[Federal Register Volume 65, Number 27 (Wednesday, February 9, 2000)]
[Rules and Regulations]
[Pages 6332-6338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2950]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE55


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Plant Thlaspi californicum (Kneeland Prairie 
Penny-Cress) From Coastal Northern California

AGENCY:  Fish and Wildlife Service, Interior.

ACTION:  Final rule.

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SUMMARY:  We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for Thlaspi californicum (Kneeland Prairie penny-cress). 
Thlaspi californicum is known only from Kneeland Prairie in Humboldt 
County, California, where it grows in coastal prairie on serpentine 
outcrops. We consider the occurrences of T. californicum reported from 
Mendocino County to be T. montanum, a widely distributed species. 
Habitat loss, potential road realignment, and proposed airport 
expansion activities imperil the continued existence of T. 
californicum. The restricted range of this species, limited to a single 
population, increases the risk of extinction from naturally occurring 
events such as fire. This action implements the protection of the Act 
for this plant species.

DATES:  This rule is effective on March 10, 2000.

ADDRESSES:  The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, Suite W2605, Sacramento, California 95825.

FOR FURTHER INFORMATION CONTACT:  Kirsten Tarp or Jan Knight, 
Sacramento Fish and Wildlife Office (see ADDRESSES section) (telephone 
number 916/414-6645; facsimile 916/414-6710).

SUPPLEMENTARY INFORMATION:

Background

    The single known population of Thlaspi californicum (Kneeland 
Prairie penny-cress) is found on serpentine soils at a coastal prairie 
in Humboldt County, California. Serpentine soils are derived from 
ultramafic rocks (rocks with unusually large amounts of magnesium and 
iron) such as serpentinite, dunite, and peridotite, which are found in 
discontinuous outcrops in the Sierra Nevada and Coast Ranges of 
California from Santa Barbara County to Humboldt County. The chief 
constituent of the parent rock is a variant of iron-magnesium silicate. 
Most serpentine soils are formed in place over the parent rock and are, 
therefore, shallow, rocky, and highly erodible. Serpentine soils, 
because of the parent material, tend to have high concentrations of 
magnesium, chromium, and nickel and low concentrations of calcium, 
nitrogen, potassium, and phosphorus (Kruckeberg 1984). 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).
    Sereno Watson (1882) described Thlaspi californicum based on a 
collection made by Volney Rattan from Kneeland Prairie at 760 meters 
(m) (2,500 feet (ft)) elevation in Humboldt County, California. Payson 
(1926) maintained it as a full species in his monograph of the genus, 
whereas it was referred to as T. alpestre var. californicum in Jepson's 
(1925) manual and T. glaucum ssp. californicum by Munz (1959). Holmgren 
(1971) assigned the name Thlaspi montanum var. californicum and gave 
its range as Kneeland Prairie (including a 1952 specimen from a 
serpentine rockpile toward Ashfield Butte). She noted that the plant 
had last been collected in 1962. Rollins (1993a, 1993b) has elevated it 
to a full species--Thlaspi californicum.
    Thlaspi californicum is a perennial herb in the mustard family 
(Brassicaceae) that grows from 9.5 to 12.5 centimeters (cm) (3 to 6 
inches (in)) tall, with a basal cluster of leaves that develops at the 
base of the plant prior to the flowering stage. The margins of the 
basal leaves range from entire to toothed. The white flowers have 
strongly ascending pedicels (flower stalks). The fruit is a sharply 
pointed silicle (a short fruit typically no more than 2 to 3 times 
longer than wide). Thlaspi californicum flowers from May to June. 
Characteristics that separate T. californicum from T. montanum include 
the orientation of the pedicel, shape and notching of the fruit, and 
length/width ratio of the fruit. Thlaspi montanum has pedicels 
perpendicular to the stem, not strongly ascending, and the silicles are 
either truncate or shallowly notched, but not as acute at the apex as 
they are in T. californicum (Meyers 1991).

[[Page 6333]]

    Rollins (1993a, 1993b) and Holmgren (1971) considered Thlaspi 
californicum to occur only at Kneeland Prairie. Smith and Wheeler 
(1991), in their ``Flora of Mendocino County,'' reported two additional 
occurrences of T. californicum located on Mendocino National Forest in 
Mendocino County. These sites have been examined by David Isle, 
Mendocino National Forest botanist; Dave Imper, Environmental 
Specialist with SHN Consulting Engineers and Geologists; and Service 
staff. In addition, all of the herbarium specimens for T. californicum 
and T. montanum at Humboldt State University, including those collected 
in Mendocino County, have been examined by Imper and Service staff. The 
only collections considered by Imper and the Service to be T. 
californicum are from Kneeland Prairie in Humboldt County (Imper 1997; 
Larry Host and Kirsten Tarp, U.S. Fish and Wildlife Service (USFWS), 
pers. comms., 1997). Plants from Blue Banks and near the Spruce Grove 
campground on the Mendocino National Forest have pedicels that are 
perpendicular to the stem and silicles that are truncate and notched, 
characteristic of T. montanum. Additionally, the habitat and elevation 
are different from Kneeland Prairie. Other herbarium specimens, housed 
at the Humboldt State University herbarium and collected from Blue 
Banks and from Spruce Grove campground, are identified as T. montanum. 
McCarten and Rogers (1991) did not find any T. californicum in their 
habitat management study of rare plants and communities associated with 
serpentine soils on the Mendocino National Forest. The Mendocino 
National Forest botanist and the botanical consultant for Humboldt 
County concurred with this conclusion (Imper 1997; David Isle, 
botanist, Mendocino National Forest, pers. comm., 1997; L. Host and K. 
Tarp, pers. comms., 1997).
    The California Natural Diversity Database (CNDDB) includes one 
occurrence for Thlaspi californicum based on Constance & Rollins' 
collection #2877 from 1942 (5 mi S of Hoopa Valley), housed at the 
Humboldt State University herbarium. The specimen had been annotated as 
T. californicum in 1976 by T. Nelson, then the herbarium's curator. A 
duplicate of this specimen, housed at another herbarium, had been 
assigned to T. montanum var. montanum by Patricia Holmgren in her 1971 
biosystematic study of North American T. montanum and its allies. The 
specimen has since been examined by Imper and Service staff, who concur 
that it is T. montanum (Meyers 1991, Imper 1997).
    The only known population of Thlaspi californicum is scattered 
within an area of 0.25 hectare (ha) (0.6 acre (ac)), with a total of 
about 11,000 individuals at Kneeland Prairie in Humboldt County (Dave 
Imper, Environmental Specialist, SHN Consulting Engineers and 
Geologists, pers. comm., 1997). The Kneeland Prairie population is 
bisected into two colonies by the Kneeland Prairie Airport. Both 
colonies occur on private land immediately adjacent to the Kneeland 
Prairie Airport. At Kneeland Prairie, the habitat for T. californicum 
has been reduced by approximately 60 to 70 percent within the past 33 
years through development of the site for the Kneeland Prairie Airport, 
a county road realignment, and a helitack base (CNDDB 1997, Meyer 1991, 
Imper 1997). This population is currently threatened by the proposed 
expansion of the County airport and potential additional realignment of 
the adjacent road. Because of its extremely restricted range, the plant 
is also vulnerable to extinction from naturally occurring events such 
as fire (CNDDB 1997).
    To assess the significance of the Kneeland Prairie population to 
the species, Imper (1997) inspected potentially suitable habitat for 
Thlaspi californicum in other areas near Kneeland Prairie and to the 
south. He found no other occurrences. Additionally, T. californicum has 
been targeted for surveys by the Bureau of Land Management (BLM) and 
U.S. Forest Service staff. The Six Rivers National Forest has no 
documented occurrences (Lisa Hoover, botanist, Six Rivers National 
Forest, pers. comm., 1997). A search for the species has not revealed 
any T. californicum on the serpentine at Iaqua Buttes on BLM lands 
(Jennifer Wheeler, botanist, BLM, Arcata Resource Area, pers. comm., 
1997).

Previous Federal Action

    Federal Government action on Thlaspi californicum began when we 
published an updated Notice of Review (NOR) for plants on December 15, 
1980 (45 FR 82480), that identified those plants currently being 
considered for listing as endangered or threatened. We included T. 
californicum (then known as T. californicum var. montanum) as a 
category 2 candidate for Federal listing in this document. Category 2 
candidates were those taxa for which data on biological vulnerability 
and threats in our possession indicated that listing was possibly 
appropriate but was not sufficient to support proposed rules. Our 
November 28, 1983, supplement to the NOR (48 FR 53640) as well as the 
subsequent revision on September 27, 1985 (50 FR 39526), included T. 
californicum as a category 2 candidate.
    We revised the plant NOR again on February 21, 1990 (55 FR 6184), 
and September 30, 1993 (58 FR 51144). In both notices, we included 
Thlaspi californicum as a category 1 candidate. Category 1 candidates 
were those taxa for which we had on file sufficient information on 
biological vulnerability and threats to support preparation of listing 
proposals, but issuance of the proposed rule was precluded by other 
pending listing proposals of higher priority. In our February 28, 1996, 
Federal Register Notice of Review of Plant and Animal Taxa that are 
Candidates for Listing as Endangered or Threatened Species (61 FR 
7596), we discontinued designation of multiple categories of 
candidates, and only those taxa meeting the definition of former 
category 1 are now considered candidates for listing. Thlaspi 
californicum was included as a candidate species in the February 28, 
1996, notice. We published a proposed rule on February 11, 1998, to 
list this species as endangered. We based the proposal on information 
supplied by reports to the CNDDB and observations and reports by 
numerous botanists.
    Based on all available information including comments received in 
response to the proposal (see the Summary of Comments and 
Recommendations section of this final rule), we have now determined 
Thlaspi californicum to be endangered. The processing of this final 
rule conforms with our Listing Priority Guidance published in the 
Federal Register on October 22, 1999 (64 FR 57114). The guidance 
clarifies the order in which we will process rulemakings. Highest 
priority is processing emergency listing rules for any species 
determined to face a significant and imminent risk to its well-being 
(Priority 1). Second priority (Priority 2) is processing final 
determinations on proposed additions to the lists of endangered and 
threatened wildlife and plants. Third priority is processing new 
proposals to add species to the lists. The processing of administrative 
petition findings (petitions filed under section 4 of the Act) is the 
fourth priority. The processing of critical habitat determinations 
(prudency and determinability decisions) and proposed or final 
designations of critical habitat will no longer be subject to 
prioritization under Listing Priority Guidance. This final rule is a 
Priority 2 action. We have updated this rule to reflect any changes in 
information

[[Page 6334]]

concerning distribution, status, and threats since the publication of 
the proposed rule.

Summary of Comments and Recommendations

    In the proposed rule published February 11, 1998, in the Federal 
Register (63 FR 7112) and associated notifications, we requested all 
interested parties to submit factual reports or information that might 
contribute to development of a final rule. The public comment period 
closed on April 13, 1998. We contacted appropriate Federal agencies, 
State agencies, county and city governments, scientific organizations, 
and other interested parties and requested comments. We also sent 
copies of the proposed rule and the letter for request of comment to 
three local libraries for public display. We published a newspaper 
notice in the Eureka Times-Standard on February 25, 1998, which invited 
general public comment. We received no requests for a public hearing.
    Six individuals or agencies submitted comments. Two commenters 
supported the listing, three commenters opposed the listing, and one 
commenter was neutral. We received supporting comments from the 
California Native Plant Society and BLM. We received opposing comments 
from the Washington Legal Foundation, Pacific Legal Foundation, and a 
private citizen. We organized opposing comments and other comments 
questioning the proposed rule into specific issues, grouped comments of 
a similar nature by issue, and summarized them as follows:
    Issue 1: One respondent asserted that listing this species would 
exceed the scope of the Federal commerce power under the Commerce 
Clause of Article I, section 8 of the U.S. Constitution.
    Response: We maintain that we do have the authority to list plants 
such as the one in this final rule pursuant to the Act. A recent 
decision in the United States Court of Appeals for the District of 
Columbia Circuit (National Association of Home Builders of the U.S. v. 
Babbitt, 130 F.3d 1041, D.C. Cir. 1997) makes it clear in its 
application of the test used in the United States Supreme Court case, 
United States v. Lopez, 514 U.S. 549 (1995), that regulation of species 
limited to one State under the Act is within Congress' commerce clause 
power. On June 22, 1998, the Supreme Court declined to accept an appeal 
of this case (118 S. Ct. 2340 1998). Therefore, our application of the 
Act to Thlaspi californicum is constitutional.
    Issue 2: One respondent wanted to know the full economic impact of 
the listing of this plant.
    Response: Under section 4(b)(1)(A) of the Act, a listing 
determination must be based solely on the best scientific and 
commercial data available. The legislative history of this provision 
clearly states the intent of Congress to ``ensure'' that listing 
decisions are ``based solely on biological criteria and to prevent non-
biological considerations from affecting such decisions,'' H.R. Rep. 
No. 97-835, 97th Cong. 2d Sess. 19 (1982). As further stated in the 
legislative history, ``Applying economic criteria * * * to any phase of 
the species listing process is applying economics to the determinations 
made under section 4 of the Act and is specifically rejected by the 
inclusion of the word ``solely'' in this legislation,''
H.R. Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982). Because we are 
specifically precluded from considering economic impacts in a final 
decision on a proposed listing, we have not examined such impacts and 
cannot respond to comments and requests concerning possible economic 
consequences of listing this plant.
    Issue 3. One respondent stated that the Service does not have 
sufficient scientific data to support a determination of endangered and 
that the Service did not cite any studies that might question the 
validity of the proposal.
    Response: The Act requires us to reach a decision based on the best 
scientific and commercial information available. We believe that 
botanical study of the appropriate habitats on public lands in Humboldt 
and nearby counties has been adequate to show that this plant is indeed 
extremely rare. The threats to this species discussed under the Summary 
of Factors Affecting the Species section of this rule are also based on 
the best information available and are well documented or reasonably 
foreseeable. By their nature, threats are descriptions of events that 
have not yet taken place but are likely to occur in the foreseeable 
future. All information received from all sources was carefully 
evaluated.
    Criteria for what information may be considered are discussed in 
the Summary of Factors Affecting the Species section. We have attempted 
to check all substantive information for accuracy and believe that the 
information included in this rule is reliable.
    Issue 4: One respondent asked a series of questions about the CNDDB 
including its function, sources of information and funding, and review 
process.
    Response: The CNDDB is a computerized inventory with information on 
the location and condition of special status plants, animals, and 
natural communities. The CNDDB receives funding through the State of 
California and receives its information from a variety of sources 
including consultants, academia, State and Federal agency biologists, 
and knowledgeable lay people. The information submitted to CNDDB is 
reviewed by CNDDB staff for general accuracy before it is entered into 
the database.

Peer Review

    We have routinely solicited comments from parties interested in, 
and knowledgeable of, species that have been proposed for listing as 
threatened or endangered. The July 1, 1994, Peer Review Policy (59 CFR 
34270) established the formal requirement that a minimum of three 
independent peer reviewers be solicited to review our listing 
decisions. We received no responses to our requests for peer review of 
this listing action.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that Thlaspi californicum should be 
classified as an endangered species. We followed procedures found at 
section 4(a)(1) of the Act and regulations (50 CFR part 424) 
implementing the listing provisions of the Act. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1). These factors and 
their application to Thlaspi californicum are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The habitat of Thlaspi 
californicum has been significantly reduced within the past 33 years. 
Just before 1964, an estimated 2.0 to 2.25 ha (5 to 6 ac) of habitat 
existed at Kneeland Prairie (Meyers 1991). Approximately 60 to 70 
percent of the habitat at Kneeland Prairie has been lost since 1964, 
due to construction of the Kneeland Prairie Airport, realignment of the 
county road that runs through Kneeland Prairie, and construction of the 
California Department of Forestry (CDFFP) helitack base (Meyers 1991; 
Imper 1990; Imper, pers. comm., 1997). Additional habitat and plants 
are currently threatened by the proposed expansion of the Kneeland 
Prairie Airport and potential road realignment.

[[Page 6335]]

    The Kneeland Prairie Airport serves principally as the backup 
airport for Rohnerville, Murray, Eureka Municipal, and Arcata-Eureka 
airports. Small single-engine and occasionally twin-engine planes use 
Kneeland Prairie Airport. This airfield is especially important when 
airports at lower elevations are fogged in, a frequent occurrence in 
the region (Hodges & Shutt 1993). Kneeland Prairie Airport is the only 
airport in the Humboldt Bay area that can be used when the bay is 
fogged in (Don Tuttle, Resource Specialist, Humboldt County Public 
Works, pers. comm., 1997). The airport is particularly important for 
commercial express mail and air freight carriers, as well as other 
couriers (Ray Beeninga, Airports Manager, Humboldt County, pers. comm., 
1997).
    Humboldt County contracted a study to evaluate its airports and 
prepare appropriate planning documents (Hodges & Shutt 1993). The study 
provided an assessment of Kneeland Airport's role and associated 
airfield requirements. The report also discussed land use compatibility 
issues and descriptions of capital projects and provided documentation 
required to upgrade Kneeland Prairie Airport from temporary to 
permanent inclusion in the National Plan for Integrated Airport 
Systems. That designation allows the county to receive Federal funding 
for airport modifications through the Federal Aviation Administration 
(FAA). Recommendations in the report included development of a complete 
geotechnical study of specific engineering designs to stabilize the 
airport and construction of a new parking area meeting FAA setback 
standards. The report discussed design constraints for placement of the 
new parking area. The location of the CDFFP helitack base limits the 
ability of the airport to expand the existing parking area to the 
northwest (Hodges & Shutt 1993). The recommended location for the new 
parking area is on the eastern side of the airport (Hodges & Shutt 
1993), adjacent to the eastern colony of Thlaspi californicum. 
Construction of the parking facility at Kneeland Prairie Airport could 
adversely affect the habitat and individuals of the eastern colony due 
to the proximity of the plants to the potential site.
    Humboldt County is also contracting an initial study to evaluate 
the geotechnical feasibility and cost of modifying Kneeland Prairie 
Airport. The study, currently in progress (D. Tuttle and D. Imper, 
pers. comms., 1997), is evaluating ways to solve problems involving 
subsidence of the runway, slope stabilization, and the safety issue 
that the runway is too short (Dave Dietz, Project Manager, Shutt-Moen 
Associates, pers. comm., 1997). Possible options include leaving the 
airport configuration as is (i.e., repairing current subsidence, but 
not extending the runway), finding a different site for a new airport, 
or modifying the existing airport (D. Dietz, pers. comm., 1997). 
Financial constraints could influence the choice among the alternatives 
(R. Beeninga, pers. comm., 1997). In addition, exploratory soil boring 
is needed to determine how to stabilize the airport and to determine 
the cost of extending the runway (D. Dietz, pers. comm., 1997). Thlaspi 
californicum occurs on the slopes immediately adjacent to the airfield. 
Exploratory boring may affect individuals located immediately adjacent 
to airport lands (L. Host and K. Tarp, pers. obs. 1997). Modification 
of the existing airport is anticipated to occur in the year 2000 (R. 
Beeninga, pers. comm., 1997).
    The realignment of the county road adjacent to the airport could 
affect the western occurrence of Thlaspi californicum at Kneeland 
Prairie (D. Imper, pers. comm., 1997). The road currently runs along 
the southwest edge of the runway and serves areas beyond the airport. 
The aviation manager would not be authorized to modify the road except 
as necessary for slope stabilization or as the result of possible 
runway extension at the south end of the airport. The extension of the 
runway to the south is not expected to directly impact T. californicum. 
However, if the runway is extended 30 to 65 m (90 to 200 ft) (R. 
Beeninga, pers. comm., 1997), the runway will run through the current 
road. The road would then either need to go under the runway via a 
tunnel or be realigned. The western colony of T. californicum occurs 
just downslope of the current road. Road realignment could result in 
impacts to habitat and individual plants.
    For safety reasons, it is likely that Humboldt County will 
undertake straightening and/or widening the road, either independent of 
or concurrent with runway expansion (L. Host, in litt., 1997). The road 
adjacent to the airport is narrow; a blind, 90-degree curve in the road 
around the end of the runway limits safe speeds to only 10 to 15 miles 
per hour. These conditions could warrant a county decision to realign 
the road to achieve a safer curve radius at the end of the runway. 
Unless the approach to that portion of the road is moved outward beyond 
the plants (which would require extra length and expense), the 
realignment would cross the remaining serpentine habitat and eliminate 
about half of the remaining plants in the western colony. We anticipate 
that such roadwork would occur during airport construction to avoid the 
expense of bringing necessary machinery to the site twice.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization is not known to be a threat for 
this plant.
    C. Disease or predation. We know of no threats to Thlaspi 
californicum from disease. Cattle grazing occurs throughout the prairie 
and the area surrounding the airport (Imper 1997). Cattle trails run 
through T. californicum habitat (Meyers 1991), but current levels of 
grazing do not appear to threaten the species.
    D. The inadequacy of existing regulatory mechanisms. The California 
Environmental Quality Act (CEQA) (chapter 2, section 21050 et seq. of 
the California Public Resources Code) 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 of requiring mitigation for effects through changes in 
the project or to decide that overriding considerations make mitigation 
infeasible. In the latter case, projects may be approved that cause 
significant environmental damage, such as destruction of endangered 
species. Protection of listed species through CEQA is therefore 
dependent upon the discretion of the agency involved.
    When the CDFFP constructed the Kneeland Helitack Base in 1980, a 
botanical assessment was required by the Humboldt County Planning 
Department for issuance of a conditional use permit. However, CDFFP did 
not include any analysis of potential impacts to Thlaspi californicum, 
although records of its California Native Plant Society 1B status and 
CNDDB documentation of the species' presence were available at that 
time (Imper 1990, Meyers 1991).

[[Page 6336]]

    E. Other natural or manmade factors affecting its continued 
existence. Thlaspi californicum has never been found anywhere other 
than at Kneeland Prairie, where the single population occupies 0.25 ha 
(0.6 ac), bisected by the Kneeland Airport. This plant occupies 
serpentine prairie habitat that is quite restricted in extent. The 
combination of a single population and restricted habitat makes T. 
californicum susceptible to destruction of all or a significant portion 
of its range from naturally occurring events such as fire, drought, or 
severe erosion (Shaffer 1981, Primack 1993). Chance events causing 
population fluctuations or even population extirpations are not usually 
a concern until the number of individuals or geographic distribution 
becomes as limited as with T. californicum (Primack 1993). The single 
known locality of the species also makes the population at Kneeland 
Prairie particularly susceptible to extinction due to fire or an 
erosional event causing slope failure. Even one such event has the 
potential to seriously impact the sole population of the species.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this species in determining to propose this rule. Airport 
expansion activities, potential road realignment, inadequate regulatory 
mechanisms, and naturally occurring events such as fire imperil the 
continued existence of this plant. The one known population of Thlaspi 
californicum includes approximately 11,000 individual plants scattered 
within a 0.25 ha (0.6 ac) area. The species is in danger of extinction 
throughout all of its known range. Based on this evaluation, the 
preferred action is to list T. californicum as endangered. Other 
alternatives to this action were considered but not preferred. A 
conservation agreement could not be negotiated with the private land 
owners (D. Imper, in litt., 1994), and listing T. californicum as 
threatened would not provide adequate protection and would not be 
consistent with the Act. Listing T. californicum as endangered would 
provide additional protection and is consistent with the Act's 
definition of endangered.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary. The 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.
    In the proposed rule, we indicated that designation of critical 
habitat was not prudent for Thlaspi californicum because of a concern 
that publication of precise maps and descriptions of critical habitat 
in the Federal Register could increase the vulnerability of this 
species to incidents of collection and vandalism. We also indicated 
that designation of critical habitat was not prudent because we 
believed it would not provide any additional benefit beyond that 
provided through listing as endangered.
    In the last few years, a series of court decisions have overturned 
Service determinations regarding a variety of species that designation 
of critical habitat would not be prudent (e.g., Natural Resources 
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th 
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 
1280 (D. Hawaii 1998)). Based on the standards applied in those 
judicial opinions, we have reexamined the question of whether critical 
habitat for Thlaspi californicum would be prudent.
    Due to the small number of populations, Thlaspi californicum is 
vulnerable to unrestricted collection, vandalism, or other disturbance. 
We remain concerned that these threats might be exacerbated by the 
publication of critical habitat maps and further dissemination of 
locational information. However, we have examined the evidence 
available for Thlaspi californicum and have not found specific evidence 
of taking, vandalism, collection, or trade of this species or any 
similarly situated species. Consequently, consistent with applicable 
regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not 
expect that the identification of critical habitat will increase the 
degree of threat to this species of taking or other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a species, if a critical habitat designation would provide 
any benefits, then a prudent finding is warranted. In the case of this 
species, designating critical habitat may provide some benefits. The 
primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies refrain from taking any action that 
destroys or adversely modifies critical habitat (see Available 
Conservation Measures section). While a critical habitat designation 
for habitat currently occupied by this species would not be likely to 
change the section 7 consultation outcome because an action that 
destroys or adversely modifies such critical habitat would also be 
likely to result in jeopardy to the species, there may be instances 
where section 7 consultation would be triggered only if critical 
habitat is designated. Examples could include unoccupied habitat or 
occupied habitat that may become unoccupied in the future. Designating 
critical habitat may also provide some educational or informational 
benefits. Therefore, we find that critical habitat is prudent for 
Thlaspi californicum.
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states, the processing of critical habitat determinations (prudency and 
determinability decisions) and proposed or final designations of 
critical habitat will no longer be subject to prioritization under the 
Listing Priority Guidance. Critical habitat determinations, which were 
previously included in final listing rules published in the Federal 
Register, may now be processed separately, in which case stand-alone 
critical habitat determinations will be published as notices in the 
Federal Register. We will undertake critical habitat determinations and 
designations during FY 2000 as allowed by our funding allocation for 
that year. As explained in detail in the Listing Priority Guidance, our 
listing budget is currently insufficient to allow us to immediately 
complete all of the listing actions required by the Act. Deferral of 
the critical habitat designation for Thlaspi californicum has allowed 
us to concentrate our limited resources on higher priority critical 
habitat (including court ordered designations) and other listing 
actions, while allowing us to put in place protections needed for the 
conservation of Thlaspi californicum without further delay. However, 
because we have successfully reduced, although not eliminated, the

[[Page 6337]]

backlog of other listing actions, we anticipate in FY 2000 and beyond 
giving higher priority to critical habitat designation, including 
designations deferred pursuant to the Listing Priority Guidance, such 
as the designation for this species, than we have in recent fiscal 
years.
    We plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. We will develop a 
proposal to designate critical habitat for Thlaspi californicum as soon 
as feasible, considering our workload priorities. Unfortunately, for 
the immediate future, most of Region 1's listing budget must be 
directed to complying with numerous court orders and settlement 
agreements, as well as due and overdue final listing determinations 
(like the one at issue in this case).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. 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 
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 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 formal consultation with us.
    All of the occurrences of Thlaspi californicum are on privately 
owned land. However, impacts of modifying the adjacent airport have the 
potential to adversely affect T. californicum, due to the proximity of 
the plants to the proposed parking apron. Funds from the FAA have been 
used to partially finance a planning document for the Kneeland Prairie 
Airport and are proposed to be used for airport modifications. Private 
sector funding is not anticipated to be available for Kneeland Prairie 
Airport (Hodges & Shutt 1993). Realignment of a county road adjacent to 
the airport may be required if the runway is extended. This work could 
be partially funded by Federal Highway Administration grants, thereby 
providing another avenue for section 7 consultation.
    Listing Thlaspi californicum would provide for development of a 
recovery plan for this plant. Such a plan would bring together both 
State and Federal efforts for conservation of the plant species. 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 recovery. It also would describe site-specific management 
actions necessary to achieve conservation and survival of the plant. 
Additionally, under section 6 of the Act, we would be able to grant 
funds to the State for management actions promoting the protection and 
recovery of this species.
    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 an endangered plant, transport such a 
plant in interstate or foreign commerce in the course of a commercial 
activity, sell or offer for sale an endangered plant in interstate or 
foreign commerce, or remove and reduce an endangered plant to 
possession from areas under Federal jurisdiction. In addition, for 
plants listed as endangered, the Act prohibits 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 or in the course of 
any violation of a State criminal trespass law. Certain exceptions to 
the prohibitions apply to agents of the Service and State conservation 
agencies.
    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. Such permits are 
available for scientific purposes and to enhance the propagation or 
survival of the species. It is anticipated that few trade permits would 
ever be sought or issued because this species is not common in 
cultivation or common in the wild. 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 
clearance number 1018-0094. For additional information concerning these 
permits and associated requirements, see 50 CFR 17.62. 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, Endangered Species Permits, 911 N.E. 
11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063; 
facsimile 503/231-6243).
    It is our policy, published in the Federal Register (59 FR 34272) 
on July 1, 1994, to identify to the maximum extent practicable those 
activities that would or would not be likely to constitute a violation 
of section 9 of the Act if a species is listed. The intent of this 
policy is to increase public awareness of the effect of the species' 
listing on proposed and ongoing activities within its range. Collection 
of listed plants or activities that would damage or destroy listed 
plants on Federal lands are prohibited without a Federal endangered 
species permit. Such activities on non-Federal lands would constitute a 
violation of section 9 of the Act if they were conducted in knowing 
violation of California State law or regulation, or in the course of 
violation of California State criminal trespass law. Otherwise such 
activities would not constitute a violation of the Act on non-Federal 
lands.
    Questions on whether specific activities would likely constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Carlsbad Fish and Wildlife Office (see ADDRESSES section).

[[Page 6338]]

Regulatory Planning and Review

    This rule is not subject to review by the Office of Management and 
Budget under Executive Order 12866.

National Environmental Policy Act

    We have determined that an environmental assessment and 
environmental impact statement, 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. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any information collection requirements 
for which Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. is required. An 
information collection related to the rule pertaining to permits for 
endangered and threatened species has OMB approval and is assigned 
clearance number 1018-0094. For additional information concerning 
permits and associated requirements for endangered plants, see 50 CFR 
17.62 and 17.63.

References Cited

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

Author

    The primary author of this final rule is Kirsten Tarp, Sacramento 
Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we hereby 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:


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
 
                   *                  *                  *                  *                  *                  *                  *
Thlaspi californicum.............  Kneeland Prairie      U.S.A. (CA)........  Brassicaceae.......  E                       684           NA           NA
                                    penny-cress.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: January 13, 2000.
Jamie Rapport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 00-2950 Filed 2-8-00; 8:45 am]
BILLING CODE 4310-55-U