[Federal Register Volume 65, Number 32 (Wednesday, February 16, 2000)]
[Rules and Regulations]
[Pages 7757-7764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3278]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE30


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for Sidalcea keckii (Keck's checker-mallow) From 
Fresno and Tulare Counties, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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[[Page 7758]]

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status for Sidalcea keckii (Keck's checker-mallow) pursuant 
to the Endangered Species Act (Act) of 1973, as amended. This annual 
plant is known from serpentine-derived clay soils in the foothill 
annual grasslands of the central western Sierra Nevada Mountains. The 
plant is threatened by agricultural land conversion, urbanization, 
grazing, and extirpation from naturally occurring random events due to 
the small number and size of its two populations. This rule implements 
the Federal protection provisions afforded by the Act for this plant 
species.

EFFECTIVE DATE: March 17, 2000.

ADDRESSES: You may view the complete administrative file for this rule, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage 
Way, Room W-2605, Sacramento, California 95825.

FOR FURTHER INFORMATION CONTACT: Ken Fuller or Jan Knight at the above 
address (see ADDRESSES section) (telephone 916/414-6600; facsimile 916/
414-6715.

SUPPLEMENTARY INFORMATION:

Background

    The San Joaquin Valley of California is a large, north-south 
oriented, alluvial valley that is mostly farmed or developed. The San 
Joaquin Valley, from Stockton in the north to Bakersfield in the south, 
is approximately 690 kilometers (km) (430 miles (mi)) long and covers 
about 6,070,305 hectares (ha) (15 million acres (ac)). Tulare and 
Fresno Counties are located toward the southern end of the valley. One 
population of Sidalcea keckii occurs on private land toward the 
southern end of the valley, in south-central Tulare County. Another 
population of S. keckii occurs on a mixture of private and Federal 
lands in Fresno County.
    Sidalcea keckii is a slender, hairy, erect annual herb belonging to 
the mallow family (Malvaceae). The species grows 1.5 to 3.3 decimeters 
(dm) (6 to 13 inches (in) tall. The lower leaf blades have seven to 
nine shallow lobes. The upper leaves have a tapered base with two to 
five notches in the upper lobes. A few deep pink flowers, 10 to 20 
millimeters (mm) (0.4 to 0.8 in) wide, appear April through May. Seeds 
are smooth and pink-tinted. Sidalcea keckii closely resembles four 
other annual species of Sidalcea--S. calycosa, S. diploscyha, S. 
hartwegii, and S. hirsuta. Sidalcea calycosa and S. diploscyha have 
ranges that overlap with S. keckii. Sidalcea keckii can be separated 
from similar species by the number and size of flowers, the arrangement 
of stamens (male reproductive part), the lengths of the bract (a 
reduced leaf-like structure below the flower) and calyx (outermost 
segments of the flower), the presence of an aggregation of linear 
stipules (small, paired, leaf-like structures at the base of the 
leaves) and bracts surrounding the flower at maturity, the size and 
shape of the stem leaves, the density of hairs on the stems, and the 
presence of a purplish spot on the flower (Hickman 1993; John Stebbins, 
Fresno State University, in litt. 1994).
    Wiggins (1940) described Sidalcea keckii from specimens collected 
in 1935 and 1938 near White River, Tulare County. Sidalcea keckii was 
known historically from 3 populations occurring between 120 to 425 
meters (m) (400 to 1,400 feet (ft)) in elevation. However, it has not 
been seen at 2 of these sites for about 53 years (J. Stebbins, in litt. 
1994), and the third site has not been relocated. The species was 
considered to be extirpated until 1992, when a new population of S. 
keckii was discovered by consultants conducting an environmental site 
inventory prior to construction of a subdivision (Woodward and Clyde 
Consultants 1992).
    The habitat requirements of Sidalcea keckii are not well 
understood. The population of S. keckii in Tulare County (Tulare County 
population) occurs on 20- to 40-percent slopes of red or white-colored 
clay in sparsely-vegetated annual grasslands. The clays are thought to 
be derived from serpentine soils (soils high in magnesium, low in 
calcium, and laden with heavy metals). The Tulare County population 
covers an area measuring 30 m by 100 m (100 ft by 320 ft) and had a 
total of 60 plants in 1992 (Woodward and Clyde Consultants 1992). The 
population occurs on a privately owned, 280-ha (700 ac) parcel of land 
that is currently used for livestock grazing. A second new population 
of S. keckii was discovered on a mixture of private and public lands in 
Fresno County in 1998 (Fresno County population) and, at that time, 
consisted of 216 individual plants (Susan Carter, Bureau of Land 
Management, in litt. 1998). The Tulare County population is threatened 
by urban development, agricultural land conversion (particularly to 
citrus orchards), and grazing. Both populations are vulnerable to 
random events because of their small population sizes and numbers.

Previous Federal Action

    Federal Government actions on the plant began as a result of 
section 12 of the original Endangered Species Act (Act) of 1973, as 
amended (16 U.S.C. 1531 et seq.), which directed the Secretary of the 
Smithsonian Institution to prepare a report on those plants considered 
to be endangered, threatened, or extinct in the United States. This 
report, designated as House Document No. 94-51, was presented to 
Congress on January 9, 1975. It included Sidalcea keckii as a 
threatened species. We published a notice on July 1, 1975 (40 FR 27823) 
of our acceptance of the report 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 our intention to review the status of the plant taxa 
named therein. As a result of this review, we published a proposed rule 
in the Federal Register on June 16, 1976 (41 FR 24523) to determine 
approximately 1,700 vascular plant species to be endangered species 
pursuant to section 4 of the Act. This list, which did not include S. 
keckii, was assembled on the basis of comments and data received by the 
Smithsonian Institution and us in response to House Document No. 94-51, 
and the July 1, 1975, Federal Register publication.
    We published an updated Notice of Review for plants on December 15, 
1980 (45 FR 82480). This notice included Sidalcea keckii as a category 
1 candidate, but it was noted that the species was possibly extinct. At 
that time, Category 1 candidates were defined as taxa for which we had 
on file substantial information on biological vulnerability and threats 
to support preparation of listing proposals. Category 2 candidates were 
defined as species for which information in our possession indicated 
that proposing to list the species as threatened or endangered was 
possibly appropriate, but for which we lacked substantial data on 
biological vulnerability and threats. The Category 1 designation for S. 
keckii was retained in the November 28, 1983 supplement to the Notice 
of Review (48 FR 53640), as well as subsequent revisions on September 
27, 1985 (50 FR 39526), February 21, 1990 (55 FR 6184), and September 
30, 1993 (58 FR 51143). We published a Notice of Review in the Federal 
Register on February 28, 1996 (61 FR 7596), that discontinued the use 
of different categories of candidates. In that notice, we defined 
candidates as species meeting the definition of former Category 1 
species, and we retained Sidalcea keckii as a candidate species.
    Section 4(b)(3)(B) of the Act requires us 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

[[Page 7759]]

petitions pending on October 13, 1982, be treated as having been newly 
submitted on that date. This situation applies to Sidalcea keckii, 
because of our acceptance of the 1975 Smithsonian report as a petition. 
On October 13, 1983, we 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. A notice of this 
finding was published on January 20, 1984 (49 FR 2485). Such a finding 
requires the petition to be reviewed, pursuant to section 4(b)(3)(C)(i) 
of the Act. The species was included in candidate Notices of Review, 
published September 27, 1985 (50 FR 39528), February 21, 1990 (55 FR 
6184), September 30, 1993 (58 FR 51144), February 28, 1996 (61 FR 
7596), and October 25, 1999 (64 FR 57534).
    We published a proposed rule to list Sidalcea keckii as endangered 
in the Federal Register on July 28, 1997 (62 FR 40325). The comment 
period was open until September 26, 1997. We extended the comment 
period to allow for a public hearing and other comments on September 
24, 1997 (62 FR 49954), and the comment period closed on November 10, 
1997. We again reopened the comment period on August 19, 1998 (63 FR 
44417), to allow for additional information on the species. The comment 
period closed on October 5, 1998. We now determine Sidalcea keckii to 
be endangered with the publication of this rule.
    The processing of this final listing 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 Federal 
Lists of Endangered and Threatened Wildlife and Plants (Lists). Third 
priority is processing new proposals to add species to the Lists. The 
processing of administrative petition findings (petitions files under 
section 4 of the Act) is the fourth priority. The processing of 
critical habitat determinations (prudency and determinability 
decisions) will no longer be subject to prioritization under the 
Listing Priority Guidance. This final rule is a Priority 2 action and 
is being completed in accordance with the current Listing Priority 
Guidance. We have updated this rule to reflect any changes in 
information concerning distribution, status, and threats since the 
publication of the proposed rule.

Summary of Comments and Recommendations

    In the July 28, 1997, proposed rule (62 FR 40325) and associated 
notifications, we requested that interested parties submit factual 
reports or information that might contribute to the final listing 
determination for Sidalcea keckii. We published announcements of the 
proposed rule and notice of the public hearing in the Tule River Times, 
Porterville Recorder, and the Visalia Times-Delta. We sent copies of 
the proposed rule to the Porterville Public Library and the Tulare 
County Free Library. The original comment period closed on September 
26, 1997. We received one request for a public hearing from California 
Assemblyman Roy Ashburn. As a result, the comment period was extended 
until November 10, 1997 (62 FR 49954). We conducted a public hearing on 
the proposed listing at the Visalia Convention Center, Visalia, 
California on October 21, 1997. Ten people gave oral presentations at 
the hearing. Additionally, we received a request from the Bureau of 
Reclamation (BOR) to reopen the comment period in 1998. In response to 
that request, we reopened the comment period on August 19, 1998 (63 FR 
44417). The second comment period closed on October 5, 1998.
    During the first comment period and its extension, we received 15 
oral and written comments. Two people supported the proposed listing, 
four people had neutral comments, and nine people opposed the proposed 
listing. During the second comment period, we received six comment 
letters. Of these six letters, two were from individuals who provided 
the same comments opposing the listing during the first comment period. 
We also received two additional letters supporting the proposed 
listing, and two neutral comment letters. Because multiple respondents 
offered similar comments, we grouped together those of a similar 
nature.
    Issue 1: Several commenters stated that because the plant is 
extinct, we should not list Sidalcea keckii. One commenter submitted 
photocopies of aerial photographs alleged to show that lands in the 
area had been converted to citrus orchards between 1992 and 1997, as 
evidence of the species extinction. Another commenter stated that the 
photocopies of aerial photographs submitted to us do not prove the 
species is extinct.
    Our Response: We reviewed the photocopies of the aerial photographs 
and conclude that they are not of the specific location where the 
population of Sidalcea keckii was found. Agricultural conversion of 
rangelands to citrus orchards was cited in the proposed rule as a 
threat to S. keckii. Conversion to orchards, if the species were 
present at the location cited by the commenter, would have extirpated 
the species at this location. Because the aerial photograph did not 
depict the area containing the species, we maintain that the habitat 
for S. keckii at its location southeast of Porterville remains intact, 
and the species is not extinct.
    Issue 2: One commenter stated that the information used in this 
listing does not justify the potential loss of private property, and 
that private property owners are being regulated out of the use of 
their lands by the Act. Another commenter stated that we assert that 
any use of the land by humans would put Sidalcea keckii in jeopardy. 
One commenter stated that our listing of Sidalcea keckii will have 
negative effects on the people of Tulare County and the entire Central 
Valley. Another commenter asked what economic impacts to the Central 
Valley had been considered. One commenter stated that no evidentiary 
standard or burden of proof for critical habitat or listing the species 
is found in the proposed rule.
    Our Response: Section 4 (b)(10)(A) of the Act requires that listing 
be based solely on the best scientific and commercial data available 
(see ``Summary of Factors Affecting the Species'' section of this final 
rule.) We are precluded from assessing the potential effects to private 
property that may occur as a result of listing as part of the listing 
process. The legislative history of this provision explains 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 precluded from considering economic 
impacts in a final listing decision, we cannot examine such potential 
impacts.
    Agricultural land conversion, urbanization, and random events 
threaten Sidalcea keckii. We believe that many activities on private 
land will not violate section 9 of the Act. Such

[[Page 7760]]

activities may include livestock grazing, construction or maintenance 
of livestock fences, clearing a defensible space for fire protection 
around one's personal residence, and landscaping one's personal 
residence (see ``Available Conservation Measures'' section of this 
final rule.) Not all uses of the land will put the species in jeopardy.
    Issue 3: One commenter stated that we lack jurisdiction to enact 
the proposed rule, and that the rule should be withdrawn because there 
is no connection between regulation of these plants (located in 
California) and a substantial effect on ``interstate commerce.''
    Our Response: The Federal Government has the authority under the 
Commerce Clause of the U.S. Constitution to protect this species. The 
Court of Appeals, in National Association of Home Builders of the U.S. 
v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997). cert. denied, 118 S.Ct. 
2340 (1998), held that application of the Act's prohibitions against 
taking of endangered species was a proper exercise of Commerce Clause 
power. That case involved a challenge to application of the Act's 
prohibitions to protect the listed Delhi Sands flower-loving fly 
(Rhaphiomidas terminatus abdominalis). As with Sidalcea keckii, the 
Delhi Sands flower-loving fly is endemic to only one State.
    The Federal Government also has the authority under the Property 
Clause of the Constitution to protect this species. Sidalcea keckii 
occurs on Federal land, and the courts have long recognized Federal 
authority under the Property Clause to protect Federal resources in 
such circumstances. See Kleppe v. New Mexico, 429 U.S. 873 (1976).
    Issue 4: One commenter stated that we had over-emphasized the 
possibility of future Federal involvement on properties where Sidalcea 
keckii may occur, because the species did not occur in the BOR's Friant 
service area.
    Our Response: The location of one population of Sidalcea keckii in 
Tulare County is close enough to BOR's Friant service area that it may 
be affected by actions relating to BOR's water programs in the area. 
Although the Friant service area may or may not be expanded to include 
the area that contains the occurrence of S. keckii in Tulare County 
(CH2M Hill 1997), we consider both the occurrence in Fresno County and 
the location of the occurrence of S. keckii in Tulare County to be 
included in, and directly or indirectly affected by, our Central Valley 
Project Conservation Program and the cooperative Service and BOR San 
Joaquin Valley Ecological Services Restoration Program. Although we 
will include federally listed species like S. keckii in our 
conservation programs, such inclusion does not mean that we anticipate 
any direct effects that would necessitate section 7 formal consultation 
with the BOR.

Peer Review

    We solicited the expert opinions of three appropriate and 
independent specialists in accordance with our Interagency Cooperative 
Policy for peer review, published on July 1, 1994 (59 FR 34270). We 
requested they review the proposed rule and provide comments on the 
pertinent scientific or commercial data and assumptions relating to the 
taxonomy, population status, and supportive biological and ecological 
information for the proposed plant. The purpose of such review is to 
ensure listing decisions are based upon scientifically sound data, 
assumptions, and analyses, including input of appropriate experts and 
specialists.
    We received two responses from the independent specialists whose 
opinions were solicited. The first reviewer stated that Sidalcea keckii 
is very closely related and very similar to S. diploscypha. Although 
the first reviewer related that the scarcity of knowledge and 
collections of the species make the quality of its distinctiveness from 
other taxa difficult, the reviewer stated that S. keckii should be 
listed as federally endangered. Additionally, the reviewer indicated 
that the soil seed bank where the species had been known to occur or 
currently occurs needs to be protected so that it may grow in favorable 
years.
    The second reviewer found the information in the proposed rule to 
be accurate and the listing action warranted, given our current 
knowledge of the taxon and documented threats. However, the second 
reviewer related that two collections of S. diploscypha from Napa 
County seemed to be very close, if not identical, to S. keckii. Such a 
disjunct range extension and morphological similarity to S. diploscypha 
may present taxonomic and range issues that need to be carefully sorted 
out. The second reviewer stated that until such issues are resolved, S. 
keckii must be afforded protection provided by listing under the Act.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal List of Endangered and Threatened 
Wildlife. 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 Sidalcea keckii Wiggins (Keck's 
checker-mallow) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. One extant population of S. 
keckii, of approximately 60 individuals in Tulare County, was 
discovered in 1992 (J. Stebbins, in litt. 1994). Since 1992, the 
landowner has not granted us permission to enter the property and check 
the status of the population. Another population of S. keckii in Fresno 
County was found in 1998. Only three historical sites for Sidalcea 
keckii have been reported. The species is presumed extirpated at all 
three sites because, despite repeated searches for the species, it has 
not been found at any of these sites since 1939 (J. Stebbins, in litt. 
1994). A report of an occurrence near Porterville, Tulare County, is a 
misidentification of either S. calycosa or S. hirsuta, and is not S. 
keckii (J. Stebbins, in litt. 1994).
    The habitat of the Fresno County population of Sidalcea keckii has 
no known threats, except for random, naturally occurring events such as 
fire. The habitat of the Tulare County population has been degraded, 
and continues to be threatened, by urban development, agricultural land 
conversion, and grazing (J. Stebbins, in litt. 1994). As recently as 
1992, a subdivision was proposed for the private land containing the 
Tulare County population of S. keckii, although that proposal has since 
been withdrawn (Marge Neufeld, Tulare County Planning Department, in 
litt. 1995). Agricultural land conversion also threatens this 
population (California Natural Diversity Data Base (CNDDB)1997). Citrus 
orchards occur within 1.6 km (1 mi) of this population of S. keckii. 
The population is at the same elevation as existing orchards, and has 
soils similar to those on which citrus is grown. Between 1992 and 1997, 
rangelands were converted into citrus orchards on a parcel adjacent to 
the western boundary of the occurrence of S. keckii (Ken Fuller, 
Service, pers. obs. 1999).
    The land on which the population is found changed ownership in 1993 
and is currently used for grazing. Although the current level of 
grazing on the parcel is not thought to pose a threat to the species, 
an increase in grazing intensity could potentially threaten the 
species. The current zoning of this 64-ha (160 ac) property is Planned 
Development Foothill Mobile Home (Roberto Brady, Tulare County Planning 
Department, pers. comm. 1997). This designation

[[Page 7761]]

means that, subject to site plan review, the current or any future 
landowner could place a subdivision, business, or mixed business and 
residential development on the land. The lands adjacent to this 
property, which are owned by the same landowner, are zoned to permit 
citrus, grapes, or other crop agriculture, or cattle grazing (R. Brady, 
pers. comm. 1997). A zoning variance could permit either residential or 
agricultural use of the parcel on which the plant occurs. The 
intentions of the current landowner are unknown.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization is not currently known to be a 
factor for the plant. However, Sidalcea keckii is an attractive, showy 
plant, and the genus is prized as a source of horticultural plants. 
Simply listing a species can precipitate commercial or scientific 
interest, both legal and illegal, which can threaten the species 
through unauthorized and uncontrolled collection. Unrestricted 
collecting for scientific or horticultural purposes, and impacts from 
excessive visits by individuals interested in seeing rare plants could 
result in a reduction of plant numbers and seed production. The two 
known populations of the species are so small that even limited 
collecting pressure could have significant impacts.
    C. Disease or predation. At this time, disease is not known to pose 
any problems for Sidalcea keckii.
    Moderate to light livestock grazing occurs at the Tulare County 
population location. S. keckii is not believed to be selectively 
grazed. However, if the intensity of grazing increases at this site, 
the species may be subject to increased grazing pressure and trampling 
of plants. The timing and intensity of grazing are important factors in 
the effect of grazing on the plant. Livestock grazing during spring and 
summer likely causes the most damage to the species. When herbivores 
eat the flower or seed head of the plant, the reproductive output for 
the year for that individual is destroyed.
    D. The inadequacy of existing regulatory mechanisms. The California 
Environmental Quality Act (CEQA) requires full disclosure of the 
potential environmental impacts of proposed projects. The public agency 
with primary authority or jurisdiction over the project is designated 
as the lead agency and is responsible for conducting a review of the 
project and consulting with the other agencies concerned with the 
resources affected by the project. Section 15065 of the CEQA Guidelines 
requires a finding of significance if a project has the potential to 
``reduce the number or restrict the range of an endangered, rare, or 
threatened species.'' 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 Federal 
or State governments. Once significant effects are identified, the lead 
agency has the option to require mitigation for effects through changes 
in the project or to decide that overriding considerations make 
mitigation infeasible. In the latter case, projects may be approved 
that cause significant environmental damage. Protection of unlisted, 
proposed, and listed species through CEQA is, therefore, dependent upon 
the discretion of the lead agency.
    Sidalcea keckii is not listed by the California Department of Fish 
and Game 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 section 670.2).
    E. Other natural or manmade factors affecting its continued 
existence. Sidalcea keckii is extremely localized, with only one small 
population of approximately 60 individuals and another population with 
216 individual plants (CNDDB 1997; S. Carter, in litt. 1998). Small 
population size increases the susceptibility of a population to 
extirpation from random demographic, environmental, and/or genetic 
events, affecting survival and reproduction of individuals (Shaffer 
1981, 1987; Lande 1988; Meffe and Carroll 1994). Environmental events 
that may put small populations at risk include random or unpredictable 
fluctuations in the physical environment, such as changes in the 
weather (Shaffer 1981, 1987; Lande 1988; Meffe and Carroll 1994). The 
small population of Sidalcea keckii may also be subject to increased 
genetic drift (random fluctuation in gene frequencies) and inbreeding 
(mating by relatives more frequently than would be expected by chance) 
as a consequence of its small population size (Menges 1991; Ellstrand 
and Elam 1993). Decreased genetic variation resulting from genetic 
drift and inbreeding may lead to a loss of fitness (ability of 
individuals to survive and reproduce). Reduced genetic variation in 
small populations may make the species less able to successfully adapt 
to future environmental changes (Ellstrand and Elam 1993). In addition, 
the combination of two small populations, small range, and restricted 
habitat makes S. keckii highly susceptible to extinction or extirpation 
from a significant portion of its range due to random events such as 
flood, fire, disease, drought, or other occurrences (Shaffer 1981, 
1987; Primack 1993; 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 S. keckii.
    Fire is a natural part of the ecosystem where the populations occur 
but because the species is so reduced in range, may adversely affect 
the species, depending on the time of year it occurs. A fire occurred 
in the area of the Tulare County population of S. keckii in the summer 
of 1996 or 1997. The fire started near the two-lane road that borders 
the southern side of the property. The fire burned about 162 ha (400 
ac) before being put out. It is uncertain but unlikely that the 
population of S. keckii was damaged by the fire because the species 
typically blooms in April and May with seed-set soon after flowering, 
and the fire occurred later in the summer. We have not been granted 
permission to enter the property and check the status of the population 
since 1992. If a fire should occur before the plants bloomed or as they 
were blooming, the fire could destroy the individual plants as well as 
deplete the seed bank.
    We have carefully assessed the best scientific and commercial 
information available regarding the present and future threats faced by 
this species in developing this final rule. Only two populations of 
Sidalcea keckii are known to exist, and total only about 276 individual 
plants. The Tulare County population of S. keckii is threatened by 
urban development, agricultural land conversion, and grazing. Both the 
Tulare and Fresno County populations are threatened by naturally 
occurring random events. Although we are not aware of any current 
proposal for either development or conversion of the parcel on which 
the two small populations occur, the Tulare County population occurs in 
an area that is zoned for development or agriculture and is currently 
unprotected from these threats. Sidalcea keckii is in danger of 
extinction throughout its range and, therefore, meets the Act's 
definition of endangered. Because of the high potential for these 
threats, if realized, to result in the extinction of S. keckii, the 
preferred action is to list this plant as endangered.

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

[[Page 7762]]

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. Our regulations (50 
CFR 424.12(a)(1)) state that designation of critical habitat is not 
prudent when one or both of the following situations exist--(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 Sidalcea keckii (Keck's checkermallow) 
because of a concern that publication of precise maps and descriptions 
of critical habitat in the Federal Register could increase the 
vulnerability of these species to incidents of collection and/or 
vandalism. We also indicated that designation of critical habitat was 
not prudent because we believed the limited benefit provided by 
designation was outweighed by the increase in threats from collection 
and/or vandalism.
    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 Sidalcea keckii (Keck's checkermallow) would be prudent.
    Due to the small number of populations, Sidalcea keckii (Keck's 
checkermallow) 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 Sidalcea keckii (Keck's checkermallow) 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 any benefits would result from critical 
habitat designation, then a prudent finding is warranted. In the case 
of this species, 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. 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, in 
some instances section 7 consultation might 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 designation of critical 
habitat is prudent for Sidalcea keckii (Keck's checkermallow).
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states that 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 conservation efforts demand and in light 
of resource constraints. 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 Sidalcea keckii 
(Keck's checkermallow) will allow us to concentrate our limited 
resources on higher priority critical habitat and other listing 
actions, while allowing us to put in place protections needed for the 
conservation of Sidalcea keckii (Keck's checkermallow) without further 
delay.
    We plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. We will develop a 
proposal to designate critical habitat for the Sidalcea keckii (Keck's 
checkermallow) 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.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
public awareness and conservation actions by Federal, State, and 
private organizations, groups, and individuals. Without the elevated 
profile that Federal listing affords, little likelihood exists that any 
conservation activities would be undertaken. 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 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 us 
on any action that is likely to jeopardize the continued existence of a 
species proposed for listing, or result in destruction or adverse 
modification of proposed critical habitat. If a species is 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

[[Page 7763]]

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.
    Listing Sidalcea keckii will provide for development of a recovery 
plan for the plant. Such a plan would bring together both State and 
Federal efforts for conservation of the plant. The plan would establish 
a framework for agencies to coordinate activities and cooperate with 
each other in conservation efforts. The plan would set recovery 
priorities, assign responsibilities, 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, 
we would be able to grant funds to California, the affected State, for 
management actions promoting the protection and recovery of the 
species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all 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, transport or ship 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 to 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 apply to our agents and 
State conservation agencies.
    It is our policy, 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 effects of the listing on 
proposed and ongoing activities within the species' range. The species 
is known to occur on private and Federal lands. Collection, damage, or 
destruction of this species on Federal land is prohibited, although in 
appropriate cases, a Federal endangered species permit may be issued 
for scientific or recovery purposes. Such activities on non-Federal 
lands would constitute a violation of section 9 when conducted in 
knowing violation of California State law or regulations or in 
violation of State criminal trespass law.
    Activities that are not likely to violate section 9 include 
livestock grazing at current intensitities, construction or maintenance 
of fences and livestock water facilities, clearing a defensible space 
for fire protection around one's personal residence, and landscaping 
(including irrigation) around one's personal residence. Questions 
regarding whether specific activities will constitute a violation of 
section 9 should be directed to the Field Supervisor of the 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. Such 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 general inquiries regarding prohibitions and permits 
may be addressed to the U.S. Fish and Wildlife Service, Ecological 
Services, Division of Recovery Planning and Permits, 911 NE 11th Ave., 
Portland, Oregon 97232-4181 (telephone 503/231-2063).

National Environmental Policy Act

    We have determined that an Environmental Assessment or 
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 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any information collection requirements 
for which the 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 the 
clearance number 1018-0094. For additional information concerning 
permits and associated requirements for endangered and threatened 
species, see 50 CFR 17.32.

References Cited

California Natural Diversity Data Base. 1997. An electronic data 
base. Natural Heritage Division. California Department of Fish and 
Game. Sacramento, California.
CH2M Hill. 1997. Draft environmental impact report for the 
consolidated and conformed place of use. U.S. Department of the 
Interior and Bureau of Reclamation. Pages 2-1, 4-2 to 4-5, 4-12, 4-
13, Figs. 2-2 and 2-3.
Ellstrand, N. and D. Elam. 1993. Population genetic consequences of 
small population size: implications for plant conservation. Annual 
Review of Ecological Systems. 24:217-42.
Hickman, J.C., ed. 1993. The Jepson Manual-higher plants of 
California. University of California Press, Berkeley, California. 
Pages 755 and 758.
Lande, R. 1988. Genetics and demography in biological conservation. 
Science 24:1455-1460.
Meffe, G. and Carroll. 1994. Principles of conservation biology. 
Sinauer Associates, Inc. Publishers. Sunderland, Massachusetts. 
Pages 191-194.
Menges, E. 1991. The application of minimum viable populations 
theory to plants. Pages 45-61 in Genetics and conservation of rare 
plants. Falk, D. and K. Holsinger, eds. Center for Plant 
Conservation. Oxford University Press. New York, New York.
Primack, R. 1993. Essentials of conservation biology. Sinauer and 
Associates. Pages 272-273.
Shaffer, M. 1981. Minimum population sizes for species conservation. 
BioScience 31:131-134.
____. 1987. Minimum viable populations: coping with uncertainty. in 
Viable populations for conservation. Soule, M., Ed. School of 
Natural Resources, University of Michigan. Cambridge University 
Press. 16 pp.
Wiggins, I. 1940. A new annual species of Sidalcea. Contributions to 
the Dudley Herbarium 3:55-56.
Woodward and Clyde Consultants. 1992. Focused biological surveys for 
eight target species in Tulare County. Unpublished report. Tulare 
County Association of Governments. Appendix J-1.

Author

    The primary author of this proposed rule is Ken Fuller, 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 
recordkeeping requirements, Transportation.

Regulation Promulgation

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

[[Page 7764]]

PART 17--[AMENDED]

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

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

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


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species
---------------------------------------------------   Historic range         Family           Status       When  listed      Critical      Special rules
        Scientific name             Common name                                                                               habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                 *                  *                   *                   *                  *                   *                   *
Flowering Plants
 
                 *                  *                   *                   *                  *                   *                   *
Sidalcea keckii................  Keck's checker-    U.S.A. (CA)......  Malvaceae--Mallow  E               NA              NA
                                  mallow.
 
                 *                  *                   *                   *                  *                   *                   *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: January 13, 2000.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 00-3278 Filed 2-15-00; 8:45 am]
BILLING CODE 4310-55-U