[Federal Register: October 18, 1996 (Volume 61, Number 203)]
[Rules and Regulations]
[Page 54346-54358]
[DOCID:fr18oc96-11]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC47

Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for Four Plants and Threatened Status for One Plant
From the Central Sierran Foothills of California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
endangered status pursuant to the Endangered Species Act of 1973, as
amended (Act) for four plants--Calystegia stebbinsii (Stebbins'
morning-glory), Ceanothus roderickii (Pine Hill ceanothus),
Fremontodendron californicum ssp. decumbens (Pine Hill flannelbush),
and Galium californicum ssp. sierrae (El Dorado bedstraw). The Service
also determines threatened status for Senecio layneae (Layne's
butterweed). These species all occur on gabbroic or serpentine-derived
soils in the central Sierran foothills of California within chaparral
or oak woodland communities. Urbanization and the ensuing habitat
fragmentation, road construction and maintenance, herbicide spraying,
change in fire frequency, off-road vehicle use, unauthorized dumping,
horse overgrazing, competition from invasive alien vegetation, and
mining imperil these five species. This rule implements Federal
protection and recovery provisions afforded by the Act for these five
plants.

EFFECTIVE DATE: November 18, 1996.

ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the
Sacramento Field Office, U.S. Fish and Wildlife Service, 3310 El Camino
Avenue, Sacramento, California 95825.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp, Sacramento Field Office
(see ADDRESSES section) (telephone 916/979-2122; facsimile 916/979-
2128).

SUPPLEMENTARY INFORMATION:

Background

    Calystegia stebbinsii (Stebbins' morning-glory), Ceanothus
roderickii (Pine Hill ceanothus), Fremontodendron californicum ssp.
decumbens (Pine Hill flannelbush), Galium californicum ssp. sierrae (El
Dorado bedstraw), and Senecio layneae (Layne's butterweed) occur
primarily on the Pine Hill intrusion, an area of approximately 10,400
hectares (ha) (25,700 acres (ac)), in western El Dorado County,
California, ranging in elevation from 138 to 628 meters (m) (453 to
2,060 feet (ft)). In addition, C. stebbinsii and S. layneae have a few
known isolated occurrences in El Dorado, Nevada, and/or Tuolumne
counties, California. All of the species included in this final rule
exhibit substrate preferences. Ceanothus roderickii, F. californicum
ssp. decumbens, and G. californicum ssp. sierrae are endemic to gabbro-
derived soils on the Pine Hill intrusion, and C. stebbinsii and S.
layneae occur on gabbro and serpentine-derived soils. One known
occurrence of S. layneae was found on metamorphic-derived soils.
    Gabbro-derived soils originate from mafic rocks (gabbrodiorite)
that are mildly acidic, are rich in iron and magnesium, and often
contain other heavy metals such as chromium (Wilson 1986). Gabbro, a
dark large-crystalled rock, is formed when liquid magma cools slowly
underground. A red soil is

formed when the rock is exposed and weathers at the earth's surface
(EIP Associates 1991). These soils are well-drained and are underlain
by gabbrodiorite rocks at a depth of more than 1 meter (3.28 feet)
(U.S. Department of Agriculture, Soil Conservation Service 1974).
    Serpentine-derived soils are formed through a process similar to
formation of gabbro-derived soils. Serpentine soils are derived from
ultramafic rocks (e.g., serpentinite, dunite, and peridotite). They
tend to have high concentrations of magnesium, chromium, and nickel,
and low concentrations of calcium, nitrogen, potassium, and phosphorus
(Kruckeberg 1984). ``Gabbro soils are considered to be edaphically
similar to serpentine because of their mineral composition and because
they appear to influence plant distributions in much the same way''
(Wilson 1986).
    The three plant communities occurring on the Pine Hill intrusion
are chaparral, oak woodland, and savanna. The vegetation type of this
area is distinctive enough that Robert Holland (1986), based upon
Wilson (1986), designated a community known as gabbro-derived northern
mixed chaparral. This community is characterized by being ``edaphically
restricted to ultramafic gabbro in a mixed chaparral which is dominated
by Adenostoma fasiculatum (chamise), and usually occurring on rather
xeric exposures'' (Holland 1986). Calystegia stebbinsii, Ceanothus
roderickii, Fremontodendron californicum ssp. decumbens, and Senecio
layneae occur in fire-dependent chaparral habitat; F. californicum ssp.
decumbens and S. layneae also occur in the ecotone between chaparral
and oak woodland; Galium californicum ssp. sierrae and S. layneae occur
in oak woodland (Wilson 1986). None of the plants in this rule occur
within savanna, which makes up approximately 27 percent of the
vegetation on the Pine Hill intrusion.
    Loss of habitat, fragmentation, and alteration of natural ecosystem
processes have resulted from residential and commercial development.
Housing and commercial development, road maintenance, grading, change
in fire frequency, unauthorized dumping, off-road vehicle use,
overgrazing practices, herbicide spraying, mining, competition from
invasive alien vegetation, and other human-caused conditions threaten
the remaining occurrences of these plants.
    These plants occur within a fire-adapted plant community, either
within chaparral or on the ecotone between chaparral and woodland.
Change in fire frequency alters the natural processes within several
plant communities in California. Historically, fire occurred in
chaparral on the average of 3 to 5 times every 100 years (Boyd 1985).
Fire is important for seed germination and seedling reestablishment by
eliminating competition and shading, as well as replenishing nutrients
to the soil. Without periodic fires, the previously mentioned plants
either do not reproduce by seed or may become shaded by other plants.

Discussion of the Five Species

    G. Ledyard Stebbins collected the type specimen of Calystegia
stebbinsii in 1970, 17 kilometers (km) (10 miles (mi)) west of
Placerville in El Dorado County, California. Richard K. Brummitt (1974)
described the species using specimens collected by Stebbins as the
type.
    Calystegia stebbinsii is a leafy perennial herb in the morning-
glory family (Convolvulaceae). Its stems range up to 1 m (3.28 ft) in
length and generally lie flat on the ground. The leaves are palmately
lobed with the two outermost lobes being divided again. The leaf lobes
are narrow and lance-shaped. White flowers, which appear in May through
June, are on stalks 3 to 13 cm (1 to 5 in) long and bear two leaf-like
bracts. The fruit is a slender capsule. Its distinctively shaped
leaves, each having 7 to 9 narrow lance-shaped lobes, distinguish C.
stebbinsii from other California morning-glories.
    Calystegia stebbinsii occurs in two localized areas. Most
occurrences of C. stebbinsii are discontinuously scattered within two
population centers in the northern and southern portions of the Pine
Hill intrusion. Calystegia stebbinsii does not occur at the center of
the intrusion on Pine Hill. It recently was discovered in Nevada County
near the County landfill, where it was sparsely scattered over a
distance of 6.5 km (3.5 mi) (California Diversity Database (CNDDB)
1994). In El Dorado County, the species is associated with chaparral on
gabbro-derived soils. In Nevada County it occurs on serpentine. The
species may have been transplanted from El Dorado County by the
transport of soil to the Nevada County Sanitary Landfill (Carla
DeCrona, California Department of Fish and Game (CDFG), pers. comm.
1992; The Union 1991). Calystegia stebbinsii occurs primarily on
privately owned land, although, the Bureau of Land Management (BLM)
manages land harboring some occurrences. Development has extirpated at
least one-third of the known occurrences (CDFG 1990a). Other threats to
these populations include off-road vehicle use, grading, dumping, road
maintenance, change in fire frequency, and competition with invasive
alien vegetation (CNDDB 1994).
    Beecher Crampton first collected Ceanothus roderickii in 1956 from
Pine Hill in El Dorado County, California. Walter Knight described C.
roderickii in 1968, naming it after Wayne Roderick, who first suspected
the horticultural value of this endemic shrub (Knight 1968). Knight
(1968) considered C. roderickii to be most closely related to C.
cuneatus, which also grows throughout the area. Ceanothus roderickii
can be differentiated from its congeners by its blue-tinged flowers,
prostrate habit, and inconspicuously horned fruit.
    Ceanothus roderickii is a prostrate evergreen shrub of the
buckthorn family (Rhamnaceae) that generally grows to 3 m (9.84 ft) in
diameter. The smooth gray-brown branches radiate from a central axis
and root when they come into contact with the ground. The leaves of the
species are semi-erect with entire margins. Small whitish flowers
tinged with blue appear from May through June. Its fruit is an
inconspicuously horned globe-shaped capsule.
    Ceanothus roderickii is restricted to gabbro-derived soil in
openings in chaparral or more infrequently on previously disturbed
sites within chaparral (Wilson 1986). The species is restricted to one
localized area of approximately 10 known extant occurrences
discontinuously scattered in the Pine Hill intrusion (CNDDB 1994).
Residential and commercial development, inadequate regulatory
mechanisms, off-road vehicle use, road-widening, change in fire
frequency, and other human-caused conditions are responsible for the
decline of C. roderickii. Commercial development has extirpated two
known occurrences (CNDDB 1994). Ceanothus roderickii occurs primarily
on private land. BLM owns part of one site and the California
Department of Forestry (CDF) owns another site.
    Beecher Crampton made the first collection of Fremontodendron
californicum ssp. decumbens in 1956. Robert Lloyd (1965) described F.
californicum ssp. decumbens as F. decumbens based on the type specimen
Lloyd collected in May 1964 from ``California, El Dorado Co., Pine
Hill, ca. 3 km north of Rescue.'' Philip Munz (1968) reduced F.
decumbens to a subspecies of F. californicum. Walter Kelman (1991), in
his revision of Fremontodendron, recognized F. californicum ssp.
decumbens as a full species based upon morphological variation.
Nonetheless, the plant is treated as F. californicum ssp.

decumbens in the Jepson Manual (Whetstone and Atkinson 1993).
    Fremontodendron californicum ssp. decumbens is a branched spreading
shrub of the cacao family (Sterculiaceae) growing to 1.3 m (4 ft) tall.
Dense star-shaped hairs cover the leaves and the younger twigs and
branchlets. The leaves of the subspecies are elliptic-ovate to ovate,
shallowly or deeply palmately lobed with 5 to 7 lobes. Showy light-
orange to reddish-brown flowers appear from late April to early July.
Its fruit is a capsule. Fremontodendron californicum ssp. decumbens can
be distinguished from F. californicum ssp. californicum and F.
mexicanum by its decumbent growth habit, its relatively long peduncles,
and its copper-orange flowers.
    Fremontodendron californicum ssp. decumbens occurs on scattered
rocky outcrops either in chaparral or in the ecotone between woodland
and chaparral. The subspecies depends on fire to promote seed
germination, and Boyd (1996) documented that seeds are dispersed by
ants. It is only known from one localized area near Pine Hill in
western El Dorado County scattered within an area of approximately
2,000 ha (5,000 ac). Although there are some reports of F. californicum
ssp. decumbens occurring in some small scattered populations in Yuba or
Nevada County, other reports describe these individuals as aberrant F.
californicum ssp. californicum. Fremontodendron californicum ssp.
decumbens occurs primarily on private land, but one site is on BLM
land. CDF and CDFG also own another site.
    The largest population of Fremontodendron californicum ssp.
decumbens is on the Pine Hill Ecological Reserve managed by CDFG. The
proximity of this plant to human population centers and intensive
development activities renders F. californicum ssp. decumbens
vulnerable to the long-term effects of fire suppression. The restricted
distribution of the subspecies increases its susceptibility to
catastrophic events such as disease or pest outbreak, severe drought,
or other natural or human-caused disasters. In addition, residential
and commercial development (including unregulated grading for homes or
barns on existing large parcels), and trash dumping threaten F.
californicum ssp. decumbens.
    The type specimen for Galium californicum ssp. sierrae was
collected 1.7 km (1 mi) north of Pine Hill Lookout in western El Dorado
County, California. Lauramay Dempster and G. Ledyard Stebbins (1968)
described G. californicum ssp. sierrae.
    Galium californicum ssp. sierrae is a softly hairy perennial herb
in the coffee family (Rubiaceae). Four narrow leaves are arranged at
each node. The pale yellow flowers, which are clustered at the tips of
stems, appear in May and June. Minute hairs cover the fleshy fruit.
Galium californicum ssp. sierrae can be distinguished from other
subspecies of G. californicum by its very narrow leaves.
    Galium californicum ssp. sierrae is restricted to one localized
area--Pine Hill and surrounding ridges to the west within a distance of
approximately 4 km (2.5 mi) (Baad and Hanna 1987). The subspecies grows
in oak woodland areas, including sites with ponderosa pine and gray
pine (Wilson 1986). Galium californicum ssp. sierrae occurs primarily
on private land. BLM manages the land where at least one population
occurs. CDF and CDFG manage one site as well. Residential development,
road construction, grazing by horses, and irrigation threaten G.
californicum ssp. sierrae. Restricted distribution and limited numbers
of individuals make it susceptible to catastrophic events such as
disease or pest outbreak, severe drought, or other natural disasters.
    Kate Brandegee Layne-Curran collected the type specimen for Senecio
layneae in May 1883 from El Dorado County, California, on Sweetwater
Creek, not far from Folsom. E. L. Greene first described S. layneae in
1883 (Greene 1883). Although Asa Gray reduced S. layneae to a variety
of S. fastigiatus (1884), the species currently is known as S. layneae
(Barkley 1993). The type population is now thought to be extirpated due
to inundation by Folsom Lake.
    Senecio layneae is a perennial herb of the aster family
(Asteraceae) that sprouts from a rootstock. Its mostly basal lance-
shaped leaves are 8 to 24 cm (3 to 10 in) long. The several flower
heads are 4 to 6 cm (2 to 3 in) wide each having 5 to 8 orange-yellow
ray flowers and numerous yellow disk flowers. Senecio layneae flowers
between April and June.
    Senecio layneae grows in open rocky areas within chaparral plant
communities, primarily on gabbro-derived soil formations and
occasionally on serpentine soils. Most known sites are scattered within
a 16,200 ha (40,000 ac) area in western El Dorado County that includes
the Pine Hill intrusion and adjacent serpentine. A few other colonies
occur in the Eldorado National Forest in El Dorado County and in the
BLM Red Hills Management Area in Tuolumne County (BioSystems Analysis,
Inc. 1984). Senecio layneae primarily occurs on privately owned land.
Some populations of S. layneae also occur on Federal land managed
either by the Forest Service or BLM. One site is on land managed by CDF
and CDFG. Residential and commercial development, road maintenance,
change in fire frequency, off-road vehicle use, competition with
invasive alien vegetation, excessive horse grazing practices, mining,
and other human-caused conditions threaten and are responsible for the
declining trend for S. layneae (CDFG 1990b, CNDDB 1994).

Previous Federal Action

    Federal government actions on the five plants began as a result of
section 12 of the Act of 1973, as amended (16 U.S.C. 1531 et seq.),
which directed the Secretary of the Smithsonian Institution to prepare
a report on those plants considered to be endangered, threatened, or
extinct in the United States. This report, designated as House Document
No. 94-51, was presented to Congress on January 9, 1975, and included
Fremontodendron decumbens (now known as Fremontodendron californicum
ssp. decumbens), Galium californicum ssp. sierrae, and Senecio layneae
as endangered and Ceanothus roderickii as threatened. The Service
published a notice on July 1, 1975, (40 FR 27823) of its acceptance of
the report of the Smithsonian Institution as a petition within the
context of section 4(c)(2) (petition provisions are now found in
section 4(b)(3) of the Act) and its intention thereby to review the
status of the plant taxa named therein. The above four taxa were
included in the July 1, 1975, notice. On June 16, 1976, the Service
published a proposal (41 FR 24523) to determine approximately 1,700
vascular plant species, including Calystegia stebbinsii, F. decumbens,
G. californicum ssp. sierrae, and S. layneae, to be endangered species
pursuant to section 4 of the Act. The list of 1,700 plant taxa was
assembled on the basis of comments and data received by the Smithsonian
Institution and the Service in response to House Document No. 94-51 and
the July 1, 1975, Federal Register publication.
    General comments received in relation to the 1976 proposal were
summarized in an April 26, 1978, publication (43 FR 17909). The Act
Amendments of 1978 (Amendments) required the Secretary to withdraw all
proposals not adopted as final regulations within two years from their
publication in the Federal Register. Proposals published before the
date of enactment of the Amendments could be withdrawn before the end
of a 1-year grace period. On December 10, 1979, the Service published a
notice of

withdrawal (44 FR 70796) of the June 16, 1976, proposal, along with
four other proposals that had expired.
    The Service published an updated Notice of Review for plants on
December 15, 1980 (45 FR 82480). This notice included Calystegia
stebbinsii, Fremontodendron decumbens, Galium californicum ssp.
sierrae, and Senecio layneae as category 1 candidates for Federal
listing, and Ceanothus roderickii as a category 2 candidate. Category 1
taxa were those for which the Service had on file substantial
information on biological vulnerability and threats to support
preparation of listing proposals. Category 2 taxa were those for which
data in the Service's possession indicated listing was possibly
appropriate, but for which substantial data on biological vulnerability
and threats were not known or on file to support proposed rules. On
November 28, 1983, the Service published a supplement to the Notice of
Review (48 FR 53640). This supplement changed C. stebbinsii, F.
decumbens, G. californicum ssp. sierrae, and S. layneae from category 1
to category 2 candidates.
    The September 27, 1985 (50 FR 39526), plant Notice of Review
included Calystegia stebbinsii, Ceanothus roderickii, Fremontodendron
californicum ssp. decumbens (as Fremontodendron decumbens), Galium
californicum ssp. sierrae, and Senecio layneae as category 2
candidates. The February 21, 1990 (55 FR 6184), and September 30, 1993
(58 FR 51144), plant notices of review included C. roderickii and F.
californicum ssp. decumbens (as F. decumbens) as category 1 candidates
and C. stebbinsii, G. californicum ssp. sierrae, and S. layneae as
category 2 candidates. On February 28, 1996, the Service published a
Notice of Review in the Federal Register (61 FR 7596) that discontinued
the use of categories and removed former category 2 species from
candidate status.
    Section 4(b)(3)(B) of the Act requires the Secretary to make
certain findings on pending petitions within 12 months of their
receipt. Section 2(b)(1) of the 1982 amendments further required that
all petitions pending on October 13, 1982, be treated as having been
newly submitted on that date. This was the case for Ceanothus
roderickii, Fremontodendron californicum ssp. decumbens, Galium
californicum ssp. sierrae, and Senecio layneae because the 1975
Smithsonian report was accepted as a petition. On October 13, 1982, the
Service found that the petitioned listing of these species was
warranted but precluded by other pending listing actions in accordance
with section 4(b)(3)(B)(iii) of the Act. Notification of this finding
was published on January 20, 1984 (49 FR 2485). Such a finding requires
the petition to be recycled, pursuant to section 4(b)(3)(C)(I) of the
Act. The finding was reaffirmed annually in October of 1983 through
1993. Publication of the proposed rule constituted the final finding
for the petitioned action.
    A proposal to list Calystegia stebbinsii, Ceanothus roderickii,
Fremontodendron californicum ssp. decumbens, and Galium californicum
ssp. sierrae as endangered and Senecio layneae as threatened was
published on April 20, 1994 (59 FR 18774). The proposal was based on
information supplied by reports to the California Diversity Database;
observations and studies by numerous botanists; and reports by EIP
associates, Jones & Stokes Associates, and Biosystems Analysis, Inc.
    The processing of this final listing rule conforms with the
Service's final listing priority guidance published on May 16, 1996 (61
FR 24722). The guidance clarifies the order in which the Service will
process rulemakings following two related events, the lifting, on April
26, 1996, of the moratorium on final listings imposed on April 10, 1995
(Public Law 104-6) and the restoration of significant funding for
listing through passage of the omnibus budget reconciliation law on
April 26, 1996, following severe funding constraints imposed by a
number of continuing resolutions between November 1995 and April 1996.
The guidance calls for giving highest priority to handling emergency
situations (Tier 1) and second highest priority (Tier 2) to resolving
the listing status of the outstanding proposed listings. This final
rule falls under Tier 2.

Summary of Comments and Recommendations

    In the April 20, 1994, proposed rule and associated notifications,
all interested parties were requested to submit factual reports or
information that would contribute to the development of a final rule. A
90-day comment period closed on July 19, 1994. Appropriate Federal and
State agencies, county and city governments, scientists, and interested
parties were contacted and requested to comment. The Service published
notices in the Sacramento Bee on May 6 and 12, 1994, Placerville
Mountain Democrat on May 9, 1994, and Grass Valley Union on May 6,
1994, inviting general public comment. Thirty-eight individuals or
agencies, including State and Federal congressmen, El Dorado County
Board of Supervisors, BLM, California Cattlemen's Association,
California Department of Forestry and Protection, and California Native
Plant Society (CNPS), submitted comments. Several individuals commented
more than once. Ten commenters supported, 25 opposed, and three were
neutral on the proposed action.
    In response to the publication of the proposed rule, Daniel Macon,
Director of Industry Affairs, California Cattlemen's Association;
William Hazeltine, Environmental Consultant, Oroville, California; and
Robert Feusi, Gardner-Feusi Company, Sacramento, California requested a
public hearing in letters dated May 2, 1994, April 4, 1994, and June 3,
1994 respectively. Notice of the public hearing was published in the
Sacramento Bee (June 14, 1994), a newspaper with a large circulation,
as well as in the Placerville Mountain Democrat (June 15, 1994), and
the Grass Valley Union (June 14, 1994). A public hearing was held at
the Radisson Hotel in Sacramento on June 30, 1994, from 6 pm. to 8 pm.
Twenty people presented oral and written testimony.
    Written comments and oral statements presented at the public
hearing and received during the comment period are addressed in the
following summary. Comments of a similar nature are grouped together
into general issues. These issues and the Service's responses are
presented below.
    Issue 1: Many commenters expressed concern that the listing would
negatively impact property owners' ability to clear vegetation from
around their homes for fire protection. One commenter stated the
listing may be in opposition to the State fire codes requiring
``defensible space'' for fire protection. Others thought that
``homeowners who removed vegetation around their homes for fire
protection could be deemed criminals.''
    Service Response: Removing listed plants from one's own land is not
prohibited by the Act. Listing the five plants as endangered or
threatened would not prohibit the cutting of a defensible space around
an individual's residence. Other activities that do not violate section
9(a)(2) of the Act, as well as prohibited acts, are discussed further
under ``Conservation Measures.''
    Issue 2: Several people expressed concerns regarding the adverse
economic impact listing would have on the economy of El Dorado County.
    Service Response: Under section 4(b)(1)(A), 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 the Service is precluded from considering economic impacts in a
final decision on a proposed listing, the Service has not examined such
impacts.
    Issue 3: Several commenters stated that specific data used in
preparation of the proposed rule were unavailable for review and
comment.
    Service Response: The proposed rule summarized and cited available
scientific and commercial information. The supporting documentation was
available during the public comment period for review as stated in the
proposed rule. Two individuals requested to review this documentation.
    Issue 4: Several commenters requested either no further action be
undertaken with the listing process of these five plants because of the
existence of the El Dorado County preserve system plan, or that efforts
be postponed until local attempts to conserve the species are
completed. Several commenters also contended that adequate regulatory
mechanisms currently are in place to protect the plants, through the
California Environmental Quality Act (CEQA) and the California
Endangered Species Act (CESA).
    Service Response: As discussed in Factor D, in the ``Summary of
Factors Affecting the Species'' section, the preserve system approved
in concept by the El Dorado County Board of Supervisors generates no
habitat acquisition funding, provides no clear mechanism to protect
habitat, and fails to include a preserve in the southern part of the
gabbro-derived soil formation. The Service agrees that local ecosystem
planning can be an effective way to coordinate conservation and
development objectives, and we encourage El Dorado County in its
planning effort. However, the present status of the County plan does
not provide sufficient assurances for habitat protection.
    The only protection given to State-listed species is the
requirement that landowners give CDFG 10 days notice of any land use
change. The CEQA requires mitigation for projects that adversely affect
listed species as well as those that qualify for State listing;
however, many mitigation attempts do not secure long-term protection
for such plants (Howald 1993). The failure of existing regulatory
mechanisms to adequately protect the plants are further discussed under
Factor D.
    Issue 5: Several commenters questioned the necessity for listing
the species now, since the species have been under consideration for
Federal listing for 19 years, and contended that the reason the taxa
were being proposed was because of a lawsuit settlement agreement
between the Service and CNPS rather than on purely scientific grounds.
    Service Response: While the CNPS lawsuit settlement may have
brought more public attention to declining California plant species,
the suit does not change the standards by which species are evaluated
for potential listing. As stated under Issue 2 above, the Endangered
Species Act directs the Service to list species on the basis of
biological vulnerability.
    Issue 6: A few commenters stated that the Service must prepare an
Environmental Impact Statement (EIS), pursuant to the National
Environmental Policy Act (NEPA), on this rule.
    Service Response: For the reasons set out in the NEPA section of
this document, the Service has determined that the rules issued
pursuant to section 4(a) of the Act do not require the preparation of
an EIS. The Federal courts have held in Pacific Legal Foundation v.
Andrus, 657 F.2d 829 (6th Circuit 1981), that an EIS is not required
for listing under the Act. The Sixth Circuit decision noted that
preparing an EIS on listing actions does not further the goals of NEPA
or the Act.
    Issue 7: Many commenters indicated that the Service should
designate critical habitat. One commenter stated ``without the process
of assessing and designating critical habitat, the public will be
denied its statutory right to participate in the development of a
rational and effective recovery plan.''
    Service Response: The Service has concluded that, at this time, the
danger posed to the five plant species by designating critical habitat
outweighs any potential benefit. As discussed in the ``Summary of
Factors Affecting the Species'' section, all five plants could be
adversely affected by acts of vandalism if the sites become known
through the critical habitat designation process. In addition, as
discussed further under the ``Critical Habitat'' section, the potential
benefit gained by designating critical habitat is limited. Regarding
development and implementation of recovery plans, Service policy (59 FR
34270) solicits active participation by the scientific community,
local, State, and Federal agencies, Tribal governments, and other
interested parties.
    Issue 8: A few commenters stated that the Service had not
adequately notified the public regarding the proposed rule. Another
commenter requested to have the hearings held locally.
    Service Response: The Service published a notice of the proposed
rule regarding these five plants in the Federal Register on April 20,
1994 (59 FR 18774). The Service mailed 50 notifications of the proposed
rule to Federal, State, county entities, species experts, and other
individuals to solicit their input. Additionally, the Service paid for
the publication of public notices regarding the proposed rule in the
following newspapers--Sacramento Bee, Placerville Mountain Democrat and
the Grass Valley Union. In response to the requests for a public
hearing, the Service announced the scheduling of a public hearing in
the Federal Register on June 9, 1994 (59 FR 29778), and shortly
thereafter published additional notices in the Sacramento Bee, a local
newspaper with a large circulation, the Placerville Mountain Democrat,
and the Grass Valley Union. The Service also mailed notification of the
public hearing to a variety of interested parties.
    Issue 9: One commenter stated that the Service needs to complete a
Regulatory Impact Analysis, as directed by Presidential Executive Order
12630, for the proposed rule to list the five plants. Three commenters
were concerned about the listing violating private property rights
within the Fifth and Fourteenth Amendments to the U.S. Constitution.
    Service Response: Regarding Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights, the Attorney General has issued implementation guidelines to
the Department of the Interior (Department). Under these guidelines, a
special rule applies when an agency within the Department is required
by law to act without exercising its usual discretion--that is, to act
solely upon specified criteria that leave the agency no discretion.
    In this context, an agency's action might be subject to legal
challenge if it did not consider or act upon economic information. In
these cases, the Attorney General's guidelines state that Taking
Implications Assessments (TIAs) shall be prepared after, rather than
before, the agency makes the decision upon which

its discretion is restricted. The purpose of the TIAs in these special
circumstances is to inform policy makers of areas where unavoidable
taking exposures exist. Such TIAs shall not be considered in the making
of administrative decisions that must, by law, be made without regard
to their economic impact. In enacting the Endangered Species Act,
Congress required that listings be based solely upon scientific and
commercial data indicating whether or not the species are in danger of
extinction. Thus, by law and U.S. Attorney General guidelines, the
Service is forbidden to conduct such TIAs prior to listing.
    Regarding personal property rights within the Fifth and Fourteenth
amendments, the mere promulgation of a regulation is rarely sufficient
to establish that private property has been taken unless the regulation
denies the property owner all economically viable use of personal
property. Listing pursuant to the Act does not restrict all uses of
one's land. Property owners cannot establish that their properties have
been taken as a result of a regulatory action such as the listing of a
species until development proposals are denied. Property owners must
apply for all available permits and waivers before takings potentially
could be established.
    Issue 10: One commenter believes the only threat to the plants is
the natural progression of chaparral and change in fire frequency.
    Service Response: As discussed further in the ``Summary of Factors
Affecting the Species'' section, numerous threats imperil these five
species including urbanization and its ensuing habitat fragmentation,
road construction and maintenance, grading, herbicide spraying, off-
road vehicle use, change in fire frequency, unauthorized dumping,
overgrazing by horses, competition from invasive alien vegetation, and
mining.
    Issue 11: One commenter stated Calystegia stebbinsii should not be
listed because it needs disturbance. This commenter also noted that
this plant would not be around after 5 to 10 years without disturbance.
    Service Response: Limited surface disturbance benefits Calystegia
stebbinsii in certain circumstances by promoting initial establishment,
though, the type and amount of disturbance the plant can tolerate is
important. Whereas occasional disturbance for scarification of seed may
be beneficial, other types of disturbance, such as mowing once the
plant is growing, or construction, would be detrimental to the species'
survival.
    Issue 12: One commenter stated that listing the species would cause
needless duplication with the State process.
    Service Response: Federal and State regulations often complement
each other. For example, as discussed in Factor D in the ``Summary of
Factors Affecting the Species'' section, the CEQA and CESA apply only
to actions on private and State lands. Whereas, the Act primarily
covers Federal land and Federal actions that may affect proposed and
listed species.
    Issue 13: Some commenters believed no specific justification for
listing exists, or questioned the adequacy of the data. One commenter
believed that many of the items listed in the proposed rule were wholly
inaccurate and did not support the listing. One commenter stated the
listing should be based on good science and local peer review.
    Service Response: Specific justification for listing the five plant
species is summarized in Factors A through E. The Service used
information received from the CNDDB, botanical collections,
knowledgeable botanists, and from studies specifically directed at
gathering the information on the distribution and threats to the five
plants. Additionally, information was received from Federal, State, and
local agencies, and professional botanists during the preparation of
the proposed rule. Destruction, loss of habitat, and extirpation of
populations of these plants from a variety of causes have been
documented. As discussed in Issue 8, the Service sought comments on the
proposed rule from Federal, State, county entities, species experts,
and other individuals. All substantive new data received during the
public comment period have been incorporated into the final rule.
    Issue 14: One commenter stated that grazing by cattle and other
ungulates has been a historical and integral component of the central
Sierran ecosystem, and that properly managed grazing by cattle and
other domestic livestock can create the habitat conditions and
vegetative diversity required by many species of plants and wildlife.
    Service Response: The commenter did not provide specific
information on the role of domestic livestock in the gabbro-derived/
serpentine habitat of the five plants. However, assuming the area
referred to includes chaparral, wild ungulates and other herbivores,
such as deer and rabbit species, have been an integral component of the
ecosystem. Chaparral characteristically does not produce high amounts
of grass and, typically, is not an important source of forage for
domestic livestock (Stoddart et al. 1975). The Service agrees that
cattle and other domestic livestock can be managed to achieve natural
resource objectives, including a diversity of habitats for many species
of plants and wildlife.
    To determine the effects of grazing, site specifics of the
management regime need to be considered and evaluated. Grazing by
cattle in rangeland situations currently does not appear to be
affecting these plants on the Pine Hill intrusion. As discussed in
Factor C, the principal impact on the plants under consideration is
consumption that results when horses are paddocked on small rural
residential lots of insufficient size to provide adequate forage or
pasture.
    Issue 15: One commenter stated that there has been no further
degradation or destruction of habitat of any kind since 1989.
    Service Response: While public awareness of the importance of
protecting plant habitat has increased, as discussed in Factors A and
E, the primary threat facing these plants remains habitat destruction
and fragmentation from urbanization, road construction, and increased
human activity.
    Issue 16: One commenter was concerned about what happens when a
species that is thought to be rare is listed and new populations are
subsequently found.
    Service Response: If scientific or commercial information indicates
a species is much more abundant or widely spread than is currently
thought and/or a species is no longer endangered or threatened by any
of the five factors, a species may be delisted. The process for
delisting a species is similar to the process for listing a species.
Although additional populations of the five proposed plants could be
found, it is unlikely that many populations would contain large
numbers. As discussed in the ``Introduction'' and ``Summary of the
Factors Affecting the Species'' sections, these plants are habitat
specific endemics that are exposed to range-wide human related threats.
    Issue 17: One commenter stated that managing fire on smaller rather
than larger units is both practical and often more ecologically
beneficial due to the greater control that can be achieved.
    Service Response: The Service agrees that fire can be applied in a
more precise way on smaller units than larger units. The Service
desires to work cooperatively with local fire management agencies in
designing prescriptions that accommodate public safety and plant
conservation objectives.

    Issue 18: One commenter claimed that the Service has no
jurisdiction over the five proposed species because at least 80 percent
of the existing populations occur on private land.
    Service Response: Section 4 of the Act directs the Service to
evaluate species for listing based on biological information only. The
five factors on which the biological vulnerability of species are
evaluated are discussed in the ``Summary of Factors Affecting the
Species'' section. Land ownership is not a factor used to determine
whether listing is appropriate.
    Issue 19: Two commenters were concerned about the additional time
that might be added to implementing a controlled burn program due to
the section 7 consultation process. One commenter wanted the Public
Agencies Prescribed Burn Plan and Environmental Review to be accepted
in lieu of the section 7 process. The other commenter wanted special
rules to advocate professionally planned and implemented prescribed
burning.
    Service Response: The Service recognizes the importance of properly
timed prescribed burns as a conservation measure, not only for
maintaining habitat, but also for protecting human life and personal
property. At least 80 percent of the occurrences of these plants are on
private land. No special rules are needed to facilitate private land
burning. Prescribed burning on private land would not be subject to
section 7 consultation. Section 7 of the Act requires Federal agencies
to evaluate their actions with respect to any species that is proposed
or listed as endangered or threatened. A programmatic section 7
consultation could be performed for prescribed burns on Federal lands
to eliminate the need to consult on each prescribed burn activity.
    Issue 20: A few commenters expressed concern regarding the impact
of listing the plants to private property owners when Federal funding
permitting is required. A couple of commenters stated the listing would
infringe on local water rights issues, including Federal involvement in
any Auburn Dam work.
    Service Response: Section 4 of the Act directs the Service to
evaluate species for listing based on biological information only. The
five factors on which the biological vulnerability of species are
evaluated are discussed in the ``Summary of Factors Affecting the
Species'' section. Impact to private landowners when Federal funding is
involved, or infringement on local water rights issues are not factors
used to determine whether or not listing is appropriate.
    Section 7(a)(2) requires Federal agencies to insure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of listed species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
formal consultation with the Service.
    Issue 21: Two commenters noted confusion regarding the amount of
habitat that is federally owned.
    Service Response: The Service wishes to clarify the figures within
the proposed rule. The Service arrived at the reported 80 percent of
occurrences being on private land at by dividing the number of
occurrences on private land by the total number of occurrences. It is
not a percentage of the habitat that is federally owned. The 10,400 ha
(25,700 ac) referred to in the rule is the area of the gabbro-derived
soils. The 16,200 ha (40,000 ac) within the rule refers to an area that
includes the gabbro-derived soils plus adjacent serpentine soils in
western El Dorado County. Within this 16,200 ha area, 95 percent of the
land is outside Federal ownership (John Upton, County of El Dorado, in
litt. 1994).

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information
available, the Service has determined that Calystegia stebbinsii,
Ceanothus roderickii, Fremontodendron californicum ssp. decumbens,
Galium californicum ssp. sierrae should be classified as endangered
species and Senecio layneae should be classified a threatened species.
Procedures found at section 4(a)(1) of the Act and regulations
implementing the listing provisions of the Act (50 CFR part 424) were
followed. A species may be determined to be 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 Calystegia stebbinsii
Brummitt (Stebbins' morning-glory), Ceanothus roderickii Knight (Pine
Hill ceanothus), Fremontodendron californicum ssp. decumbens (Lloyd)
Munz (Pine Hill flannelbush), Galium californicum H. & A. ssp. sierrae
Dempster & Stebbins (El Dorado bedstraw), and Senecio layneae Greene
(Layne's butterweed) are as follows:
    A. The present or threatened destruction, modification, or
curtailment of its habitat or range. At least 80 percent of the
occurrences for these five plant species are on private land. They
primarily occur on the Pine Hill intrusion, an area of approximately
10,400 ha (25,700 ac) in western El Dorado County. A few isolated
occurrences of Calystegia stebbinsii or Senecio layneae are known from
El Dorado, Nevada, and/or Tuolumne counties (EIP Associates 1991, CNDDB
1994). The primary threat facing these five species and their
associated habitat is the ongoing and threatened destruction and
modification of habitat by one or more of the following--urbanization
and the ensuing habitat fragmentation, road construction and
maintenance, off-road vehicle use, and mining.
    Nearly all the remaining occurrences of the five species are
threatened by destruction of habitat through residential or commercial
development. The human population of the four counties just east of the
Sacramento metropolitan area (Nevada, Placer, El Dorado, and Amador)
increased 375 percent between 1960 and 1992 (Engellenner 1993). El
Dorado County, which has a projected population growth of 54 percent
between 1990 and 2005, is one of the most rapidly growing counties in
California (California Department of Finance 1991, Jones and Stokes
Associates 1992). In 1991, the population grew by 4.2 percent; faster
than the projected growth rate of 3.6 percent (California Department of
Finance 1992). Western El Dorado County is becoming a bedroom
community, as it is easily accessible by freeway from several nearby
cities including Sacramento. Most of the new residential growth in El
Dorado County is expected to occur within western El Dorado County near
Highway 50 (Jones and Stokes Associates 1992), which crosses the
southern portion of the Pine Hill intrusion.
    Within the gabbro-derived soil and adjacent serpentine formations
in western El Dorado County, 39 proposed development projects, which
variously threaten to fragment the habitat of all five species, are
currently on file with El Dorado County. Development currently is
planned for approximately 8.5 percent of this 16,200 ha (40,000 ac)
area. In addition, the El Dorado County General Plan update proposes
the conversion of vacant and agricultural land to various residential
uses within the 38,400 ha (95,000 ac) western service area of the El
Dorado County Irrigation District (EID) (Jones and Stokes Associates
1992), which encompasses nearly the entire Pine Hill intrusion. It is
estimated that at least 50 percent of the Pine Hill intrusion is

within the EID boundary (Kirsten Tarp, Fish and Wildlife Service, pers.
comm. 1996).
    The proposed land uses within the western service area of the EID
include a 1,000 percent increase in single family residences (from a
current level of 1,857 ha (4,589 ac) to 20,254 ha (50,047 ac)) and a
doubling of the rural residential uses (from 7,630 ha (18,860 ac) to
15,780 ha (39,000 ac)) (Jones and Stokes Associates 1992). The El
Dorado County Water Agency proposed the construction of either
additional dams, water storage facilities, or water conveyance lines on
the South Fork of the American River (Jones and Stokes Associates 1992,
El Dorado County Water Agency 1993). The subsequent induced growth
would affect all five species in both the northern and southern
portions of the Pine Hill intrusion and adjacent serpentine, either by
further fragmenting the habitat (as discussed below) or by directly
destroying habitat. The expanding number of people and changes in land
uses will continue to place an increasing strain on undeveloped areas
through activities such as off-road vehicle traffic, unauthorized
garbage dumping, and changes in the pattern of wildfires.
    Historical gold rush activities and clearing for agriculture
reduced and fragmented habitat of the five plants. Currently, these
plants face threats from habitat fragmentation associated with
commercial and residential development and road construction.
Fragmentation splits habitat into smaller, more isolated units and has
two primary effects. First, habitat fragmentation may alter the
physical environment, changing the amount of incoming solar radiation,
water, wind, or nutrients for the remnant vegetation (Saunders et al.
1991). Second, a higher proportion of these fragmented natural areas is
subject to influences from external factors (e.g., additional
development, lawn and garden watering, herbicide drift, and off-road
vehicular use) that disrupt natural ecosystem processes.
    The vegetation structure on the Pine Hill intrusion has changed
significantly due to commercial and residential development, road
construction, and historical fragmentation. Hunter and Horenstein
(1991) characterized vegetation structure on the Pine Hill intrusion
and estimated the median patch size to be only 11 ha (27 ac). This
degree of fragmentation is significant within chaparral because plant
species will disappear from fragments between 10 and 100 ha (25 to 250
ac) in size due to persistent disturbance and potentially due to change
in fire frequency (Soule et al. 1992). These and other effects of
fragmentation are discussed further.
    Twelve potential preserve sites were identified as the best
remaining habitat for the five plants on the Pine Hill intrusion and
adjacent serpentine (EIP Associates 1991). Within these 12 sites, at
least 11 residential or commercial projects (Bass Lake Estates, Cameron
Ridge, Fremont's Peak, Kanaka Valley, Pinnacles, Ponderosa 50, Sunset
Heights, Woodleigh Ridge, and three approved parcel splits) are
proposed (El Dorado County Planning Staff 1992). These projects
threaten all five plants to varying degrees by directly destroying
individual plants or further fragmenting and destroying their habitat.
    Activities often associated with rural residential areas, such as
clearing chaparral for fire protection around houses, bulldozing land
(to build houses or other structures), planting fruit trees, and
irrigation, also have modified the habitat within western El Dorado
County (James Jokerst, Jones and Stokes Associates, pers. comm. 1993;
Jo Van Ess, California State University, Sacramento, pers. comm. 1993).
The ongoing repetitive clearing of chaparral destroys the habitat.
Irrigation involved with lawn maintenance also adversely affects these
species (Jo Van Ess, pers. comm. 1993; James Jokerst, pers. comm.
1993).
    Commercial and residential development has extirpated at least one-
third of the known occurrences of Calystegia stebbinsii (CDFG 1990a,
CNDDB 1994). Most of the remaining occurrences for C. stebbinsii are on
the Pine Hill intrusion. All of these sites, except for those in the
northern part, are in areas threatened by rapid residential and
commercial development as discussed above. Habitat for C. stebbinsii in
Nevada County is threatened by a proposed County works project (CDFG
1990a).
    Other human activities also destroy or damage habitat of Calystegia
stebbinsii. One occurrence was adversely impacted by grading for
construction (CNDDB 1994). Off-road vehicle use has adversely impacted
the habitat of C. stebbinsii at one site (CNDDB 1994). In the northern
part of the Pine Hill intrusion, several hills are scarred with off-
road vehicle tracks. Erosion promoted by scarring adversely modifies
the habitat. Road maintenance and herbicide spraying potentially
threaten another site of C. stebbinsii that occurs along a road cut
(CNDDB 1994).
    Shopping center construction and other commercial development
extirpated two occurrences of Ceanothus roderickii (CNDDB 1994). Road-
widening also threatens the habitat of C. roderickii at one site (CNDDB
1994). Off-road vehicle use degrades the habitat at three sites in the
northern part of the area (CNDDB 1994).
    Construction of houses on and near Pine Hill resulted in the loss
of many individuals of Fremontodendron californicum ssp. decumbens
(George Clark, in litt. 1993). Land clearing activities that occur with
road construction also threaten F. californicum ssp. decumbens. In
1968, all the vegetation along the Pine Hill approach road was cut. In
1969, the west slope of Pine Hill was cleared by the CDF, demolishing
80 percent of the F. californicum ssp. decumbens within the boundaries
of the current Pine Hill Ecological Reserve (Baad and Hanna 1987). Most
of these shrubs have resprouted. Presently, the Pine Hill Ecological
Reserve, managed by CDFG, has the largest occurrence of F. californicum
ssp. decumbens.
    No known extirpations of Galium californicum ssp. sierrae due to
residential or commercial development have occurred. However, as
discussed above, residential or commercial development and activities
associated with rural residential areas threaten G. californicum ssp.
sierrae within the potential reserve area identified as the best
remaining habitat. Galium californicum ssp. sierrae has a small
population size and a restricted distribution almost entirely on
private land.
    Commercial and residential development extirpated two occurrences
of Senecio layneae (CNDDB 1994). Many of the remaining occurrences of
S. layneae are in areas undergoing rapid commercial and residential
development. Senecio layneae is also potentially threatened by a
variety of disturbances including road maintenance, vegetation removal,
and off-road vehicle use (CNDDB 1994). Road widening occurs in the
vicinity of development within El Dorado County, and this activity has
already extirpated one occurrence and threatens an additional five
sites (CNDDB 1994). Intensive off-road vehicle use threatens two
additional occurrences of this species (CNDDB 1994). Off-road vehicle
use occurred historically in Tuolumne County on BLM land, but this
activity no longer occurs there. Currently, off-road vehicle use occurs
on two sites within the Pine Hill intrusion on privately owned land.
One site of S. layneae in the northern part of the intrusion is
impacted by heavy off-road vehicle use and has been fragmented by the
numerous roads that traverse the entire area. A southern site of S.
layneae

that occurs across 89 ha (221 ac) was cleared in preparation for
development and is subject to off-road vehicle use over part of the
site (CNDDB 1994).
    Habitat for Senecio layneae within the Traverse Creek Botanical
Area in Eldorado National Forest historically was fragmented by
serpentine quarrying. In addition, mining claims for semi-precious
stones and gold exist on S. layneae habitat in the Eldorado National
Forest. Although the Eldorado National Forest is trying to withdraw
these claims, the withdrawal action may not be achieved (Mike Foster,
Eldorado National Forest, pers. comm. 1993).
    Destruction and fragmentation of habitat by commercial and
residential development is the most significant and imminent threat
facing Calystegia stebbinsii, Ceanothus roderickii, Fremontodendron
californicum ssp. decumbens, Galium californicum ssp. sierrae, and
Senecio layneae. Proposed residential or commercial development within
the Pine Hill intrusion, combined with growth likely induced by
proposed dams on the South Fork of the American River, threaten the
majority of sites within the Pine Hill intrusion and adjacent
serpentine in western El Dorado County and will adversely impact most
of the range of all five taxa. Road widening, off-road vehicle use,
garbage dumping, and other human-caused conditions associated with
increased development threaten individual occurrences of these five
species throughout their respective ranges.
    B. Overutilization for commercial, recreational, scientific, or
educational purposes. Overutilization is not currently known to be a
factor for the five plants, but unrestricted collecting for scientific
or horticultural purposes, vandalism, or excessive visits by
individuals interested in seeing rare plants could result from
increased publicity. Two of the species included in this proposal,
Ceanothus roderickii and Fremontodendron californicum ssp. decumbens,
have been used horticulturally (Schmidt 1993, Whetstone 1993), but they
do not appear to be threatened by collection in the wild.
    C. Disease or predation. Disease is a potential factor for
Fremontodendron californicum ssp. decumbens. In cultivation F.
californicum ssp. decumbens is highly susceptible to a wilt disease
that can kill the plant almost overnight (Knight 1972). This mortality
has not been observed in the field. Plants proximate to residences may
be vulnerable to supplemental moisture from irrigation of lawns or
gardens. Disease is not known to be a factor for any of the other taxa.
    Intense insect and rodent predation occurs on Fremontodendron
californicum ssp. decumbens. Boyd and Serafini (1992) studied
reproductive attrition in F. californicum ssp. decumbens. They found
that less than 2 percent of flower buds produced fruit because of
predation by insects. In addition, rodents destroyed 90 percent of
seeds under shrubs within 8 to 10 months (Boyd and Serafini 1992).
Because F. californicum ssp. decumbens is very restricted in range and
few individuals exist, this predation increases the chance for
extinction as discussed under Factor E.
    Overgrazing by horses in rural residential areas within the Pine
Hill intrusion threatens Calystegia stebbinsii, Galium californicum
ssp. sierrae, and Senecio layneae. The horses, when confined, severely
graze virtually all available vegetation.
    Documentation of population extirpations as a result of disease and
predation does not exist. However, as discussed under Factors A and E,
small population size and fragmentation increases the plants'
vulnerability to predation.
    D. The inadequacy of existing regulatory mechanisms. Calystegia
stebbinsii is listed as an endangered species under the CESA (chapter
1.5 sec. 2050 et seq. of the California Fish and Game Code and Title 14
California Code of Regulations 670.2). Ceanothus roderickii,
Fremontodendron californicum ssp. decumbens, Galium californicum ssp.
sierrae, and Senecio layneae are listed by the State as rare.
Individuals are required to obtain a memorandum of understanding with
the CDFG to possess or ``take'' a species listed under the CESA.
Although the ``take'' of State-listed plants is prohibited (California
Native Plant Protection Act, chapter 10 sec. 1908 and CESA, chapter 1.5
sec. 2080), State law exempts the taking of such plants via habitat
modification or land use changes by the owner. State law does not
necessarily prohibit activities that could extirpate these species.
After CDFG notifies a landowner that a State-listed plant grows on his
or her property, State law requires that the landowner notify the
agency ``at least 10 days in advance of changing the land use to allow
salvage of such a plant'' (Native Plant Protection Act, chapter 10 sec.
1913). Ten days may not allow adequate time for agencies to coordinate
the salvage of the plants.
    The CEQA requires a full disclosure of the potential environmental
impacts of proposed projects. The public agency with primary authority
or jurisdiction over the project is designated as the lead agency and
is responsible for conducting a review of the project and consulting
with the other agencies concerned with the resources affected by the
project. Section 15065 of the 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 are
given the same protection as species officially listed under State or
Federal endangered species acts. Once significant effects are
identified, the lead agency has the option to require mitigation for
effects through changes in the project or to decide that overriding
considerations make mitigation infeasible. In the latter case, projects
may be approved that cause significant environmental damage, such as
destruction of endangered species and their habitats. Protection of
listed species through CEQA is, therefore, dependent upon the
discretion of the lead agency.
    Section 21080(b) of CEQA allows certain projects to be exempted
from the CEQA process. Ministerial projects, those projects that the
public agency must approve after the applicant shows compliance with
certain legal requirements, may be approved or carried out without
undertaking CEQA review.
    When development occurs and individual project effects are
mitigated in accordance with the provisions in CEQA, the developer
often will set aside small natural areas within the development. These
small ``set asides'' are vulnerable to the problems of habitat
fragmentation as discussed further under Factors A and E. These small
set asides are impractical to manage for fire (discussed further under
Factor E). Land development and multiple ownership makes difficult the
planning and implementation of controlled burns at the appropriate fire
frequency necessary for the maintenance of chaparral.
    Within El Dorado County over the past several years, attempts have
been made to establish a preserve system to protect chaparral habitat.
An initial report on preserve sites and rare plant strategies,
completed in November 1991, identified 12 potential preserve sites. In
1992, El Dorado County held public workshops concerning this report. A
rare plant advisory committee, consisting of members from the
development community, various agencies (CDFG, BLM, Service), El Dorado
County planning staff, CNPS, and others, was established to identify

feasible preserve sites, funding mechanisms, and management strategies
for these preserves.
    The County Board of Supervisors evaluated the preserve sites
identified by the rare plant advisory committee and eliminated the
large southern preserve site. It approved in principle two other large
preserve sites and the two small satellite sites; however, the majority
of the Board would not consider any local funding to establish or
maintain the preserves (George Clark, in litt. 1993; Kirsten Tarp, U.S.
Fish and Wildlife Service, pers. obs. 1993). The establishment and
maintenance of a sufficient reserve system likely will not occur
without adequate funding.
    E. Other natural or manmade factors affecting its continued
existence. Altered periodicity of fire (change in fire frequency)
threatens Calystegia stebbinsii, Ceanothus roderickii, Fremontodendron
californicum ssp. decumbens, and Senecio layneae. These plants occur
within a fire-adapted plant community, either within chaparral or on
the ecotone between chaparral and woodland. Fire suppression policies
have altered natural processes within several plant communities in
California. Historically, fire occurred in chaparral on the average of
3 to 5 times every 100 years (Boyd 1985). As described below, fire is
important for seed germination and seedling reestablishment by
eliminating competition and shading, as well as replenishing nutrients
to the soil. Without periodic fires, the previously mentioned four
plants either do not reproduce by seed or may become shaded by other
plants. In a study of the effects of controlled burning on three rare
plants occurring on Pine Hill within western El Dorado County, Boyd
(1985, 1987) found that fire killed C. roderickii shrubs, but caused a
22-fold increase in seed germination. He also found that the growth
rate of seedlings was greater in the burned area than in the unburned
area.
    Fremontodendron californicum ssp. decumbens seeds require heat from
fire to germinate. Fremontodendron californicum ssp. decumbens also
resprouts vegetatively after a burn. In studying reproductive attrition
in F. californicum ssp. decumbens, Boyd and Serafini (1992) found that
seeds of F. californicum ssp. decumbens cannot successfully develop and
germinate without the benefit of fire. They concluded that to maintain
genetic diversity and establish plants at new localities within the
boundaries of the current populations, sexual reproduction versus plant
root sprouting may be necessary over long time periods. The authors
further concluded that these goals could be accomplished by controlled
burns.
    Initial studies also show seeds of Calystegia stebbinsii need
disturbance by either heat or scarification for germination (Tim Nosal,
CDFG, pers. comm. 1993; Paul Boch, Nevada County Agricultural
Commissioner, in litt., 1993). Calystegia stebbinsii also is associated
with fire. At the Nevada County landfill site, this species is more
prevalent in the burned areas than in the unburned areas (Paul Boch, in
litt. 1993). Calystegia stebbinsii is eliminated as soon as the
surrounding chaparral grows tall enough to shade it.
    Excessive fire frequency also potentially threatens Ceanothus
roderickii and Fremontodendron californicum ssp. decumbens. These
plants need sufficient time between burns to set enough seed to
replenish the soil seedbank. Mature plants of F. californicum ssp.
decumbens also need to build up carbohydrate reserves to be able to
resprout after a fire (Boyd 1985).
    The suppression of fire and other forms of disturbance threatens
Senecio layneae and Calystegia stebbinsii. Limited surface disturbance
is beneficial to these species in certain circumstances by promoting
initial establishment (James Jokerst, pers. comm. 1993). Senecio
layneae appears to be an early successional species that occupies
temporary openings on gabbro-derived or serpentine and is eliminated as
vegetation regrows in the openings (Baad and Hanna 1987).
    Competition with invasive alien vegetation, herbicide spraying, and
unauthorized dumping threaten individual occurrences of Calystegia
stebbinsii. An introduced species of field bindweed, Convolvulus sp.,
competes with one colony of C. stebbinsii within Nevada County (CNDDB
1994). Trash dumping also threatens three occurrences of C. stebbinsii
(CNDDB 1994). Herbicide spraying potentially threatens a significant
portion of one occurrence of C. stebbinsii near Shingle Springs and
several local occurrences adjacent to roads (Tim Nosal, pers. comm.
1993).
    Herbicide spraying and trash dumping threaten one occurrence of
Ceanothus roderickii (CNDDB 1994). Habitat degradation from garbage
dumping on ridge-tops around Pine Hill degrades the habitat and is a
minor threat to Fremontodendron californicum ssp. decumbens (James
Wilson, Sierra College, pers. comm. 1993).
    As discussed under Factor A, habitat fragmentation may alter the
physical environment. Chaparral plants reportedly disappeared from
fragments 10 to 100 ha (25 to 250 ac) in size due to persistent
disturbance and potentially to change in fire frequency (Soule et al.
1992). In addition, habitat fragmentation increases the risks of
extinction due to environmental, demographic, or genetic random events.
    Competition with invasive alien vegetation and shading from native
tree and shrub species potentially threaten Senecio layneae. Several
alien plant species, including Cytisus scoparius (Scotch broom), have
become established within the Traverse Creek Botanical Area in Eldorado
National Forest and potentially threaten this occurrence of S. layneae
(Duron 1990, Pollak 1990).
    One occurrence of Senecio layneae is thought to have been
extirpated by road-side herbicide application (Oren Pollak, The Nature
Conservancy, pers. comm. 1993). This activity may threaten several
other occurrences of this species.
    The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these species in determining to finalize this
rule. Proposed residential and commercial development, and habitat
fragmentation threaten all occurrences of Calystegia stebbinsii,
Ceanothus roderickii, Galium californicum ssp. sierrae, and
Fremontodendron californicum ssp. decumbens on the Pine Hill intrusion
and adjacent serpentine formations in western El Dorado County. Changes
in fire frequency threaten C. stebbinsii, C. roderickii, and F.
californicum ssp. decumbens, throughout their respective ranges.
Senecio layneae is threatened by development or habitat fragmentation
throughout a portion of its range and by changes in fire frequency
throughout its entire range. Road construction and maintenance,
grading, unauthorized dumping, excessive grazing practices, herbicide
spraying, off-road vehicle use, competition from invasive alien
vegetation, shading by native vegetation, irrigation, and mining affect
individual occurrences of the five taxa.
    Calystegia stebbinsii, Ceanothus roderickii, Fremontodendron
californicum ssp. decumbens, and Galium californicum ssp. sierrae are
in danger of extinction throughout all or a significant portion of
their ranges, and the final action, therefore, is to list them as
endangered. Because of its wider distribution, Senecio layneae is not
now in immediate danger of extinction throughout all or a significant
portion of its range; however, unless current human population trends
and development are reversed it is likely to become an endangered
species in the

foreseeable future throughout all or a significant portion of its
range. Therefore, the final action is to list Senecio layneae as
threatened.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
consideration or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
determination that such areas are essential for the conservation of the
species. ``Conservation'' means the use of all methods and procedures
needed to bring the species to the point at which listing under the Act
is no longer necessary.
    Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
the Secretary determine critical habitat concurrently with determining
a species to be endangered or threatened. The Service finds that
designation of critical habitat is not prudent for Calystegia
stebbinsii, Ceanothus roderickii, Fremontodendron californicum ssp.
decumbens, Galium californicum ssp. sierrae, and Senecio layneae at
this time. Service regulations (50 CFR 424.12(a)(1)) state that
designation of critical habitat is not prudent when one or both of the
following situations exist--(1) the species is threatened by taking or
other human activity, and identification of critical habitat can be
expected to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
    Because the five plants face numerous human-caused threats (see
Factors A and E in ``Summary of Factors Affecting the Species'') and
the five occur predominantly on private land, the publication of
precise maps and descriptions of critical habitat in the Federal
Register would make these plants more vulnerable to incidents of
vandalism and, therefore, could contribute to the decline of these
species and increase enforcement problems. The listing of these species
as endangered and/or threatened also publicizes the rarity of these
plants and, thus, can make these plants attractive to researchers,
horticulturalists, or collectors of rare plants, as discussed under
Factor B.
    Protection of the habitat of these species will be addressed
through the recovery process and the section 7 consultation process.
The Service believes that Federal involvement in the areas where these
plants occur can be identified without the designation of critical
habitat. Therefore, the Service finds that designation of critical
habitat for these plants is not prudent at this time because such
designation likely would increase the degree of threat from vandalism,
collecting, or other human activities.

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 local
agencies, private organizations, and individuals. The Act provides for
possible land acquisition and cooperation with the State and requires
that recovery plans be developed for all listed species. The protection
required of Federal agencies and the prohibitions against certain
activities involving listed plants are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a proposed species or result in destruction or adverse
modification of proposed critical habitat. If a species is listed
subsequently, section 7(a)(2) requires Federal agencies to insure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with the Service.
    At least 80 percent of the occurrences for these five species are
on privately owned lands. However, BLM manages land supporting
populations of all five plants, and Senecio layneae occurs on Federal
land managed by the Forest Service. Both agencies would become involved
with any or all of these species as they are responsible for managing
land use of areas supporting these species.
    The Veterans Administration and the U.S. Department of Housing and
Urban Development (Federal Home Administration loans) may become
involved with these species through their administration of Federal
mortgage programs. The construction and maintenance of roads and
highways by the Federal Highway Administration, the relicensing of
hydroelectric projects by the Federal Energy Regulatory Commission, and
the contracting of surface waters for irrigation, industrial, or
municipal uses by the Bureau of Reclamation would necessitate
involvement with these species under the Act. Also, the Army Corps of
Engineers could potentially become involved with these species through
its permitting authority under section 404 of the Clean Water Act. By
regulation, nationwide permits may not be issued where a federally
listed threatened or endangered species would be affected by a proposed
project without first completing formal consultation pursuant to
section 7 of the Act. The presence of a listed species would highlight
the importance of these resources. Therefore, the Army Corps of
Engineers would be required to consult with the Service on any proposed
dam construction or any proposed permits for fill operations that would
adversely affect any of these plants.
    Listing Calystegia stebbinsii, Ceanothus roderickii,
Fremontodendron californicum ssp. decumbens, and Galium californicum
ssp. sierrae as endangered and Senecio layneae as threatened provides
for the development of a recovery plan(s), which will bring together
State and Federal efforts for conservation of these plants. The
recovery plan(s) would establish a framework for agencies to coordinate
activities and cooperate with each other in conservation efforts. The
plan(s) would set recovery priorities and estimate costs of various
tasks necessary to accomplish them. It also would describe site-
specific management actions necessary to achieve conservation and
survival of these species. Additionally, pursuant to section 6 of the
Act, the Service would be more likely to grant funds to affected states
for management actions aiding in the protection and recovery of these
plants.
    The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered or
threatened plants. All prohibitions of section 9(a)(2) of the

Act implemented by 50 CFR 17.61 for endangered plants, and 17.71, for
threatened 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 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 of
any such species on areas under Federal jurisdiction and the removal,
cutting, digging, or destroying of such plant species on any other area
in knowing violation of any State law or regulation, including a State
criminal trespass law. Certain exceptions to the prohibitions apply to
agents of the Service and State conservation agencies.
    It is the policy of the Service, published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent
practicable at the time a species is listed those activities that would
or would not constitute a violation of section 9 of the Act. The intent
of this policy is to increase public awareness of the effect of the
listing on proposed and ongoing activities within a species' range.
Less than 20 percent of the occurrences of the five species are on
public (Federal) lands. Collection, damage, or destruction of these
species on Federal lands is prohibited, although in appropriate cases a
Federal endangered species permit may be issued to allow collection for
scientific or recovery purposes. Such activities on non-Federal lands
would constitute a violation of section 9 if conducted in knowing
violation of California State law or regulations or in violation of a
State criminal trespass law. California requires a ten day notice be
given before taking of plants on private land.
    Activities that are unlikely to violate section 9 include horse
paddocking and other grazing, clearing a defensible space for fire
protection around personal residences, and landscaping, including
irrigation around personal residences. Seeds from cultivated specimens
of threatened plant taxa also are exempt from these prohibitions
provided that a statement ``of cultivated origin'' appears on the
shipping containers. Certain exceptions apply to agents of the Service
and State conservation agencies. Questions regarding whether specific
activities will constitute a violation of section 9 should be directed
to the Field Supervisor of the Sacramento Field Office (see ADDRESSES
section).
    The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the
issuance of permits to carry out otherwise prohibited activities
involving endangered or threatened plant species under certain
circumstances. The Service anticipates few trade permits would ever be
sought or issued for the five species because the plants are not common
in cultivation or in the wild. Requests for copies of the regulations
regarding listed plants and inquiries about 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
(phone 503/231-2063, facsimile 503/231-6243).

National Environmental Policy Act

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

Required Determinations

    The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements. This rulemaking was not subject to review by the Office
of Management and Budget under Executive Order 12866.

References Cited

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

Author

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

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

Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Species
--------------------------------------------------        Historic range                    Family              Status      When     Critical   Special
        Scientific name            Common name                                                                             listed    habitat     rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
       FLOWERING PLANTS

                   *                  *                  *                  *                  *                  *                  *

Calystegia stebbinsii.........  Stebbins' morning- U.S.A. (CA).................  Convolvulaceae.............         E        596         NA         NA
                                 glory.

                   *                  *                  *                  *                  *                  *                  *

Ceanothus roderickii..........  Pine Hill          U.S.A. (CA).................  Rhamnaceae.................         E        596         NA         NA
                                 ceanothus.

                   *                  *                  *                  *                  *                  *                  *

Fremontodendron californicum    Pine Hill          U.S.A. (CA).................  Sterculiaceae..............         E        596         NA         NA
 ssp. decumbens.                 flannelbush.

                   *                  *                  *                  *                  *                  *                  *

Galium californicum ssp.        El Dorado          U.S.A. (CA).................  Rubiaceae..................         E        596         NA         NA
 sierrae.                        bedstraw.

                   *                  *                  *                  *                  *                  *                  *

Senecio layneae...............  Layne's            U.S.A. (CA).................  Asteraceae.................         T        596         NA         NA
                                 butterweed.

                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: September 23, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-26740 Filed 10-17-96; 8:45 am]

BILLING CODE 4310-55-P


[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Rules and Regulations]
[Pages 85094-85095]
[FR Doc No: 2023-26712]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2023-2192; Airspace Docket No. 23-AEA-19]
RIN 2120-AA66

Amendment of Class D and Class E Airspace; Wilmington, DE

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action amends Class D airspace and Class E surface
airspace for New Castle Airport, Wilmington, DE, by making editorial
changes to the airspace legal descriptions. This action does not change
the airspace boundaries or operating requirements.

DATES: Effective 0901 UTC, March 21, 2024. The Director of the Federal
Register approves this incorporation by reference action under 1 CFR
part 51, subject to the annual revision of FAA Order JO 7400.11 and
publication of conforming amendments.

ADDRESSES: FAA Order JO 7400.11H, Airspace Designations, Reporting
Points, and subsequent amendments online at www.faa.gov/air_traffic/publications/. For further information, contact the Airspace Policy
Group, Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; telephone:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: John Goodson, Operations Support
Group, Eastern Service Center, Federal Aviation Administration, 1701
Columbia Avenue, College Park, GA 30337; telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority,
as it updates airspace descriptions. This update is an administrative
change and does not change the airspace boundaries or operating
requirements.

Incorporation by Reference

    Class D and Class E airspace are published in paragraphs 5000 and
6002 of FAA Order JO 7400.11, Airspace Designations and Reporting
Points, which is incorporated by reference in 14 CFR 71.1 annually.
This document amends the current version of that order, FAA Order JO
7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA
Order JO 7400.11H is publicly available as listed in the ADDRESSES
section of this document. These amendments will be published in the
next FAA Order JO 7400.11 update. FAA Order JO

7400.11H lists Class A, B, C, D, and E airspace areas, air traffic
service routes, and reporting points.

The Rule

    This action amends the Class D airspace and Class E surface
airspace for New Castle Airport, Wilmington, DE, by replacing Notice to
Airmen with Notice to Air Missions.
    This action is an administrative change and does not affect the
airspace boundaries or operating requirements; therefore, notice and
public procedure under 5 U.S.C. 553(b) is unnecessary.

Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this proposed rule, when promulgated, will not have a
significant economic impact on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act.

Environmental Review

    The FAA has determined that this action qualifies for categorical
exclusion under the National Environmental Policy Act in accordance
with FAA Order 1050.1F, ``Environmental Impacts: Policies and
Procedures,'' paragraph 5-6.5a. This airspace action is not expected to
cause any potentially significant environmental impacts, and no
extraordinary circumstances exist that warrant the preparation of an
environmental assessment.

Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for part 71 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation
Administration Order JO 7400.11H, Airspace Designations and Reporting
Points, dated August 11, 2023, and effective September 15, 2023, is
amended as follows:

Paragraph 5000 Class D Airspace.

* * * * *

AEA DE D Wilmington, DE [Amended]

New Castle Airport, DE
    (Lat. 39[deg]40'43'' N, long. 75[deg]36'24'' W)

    That airspace extending upward from the surface to and including
2,600 feet MSL within a 4.2-mile radius of the New Castle Airport.
This Class D airspace area is effective during the specific dates
and times established in advance by a Notice to Air Missions. The
effective date and time will thereafter be continuously published in
the Chart Supplement.
* * * * *

Paragraph 6002 Class E Surface Airspace.

* * * * *

AEA DE E2 Wilmington, DE [Amended]

New Castle Airport, DE
    (Lat. 39[deg]40'43'' N, long. 75[deg]36'24'' W)

    That airspace extending upward from the surface to and including
2,600 feet MSL within a 4.2-mile radius of the New Castle Airport, a
4.2-mile radius of the New Castle Airport. This Class E airspace
area is effective during the specific dates and times established in
advance by a Notice to Air Missions. The effective date and time
will thereafter be continuously published in the Chart Supplement.
* * * * *

    Issued in College Park, Georgia, on November 30, 2023.
Lisa E. Burrows,
Manager, Airspace & Procedures Team North, Eastern Service Center, Air
Traffic Organization.
[FR Doc. 2023-26712 Filed 12-6-23; 8:45 am]
BILLING CODE 4910-13-P