered Species Act of 1973, (Act) 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 Phlox hirsuta as a threatened 
species. The Fish and Wildlife Service published a notice on July 1, 
1975 (40 FR 27823) of its acceptance of the report of the Smithsonian 
Institution as a petition within the context of section 4(c)(2) 
(petition provisions are now found in section 4(b)(3) of the Act) and 
its intention thereby to review the status of the plant taxa named 
therein. The July 1, 1975 notice included the above taxon. On June 16, 
1976, the Fish and Wildlife Service published a proposal (41 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 Fish and Wildlife Service in 
response to House Document No. 94-51 and the July 1, 1975, Federal 
Register publication. Phlox hirsuta was included in the June 16, 1976, 
Federal Register document.
    The Fish and Wildlife Service published an updated notice of review 
for plants on December 15, 1980 (45 FR 82480). This notice included 
Phlox hirsuta as a category 1 candidate. Category 1 candidates were 
those taxa for which the Fish and Wildlife Service had on file 
substantial information on biological vulnerability and threats to 
support preparation of listing proposals. In the November 28, 1983 
supplement to the Notice of Review (48 FR 53640) as well as in the 
subsequent revision on September 27, 1985 (50 FR 39526), Phlox hirsuta 
was included as a category 2 candidate. Category 2 taxa were those for 
which data in the Service's possession indicate listing was possibly 
appropriate, but for which substantial data on biological vulnerability 
and threats were not currently known or on file to support proposed 
rules. In the February 21, 1990 (55 FR 6184) notice of review, Phlox 
hirsuta was returned to category 1 candidate status. The species was 
also included as a category 1 candidate in the September 30, 1993 (50 
FR 51143) Notice of Review. Phlox hirsuta was listed as a candidate in 
the Notice of Review published on February 28, 1996 (61 FR 7596). 
Candidate species are those for which the Fish and Wildlife Service has 
on file sufficient information on biological vulnerability and 
threat(s) to support proposals to list them as threatened or endangered 
species.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain findings on pending petitions within 12 months of their 
receipt. Section 2(b)(1) of the 1982 amendments further requires that 
all petitions pending on October 13, 1982, be treated as having been 
newly submitted on that date. This was the case for Phlox hirsuta, 
because the 1975 Smithsonian report had been accepted as a petition. On 
October 13, 1982, the Fish and Wildlife Service found that the 
petitioned listing of the 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, 
pursuant to section 4(b)(3)(C)(I) of the Act. The finding was reviewed 
annually in October of 1983 through 1997. Publication of this proposal 
constitutes the final finding for the petitioned action. Phlox hirsuta 
has a listing priority number of 2. Processing of this rule is a Tier 3 
activity under the current listing priority guidance (61 FR 64475, 62 
FR 55268).

Summary of Factors Affecting the Species

    Section 4 of the 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 endangered or threatened due to one or more of 
the five factors described in section 4(a)(1). These factors and their 
application to Phlox hirsuta E. Nelson (Yreka Phlox) are as follows:

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

    The Phlox hirsuta occurrence within the City of Yreka represents at 
least 18 percent, and possibly 45 percent, of occupied habitat for the 
species (calculated from USFWS records). The occurrence is threatened 
by development. The majority of the site is subdivided (CNPS 1985, CDFG 
1986). Eight of the subdivision lots support P. hirsuta; seven have P. 
hirsuta on at least 75 percent of the lot (N. Kang, in litt. 1995a). 
Six of the eight lots are privately owned; two are owned by the City of 
Yreka. Another smaller piece of land in the same area supports P. 
hirsuta and is also owned by the city (N. Kang, in litt. 1995a; L. 
Bacon, pers. comm. 1997). The P. hirsuta occurrence within the City of 
Yreka has been disturbed by road construction associated with the 
subdivision (CNPS 1985, CDFG 1986). An unmaintained roadway bisects the 
occurrence and likely represents permanent destruction of habitat at 
the site (N. Kang, in litt. 1995a). Additional disturbance resulted 
from grading for a house pad on one lot in 1994; Phlox hirsuta has not 
reinvaded the disturbed area (N. Kang, in litt. 1995a, 1995b). For most 
of the lots, ``the most favorable and likely for building is in P. 
hirsuta habitat'' (N. Kang, in litt. 1995a, 1995b). Because P. hirsuta 
plants are fairly evenly distributed across the lots, strategic 
placement of development in occupied habitat would not necessarily 
minimize impacts to the species. Additionally, over the long-term 
private landowners may not maintain their properties in a manner 
consistent with protection of the plants and their habitat (N. Kang, in 
litt. 1995a). Formerly, some lots at the site were registered with The 
Nature Conservancy landowner contact program, but that program no 
longer exists (Lynn Lozier, The Nature Conservancy, pers. comm. 1997). 
While the Fish and Wildlife Service is unaware of specific development 
plans on any lots at this time, a ``for sale'' sign was posted on the 
private property in May 1997 (K. Fuller and D. Elam, in litt. 1997).
    The only other occurrence of P. hirsuta, the one along California 
State

[[Page 15822]]

Highway 3, has been disturbed in the past by logging and road 
construction. Although selective logging (CNPS 1985, Adams 1987) 
resulted in roads and bulldozer trails through the site (Adams 1987), 
logging is not currently a threat to P. hirsuta (K. Fuller and D. Elam, 
in litt. 1997), and the Forest Service has no activities planned in 
this area that may pose a threat. Thirty years ago, the realignment of 
Highway 3 impacted part of this occurrence (Sharon Stacey, California 
Department of Transportation (Caltrans), pers. comm. 1996). The area 
has since been designated by Caltrans as an Environmentally Sensitive 
Area (S. Stacey, pers. comm. 1998), which provides limited protection 
in that it requires acknowledgment of a sensitive species occurrence in 
project planning. Although road maintenance crews are to be made aware 
that no new ground is to be disturbed along this stretch of highway 
(Bob Sheffield, Caltrans, pers. comm. 1997), the portion of the 
occurrence within the Caltrans right-of-way could be disturbed by road 
maintenance (Charlotte Bowen, Caltrans, in litt. 1991). The area within 
the right-of-way consists of 5 small subpopulations with approximately 
100 plants, occupying less than 0.8 hectare (2 acres) along 4 
kilometers (2.5 miles) of the California State Highway 3. While 
encroaching development has been considered to be a potential threat to 
the plants occurring on private lands at the Highway 3 site (CNPS 1985; 
CDFG 1986), the threat from development at this site does not appear 
imminent.

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

    Overutilization is not known to be a threat to Phlox hirsuta 
although it has been suggested that the species may be of interest to 
rock garden enthusiasts (CNPS 1977).

C. Disease or Predation

    There is no known threat to Phlox hirsuta from disease. Parts of 
the Highway 3 site have been grazed in the past, perhaps by trespass 
cattle (CNPS 1985, Adams 1987). However, grazing is probably not a 
threat to P. hirsuta at this time (K. Fuller and D. Elam, in litt. 
1997).

D. The Inadequacy of Existing Regulatory Mechanisms

    The State of California Fish and Game Commission has listed Phlox 
hirsuta as an endangered species under the California Endangered 
Species Act (CESA) (Chapter 1.5 Sec. 2050 et seq. of the California 
Fish and Game Code and Title 14 California Code of Regulations 670.2). 
Although the ``take'' of State-listed plants has long been prohibited 
under the California Native Plant Protection Act (CNPPA), Chapter 10 
Sec. 1908 and California Endangered Species Act, Chapter 1.5 
Sec. 2080), in the past these statutes have not provided adequate 
protection for such plants from the impacts of habitat modification or 
land use change. For example, under the CNPPA, after the California 
Department of Fish and Game notifies a landowner that a State-listed 
plant grows on his or her property, the statute requires only that the 
land owner notify the agency ``at least 10 days in advance of changing 
the land use to allow salvage of such a plant'' (California Native 
Plant Protection Act, Chapter 10 Sec. 1913). Under recent amendments to 
CESA, a permit under Section 2081(b) of the California Fish and Game 
Code is required to ``take'' State listed species incidental to 
otherwise lawful activities. The amendments require that impacts to the 
species be fully mitigated. However, these requirements have not been 
tested and several years will be required to evaluate their 
effectiveness. State lead agencies, such as Caltrans, are also required 
to consult with the California Department of Fish and Game to ensure 
that actions authorized, funded, or carried out by these agencies will 
not jeopardize the continued existence of State-listed endangered or 
threatened species (California Endangered Species Act, Chapter 1.5 
Sec. 2090). However, according to the California Environmental Quality 
Act (CEQA), which requires full disclosure of potential environmental 
impacts of proposed projects, protection of State-listed species is 
dependent upon the discretion of the lead agency involved, and projects 
may be approved that cause significant environmental damage, such as 
loss of sites supporting State-listed species. Mitigation requirements 
are optional, and are at the discretion of the lead agency. When 
mitigation plans are required, they often involve transplantation of 
the plant species to an existing or artificially created habitat, 
followed by destruction of the original site. Therefore, if the 
mitigation effort fails, the resource has already been lost. Further, 
CEQA does not guarantee that such conservation efforts will be 
implemented. In addition, the CEQA guidelines are being proposed for 
revisions that, if made final, may weaken protections for threatened, 
endangered, and other sensitive species (U.S. Department of Interior, 
in litt. 1997). Final CEQA guidelines are forthcoming.
    In order to proceed with development of private and City of Yreka 
lands where Phlox hirsuta grows, the City of Yreka would require 
California Environmental Quality Act (CEQA) review (L. Bacon, pers. 
comm. 1997). The California Environmental Quality Act requires a full 
disclosure of the potential environmental impacts of proposed projects. 
The public agency with primary authority or jurisdiction over the 
project is designated as the lead agency and is responsible for 
conducting a review of the project and consulting with the other 
agencies concerned with the resources affected by the project. Section 
15065 of the California Environmental Quality Act 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 that cause significant 
environmental damage, such as destruction of endangered species, may be 
approved. Protection of listed species through the California 
Environmental Quality Act is, therefore, dependent upon the discretion 
of the agency involved.

E. Other Natural or Manmade Factors Affecting its Continued Existence

    Phlox hirsuta is known from only two small occurrences, which 
occupy fewer than 121 hectares (300 acres) in a restricted habitat type 
(serpentine soils) over a very small range (approximately 65 square 
kilometers (25 square miles)). The combination of only two populations, 
small range, and restricted habitat makes the species highly 
susceptible to extinction or extirpation from a significant portion of 
its range due to random events such as fire, drought, disease, or other 
occurrences (Shaffer 1981, 1987; Meffe and Carroll 1994). Such events 
are not usually a concern until the number of populations or geographic 
distribution become severely limited, as is the case with the species 
discussed here. Once the number of populations or the plant population 
size is reduced, the remnant populations, or portions of populations, 
have a higher probability of extinction from random events (Primack 
1993).

[[Page 15823]]

    The Fish and Wildlife Service has carefully assessed the best 
scientific and commercial information available regarding the past, 
present, and future threats faced by Phlox hirsuta in determining to 
propose this rule. Urbanization, inadequate State regulatory 
mechanisms, and extirpation from random events due to the small number 
of populations and small range of the species threaten P. hirsuta. The 
two occurrences of P. hirsuta total fewer than 121 hectares (300 acres) 
of occupied habitat in the vicinity of the City of Yreka, Siskiyou 
County, California. The site within the City of Yreka is already 
subdivided, has been disturbed by activities associated with 
urbanization in the past, is situated in an area that is suitable for 
development, and is unprotected from this threat. In addition, both 
occurrences are at risk due to inadequate State regulatory mechanisms 
and due to potential extirpation of all or part of the occurrences due 
to random events. Therefore, the preferred action is to list P. hirsuta 
as endangered.
    Alternatives to listing were considered before publication of this 
proposed rule. The other alternatives were not preferred because they 
would not provide adequate protection and would not be consistent with 
the Act. Listing Phlox hirsuta as endangered would provide Federal 
protection for the species and result in additional protection as 
outlined under the Available Conservation Measures section.

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 section 4 of 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 determination that such areas are essential for the 
conservation of the species. ``Conservation'' as it is defined in 
section 3(3) of the Act means the use of all methods and procedures 
needed to bring the species to the point at which listing under the Act 
is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and 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. Fish and Wildlife Service regulations (50 CFR 
424.12(a)(1)) state that designation of critical habitat is not prudent 
when one or both of the following situations exist--(1) The species is 
threatened by taking or other human activity, and identification of 
critical habitat can be expected to increase the degree of threat to 
the species, or (2) such designation of critical habitat would not be 
beneficial to the species.
    Critical habitat receives consideration under section 7 of the Act 
with regard to actions carried out, authorized, or funded by a Federal 
agency. Federal involvement is most likely in two situations--(1) where 
the species occurs on Federal lands and (2) when a Federal agency is 
involved in authorizing or funding actions on non-Federal lands. Under 
section 7 of the Act, Federal agencies are required to ensure that 
their actions do not jeopardize the continued existence of a species or 
result in adverse modification of critical habitat. However, both 
jeopardizing the continued existence of a species and adverse 
modification of critical habitat have similar standards, and thus 
similar thresholds for violation of section 7 of the Act.
    The Fish and Wildlife Service finds that designation of critical 
habitat is not prudent for Phlox hirsuta as it would provide no 
additional benefit to the species beyond listing. There are only two 
known sites of P. hirsuta. No other sites containing P. hirsuta have 
been identified, and no historic locations are known (CNDDB 1997). One 
site sits on both City of Yreka and private lands, and the other site 
is partially on private land, partially on Caltrans right-of-way, and 
partially on Klamath National Forest land. Designation of critical 
habitat may affect non-Federal lands only where a Federal nexus exists, 
such as 404 permitting under the Clean Water Act. As it is an upland 
species facing the threat of private development, the designation of 
critical habitat on private or State lands provides no additional 
benefit for P. hirsuta over that provided as a result of listing since 
there are no Federal nexus actions taking place. Furthermore, due to 
the limited distribution of P. hirsuta, any action that would adversely 
modify critical habitat would also jeopardize the species. Critical 
habitat designation for known populations on private lands and the City 
of Yreka lands would confer no benefit beyond that of listing as there 
is no Federal nexus, and potentially could present significant threats 
to the species' continued existence. The publication of maps and 
precise locations of plant occurrences could contribute to the further 
decline of the species by facilitating trespassing and hindering 
recovery efforts.
    The other site is on a mixture of a Caltrans right-of-way, private 
lands and Klamath National Forest land. Section 7 of the Act requires 
that Federal agencies refrain from contributing to the destruction or 
adverse modification of critical habitat or jeopardizing the continued 
existence of a listed species. Designation of critical habitat would 
provide no benefit where the P. hirsuta occurs on Federal land or 
Caltrans right-of-way because any adverse modification of the occupied 
habitat would likely jeopardize the continued existence of the species. 
Additionally, modification of habitat is unlikely to occur without 
consultation under section 7 of the Act because the presence of P. 
hirsuta, and its specific locations, are known to the managers of the 
Klamath National Forest (K. Fuller and D. Elam, in litt. 1997) and to 
Caltrans personnel (S. Stacey, pers. comm. 1996, 1998). Protection of 
the habitat of Phlox hirsuta will be addressed through the section 4 
recovery process and the section 7 consultation process. For the 
reasons discussed above, the Fish and Wildlife Service finds that the 
designation of critical habitat for P. hirsuta is not prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered 
under the Act include recognition, recovery actions, requirements for 
Federal protection, and prohibitions against certain activities. 
Recognition through listing encourages and results in conservation 
actions by Federal, State, and private agencies, groups, and 
individuals. The Act provides for possible land acquisition and 
cooperation with the State and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered 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 
Fish and Wildlife Service on any action that is likely to jeopardize 
the continued existence of a proposed species or result

[[Page 15824]]

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 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 formal consultation with the 
Fish and Wildlife Service.
    Listing Phlox hirsuta would provide for development of a recovery 
plan for the species. The plan would bring together both State and 
Federal efforts for conservation of the species. The plan would 
establish a framework for agencies, local government, and private 
interests 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. The plan 
also would describe management actions necessary to achieve 
conservation and survival of P. hirsuta. Additionally, pursuant to 
section 6 of the Act, the Fish and Wildlife Service would be able to 
grant funds to an affected State for management actions promoting the 
protection and recovery of the species.
    Federal activities potentially affecting Phlox hirsuta include 
issuance of special use permits and rights-of-ways. Approximately one-
half of the Highway 3 occurrence of Phlox hirsuta occurs on lands 
managed by the U.S. Forest Service. The U.S. Forest Service would be 
required to consult with the U.S. Fish and Wildlife Service if any 
activities authorized, funded, or carried out by the U.S. Forest 
Service may affect P. hirsuta, for example, road maintenance and right-
of-way authorizations for projects that include adjacent or intermixed 
private land. The Forest Service has been contacted regarding the 
presence of P. hirsuta, and has no planned activities that would 
require initiating consultation procedures.
    Other Federal agencies that may become involved if this rule is 
finalized include the Federal Highways Administration through funding 
provided to Caltrans. In addition, Federal involvement may occur when 
the Fish and Wildlife Service issues permits for habitat conservation 
plans (HCPs) prepared by non-Federal parties.
    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 for endangered plants, apply. These prohibitions, in part, 
make it illegal for any person subject to the jurisdiction of the 
United States to import or export any of the plants, transport or ship 
them in interstate or foreign commerce in the course of a commercial 
activity; sell or offer them for sale in interstate or foreign 
commerce; or remove and reduce any of the plants to possession from 
areas under Federal jurisdiction. In addition, the Act prohibits the 
malicious damage or destruction of endangered plants from 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 Fish and Wildlife Service 
and State conservation agencies.
    It is the policy of the Fish and Wildlife Service, published in the 
Federal Register (59 FR 34272) on July 1, 1994, 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. One of the two occurrences of Phlox hirsuta is on 
U.S. Forest Service lands. Section 9 of the Act prohibits removal and 
malicious damage or destruction of endangered plants on Federal lands. 
However, actions funded, authorized or implemented by a Federal agency 
that could result in the removal or destruction of such species on 
Federal lands, would not be in violation of the Act, provided the 
actions would not likely result in jeopardy to the species. The removal 
and reduction to possession of listed species on Federal lands for 
research activities may be authorized by the Fish and Wildlife Service 
under section 10(a)(1)(A) of the Act (see below). Activities that do 
not involve any Federal agency funding or authorization on private 
lands do not violate section 9 of the Act, unless such activities are 
carried out in knowing violation of State law or regulation or in the 
course of any violation of a State criminal trespass law. Moderate 
activities such as construction of fences, livestock-water ponds, and 
livestock grazing would not constitute a violation of section 9. 
Questions regarding whether specific activities will constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Service's Sacramento Fish and Wildlife 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 plant species under certain circumstances. Permits are 
available for scientific purposes and to enhance the propagation or 
survival of the species. Requests for copies of the regulations on 
listed plants and inquiries regarding them may be addressed to U.S. 
Fish and Wildlife Service, Ecological Services, Endangered Species 
Permits, 911 NE 11th Avenue, Portland, Oregon 97232-4181; telephone 
503/231-2063 or FAX 503/231-6243. Information collections associated 
with these permits are approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
ordanance number 1018-0094. For additional information concerning these 
permits and associated requirements, see 50 CFR 17.22.

Public Comments Solicited

    The Fish and Wildlife 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. The Fish and Wildlife Service will follow its current peer 
review policy (59 FR 34270) in the processing of this rule. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to Phlox hirsuta;
    (2) The location of any additional populations of this species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by 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 this species.
    Any final decision on this proposal will take into consideration 
the comments and any additional information received by the Fish and 
Wildlife Service, and such communications may lead to a final 
regulation that differs from this proposal.
    The Act provides for a public hearing on this proposal, if 
requested. Requests must be received within 45 days of the date of 
publication of the proposal. Such requests must be made in writing and 
addressed to the Field Supervisor, U. S. Fish and Wildlife Service, 
3310 El

[[Page 15825]]

Camino Avenue, Suite 130, Sacramento, CA 95821-6340.

National Environmental Policy Act

    The Fish and Wildlife Service has determined that an Environmental 
Assessment, 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. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

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

References Cited

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

Author

    The primary author of this proposed rule is Diane Elam, U.S. Fish 
and Wildlife Service, Sacramento Fish and Wildlife Office (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, the Fish and Wildlife 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 Section 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                                                                                                                                        
                                                                                                                                                        
                      *                  *                *                *                *                    *                *                     
Phlox hirsuta....................  Yreka phlox.........  U.S.A. (CA)........  Polemoniaceae......  E                                     NA           NA
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: March 17, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-8516 Filed 3-31-98; 8:45 am]
BILLING CODE 4310-55-P