[Federal Register Volume 82, Number 4 (Friday, January 6, 2017)]
[Proposed Rules]
[Pages 1677-1684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31763]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2016-0137; FXES11130900000 178 FF09E42000]
RIN 1018-BB89
Endangered and Threatened Wildlife and Plants; Reclassifying
Echinocereus fendleri var. kuenzleri From Endangered to Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule and 12-month petition finding.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
reclassify Echinocereus fendleri var. kuenzleri (Kuenzler hedgehog
cactus) from endangered to threatened under the Endangered Species Act
of 1973, as amended (Act). After review of the best available
scientific and commercial information, we find that reclassifying E.
fendleri var. kuenzleri as threatened is warranted. This document also
serves as our 12-month finding on a petition to reclassify E. fendleri
var. kuenzleri as threatened. We request information and comments from
the public regarding this proposed rule and our 12-month finding.
DATES: To ensure that we are able to consider your comments on this
proposed rule, they must be received or postmarked on or before March
7, 2017. We must receive requests for public hearings, in writing, at
the address shown in FOR FURTHER INFORMATION CONTACT by February 21,
2017.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal:
http://www.regulations.gov. In the Search box, enter FWS-R2-ES-
2016-0137, which is the docket number for this proposed rulemaking.
Then, click on the Search button. On the resulting page, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2016-0137; Division of Policy,
Performance, and Management Programs; U.S. Fish and Wildlife Service,
MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
We request that you send comments only by one of the methods
described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see Information Requested, below,
for more information).
Copies of documents: This proposed rule and supporting documents
are available on http://www.regulations.gov. In addition, the
supporting file for this proposed rule will be available for public
inspection, by appointment, during normal business hours, at the New
Mexico Ecological Services Field Office, 2105 Osuna Road NE.,
Albuquerque, NM 87113; telephone 505-346-2525.
FOR FURTHER INFORMATION CONTACT: Wally Murphy, Field Supervisor, U.S.
Fish and Wildlife Service, New Mexico Ecological Services Field Office,
2105 Osuna Road NE., Albuquerque, NM 87113; telephone 505-761-2525;
facsimile 505-346-2542. If you use a telecommunications device for the
deaf (TDD), call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Requested
Any final action resulting from this proposed rule will be based on
the best scientific and commercial data available and be as accurate as
possible. Therefore, we request comments or information from other
concerned governmental agencies, Native American Tribes, the scientific
community, industry, or other interested parties concerning this
proposed rule. The comments that will be most useful and likely to
influence our decisions are those supported by data or peer-reviewed
studies and those that include citations to, and analyses of,
applicable laws and regulations. Please make your comments as specific
as possible and explain the basis for them. In addition, please include
sufficient information with your comments to allow us to authenticate
any scientific or commercial data you reference or provide. In
particular, we seek comments concerning the following:
(1) Reasons why we should or should not reclassify Echinocereus
fendleri var. kuenzleri under the Act (16 U.S.C. 1531 et seq.).
(2) New biological or other relevant data concerning any threat (or
lack thereof) to this plant and existing regulations that may be
addressing these or any of the below threats.
(3) New information concerning the population size or trends of E.
fendleri var. kuenzleri.
(4) New information on how E. fendleri var. kuenzleri responds to
wildland and prescribed fire.
(5) New information on the current or planned activities within the
range of E. fendleri var. kuenzleri that may adversely affect or
benefit the plant.
(6) New information or data on the projected and reasonably likely
impacts to E. fendleri var. kuenzleri or its habitat associated with
climate change.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available.''
Prior to issuing a final rule on this proposed action, we will take
into consideration all comments and any additional information we
receive. Such information may lead to a final rule that differs from
this proposal. All comments and recommendations, including names and
addresses, will become part of the administrative record.
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in ADDRESSES. Comments must be
submitted to http://www.regulations.gov before 11:59 p.m. (Eastern
Time) on the date specified in DATES. We will not consider hand-
delivered comments that we do not receive, or mailed comments that are
not postmarked, by the date specified in DATES. Please note that
comments posted to this Web site are not immediately viewable. When you
submit a comment, the system receives it immediately. However, the
comment will not be publicly viewable until we post it, which might not
occur until several days after submission.
If you mail or hand-deliver hardcopy comments that include personal
identifying information, you may request at the top of your document
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so. To ensure that the
electronic docket for this rulemaking is complete and all comments we
receive are publicly available, we will post all hardcopy submissions
on http://www.regulations.gov.
In addition, comments and materials we receive, as well as
supporting documentation we used in preparing this proposed rule, will
be available for public inspection in two ways:
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(1) You can view them on http://www.regulations.gov. In the Search
box, enter FWS-R2-ES-2016-0137, which is the docket number for this
rulemaking.
(2) You can make an appointment, during normal business hours, to
view the comments and materials in person at the U.S. Fish and Wildlife
Service's New Mexico Ecological Services Field Office (see ADDRESSES).
Public Hearing
Section 4(b)(5)(E) of the Act provides for one or more public
hearings on this proposed rule, if requested. We must receive requests
for public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by the date shown in DATES. We will schedule public
hearings on this proposal, if any are requested, and places of those
hearings, as well as how to obtain reasonable accommodations, in the
Federal Register at least 15 days before the first hearing.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. A thorough review of information that we
relied on in preparing this proposed rule--including information on
taxonomy, genetics, life-history, ecology, population distribution and
abundance, and potential threats from our recent 5-year review (Service
2016)--is available at http://www.regulations.gov under Docket No. FWS-
R2-ES-2016-0137. The purpose of peer review is to ensure that decisions
are based on scientifically sound data, assumptions, and analyses. A
peer review panel will conduct an assessment of the proposed rule, and
the specific assumptions and conclusions regarding the proposed
reclassification from endangered to threatened (i.e., ``downlisting'').
This assessment will be completed during the public comment period.
We will consider all comments and information we receive during the
comment period on this proposed rule as we prepare the final
determination. Prior to issuing a final rule on this proposed action,
we will take into consideration all additional information and comments
that we receive. Such information may lead to a final rule that differs
from this proposal.
Background
Found on slopes of sandy gravel and amid rocky outcrops in southern
New Mexico, Echinocereus fendleri var. kuenzleri is a very small member
of the cactus family (Cactaceae) that grows in Great Plains grassland,
oak woodland, or pinon-juniper woodland within elevations of 1,600 to
2,000 meters (5,200 to 6,600 feet). Individuals may be single stemmed
or branched; when branched, the stems are usually fewer than four, but
may number as many as eight (Service 1985, p. 3). Stems are normally
short-conical, about 15 centimeters (cm) (6 inches (in)) long and 10 cm
(4 in) wide, with 9 to 12 ribs with prominent tubercles from which the
spine clusters originate, and central spines are usually absent
(Castetter et al. 1976, pp. 76-82, Service 1985, p. 3). Useful
characteristics to distinguish the taxon from other cacti within its
range are its few, contorted, white, chalky-textured spines and large,
magenta flowers (Service 1985, p. 4). Fruits are bright red when
mature, with black seeds. The cactus flowers in late May and fruits
ripen in July, with flowering occurring after only when a cactus
reaches 4 to 5 years of age. Like other rare cacti related to this
genus, it is believed that E. fendleri var. kuenzleri is an obligate
outcrosser (self-incompatible) that requires pollination for sexual
reproduction (Tepedino 1998). Little is known about the pollinators of
this cactus, but it most likely involves a range of nectar- seeking
insects (Ferguson 1989, pp. 217-224).
When we originally listed this cactus in 1979, we were aware of
only a single population of approximately 200 plants located on the
east slope of the Sacramento Mountains in New Mexico (Chaves and Otero
Counties) (44 FR 61924; October 26, 1979). When the recovery plan was
adopted in 1985, the plant was known to exist in two locations with a
total of fewer than 500 plants. It is now reasonable to estimate, based
on recent surveys, that several thousand cacti exist within the known
range of this taxon, with approximately 3,300 individuals observed
within 11 known population centers since 1981, when more intensive
surveys were initiated (Service 2005, entire; 2016, entire). Since
1979, the range of this plant has also been extended 10 miles to the
west in Otero County, 40 miles north in Lincoln County (DeBruin 1993),
and approximately 100 miles to the southeast (from its northwestern-
most location in Lincoln County) into the Guadalupe Mountains of Eddy
County. Numerous new locations within this range place it within the
U.S. Department of Agriculture (USDA) -Forest Service and U.S.
Department of the Interior (USDI)- Bureau of Land Management (BLM)
jurisdictions as well on private and State lands. It has also been
found on the west side of the Sacramento Mountains in Lincoln County
(Knight 1999), and on USDA-Forest Service and USDI-BLM lands in the
northern Guadalupe Mountains in Eddy and Otero Counties (Chauvin et al.
2001, Sivinski 1996). Populations are not continuous within this range,
but are patchy, scattered, and rare.
Some have questioned the taxonomic status of Echinocereus fendleri
var. kuenzleri, by considering it to be a synonym of the common and
widespread E. fendleri var. fendleri (Anderson 2001, Zimmerman and
Parfitt 2003). However, other assessments by local experts acknowledged
that at the northwest edge of the cactus' range, within one of the 11
known populations, E. fendleri var. kuenzleri individuals occur along
with the variety E. fendleri var. fendleri and intergradations between
both varieties can be found (Rare Plant Technical Council of New Mexico
2005, Marron Associates 2000, entire; Baker 2007, entire). However,
because the remaining 10 populations located more toward the center of
E. fendleri var. kuenzleri's known distribution exhibit consistently
reliable traits unique to this variety, the cactus warrants future
study to verify a change in its taxonomic status (Rare Plant Technical
Council of New Mexico 2005). The full taxonomic history can be found in
the recovery plan (Service 1985) with the most recent updates in the 5-
year review (Service 2016, entire). Recent taxonomic review of the
varieties of Echinocereus fendleri retained kuenzleri as a variety
(Felix et al. 2014). Because of the limited area of introgression and
the identification of consistently reliable traits unique to this
variety, we do not believe a taxonomic change is warranted at this
time.
For a detailed discussion of Echinocereus fendleri var. kuenzleri's
description, taxonomy, life history, habitat, soils, distribution, and
abundance, and a discussion of the role of fire in the taxon's
regeneration, please see the recovery plan (Service 1985, entire) and
the 5-year reviews (Service 2005, entire; 2016, entire) available for
review at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-
0137.
Previous Federal Actions
We proposed to list this plant, with the scientific name
Echinocereus hempelli, as an endangered species under the Act on June
16, 1976 (41 FR 24524), because of threats from the great demand by
private and commercial collectors, road maintenance and improvements,
cattle grazing, and real
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estate development. We published a final rule listing the plant, with
the scientific name Echinocereus kuenzleri, as an endangered species in
the Federal Register on October 26, 1979 (44 FR 61924). We finalized a
recovery plan for the plant, with the scientific name Echinocereus
fendleri var. kuenzleri, in March 1985 (Service 1985).
Under the Act, we maintain the Lists of Endangered and Threatened
Wildlife and Plants at 50 CFR 17.11 (for wildlife) and 17.12 (for
plants) (Lists). We amend the Lists by publishing final rules in the
Federal Register. Section 4(c)(2)(A) of the Act requires that we
conduct a review of listed species at least once every 5 years. Section
4(c)(2)(B) requires that we determine: (1) Whether a species no longer
meets the definition of endangered or threatened and should be removed
from the Lists (delisted), (2) whether a species listed as endangered
more properly meets the definition of threatened and should be
reclassified to threatened (``downlisted''), or (3) whether a species
listed as threatened more properly meets the definition of endangered
and should be reclassified to endangered (``uplisted''). In accordance
with 50 CFR 424.11(d), using the best scientific and commercial data
available, we will delist a species if the data substantiate that the
species is neither endangered nor threatened for one or more of the
following reasons: (1) The species is considered extinct; (2) the
species is considered recovered; or (3) the original data available
when the species was listed, or the interpretation of such data, were
in error. On July 21, 2004, we published a notice (69 FR 43621)
announcing that we were conducting a 5-year review of the status of E.
fendleri var. kuenzleri under section 4(c)(2) of the Act. In that
notice, we requested that the public provide us any new information
concerning this plant. The 5-year review, completed on June 7, 2005
(Service 2005), resulted in a recommendation to change the status of
this cactus from endangered to threatened. The 2005 and 2016 5-year
reviews for E. fendleri var. kuenzleri are available on the Service's
Environmental Conservation Online System (ECOS) (https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=Q1VW).
On July 16, 2012, we received a petition dated July 11, 2012, from
The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle
Growers' Association, New Mexico Farm & Livestock Bureau, New Mexico
Federal Lands Council, and Texas Farm Bureau requesting the Service to
reclassify Echinocereus fendleri var. kuenzleri from endangered to
threatened. The petition was based on the analysis and recommendations
contained in the most recent 5-year review for this taxon. On September
9, 2013 (78 FR 55046), we published in the Federal Register a 90-day
finding for the 2012 petition to reclassify E. fendleri var. kuenzleri.
In our 90-day finding, we determined the 2012 petition provided
substantial information indicating the petitioned actions may be
warranted, and we initiated a status review for E. fendleri var.
kuenzleri. This proposed downlisting rule constitutes the 12-month
finding and our 5-year status review for E. fendleri var. kuenzleri.
Recovery and Recovery Plan Implementation
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the List. However, revisions to
the List (adding, removing, or reclassifying a species) must reflect
determinations made in accordance with sections 4(a)(1) and 4(b) of the
Act. Section 4(a)(1) requires that the Secretary determine whether a
species is endangered or threatened (or not) because of one or more of
five threat factors. Section 4(b) of the Act requires that the
determination be made ``solely on the basis of the best scientific and
commercial data available.'' Therefore, recovery criteria should
indicate when a species is no longer an endangered species or
threatened species because of any of the five statutory factors.
Thus, while recovery plans provide important guidance to the
Service, States, and other partners on methods of minimizing threats to
listed species and measurable objectives against which to measure
progress towards recovery, they are not regulatory documents and cannot
substitute for the determinations and promulgation of regulations
required under section 4(a)(1) of the Act. A decision to revise the
status of or remove a species from the Federal List of Endangered and
Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of
the best scientific and commercial data then available to determine
whether a species is no longer an endangered species or a threatened
species, regardless of whether that information differs from the
recovery plan.
In 1985, we finalized a recovery plan for E. fendleri var.
kuenzleri but it provides no delisting criteria (Service 1985). The
recovery plan states that E. fendleri var. kuenzleri could be
reclassified to threatened status when existing natural populations are
increased to approximately 5,000 individual plants and when that
population level is maintained for a period of 5 consecutive years
(downlisting criterion 1) (Service 1985, p. iii). The second
downlisting criterion is based on the need for the Service to develop
policy for propagated cacti and the introduction of 10,000 artificially
propagated E. fendleri var. kuenzleri into the commercial market to
counter the threat at that time of collection.
The first criterion was intended to address the point at which
imminent threats to the plant had been ameliorated so that the
populations were no longer in immediate risk of extirpation. Estimated
abundance of individuals in all populations has changed over time, from
approximately 200 individuals at the time of listing in 1979, to
multiple populations with more than 3,300 individuals (Service 2005, p.
4; Service 2016, pp. 3-4). We believe there are likely more than 3,300
individuals across the range of E. fendleri var. kuenzleri because the
difficulty in locating nonflowering plants and the lack of survey
efforts in the entire suitable habitat limit the ability to observe
many of these cacti potentially growing in areas of suitable habitat.
Currently, E. fendleri var. kuenzleri occurs in 11 unique
population clusters defined by occupied locations separated by several
miles of unsuitable or unoccupied habitats. According to data
maintained by Natural Heritage New Mexico, approximately 97 percent of
known E. fendleri var. kuenzleri individuals occur on lands managed by
either the USDA-Forest Service (FS) or USDI-BLM (2016). There are two
populations in the Guadalupe Mountains (mid-range and north range),
eight populations in the Sacramento Mountains (north of Carrizozo), and
one population in the lower hills of the Guadalupe Mountains, east of
the Sacramento range (Service 2005, p. 5; Service 2016, pp. 3-4). Based
on this information, this plant is much more numerous than originally
determined and is distributed over a broader area.
The second criterion is for the Service to develop policy for
commercial propagation and to introduce 10,000 propagated individuals
into the commercial market. Echinocereus
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fendleri var. kuenzleri is now readily available on the open market
from commercial growers with Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) certificates (see
https://www.cites.org for additional information on CITES). Local
populations, especially near the type locality (location where the
species was first identified), may continue to be impacted by
occasional poaching from growers and hobbyists; however, at this time,
this taxon is unlikely to be seriously threatened in most of its range
by cactus collectors, because of availability from commercial growers.
Thus, collection is no longer considered a major threat to this cactus
and this second criterion is no longer relevant.
Various studies have occurred since development of the recovery
plan that aid in our understanding of the status of Echinocereus
fendleri var. kuenzleri. For example:
Recent surveys indicate that E. fendleri var. kuenzleri is
broadly distributed within its range, plant density can vary from
location to location, and populations may be more dynamic than they
were expected to be. For example, at Ft. Stanton, the population
demonstrated a shift from inside of the survey plot to establishment
outside of the survey plot. (Chauvin et al. 2012, entire; Muldavin et
al. 2013, entire).
May et al. (2008, p. 170) found E. fendleri var. kuenzleri
was distributed randomly with respect to other vegetation and did not
support the hypothesis that it is associated with vegetation that
provides thermal protection.
Both Baker (2007, entire) and Felix et al. (2014, p. 64)
found morphological characters than differentiate this taxon from other
similar taxa.
Sivinski (2007, p. 93) found that wildfire can cause high
mortality in this cactus, and it was slow to recover, with first
flowering occurring at between four to five years after seedlings
germinated.
May (2006, entire) and Wester and Britton (2007, p. 11)
found that prescribed fire had little effect on E. fendleri var.
kuenzleri under low fuel loads and that prescribed, low intensity fire
could be used to lower fuel loads, reducing the risk of catastrophic
wildfires.
These and other data that we have analyzed indicate that most
threats identified at listing and during the development of the
recovery plan are reduced in areas occupied by E. fendleri var.
kuenzleri and that the status of the cactus has improved, primarily due
to finding additional populations over a broader range. However, more
recent threats associated with fire regime alteration, the lack of a
comprehensive habitat management plan, drought, and climate change
effects may impede the plant's ability to recover.
Summary of Factors Affecting E. fendleri var. kuenzleri
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for listing species on, reclassifying
species on, or removing species from the Lists of Endangered and
Threatened Wildlife and Plants. The term ``species'' includes ``any
subspecies of fish or wildlife or plants, and any distinct population
segment [DPS] of any species of vertebrate fish or wildlife which
interbreeds when mature (16 U.S.C. 1532(16)). A species may be
determined to be an endangered species or threatened species because of
any one or a combination of the five factors described in section
4(a)(1) of the Act: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or man-made
factors affecting its continued existence. A species may be
reclassified on the same basis.
Determining whether the status of a species has improved to the
point that it can be reclassified from endangered to threatened
(``downlisted'') requires consideration of whether the species is
endangered or threatened because of the same five categories of threats
specified in section 4(a)(1) of the Act. For species that are already
listed as endangered or threatened, this analysis of threats is an
evaluation of both the threats currently facing the species and the
threats that are reasonably likely to affect the species in the
foreseeable future following the delisting or downlisting and the
removal of the Act's protections.
A species is an ``endangered species'' for purposes of the Act if
it is in danger of extinction throughout all or a significant portion
of its range and is a ``threatened species'' if it is likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range. The word ``range'' in the significant
portion of its range phrase refers to the range in which the species
currently exists. For the purposes of this analysis, we first evaluate
the status of Echinocereus fendleri var. kuenzleri throughout all of
its range, then consider whether this cactus is in danger of extinction
or likely to become so in any significant portion of its range.
At the time of listing, the primary threats to E. f. var. kuenzleri
were private and commercial collection, road improvement and
maintenance, real estate development, and livestock grazing (44 FR
61924; October 26, 1979). By the time the recovery plan was developed
in 1985, the same threats were still considered relevant (Service 1985,
pp. 8-12). Subsequently, we conducted 5-year status reviews that
included an analysis of factors that affect the plant (Service 2005,
pp. 12-14; Service 2016, p. 5). The 2005 5-year status review found
that the threat of habitat loss from road improvement and maintenance
and real estate development (Factor A), and a direct threat from
commercial collection (Factor B) have decreased since the time of
listing, and are no longer considered significant threats. Livestock
grazing (Factor C), continues to be a threat by trampling, only if
areas are improperly managed and cattle are aggregated in areas where
the cacti are growing. The 2005 review also identified an additional
threat of fire based on the alteration of the natural fire regime
(Service 2005). The 2016 5-year status review added the threats of
drought and effects due to climate change because drought has impacted
several populations and the long-term trend in the range of the cactus
is one of increased temperatures and drying (Service 2016).
Recommendations to address the impacts of these emerging threats,
including a long-term monitoring plan for Echinocereus fendleri var.
kuenzleri, should be developed to further understand how these threats
affect the long-term viability of the taxon.
Habitat Loss--Road Construction and Maintenance, Residential
Development
Habitat loss by road construction and maintenance and through
residential development is negligible in the area occupied by
Echinocereus fendleri var. kuenzleri. Where road construction has
occurred in occupied areas, individual cacti have been avoided or
mitigation has been provided (Marron Associates 2013, entire). If this
proposed rule is adopted, this avoidance would likely continue because
Echinocereus fendleri var. kuenzleri would remain listed as threatened.
Residential development has not been a threat due to the preference of
the plant to grow in dry, rugged locations not favored for development.
More importantly, the majority of the populations discovered after the
recovery plan was written are
[[Page 1681]]
found on federally managed lands that are not likely to be developed.
Livestock Grazing
Grazing at low intensity stocking rates can be compatible with the
presence of Echinocereus fendleri var. kuenzleri, primarily because the
cactus tends to be found in rocky outcrops amid rugged locations,
although minimal trampling can occur. Areas on USDA-Forest Service and
USDI-BLM lands have fenced out livestock to effectively protect the
cactus in strategic locations. Additionally, federal grazing allotment
permits are evaluated for renewal at least every 10 years and grazing
impacts analysis is part of the permit review. Permits can be reviewed
sooner to meet management goals. During this review, livestock numbers
can be adjusted to achieve conservation goals. Each range improvement
(e.g., water pipeline, fence, livestock water) on Federal surface is
evaluated for impacts to special status species including endangered
and threatened species. Each agency uses project-specific conservation
measures to avoid impacts to E. fendleri var. kuenzleri.
Private and Commercial Collection
As mentioned previously, the collection of Echinocereus fendleri
var. kuenzleri is uncommon at this time, due to the legal availability
of the cactus in the commercial market. Certified commercial growers
have Echinocereus fendleri var. kuenzleri readily available on the open
market in accordance with CITES.
The following sections provide a summary of the current threats
impacting Echinocereus fendleri var. kuenzleri now and those that may
occur in the foreseeable future. These threats include alteration of
the fire regime (Factors A and E), drought (Factors A and E), effects
due to climate change (Factors A and E), and the effect of any existing
regulatory mechanisms (Factor D) or conservation efforts that are
ameliorating these impacts.
Fire Regime Alteration
Both arid grasslands and pinyon-juniper savanna, where E. f. var.
kuenzleri occurs, had short-interval fire frequency historically
(Payson et al. 2000, p. 122; Gebow and Halverson 2005, p. 4). The fire
frequency interval has been extended by fire suppression and grazing
(Payson et al. 2000, pp. 126, 132; Gebow and Halverson 2005, p. 4).
Livestock grazing reduces the total amount of fine fuels (grasses) that
would otherwise carry wild fire across a landscape, thus, extending the
period between hotter, more damaging fire events. Use of prescribed
fire as a management tool has been growing and is currently implemented
to restore grasslands and savannas that have been impacted by
historical fire suppression and grazing (Knapp et al. 2009, p. 1).
Fires, whether wild or prescribed, within the grassland habitats of
Echinocereus fendleri var. kuenzleri can have impacts to the cactus
(Sivinski 2007, entire), such as slowing recovery and lessening the
cactus' ability to withstand a short-interval fire frequency. The
cactus typically undergoes about four to five years of slow growth
before individuals are able to flower and set seed, so recolonization
after a fire can take many years (Sivinski 2007, p. 4). However, Wester
and Britton (2007, p. 11) found no evidence that the plant was
negatively affected by prescribed fire, although high fuel loads did
increase individual mortality. This suggests that prescribed burns in
Echinocereus fendleri var. kuenzleri habitat could be designed to
remove fuel loads without causing direct mortality associated with
wildfire (May 2006, p. 44). While we originally believed that fire
would negatively impact the Echinocereus fendleri var. kuenzleri, we
now believe that active management, including the use of low intensity
prescribed fire at longer frequencies, could restore the landscape to a
natural fire frequency interval, reducing the likelihood of
catastrophic wild fires, and thus, reducing impacts on the cactus when
fire does occur. Because the cactus is capable of reproducing from
seed, but reestablishment of populations may take considerable time,
fire frequencies between 25 and 50 years have been recommended
(Sivinski 2007, Muldavin 2012) to achieve the best population
sustainability. A comprehensive habitat management plan should be
developed to ensure that the use of fire is coordinated to optimize
conditions for Echinocereus fendleri var. kuenzleri.
Drought
During 11 of the last 15 years (2001-2015), there has been moderate
to exceptional drought conditions in the area where Echinocereus
fendleri var. kuenzleri occurs, with 10 percent of the time in
exceptional drought (National Drought Mitigation Center 2015, Four
County Data). The 2002-2003 drought spanned all of southwestern North
America and was anomalously dry with unusually high temperatures
(Breshears et al. 2005, pp. 15, 144); similar conditions occurred in
2011-2013.
Echinocereus fendleri var. kuenzleri has likely experienced and
rebounded from periods of drought in the past. However, should
substantial effects due to climate change materialize with increased
severity and frequency of drought, it would likely reduce the long-term
survivorship of this cactus. Drought is also directly related to
Echinocereus fendleri var. kuenzleri population health with regard to
reproduction and establishment. As with many cactus species, seed
germination and seedling survival is dependent on precipitation (Jordan
and Nobel 1981, p. 905). Little is known about the Echinocereus
fendleri var. kuenzleri seedbank. Even if seedbanks exist and persist,
adequate precipitation during the seedling's first year of growth is
essential for survival (Roller 1996a, p. 38). In studies of seed
germination in similar cacti, Roller (1996a, p. 77) found that on
average 88 percent of all seed produced during the summer monsoon
season germinated; however, only a small portion of the seedlings
survived. Surveys show few seedlings and young juvenile plants among
the Echinocereus fendleri var. kuenzleri population survive (e.g.
Ecosphere Environmental Services Inc. 1995, pp. 17-21; Schmalzel 2000d,
p. 5; Baker 2011, pp. 5-7). Heat stress in adult cacti is minimal
compared to other plant species, as they are able to survive heat
stress due to both morphology and metabolism (Smith et al. 1984, pp.
647, 650; Wahid et al. 2007, p. 199). Extreme temperatures can,
however, negatively impact seedling survival in many desert-adapted
plants, and drought coupled with high temperatures lessens temperature
tolerance in seedlings (Nobel 1984, pp. 310, 316). Finally, plants that
are already stressed from prolonged drought are more susceptible to
insect attack and disease. Without sufficient monitoring in place to
assess Echinocereus fendleri var. kuenzleri's demographic responses and
population trends, the severity of the threat of drought can only be
surmised based on other cacti and other drought research.
Climate Change
Based on the unequivocal evidence of warming of the earth's climate
from observations of increases in average global air and ocean
temperatures, widespread melting of glaciers and polar ice caps, and
rising sea levels recorded in the Intergovernmental Panel on Climate
Change Report (IPCC 2007a, entire; 2013, entire), effects due to
climate change are now a consideration for Federal agency analysis
(Government Accounting Office 2007, entire). The Service will
incorporate climate change into our decision making under the Act
(Service 2010, entire). The earth's surface has warmed by an
[[Page 1682]]
average of 0.74 degrees Celsius ([deg]C) (1.3 degrees Fahrenheit
([deg]F)) during the 20th century (IPCC 2007b, p. 30). The IPCC (2013,
p. 7) projects that there will very likely be an increase in the
frequency of hot extremes, heat waves, and heavy precipitation events
as a result of climate change.
This global climate information has been downscaled to our region
of interest, and projected into the future under two different
scenarios of possible emissions of greenhouse gases (Alder and
Hostetler 2014, p. 2). Climate projections for the cactus area include
a 5 to 6 percent increase in maximum temperature (up to 4 [deg]C (7.2
[deg]F)), an 11 percent decrease in precipitation, and a 25 percent
increase in evaporative deficit over the next 25 years (National
Climate Change Viewer, Four County Data, http://www2.usgs.gov/climate_landuse/clu_rd/nccv/viewer.asp, accessed May 15, 2016).
Effects due to climate change also include an increase in
atmospheric carbon dioxide, which is commonly associated with increased
temperatures and the greenhouse effect. This increased carbon dioxide
directly affects plant photosynthesis (Huxman and Scott 2007, p. 28).
At the plant level, adapting to drought involves the ability to balance
carbon sequestration (the uptake and storage of carbon) and carbon
respiration (efflux back into the atmosphere), while also maintaining
sustainable evapotranspiration rates (Huxman and Scott 2007, p. 28).
Adaptation would also require a plant to change its phenology (timing
of life cycle events) to coincide successfully with extreme shifts in
temperature, precipitation, and soil moisture (Walther et al. 2002, p.
389), which are all part of the evapotranspiration equation. The
potential for rapid climate change, which is predicted for the future,
could pose significant challenges for plants because they may not be
able to adjust their phenology or photosynthetic mechanisms quickly
enough.
Cacti have a unique photosynthetic pathway referred to as
crassulacean acid metabolism (CAM), which is most effective in low soil
moisture, intense sunlight, and high daytime temperature conditions,
and is considered to be a desert adaptation (Nefzaoui et al. 2014, p.
121). CAM plants may have an advantage under these drier condition
scenarios due to the effects of climate change (Reyes-Garcia and
Andrade 2009, p. 755). If atypical cactus mortality occurs, this could
be evidence that a climatic severity threshold may have been crossed
even for this well-adapted CAM plant.
Munson et al. (2013, p. 2,030) forecasts declines in vegetative
cover including cacti in Chihuahuan Desert habitats due to climate
change. This is because growing seasons are becoming longer and warmer
and in many regions (Kunkel 2013, p. 1) including the Southwest (Cayan
et al. 2001, p. 399; Easterling 2002, p. 1329) due to the effects of
climate change. This trend of longer and warmer growing seasons is
projected to continue in the current climate change assessments.
Earlier soil moisture stress would result in decreased flowering and
reproduction for Echinocereus fendleri var. kuenzleri. Based on the
limited distribution of this cactus, we consider drought and climate
change an ongoing, yet not imminent, threat to Echinocereus fendleri
var. kuenzleri.
Combination of Threats
When stressors occur together, one may exacerbate the effects of
another, causing effects not accounted for when stressors are analyzed
individually. Synergistic or cumulative effects may be observed in a
short amount of time or may not be noticeable for years into the
future, and could affect the long-term viability of Echinocereus
fendleri var. kuenzleri populations. Livestock grazing interacts with
the effect of natural fire frequency within Echinocereus fendleri var.
kuenzleri habitats. Removal of fine fuels by grazing animals reduces
the ability of a fire to start and carry through the landscape. Land
managers have in the past followed an aggressive wildfire suppression
program. The result is a disruption of the natural fire regime and an
increase of woody vegetation in grassland and savanna habitats. Land
managers presently see the need to reintroduce low intensity fire into
these habitats for the purpose of restoring grasslands and increasing
forage for livestock production. Impacts of these interacting processes
to E. fendleri var. kuenzleri can be variable, and will need to be
studied and management will be needed to provide the best outcome for
the cactus.
Another threat combination can occur between drought, climate
change effects, and predation. Although predation has not been a
monitored factor for Echinocereus fendleri var. kuenzleri, in the case
of other native small cacti, evidence of increased herbivory of adult
cacti and seedlings by insect and mammalian predators has been observed
during drought, most likely due to increases in thirst and decreases in
other available forage. Rodents consume cacti for water, especially in
times of drought (Riegel 1941, p. 96; Orr et al. 2015, p. 1058).
Herbivory of cacti can also increase following damage to protective
spines, such as post-fire. The rate of insect herbivory may increase
due to warmer winters in recent decades (Rutman 2007, p. 6). Cacti
already stressed from prolonged drought are more susceptible to insect
attack and disease, which can cause declines in cactus populations.
Overall Summary of Factors Affecting E. fendleri var. kuenzleri
Alterations to the fire regime, including implementation of agency
guidance to suppress wildland fires and changes to livestock grazing
strategies, are likely the most immediate threatening factors to
Echinocereus fendleri var. kuenzleri at this time. Staff at BLM and
Fort Stanton are actively managing to keep fire from directly impacting
Echinocereus fendleri var. kuenzleri individuals during prescribed
burns. They are also implementing projects to remove pinyon and juniper
trees thereby reducing heavy fuel loads. This management is expected to
continue into the future. Increased emphasis on prescribed fire could
mimic the natural historical fire regime and reduce the likelihood of
damaging wildland fire in heavy fuel load areas. A comprehensive
management plan that would guide standardized monitoring and address
protection of the cactus for future prescribed fire programs may best
be implemented after a species status assessment is conducted for E. f.
var. kuenzleri, when more collaborators combine ideas of best adaptive
management. This management plan will prove useful in addressing the
remaining threats to the cactus.
The effects of climate change may cause extended periods of drought
and alter blooming seasons, thus reducing the chances of successful
reproduction cycles. Due to the rugged locations of occupied habitats,
impacts from surface development (road building and maintenance, urban
development) are not considered major threats to the existence of
Echinocereus fendleri var. kuenzleri. Collection of Echinocereus
fendleri var. kuenzleri is no longer considered a major threat due to
successful propagation in legal cactus trade and commercial
availability of this cactus. In addition, taxonomic uncertainties have
been resolved at a regional level.
Finding
The determination of whether a species is endangered or threatened
under the Act is based on whether a species is in danger of extinction
or likely to become so because of any of five factors: (A) The present
or
[[Page 1683]]
threatened destruction, modification, or curtailment of its habitat or
range; (B) overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. As required by section 4(a)(1) of
the Act, we conducted a review of the status of this plant and assessed
the five factors to evaluate whether Echinocereus fendleri var.
kuenzleri is endangered or threatened throughout all of its range. We
examined the best scientific and commercial information available
regarding the past, present, and future threats faced by this cactus.
We reviewed information presented in the 2012 petition, information
available in our files and gathered through our 90-day finding in
response to this petition, and other available published and
unpublished information.
In considering factors that might constitute threats to a species,
we must look beyond the exposure of the species to a factor to evaluate
whether the species responds to the factor in a way that causes impacts
to the species or is likely to cause impacts in the future. If a
species responds negatively to such exposure, the factor may be a
threat and, during the status review, our aim is to determine whether
impacts are or will be of an intensity or magnitude to place the
species at risk. The factor is a threat if it drives, or contributes
to, the risk of extinction of the species such that the species
warrants listing as an endangered or threatened species as those terms
are defined by the Act. This does not necessarily require empirical
proof of a threat. The combination of exposure and some corroborating
evidence of how the species is likely affected could suffice. In sum,
the mere identification of factors that could affect a species
negatively is not sufficient to compel a finding that listing is
appropriate; we require evidence that these factors act on the species
to the point that the species meets the definition of an endangered or
threatened species.
The known range of Echinocereus fendleri var. kuenzleri consisted
of a single population of approximately 200 individuals when we listed
it as endangered. As such, it was perceived to be upon the brink of
extinction. The most serious threat to such a small population would be
the elimination of plants in the wild by commercial and hobbyist
collectors. Subsequent information on the range and abundance of this
cactus has significantly altered this perception. In reality,
Echinocereus fendleri var. kuenzleri exists across a much broader
geographic range in several populations. Increased survey efforts and
habitat model development have resulted in more occupied habitat
identified, leaving open the potential of finding even more
Echinocereus fendleri var. kuenzleri plants. Protection under the Act
and CITES has curtailed unauthorized take by collectors. Dry conditions
and remote growing locations of Echinocereus fendleri var. kuenzleri
have lessened the impacts of land use within occupied habitats, and
most of these habitats have been determined to exist on Federal lands.
Thus, threats of collection and development have been diminished.
Therefore, Echinocereus fendleri var. kuenzleri is no longer in danger
of extinction now. Although now known to be more widespread and
abundant than previously thought, Echinocereus fendleri var. kuenzleri
remains a relatively rare plant taxon. It occurs only on the lower
slopes of Sacramento and Guadalupe Mountain ranges and is an uncommon
plant within this limited geographic range. Populations are generally
small and scattered, and some habitat that appears suitable is
presently unoccupied. Threats remain related to its limited population
numbers and distribution, to wild or prescribed fires, and to trampling
and erosion from livestock grazing and fire. However, because nearly
all of known occupied habitat falls on lands managed by Federal
agencies, conservation of the species will continue by addressing
potential fire and grazing threats.
The recently published taxonomic determinations of Echinocereus
fendleri var. kuenzleri status represent broad-brushed approaches that
may not adequately address local variation. To establish the taxonomic
status of Echinocereus fendleri var. kuenzleri, surveys are needed to
determine the extent of interbreeding at the northern edge of the range
and molecular research is needed to determine the genetic variation
within E. fendleri. The controversy and lack of definitive data
regarding the taxonomy of Echinocereus fendleri var. kuenzleri,
combined with the limited distribution and actual population numbers,
preclude a recommendation to delist based on taxonomic revision at this
time.
As a result of recent information, we know that there are 11 known
populations of Echinocereus fendleri var. kuenzleri compared to only 2
that were known at the time of listing and these individuals are spread
across a 100 miles of rocky, isolated habitat patches. Significant
impacts at the time of listing such as over collection and residential
development that could have resulted in the extirpation of all or parts
of populations have been eliminated or reduced since listing. We
conclude that the previously recognized impacts to E. fendleri var.
kuenzleri from present or threatened destruction, modification, or
curtailment of its habitat or range (specifically, residential
development, road maintenance) (Factor A); overutilization for
commercial, recreational, scientific, or educational purposes (Factor
B); disease or predation (Factor C); and other natural or manmade
factors affecting its continued existence (specifically, reproductive
isolation) (Factor E) do not rise to a level of significance, either
individually or in combination, such that the species is in danger of
extinction now. However, there continues to be concern about the long
term impacts of drought, catastrophic wildfire, and effects due to
climate change throughout the range of the species. Climate change data
indicate an increase in temperature and a decrease in precipitation
within the occupied Echinocereus fendleri var. kuenzleri range over the
next 25 years. We anticipate that effects due to climate change, fire,
and increased drought, and the compounding effects of these threats,
including any associated threats such as increased herbivory and
predation, are anticipated to impact all of the populations. However,
none of these is an imminent threat or at a magnitude such that the
taxon warrants endangered status. We conclude that these same factors
support the status of threatened, as the cactus is still likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.
In conclusion, we have carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by Echinocereus fendleri var. kuenzleri. After
review of the information pertaining to the five factors, we find that
the ongoing threats are not of sufficient imminence, intensity, or
magnitude to indicate that E. fendleri var. kuenzleri is presently in
danger of extinction throughout all of its range. Yet, due to threats
with ongoing impacts, we find that E. fendleri var. kuenzleri is likely
to become an endangered species within the foreseeable future
throughout all of its range.
Significant Portion of the Range Analysis
On July 1, 2014, we published a final policy interpreting the
phrase ``significant portion of its range'' (SPR) (79 FR 37578). The
SPR policy is
[[Page 1684]]
applied to all status determinations, including analyses for the
purposes of making listing, delisting, and reclassification
determinations. The procedure for analyzing whether any portion is an
SPR is similar, regardless of the type of status determination we are
making. The first step in our analysis of the status of a species is to
determine its status throughout all of its range. If we determine that
the species is in danger of extinction, or likely to become so in the
foreseeable future, throughout all of its range, we list the species as
an endangered or threatened species and no SPR analysis will be
required. Because we are proposing to reclassify the listing status of
E. f. var. kuenzleri as a threatened species under the Act, we are not
conducting an SPR analysis for this taxon.
Effects of This Rule
If this proposed rule is made final, it would revise 50 CFR
17.12(h) to reclassify Echinocereus fendleri var. kuenzleri from
endangered to threatened on the List of Endangered and Threatened
Plants. However, this reclassification does not significantly change
the protections afforded this plant under the Act. Pursuant to section
7 of the Act, all Federal agencies must ensure that any actions they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of Echinocereus fendleri var. kuenzleri. The
prohibitions of section 9 of the Act only apply directly to endangered
species. However, the Service has extended most of these prohibitions
to threatened plants through 50 CFR 17.71. The Act allows for the
promulgation of a rule under section 4(d) that modifies the standard
protections for threatened plants (found at 50 CFR 17.71); however no
such rule is proposed here. In light of this, the prohibitions of 50
CFR 17.71 will apply for this species.
As applicable, recovery actions directed at Echinocereus fendleri
var. kuenzleri will continue to be implemented as outlined in the
recovery plan for this taxon (Service 1985, entire). One of the primary
actions will be to develop a species status assessment, upon which we
will base a revised recovery plan with delisting criteria for the
cactus. Section 4(b)(6)(C) of the Act (16 U.S.C. 1533(b)(6)(C))
requires critical habitat to be designated concurrently with a final
reclassification rule, unless it is not prudent or determinable. We
will determine if critical habitat is prudent and determinable, and
publish proposed critical habitat as necessary.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the names of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act
We determined we do not need to prepare an environmental assessment
or an environmental impact statement, as defined under the authority of
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),
in connection with regulations adopted pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited in this proposed rule is
available on the Internet at http://www.regulations.gov under Docket
No. FWS-R2-ES-2016-0137 or upon request from the Field Supervisor, New
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Author
The primary author of this proposed rule is the Southwest Regional
Office in Albuquerque, New Mexico, in coordination with the New Mexico
Ecological Services Field Office in Albuquerque, New Mexico (see FOR
FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.12(h) by revising the entry for ``Echinocereus
fendleri var. kuenzleri'' under FLOWERING PLANTS in the List of
Endangered and Threatened Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS...............
* * * * * * *
Echinocereus fendleri var. Kuenzler hedgehog Wherever found.... T 44 FR 61924, 10/26/
kuenzleri. cactus. 1979; [Federal
Register citation of
the final rule].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Dated: December 22, 2016.
James W. Kurth,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2016-31763 Filed 1-5-17; 8:45 am]
BILLING CODE 4333-15-P