[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21928-21936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10034]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2016-0137; FXES11130900000 189 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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), reclassify 
Echinocereus fendleri var. kuenzleri (Kuenzler hedgehog cactus) from 
endangered to threatened on the Federal List of Endangered and 
Threatened Plants under the authority of the Endangered Species Act of 
1973, as amended (Act). This determination is based on a thorough 
review of the best available scientific and commercial information, 
which indicates that the threats to this plant have been reduced to the 
point that it no longer meets the definition of endangered under the 
Act, but that it is likely to become an endangered species within the 
foreseeable future.

DATES: This rule is effective June 11, 2018.

ADDRESSES: This final rule, as well as comments and materials received 
in response to the proposed rule, are available on the internet at 
http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0137. Comments 
and materials we received, as well as supporting documentation used in 
preparation of this rule, are available for public inspection at http://www.regulations.gov and by appointment, during normal business hours, 
at U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

[[Page 21929]]


FOR FURTHER INFORMATION CONTACT: Susan S. Millsap, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525; 
email [email protected]. If you use a telecommunications device for the 
deaf (TDD), call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    At section 3(16), the Endangered Species Act of 1973, as amended 
(Act; 16 U.S.C. 1531 et seq.), defines the term ``species'' as 
including any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature. As such, we may refer to the 
variety Echinocereus fendleri var. kuenzleri as a ``species'' in this 
rule.
    Under the Act, a species is an endangered or threatened species 
based on any one or a combination of the five listing factors 
established under 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 manmade factors 
affecting its continued existence.
    After conducting a review of its biological status and threats, we 
have determined that Echinocereus fendleri var. kuenzleri is no longer 
in danger of extinction throughout all or a signification portion of 
its range; however, this plant is likely to become endangered within 
the foreseeable future as a result of wildfire, livestock grazing, 
effects of climate change (Factor A), illicit collection (Factor B), 
and small population size and density (Factor E).
    We sought comments from independent specialists to ensure that our 
determination is based on scientifically sound data, assumptions, and 
analyses. We invited these peer reviewers to comment on our 
reclassification proposal, and we considered all comments and 
information we received during the public comment period.
    This rule makes final the reclassification of E. f. var. kuenzleri 
from an endangered to a threatened species.

Previous Federal Actions

    We proposed to list this plant, with the scientific name 
Echinocereus hempelii, as an endangered species under the Act on June 
16, 1976 (41 FR 24524), because of threats from the demand by private 
and commercial collectors, road maintenance and improvements, cattle 
grazing, and real estate development. On October 26, 1979 (44 FR 
61924), we published in the Federal Register a final rule listing the 
plant, with the scientific name Echinocereus kuenzleri, as an 
endangered species. Benson (1982, p. 631) subsequently reduced this 
species to infraspecific rank as E. fendleri var. kuenzleri. Based on 
this nomenclatural change, we accepted the variety E. fendleri var. 
kuenzleri and officially changed the name on the List of Endangered and 
Threatened Wildlife and Plants in 1984 (Service 1984, p. 21). We 
finalized a recovery plan for this species in March 1985 (Service 1985, 
entire).
    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. f. var. 
kuenzleri under section 4(c)(2) of the Act. The 5-year review was 
completed on June 7, 2005 (Service 2005, entire), and recommended a 
reclassification of the species from endangered to threatened.
    We received a petition dated July 11, 2012, from The Pacific Legal 
Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, 
New Mexico Farm and Livestock Bureau, New Mexico Federal Lands Council, 
and Texas Farm Bureau requesting the Service to reclassify E. f. var. 
kuenzleri from endangered to threatened. The petition was based on the 
analysis and recommendations contained in the 2005 5-year review.
    On September 9, 2013 (78 FR 55046), we published in the Federal 
Register a 90-day finding for the 2012 petition to reclassify E. f. 
var. kuenzleri. In our 90-day finding, we determined the 2012 petition 
provided substantial information indicating the petitioned action may 
be warranted, and we initiated a status review for the plant.
    On November 20, 2015, the Service received a complaint (New Mexico 
Cattle Growers' Association et al. v. United States Department of the 
Interior et al., No. 1:15-cv-01065-PJK-LF (D. N.M.)) for declaratory 
judgment and injunctive relief from the New Mexico Cattle Growers' 
Association, Jim Chilton, New Mexico Farm and Livestock Bureau, New 
Mexico Federal Lands Council, and Texas Farm Bureau to compel the 
Service to make a 12-month finding on the 2012 petition. We completed 
an updated 5-year review in 2016 (Service 2016, entire). The 2016 5-
year review also recommended a reclassification of the species from 
endangered to threatened.
    On January 6, 2017 (82 FR 1677), we published a proposed rule to 
reclassify E. f. var. kuenzleri as threatened, which also constituted 
our 12-month petition finding that the action requested in the 2012 
petition is warranted.
    On June 13, 2017 (82 FR 27033), we reopened the comment period on 
the proposed reclassification of E. f. var. kuenzleri for 30 days in 
order to publish a legal notice and to give all interested parties 
further opportunity to comment on the proposed rule. On June 14, 2017, 
we published legal notices in Carlsbad and Roswell, New Mexico, 
newspapers.

Summary of Biological Status and Threats

    It is our intent to discuss below only those topics directly 
relevant to the reclassification of Echinocereus fendleri var. 
kuenzleri from endangered to threatened. For a thorough assessment of 
the species' biology and natural history including limiting factors, 
species resource needs, and threats, please refer to the Species Status 
Assessment (SSA) Report (Service 2017, entire), which is available on 
the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2016-0137.
    In the SSA Report, we compile biological data and a description of 
past, present, and likely future threats (causes and effects) facing E. 
f. var. kuenzleri. Because data are limited, some uncertainties are 
associated with this assessment. Where we have substantial uncertainty, 
we have attempted to make our necessary assumptions explicit in the SSA 
Report. We base our assumptions in these areas on the best available 
scientific and commercial information. The SSA Report does not 
represent a decision by the Service on whether or not this taxon should 
be reclassified from an endangered species to a threatened species 
under the Act. The SSA Report does, however, provide the scientific 
basis that informs our regulatory decisions, which involve the further 
application of standards within the Act and its regulations and 
policies.
    In 1979, at the time of listing, fewer than 200 individual plants 
had been documented at two locations. During inventories from 1976 to 
2015, botanists found at least 4,330 E. f. var. kuenzleri. Most 
surveyors for E. f. var. kuenzleri state that the numbers of sightings 
likely under-represent the current numbers of cacti present because 
they are small and difficult to detect in the field when not blooming 
and because survey efforts are limited.
    In conducting our SSA, we first considered what E. f. var. 
kuenzleri

[[Page 21930]]

needs to ensure its viability. We generally define viability as the 
ability of the species to persist over the long term and to avoid 
extinction. We next evaluated whether the identified needs of E. f. 
var. kuenzleri are currently available and the repercussions to the 
species when fulfillment of those needs is missing or diminished. We 
then considered the factors that are causing the species to lack what 
it needs, including historical, current, and future factors. Finally, 
considering the information reviewed, we evaluated the current status 
and future viability of the species in terms of resiliency, redundancy, 
and representation.
    Resiliency is the ability of the species to withstand stochastic 
events (arising from random factors such as weather or fire) and, in 
the case of E. f. var. kuenzleri, is best measured by habitat 
connectivity. Redundancy is the ability of a species to withstand 
catastrophic events by spreading the risk and can be measured through 
the duplication and distribution of resilient populations across the 
range of E. f. var. kuenzleri. Representation is the ability of a 
species to adapt to changing environmental conditions and can be 
measured by the breadth of genetic diversity within and among 
populations and the ecological diversity of populations across the 
species' range. For E. f. var. kuenzleri, we evaluate representation 
based on the extent of the geographical range as an indicator of 
genetic and ecological diversity. The main areas of uncertainty in our 
analysis include the minimum amount of suitable habitat needed to 
support resilient populations and the number of populations needed to 
provide for adequate redundancy and representation.
    We evaluated the species over a range of scenarios, from worsening 
conditions to continuing current conditions to better-than-expected 
conditions. Under continuing current conditions, the resiliency was 
determined to be moderate to high, but there was some risk of 
resiliency falling to a moderate to low level under worsening 
conditions (Service 2017, pp. 38, 41).
    Redundancy has increased based on additional survey effort from the 
time of listing of 200 individuals at two locations to 11,000-22,000 
individuals at 11 locations currently. These populations are spread 
over 190 kilometers (118 miles) of suitable habitat (Service 2017, p. 
10). Based on this additional information, we conclude that there is 
sufficient redundancy to maintain the species during the timeframe of 
the SSA's projections.
    While we do not know the range of genetic diversity in the species, 
it occurs over a range of ecological conditions that suggest adequate 
representation to maintain genetic viability. The number of individuals 
and populations are consistent with guidelines to conserve genetic 
diversity (Whitlock et al. 2016, p. 134).
    Our overall assessment concluded that E. f. var. kuenzleri has an 
overall moderate viability (probability of persistence) in the near 
term (between now and the next 50 years). In this summary, we present 
an overview of the comprehensive biological status review. A detailed 
discussion of the information supporting this overview can be found in 
the SSA Report (Service 2017, entire).

Summary of Species Requirements

    E. f. var. kuenzleri is a small cactus that is endemic to the 
northwest side of the Sacramento and Capitan Mountains in Lincoln 
County, New Mexico, to the middle of the Guadalupe Mountains in Eddy 
County, New Mexico. E. f. var. kuenzleri reaches maturity in around 4 
to 5 years of age, flowers in April to June, lives for roughly 30 to 40 
years, with an estimated 10 percent annual mortality. E. f. var. 
kuenzleri occurs in the lower fringes of the pinion-juniper woodland 
from about 1,560 to 2,130 meters (5,100 to 6,990 feet) elevation with 
an average of 180 frost-free days and annual precipitation of about 41 
centimeters (16 inches). Occupied habitat consists of gentle slopes (15 
to 60 percent) or benches with gravelly to rocky soils and southern, 
eastern, and western exposures.
    E. f. var. kuenzleri can be found in soil composed mostly of sand, 
silt, and a smaller amount of clay particles (loam), containing 35 
percent or more (by volume) of rock fragments, cobbles, or gravel 
(skeletal). This combination of particles and small rock fragments 
allows for rapid soil drainage. The soil depth ranges from very shallow 
to very deep, derived from limestone, sandstone, sedimentary rock, 
igneous rock, or mixed sources (Soil Survey Geographic Database 
[SSURGO] 2014).

Review of the Recovery Plan

    In 1985, we published a recovery plan for E. f. var. kuenzleri 
(Service 1985, entire).
    The first downlisting criterion in the recovery plan states that E. 
f. 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 (Service 1985, p. iii). The second 
downlisting criterion in the 1985 recovery plan is based on the need 
for the Service to remove the collecting pressure to offset the threat 
of illegal collection.
    The first criterion was intended to address the point at which 
imminent threats to the plant had been reduced so that the populations 
were no longer in immediate risk of extirpation. Since its listing in 
1979, estimated abundance of individuals in all populations has changed 
over time from approximately 200 individuals to a current known status 
of 11 populations with 4,330 plants observed (1976-2015) (Service 2005, 
p. 4; Service 2016, pp. 34). Because of the difficulty in locating 
nonflowering plants and limited survey efforts, we used a habitat 
suitability model in the SSA to estimate the population size (Service 
2017, Appendix B). This model resulted in an estimated total population 
of between 11,000-20,000 individuals occurring across the range of the 
species (Service 2017, p. 13).
    The second recovery criterion is to remove the collecting pressure 
by promoting commercial propagation. Regardless of its commercial 
availability, we believe that local populations, especially near the 
type locality (location where the description and name of a new species 
is based), may continue to be impacted by occasional poaching from 
growers and hobbyists. This conclusion is based on recent observations 
of illegal collection (Baggao 2017, p. 1). Data that we have analyzed 
indicate that most threats identified in the recovery plan have been 
reduced or eliminated in areas occupied by E. f. var. kuenzleri. As 
discussed in the SSA Report, the status of the species has improved 
since the 1985 recovery plan, primarily based on finding additional 
populations over a broader range. However, the SSA Report also 
discusses additional threats to the species, primarily associated with 
fire regime alteration and climate change effects (i.e., lengthening of 
drought duration, increased temperatures, less precipitation, and 
increased evaporative deficit) (Service 2017, pp. 16-21), that are 
likely to impact the species.

Summary of Factors Affecting Echinocereus fendleri var. kuenzleri

    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). In the 1985 recovery plan, we concluded these 
same threats continued to impact the species (Service 1985, pp.

[[Page 21931]]

8-12). Subsequently, in 2005 and 2016, we conducted 5-year status 
reviews (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 illegal collection (Factor B), have been reduced 
or eliminated since the time of listing, and are no longer affecting 
the status of the species. Livestock grazing (Factor A) continued to be 
a threat by trampling in areas that are improperly managed. The 2005 5-
year review also identified an additional threat of fire based on the 
alteration of the natural fire regime (Service 2005, p. 13). The 2016 
5-year status review identified climate change effects (i.e., 
lengthening of drought duration, increased temperatures, less 
precipitation, and increased evaporative deficit) as additional threats 
to the species. E. f. var. kuenzleri requires 41 centimeters (16 
inches) or more of rain annually to persist. Drought has impacted 
several populations and long-term trends indicate increased 
temperatures and a decrease in precipitation within the range of the 
cactus (Service 2016, pp. 10-11). The SSA Report identified wildfire 
(Service 2017, p. 17), livestock grazing (Service 2017, pp. 17-18), 
effects of climate change (Service 2017, pp. 20-21) (Factor A), illicit 
collection (Service 2017, p. 19) (Factor B), and small population size 
and density (Service 2017, p. 20) (Factor E) as continuing or 
additional threats to the species.

Summary of Comments on Proposed Rule

    In the proposed rule published on January 6, 2017 (82 FR 1677), we 
requested that all interested parties submit written comments by March 
7, 2017. On June 13, 2017 (82 FR 27033), we reopened the comment period 
for 30 days in order to give all interested parties further opportunity 
to comment on the proposed rule. We received 16 comment letters on the 
proposed reclassification of E. f. var. kuenzleri. All substantive 
comments are either incorporated directly into this rule or the SSA 
Report, or are addressed below.
    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent expert opinion on the SSA 
Report (Service 2017, entire) from five individuals with scientific and 
conservation expertise that included familiarity with E. f. var. 
kuenzleri and its habitat, biological needs, and threats to the 
species. We received responses from four of the five peer reviewers. We 
reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the status of E. f. 
var. kuenzleri. All substantive information provided during peer review 
is either incorporated directly into this rule or the SSA Report, or is 
addressed below.

Peer Review Comments

    Comment: Several commenters raised concerns about the population 
estimate provided in the SSA Report. These comments questioned the 
population density values, the minimal ground truthing associated with 
the population estimate, and the level of uncertainty in the population 
estimation. According to the commenters, these factors led to an over-
estimation of population numbers.
    Response: We acknowledge that there is some uncertainty in the 
population estimate. However, this estimate was based on the best 
scientific and commercial data available. We consider the model-based 
population estimate to be reasonably conservative as described in the 
SSA Report. As part of continuing recovery efforts, we will work with 
Bureau of Land Management (BLM), U.S. Forest Service (USFS), and 
private landowners to further ground-truth the habitat model and refine 
the density and population estimates, as appropriate, and to 
incorporate changes into an updated recovery plan.
    Comment: One commenter pointed out that fire regime data for E. f. 
var. kuenzleri habitat are lacking and not supportive of prescribed 
fire to manage fuel loads.
    Response: We discuss the role of fire and assess its effects to the 
species in the SSA Report (Service 2017, p. 17) based on the best 
scientific and commercial data available. Overall, we believe 
additional prescribed fire would be beneficial to the species and 
reduce the risk of catastrophic fires. The commenter did not provide 
additional fire regime information to incorporate into our analysis.
    Comment: One commenter raised concerns about the inclusion of 
asynchronous flowering (flowers not blooming at the same time) as a 
threat.
    Response: Inclusion of this threat in the SSA Report was based on 
preliminary anecdotal information that asynchronous flowering may be 
occurring in the species and this might affect reproductive success. We 
found no substantive data that this is a threat. Based on this comment 
and additional analysis by the Service, we revised the SSA Report to 
remove discussion of asynchronous flowering as a threat.
    Comment: Several commenters raised concern about readers 
potentially using the modeled population estimate out of context or 
scope.
    Response: In the SSA Report, we clearly describe the scope and 
intent of the information provided in the habitat model used to 
estimate a reasonably conservative population estimate, with a 
disclaimer against improper use of the model.

Public Comments

    Comment: Multiple commenters raised concerns about insufficient 
information and data provided to justify the downlisting of E. f. var. 
kuenzleri. For example, some commenters suggested that population trend 
data do not support a downlisting decision. Several comments raised 
concerns about climate change and drought as a significant threat to 
the species. In addition, several commenters raised concerns about 
livestock grazing, fire, and invasive species as significant threats to 
the plant, and stated that there are insufficient data on threats, as 
well as threats not having been fully analyzed.
    Response: Based on the 5-year reviews and the SSA Report, we found 
E. f. var. kuenzleri is more widespread and numerous than when listed 
and conclude that it no longer meets the Act's definition of 
endangered. At the same time, we conclude that, based on threats 
continuing to impact the species, the species is likely to become in 
danger of extinction in the foreseeable future and, therefore, it 
should be reclassified as threatened.
    We acknowledge in the SSA Report that the population trend data are 
limited. For this reason, we reviewed all available scientific and 
commercial data to help determine if the species is at risk of 
extinction in the foreseeable future. Based on available survey, 
observation, and trend data, and current and projected threats, we 
determine that E. f. var. kuenzleri is more widespread and numerous 
than when listed. Additionally, in our proposed rule and SSA Report 
(Service 2017, entire), we analyzed the biological and habitat 
requirements, threats, and viability of E. f. var. kuenzleri and found 
the species to have sufficient resiliency, redundancy, and 
representation. We also analyzed the climate change models specific to 
the occupied area (Service 2017, p. 20). This analysis was included in 
our overall assessment of the species' risk of extinction.
    Comment: One commenter stated that downlisting should exempt the 
species from the take prohibition; application of the take prohibition 
to all threatened species is contrary to the text and purpose of the 
Act.

[[Page 21932]]

    Response: With respect to threatened plants, 50 CFR 17.71(a) 
provides that all of the provisions in 50 CFR 17.61 shall apply to 
threatened plants, with one exception discussed below. We have 
concluded that no modifications to these prohibitions are appropriate 
for this species because there is continued threat of collection.
    These provisions 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 to remove 
and reduce to possession any such plant species from areas under 
Federal jurisdiction. In addition, the Act prohibits malicious damage 
or destruction of any such species on any area under Federal 
jurisdiction, and the removal, cutting, digging up, or damaging or 
destroying of any such species on any other area in knowing violation 
of any State law or regulation, or in the course of any violation of a 
State criminal trespass law. However, there is the following exception 
for threatened plants: Seeds of cultivated specimens of species treated 
as threatened shall be exempt from all the provisions of 50 CFR 17.61, 
provided that a statement that the seeds are of ``cultivated origin'' 
accompanies the seeds or their container during the course of any 
activity otherwise subject to these regulations. Exceptions to these 
prohibitions are outlined in 50 CFR 17.72.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened plants under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.72. With regard to 
threatened plants, a permit issued under this section must be for one 
of the following: Scientific purposes, the enhancement of the 
propagation or survival of threatened species, economic hardship, 
botanical or horticultural exhibition, educational purposes, or other 
activities consistent with the purposes and policy of the Act.
    Comment: One commenter stated that the plant may merit being 
delisted from the Federal List of Endangered and Threatened Plants 
entirely. Another comment suggested that delisting criteria must be 
developed.
    Response: Our SSA Report analyzes the biological and habitat 
requirements, threats, and viability of E. f. var. kuenzleri (Service 
2017, entire), and found that threats still exist to the species. As 
such, we concluded that the species is likely to be at risk of 
extinction in the foreseeable future. The Service anticipates 
establishing delisting criteria and recovery actions based on the best 
scientific and commercial data available and information in the SSA 
Report. Information in the SSA Report supports our decision to 
reclassify E. f. var. kuenzeleri to a threatened species.
    Comment: Several commenters raised concerns about the outdated 
recovery plan. Alternatively, others commenters stated that the 
downlisting criteria in the recovery plan have not been met.
    Response: We acknowledge the 1985 Recovery Plan that was developed 
according to guidance at the time, which includes biological factors, 
conservation measures, and threats (Service 1985, entire), does not 
conform to all current standards and guidance for recovery planning, as 
was recognized in the 2016 5-year review of this species (Service 2016, 
p. 6). The Service intends to develop an updated recovery plan in 
fiscal year 2019 with delisting criteria and recovery actions based on 
the SSA Report and any new information that may become available from 
monitoring and research.
    While meeting the recovery criteria is not required for 
reclassification, we considered the applicable criteria in this 
determination. The criteria for downlisting to ``threatened'' in the 
Recovery Plan are: (1) To secure and maintain a wild population level 
of 5,000 individual plants for a period of 5 consecutive years, and (2) 
to remove the collecting pressure by promoting commercial propagation 
(Service 1985, pp. iii, 21). In the 2016 5-year review, 11 populations 
with 4,330 plants had been observed (1976-2015) (Service 2016, pp. 3-
4). In the SSA Report, based on the best scientific and commercial data 
available, we estimate a current population estimate of 11,000-20,000 
individuals (Service 2017, p. 13). We consider this a conservative 
estimate. Also, a large area of suitable habitat has been identified 
that has not been surveyed.
    Comment: Several commenters recommended that it would be 
appropriate to designate critical habitat for this cactus.
    Response: The Service analyzed designating critical habitat in the 
listing rule (44 FR 61924, October 26, 1979, see p. 61926). The listing 
rule found it was not prudent to determine critical habitat because 
publication of critical habitat maps would make this species more 
vulnerable to taking. The plant has been and continues to be threatened 
by illegal collection (44 FR 61924, October 26, 1979; Service 2017, p. 
19). Publication of designated critical habitat has the potential to 
make the species more vulnerable to collection by highlighting occupied 
locations; therefore, it remains inappropriate to designate critical 
habitat.
    Comment: One commenter stated that the taxonomic status of the 
species has not been definitively settled.
    Response: Although there is scientific debate regarding the 
classification of Echinocereus fendleri Englemann variety kuenzleri 
(Integrated Taxonomic Information System, http://www.itis.gov, accessed 
December 1, 2017), we conclude that the most recent taxonomic 
examinations by Baker (2007, entire), and Felix et al. (2014, entire) 
constitute the best available taxonomic information, and maintain the 
species at its current taxonomic level. We are planning to conduct a 
genetic study to help resolve the taxonomy of this cactus (Service 
2014, p. 44).
    Comment: Another commenter indicated that prescribed fires have a 
high potential to negatively impact these cacti and their reproductive 
potential.
    Response: The threat of fire was analyzed in the January 6, 2017, 
proposed rule (82 FR 1677) and the SSA Report. Wester and Britton 
(2007, p. 11) studied the effect of prescribed burns as a means of 
reducing wildfire risk, and found no evidence that the species was 
negatively affected by prescribed fire because of the lower burn 
intensity. The comment does not offer additional scientific information 
to alter the conclusions in the SSA Report related to prescribed fire 
as a threat to the species.
    Comment: Several comments raised concerns about distribution, 
abundance, and viability of the species' population. For example, some 
commenters suggested that without comprehensive rangewide surveys, the 
full extent and abundance of the species cannot be determined. Several 
comments raised concerns about the absence of trend data. In addition, 
a commenter raised concerns about the viability of the known 
populations.
    Response: We analyzed in our January 6, 2017, proposed rule (82 FR 
1677) and SSA Report (Service 2017, entire) the biological and habitat 
requirements, threats, and viability of E. f. var. kuenzleri and found 
the species to have: A population size necessary to endure stochastic 
environmental variation; the number and geographic distribution of 
populations or sites necessary to endure catastrophic events; and the 
ecological diversity, both within and among populations, necessary to 
conserve long-term adaptive capability in its current populations. As 
required by the Act, we have based the SSA Report and this 
reclassification decision on the best

[[Page 21933]]

available scientific and commercial data.
    Comment: One commenter stated that inadequate regulatory mechanisms 
fail to direct adequate resources towards sufficient documentation of 
the species' status.
    Response: The comment does not identify what additional regulatory 
mechanisms would potentially offset an identified threat to the 
species. As required by the Act, we have based the SSA Report and this 
reclassification decision on the best available scientific and 
commercial data. We plan on developing a monitoring plan with our 
partners (BLM and USFS) to obtain additional information to further 
inform the species' status and development of delisting criteria 
(Service 2017, p. 44).
    Comment: One commenter indicated that there is a need to fill data 
gaps by developing monitoring and research studies.
    Response: In our SSA Report (Service 2017, entire), we acknowledge 
the need for a quantitative monitoring program, sufficient demographic 
information to complete a population viability analysis, and genetic 
analysis. We anticipate working with land management agencies to 
develop a comprehensive habitat management plan, establish a monitoring 
plan, and conduct genetic research for this species (Service 2017, p. 
44).
    Comment: One commenter raised the concern that limited 
distribution, range, and population size makes the species vulnerable 
to stochastic events.
    Response: We analyzed in our January 6, 2017, proposed rule (82 FR 
1677) and SSA Report (Service 2017, entire) the biological and habitat 
requirements, threats, and viability of E. f. var. kuenzleri and found 
the species to have: A population size necessary to endure stochastic 
environmental variation; the number and geographic distribution of 
populations or sites necessary to endure catastrophic events; and the 
ecological diversity, both within and among populations, necessary to 
conserve long-term adaptive capability in its current populations. As 
required by the Act, we have based the SSA Report and this 
reclassification decision on the best available scientific and 
commercial data.

Summary of Changes From the Proposed Rule

    We have made no meaningful changes from the January 6, 2017, 
proposed rule (82 FR 1677). We have made updates to the final SSA 
Report based on information contained in peer review and public 
comments.

Reclassification Analysis

    Under section 4 of the Act, we administer the Federal Lists of 
Endangered and Threatened Wildlife and Plants, which are set forth in 
title 50 of the Code of Federal Regulations at part 17 (50 CFR 17.11 
and 17.12). We can determine, on the basis of the best scientific and 
commercial data available, whether a species may be listed, delisted, 
or reclassified as described in 50 CFR 424.11.
    The determination of whether a species is endangered or threatened 
under the Act is based on if a species is in danger of extinction or 
likely to become so in the foreseeable future because of any one or a 
combination of five factors: (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 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 E. f. var. kuenzleri is endangered 
or threatened throughout all or a significant portion of its range. We 
examined the best scientific and commercial information available 
regarding the past, present, and future threats to E. f. var. 
kuenzleri.
    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 reclassification 
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.
    Using the SSA framework, we have carefully assessed the best 
scientific and commercial information available regarding the past, 
present, and future threats to the species and considered what E. f. 
var. kuenzleri needs to maintain viability. As a result of recent 
information, we know that there are 11 known populations of E. f. var. 
kuenzleri compared to only 2 that were known at the time of listing. 
Individual cacti are spread across a wide range of suitable habitat 
patches. Significant impacts at the time of listing such as 
overcollection or residential development that could have resulted in 
the extirpation of all or parts of populations have been reduced since 
listing. The long-term impacts of wildfire, livestock grazing, effects 
of climate change (Factor A), illicit collection (Factor B), and small 
population size and density (Factor E) throughout the range of the 
species were assessed in our SSA Report. Data indicate an increase in 
temperature (6-8 percent), a decrease in precipitation (-2 percent) and 
a substantial increase in evapotranspiration deficit (18-29 percent) 
within the occupied range of E. f. var. kuenzleri over the next 50 
years (Service 2018, entire). We anticipate that effects due to climate 
change (such as a decrease in precipitation and a substantial increase 
in evapotranspiration deficit), fire, and increased drought, and the 
compounding effects of these threats, including any associated threats 
such as increased herbivory and predation will impact all of the 
populations in the foreseeable future. The New Mexico threatened and 
endangered plant regulations also do not protect E. f. var. kuenzleri 
or its habitats on private lands, with the exception of plant 
collection not authorized by the landowner (Factor D). We chose 50 
years as the foreseeable future to evaluate what is likely to occur 
within the range of the available climate change model forecasts.

Determination of Status

Introduction

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for 
determining whether a species is an endangered species or threatened 
species and should be included on the Federal Lists of Endangered and 
Threatened Wildlife and Plants (listed). The Act defines an endangered 
species as any species that is ``in danger of extinction throughout all 
or a significant portion of its range'' and a threatened species as any 
species ``that is likely to

[[Page 21934]]

become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' On July 1, 2014, we published a final 
policy interpreting the phrase ``significant portion of its range'' 
(SPR) (79 FR 37578). In our policy, we interpret the phrase 
``significant portion of its range'' in the Act's definitions of 
``endangered species'' and ``threatened species'' to provide an 
independent basis for listing a species in its entirety; thus there are 
two situations (or factual bases) under which a species would qualify 
for listing: A species may be in danger of extinction or likely to 
become so in the foreseeable future throughout all of its range; or a 
species may be in danger of extinction or likely to become so 
throughout a significant portion of its range. If a species is in 
danger of extinction throughout an SPR, the species is an ``endangered 
species.'' The same analysis applies to ``threatened species.''
    The SPR policy is applied to all status determinations, including 
analyses for the purposes of making listing, delisting, and 
reclassification determinations. Under section 4(a)(1) of the Act, we 
determine whether a species is an endangered species or threatened 
species because of any one or a combination of the following: (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 
manmade factors affecting its continued existence. These five factors 
apply whether we are analyzing the species' status throughout all of 
its range or throughout a significant portion of its range.

Determination of Status Throughout All of Its Range

    As required by the Act, we carefully assessed the best scientific 
and commercial information available regarding the past, present, and 
future threats to E. f. var. kuenzleri. Based on the analysis in the 
SSA Report, and information summarized above, we have determined that 
E. f. var. kuenzleri's current viability is higher than was known at 
the time of listing, and we find that E. f. var. kuenzleri is no longer 
in danger of extinction throughout all of its range. However, threats 
from wildfire, livestock grazing, effects of climate change (Factor A), 
illicit collection (Factor B), and small population size and density 
(Factor E) continue, despite the existing regulatory mechanisms (Factor 
D) and conservation efforts. Therefore, we find that E. f. var. 
kuenzleri is likely to become endangered within the foreseeable future 
throughout all of its range.

Determination of Status Throughout a Significant Portion of Its Range

    Because we found that E. f. var. kuenzleri is likely to become in 
danger of extinction in the foreseeable future throughout all of its 
range, per the Service's Final Policy on Interpretation of the Phrase 
``Significant Portion of Its Range'' in the Endangered Species Act's 
Definitions of ``Endangered Species'' and ``Threatened Species'' (79 FR 
37578, July 1, 2014) (SPR Policy), no portion of the species' range can 
be ``significant'' for the purposes of the definitions of endangered 
and threatened species. Therefore, we do not need to conduct an 
analysis of whether there is any significant portion of its range 
because the species is likely to become in danger of extinction in the 
foreseeable future.

Conclusion

    In conclusion, the previously recognized impacts to E. f. var. 
kuenzleri from the present or threatened destruction, modification, or 
curtailment of its habitat or range (specifically, residential 
development and 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, either individually or in combination, 
currently place the species in danger of extinction. However, due to 
continued threats from wildfire, livestock grazing, effects of climate 
change (Factor A), illicit collection (Factor B), and small population 
size and density (Factor E), despite the existing regulatory mechanisms 
(Factor D) and conservation efforts, we find that E. f. var. kuenzleri 
is likely to become endangered within the foreseeable future throughout 
all of its range. Therefore, on the basis of the best available 
scientific and commercial information, we are reclassifying E. f. var. 
kuenzleri as a threatened species in accordance with section 4(a)(1) of 
the Act.

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 
practices. The Act encourages cooperation with the States and requires 
that recovery actions be carried out for all listed species. The 
protection required by Federal agencies and the prohibitions against 
certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five 
factors that control whether a species remains endangered or may be 
downlisted or delisted, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. As we 
revise the recovery plan to include delisting criteria, the recovery 
outline, draft revised recovery plan, and the final recovery plan will 
be made available on our website (http://www.fws.gov/endangered), or 
from our New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes,

[[Page 21935]]

nongovernmental organizations, businesses, and private landowners. 
Examples of recovery actions include habitat restoration (e.g., 
restoration of native vegetation), research, captive propagation and 
re-introduction, and outreach and education. The recovery of many 
listed species cannot be accomplished solely on Federal lands because 
their range may occur primarily or solely on non-Federal lands. To 
achieve recovery of these species requires cooperative conservation 
efforts on private, State, and Tribal lands.
    Funding for recovery actions will be available from a variety of 
sources, including Federal budgets, State programs, and cost share 
grants for non-Federal landowners, the academic community, and 
nongovernmental organizations. Information on our grant programs that 
are available to aid species recovery can be found at: http://www.fws.gov/grants. Please let us know if you are interested in 
participating in recovery efforts for E. f. var. kuenzleri. 
Additionally, we invite you to submit any new information on this 
species whenever it becomes available and any information you may have 
for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or 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 consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include issuance of Federal permits. With respect to 
threatened plants, 50 CFR 17.71 provides that all of the provisions in 
50 CFR 17.61 shall apply to threatened plants. These provisions 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 to remove and reduce to possession any such 
plant species from areas under Federal jurisdiction. In addition, the 
Act prohibits malicious damage or destruction of any such species on 
any area under Federal jurisdiction, and the removal, cutting, digging 
up, or damaging or destroying of any such species on any other area in 
knowing violation of any State law or regulation, or in the course of 
any violation of a State criminal trespass law. However, there is the 
following exception for threatened plants. Seeds of cultivated 
specimens of species treated as threatened shall be exempt from all the 
provisions of 50 CFR 17.61, provided that a statement that the seeds 
are of ``cultivated origin'' accompanies the seeds or their container 
during the course of any activity otherwise subject to these 
regulations. Exceptions to these prohibitions are outlined in 50 CFR 
17.72.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened plants under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.72. With regard to 
threatened plants, a permit issued under this section must be for one 
of the following: Scientific purposes, the enhancement of the 
propagation or survival of threatened species, economic hardship, 
botanical or horticultural exhibition, educational purposes, or other 
activities consistent with the purposes and policy of the Act.
    Under section 4(d) of the Act, the Secretary has discretion to 
issue protective regulations to provide for the conservation of 
threatened species. Our implementing regulations (50 CFR 17.71) for 
threatened plants generally incorporate the prohibitions of section 9 
of the Act for endangered plants, except when a rule promulgated 
pursuant to section 4(d) of the Act has been issued with respect to a 
particular threatened species. In such a case, the general prohibitions 
in 50 CFR 17.61 would not apply to that species, and instead, the 4(d) 
rule would define the specific prohibitions and exceptions that would 
apply for that particular threatened species. With respect to a 
threatened plant, the Secretary of the Interior also has the discretion 
to prohibit by regulation any act prohibited by section 9(a)(2) of the 
Act. Exercising this discretion, which has been delegated to the 
Service by the Secretary, the Service has developed general 
prohibitions that are appropriate for most threatened species at 50 CFR 
17.71 and exceptions to those prohibitions at 50 CFR 17.72. We have 
determined to not promulgate a rule under section 4(d) of the Act for 
E. f. var. kuenzleri, and as a result, all of the Act's section 9(a)(2) 
general prohibitions, including the ``take'' prohibitions, will 
continue to apply to E. f. var. kuenzleri when this rule goes into 
effect.
    It is our policy, as 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 a listing on 
proposed and ongoing activities within the range of listed species. 
Based on the best available information, the following actions are 
unlikely to result in a violation of section 9, if these activities are 
carried out in accordance with existing regulations and permit 
requirements this list is not comprehensive:
    (1) Normal agricultural and silvicultural practices, including 
herbicide and pesticide use, which are carried out in accordance with 
any existing regulations, permit and label requirements, and best 
management practices; and
    (2) Normal residential landscape activities.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the New Mexico 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Effects of This Rule

    This rule revises 50 CFR 17.12(h) to reclassify E. f. var. 
kuenzleri from endangered to threatened on the List of Endangered and 
Threatened Plants. On the effective date of this rule (see DATES, 
above), the prohibitions and conservation measures provided by the Act, 
particularly through sections 7 and 9, continue to apply to E. f. var. 
kuenzleri. Federal agencies are required to consult with the Service 
under section 7 of the Act in the event that activities they authorize, 
fund, or carry out may affect E. f. var. kuenzleri.
    As applicable, recovery actions directed at E. f. 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 revised recovery plan with delisting criteria for the cactus 
based on the SSA Report (Service 2017, p. 44).

[[Page 21936]]

Required Determinations

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 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).

Authors

    The primary author of this rule is the New Mexico Ecological 
Services Field Office Southwest Regional Office in Albuquerque, New 
Mexico, in coordination with the Southwest Regional 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.

Regulation Promulgation

    Accordingly, we 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
         Scientific name               Common name          Where listed         Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
         FLOWERING PLANTS
 
                                                  * * * * * * *
Echinocereus fendleri var.         Kuenzler hedgehog    Wherever found.....  T               44 FR 61924, 10/26/
 kuenzleri.                         cactus.                                                   1979; 83 FR
                                                                                              [Insert Federal
                                                                                              Register page
                                                                                              where the document
                                                                                              begins], 5/11/
                                                                                              2018.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


    Dated: May 1, 2018.
James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the 
Authority of the Director U.S. Fish and Wildlife Service.
[FR Doc. 2018-10034 Filed 5-10-18; 8:45 am]
 BILLING CODE 4333-15-P