[Federal Register Volume 83, Number 94 (Tuesday, May 15, 2018)]
[Rules and Regulations]
[Pages 22392-22401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10206]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2016-0130; FXES11130900000-178-FF09E42000]
RIN 1018-BB90


Endangered and Threatened Wildlife and Plants; Reclassifying 
Tobusch Fishhook Cactus From Endangered to Threatened and Adopting a 
New Scientific Name

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), reclassify 
Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii; 
currently listed as Ancistrocactus tobuschii), from endangered to 
threatened on the Federal List of Endangered and Threatened Plants. 
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 is no longer in 
danger of extinction throughout all or a significant portion of its 
range, but it remains threatened with becoming endangered within the 
foreseeable future. In addition, we accept the new taxonomic 
classification for Tobusch fishhook cactus as the subspecies 
Sclerocactus brevihamatus ssp. tobuschii.

DATES: This rule becomes effective June 14, 2018.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0130 and the 
Service's websites at http://www.fws.gov/southwest/es/AustinTexas/ESA_Species_news.html and http://www.fws.gov/endangered. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this rule, are available for public inspection, by 
appointment, during normal business hours at: U.S. Fish and Wildlife 
Service, Austin Ecological Services Field Office, 10711 Burnet Road, 
Suite 200, Austin, TX 78727; telephone 512-490-0057; facsimile 512-490-
0974. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Relay Service at 800-877-8339.

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office (see 
ADDRESSES) telephone 512-490-0057, or by facsimile 512-490-0974. 
Individuals who are hearing impaired or speech-impaired may call the 
Federal Relay Service at 800-877-8339 for TTY assistance.

SUPPLEMENTARY INFORMATION: 

Background

    Under the Endangered Species Act of 1973, as amended (Act; 16 
U.S.C. 1531 et seq.), 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 Tobusch fishhook cactus is no longer in danger of 
extinction throughout all or a signification portion of its range; 
however, the subspecies is likely to become endangered within the 
foreseeable future as a result of changes in vegetation and wildfire 
frequency (Factor A), insect parasites and feral hog rooting (Factor 
C), and the demographic and genetic consequences of small population 
sizes and densities (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 received during the public comment period.
    This rule finalizes the reclassification of Tobusch fishhook cactus 
from an endangered to a threatened species, and adopts the latest 
taxonomic assignment of the scientific name, changing it from 
Ancistrocactus tobuschii to Sclerocactus brevihamatus ssp. tobuschii on 
the Federal List of Endangered and Threatened Plants.

[[Page 22393]]

Previous Federal Actions

    We published a final rule to list Tobusch fishhook cactus as an 
endangered species under the Act on November 7, 1979 (44 FR 64736). At 
that time, we also determined that it was not prudent to designate 
critical habitat. On March 18, 1987, we finalized a recovery plan for 
Tobusch fishhook cactus. On January 5, 2010, a status review (``5-year 
review'') was completed under section 4(c)(2)(A) of the Act, which 
recommended that Tobusch fishhook cactus be reclassified from 
endangered to threatened (Service 2010).
    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 that Tobusch 
fishhook cactus be reclassified as threatened based on the analysis and 
recommendation contained in the 5-year review. The Service published a 
90-day finding on September 9, 2013 (78 FR 55046), that the petition 
contained substantial scientific or commercial information indicating 
that the petitioned action may be warranted. 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 & Livestock Bureau, New Mexico Federal Lands Council, and 
Texas Farm Bureau to compel the Service to make a 12-month finding on 
the petition. On December 29, 2016, the Service published a combined 
12-month warranted finding and proposed rule to reclassify Tobusch 
fishhook cactus from endangered to threatened (81 FR 95932).

Summary of Biological Status and Threats

    We prepared a Species Status Assessment (SSA) for Tobusch fishhook 
cactus (Service 2016; available at http://www.regulations.gov and 
http://www.fws.gov/southwest/es/AustinTexas/ESA_Species_news.html), 
which includes a thorough review of the subspecies' taxonomy, natural 
history, habitats, ecology, populations, and range. We used the best 
available scientific and commercial data to analyze individual, 
population, and subspecies requirements, as well as factors affecting 
the subspecies' survival and its current conditions, to assess the 
current and future viability of Tobusch fishhook cactus in terms of 
resilience, redundancy, and representation. We solicited peer review of 
the draft SSA Report from three objective and independent scientific 
experts, and considered their comments in finalization of the SSA 
Report. The following is a summary of our results and conclusions. 
Please refer to section IV of the SSA Report for a more detailed 
discussion of the factors affecting Tobusch fishhook cactus (Service 
2016, pp. 38-46).

Description

    Tobusch fishhook cactus is a rare, endemic plant of the Edwards 
Plateau of central Texas that is armed with curved ``fishhook'' spines. 
In the wild, this globose or columnar cactus rarely exceeds 5 
centimeters (2 inches) in diameter and in height (Poole and Janssen 
2002, p. 7).

Classification

    The taxonomic classifications of Tobusch fishhook cactus include 
several published synonyms. We listed it as a species, Ancistrocactus 
tobuschii (44 FR 64736, November 7, 1979), and retained this 
classification for the recovery plan (Service 1987). However, recent 
phylogenetic evidence supports classifying Tobusch fishhook cactus as 
subspecies tobuschii of Sclerocactus brevihamatus (Porter and Prince 
2011, pp. 40-47). It is distinguished morphologically from its closest 
relative, S. brevihamatus ssp. brevihamatus, on the basis of yellow 
versus pink- or brown-tinged flowers, fewer radial spines, and fewer 
ribs (Marshall 1952, p. 79; Poole et al. 2007, p. 442; Porter and 
Prince 2011, pp. 42-45). Additionally, S. brevihamatus ssp. tobuschii 
is endemic to limestone outcrops of the Edwards Plateau, while S. 
brevihamatus ssp. brevihamatus occurs in alluvial soils in the 
Tamaulipan Shrublands and Chihuahuan Desert. A recent investigation 
confirmed genetic divergence between the two subspecies, although they 
may interact genetically in a narrow area where their ranges overlap 
(Rayamajhi 2015, pp. 67, 98; Sharma 2015, p. 1). We officially accept 
the new scientific name of Tobusch fishhook cactus as Sclerocactus 
brevihamatus ssp. tobuschii.

Reproduction

    Tobusch fishhook cactus grows slowly, reaching a reproductive size 
of about 2 centimeters (0.8 inches) in diameter after 9 years (Emmett 
1995, pp. 168-169). It flowers between late January and mid-March, and 
its major pollinators are honey bees and halictid bees (Emmett 1995, 
pp. 74-75; Lockwood 1995, pp. 428-430; Reemts and Becraft 2013, pp. 6-
7; Langley 2015, pp. 21-23). The breeding system is primarily out-
crossing, requiring fertilization between unrelated individuals; 
relatively few viable seeds are produced from self-fertilized flowers 
(Emmett 1995, p. 70; Langley 2015, pp. 24-28). Reproductive individuals 
produce an average of 112 seeds per year (Emmett 1995, p. 108). Ants 
may be seed predators, dispersers, or both (Emmett 1995, pp. 112-114, 
124). Mammals or birds may also accomplish longer distance seed 
dispersal (Emmett 1995, pp. 115-116, 126). There is little evidence 
that seeds persist in the soil (Emmett 1995, pp. 120-122).

Habitats

    When listed as endangered in 1979, fewer than 200 individuals of 
Tobusch fishhook cactus were known from 4 riparian sites, 2 of which 
had been destroyed by floods (44 FR 64736, November 7, 1979; Service 
1987, pp. 4-5). We now understand that those riparian habitats were 
atypical; the great majority of populations that have now been 
documented occur in upland sites dominated by Ashe juniper-live oak 
woodlands and savannas on the Edwards Plateau (Poole and Janssen 2002, 
p. 2). Soils are classified in the Tarrant, Ector, Eckrant, and similar 
series. Within a matrix of woodland and savanna, the subspecies occurs 
in discontinuous patches of very shallow, gravelly soils where bare 
rock and rock fragments comprise a large proportion of the surface 
cover (Sutton et al. 1997, pp. 442-443). Associated vegetation includes 
small bunch grasses and forbs. The subspecies' distribution within 
habitat patches is clumped and tends to be farther from woody plant 
cover (Reemts 2014, pp. 9-10). The presence of cryptograms, primitive 
plants that reproduce by spores rather than seeds, may be a useful 
indicator of fine-scale habitat suitability (Service 2010, p. 17). 
Wildfire (including prescribed burning) causes negligible damage to 
Tobusch fishhook cactus populations (Emmett 1995, p. 42; Poole and 
Birnbaum 2003, p. 12). The subspecies probably does not require fire 
for germination, establishment, or reproduction, but periodic burning 
may be necessary to prevent the encroachment of woody plants into its 
habitats.

Populations and Range

    A population of an organism is a group of individuals within a 
geographic area that are capable of interbreeding or interacting. 
Although

[[Page 22394]]

the term is conceptually simple, it may be difficult to determine the 
extent of a population of rare or cryptic species, and this is 
certainly the case for Tobusch fishhook cactus. Thorough surveys on 
public lands, such as State parks and highway rights-of-way, have 
detected groups of individuals, but since the vast majority of the 
surrounding private land has not been surveyed, we do not know if these 
are small, isolated populations, or parts of larger interacting 
populations or metapopulations. In instances where we are unable to 
define the extent of the local population, we often informally use the 
terms ``site,'' referring to a place where the subspecies was found, 
and ``colony,'' referring to a cluster of individuals.
    Populations of Tobusch fishhook cactus are now confirmed in eight 
central Texas counties: Bandera, Edwards, Kerr, Kimble, Kinney, Real, 
Uvalde, and Val Verde. The Texas Native Diversity Database (2016, pp. 
1-202) listed 97 element occurrences, areas in which the plant was 
present (EOs; NatureServe 2002, p. 10), of Tobusch fishhook cactus, 
totaling 3,336 individuals. In addition, recent surveys conducted 
through Section 7 consultations and at preserves managed by The Nature 
Conservancy, that are not included in the TXNDD report, bring the total 
number of documented individuals to approximately 4,500. Although the 
numbers of individuals at each site fluctuate over time, due to the 
combined, continuing effects of mortality and recruitment of new 
individuals, our best estimate of the total live individuals at all 
documented sites at any one time is 4,500.

Summary of Subspecies Requirements

    Tobusch fishhook cactus plants occur in patches of very shallow, 
rocky soil overlying limestone. The immediate vicinity of plants is 
sparsely vegetated with small bunch grasses and forbs and there is 
little or no woody plant cover. Individual plants require an estimated 
9 years to reach a reproductive size of about 2 centimeters (0.8 
inches) in diameter. Reproduction is primarily by out-crossing between 
unrelated individuals, and the known pollinators include honey bees and 
halictid bees. Out-crossing requires genetically diverse cactus 
populations within the foraging range of pollinators, and is less 
likely to occur in small, isolated populations. Healthy pollinator 
populations, in turn, require intact, diverse, native plant 
communities. Halictid bees are frequent natural pollinators of Tobusch 
fishhook cactus. We expect the foraging range of these bees, given 
their relatively small size, to be fairly limited. Therefore, the 
health and diversity of native vegetation within the vicinity of 
Tobusch fishhook cactus plants (a range of 50 to 500 meters (164 to 
1,640 feet)) may be particularly important for successful cactus 
reproduction. Healthy pollinator populations also require the least 
possible exposure to agricultural pesticides within their foraging 
ranges.
    Resilient populations are those that exhibit stable or increasing 
demographic trends. The assessment of demographic trends, however, 
depends on how populations are delineated (81 FR 95932, December 29, 
2016). For Tobusch fishhook cactus, we conclude that it is more 
appropriate to track the collective populations of multiple colonies 
that interact on a landscape scale (i.e., metapopulations). Resilience 
of metapopulations requires recruitment of new colonies and/or 
reestablishment at sites of former colonies that previously collapsed. 
A major cause of mortality is infestation by insect larvae, mainly by 
an undescribed species of Gerstaeckeria (cactus weevil), and one or 
more species of cactus longhorn beetles (Moneilema spp.). The adults of 
these parasites are flightless, so their dispersal to new colonies is 
likely to be very limited. When individual colonies of the cactus die 
off, the parasites also die off, rendering those patches of suitable 
habitat available for cactus re-colonization. Hence, these periodic 
infestations of parasite larvae greatly influence the population 
dynamics of Tobusch fishhook cactus. The distance between colonies has 
two opposing effects on their persistence. Greater distance reduces 
susceptibility to parasite infestation, but also reduces the amount of 
gene flow, by means of pollinators vectoring pollen, or through seed 
dispersal, between colonies. Thus, the persistence of entire 
metapopulations would require fairly large landscapes where 
discontinuous patches of suitable habitat are distributed and populated 
at a density just low enough to hold the parasites at bay, but just 
high enough for halictid bees and other pollinators and seed dispersers 
to vector genes between them.
    One measure of population resilience is minimum viable population 
(MVP), which is an estimate of the minimum population size that has a 
high probability of enduring a specified period of time. Poole and 
Birnbaum (2003, p. 1) estimated an MVP of 1,200 individuals for Tobusch 
fishhook cactus, using a surrogate species approach (Pavlik 1996, pp. 
136-137). Although some Tobusch fishhook cactus individuals live for 
decades, annual mortality rates are often greater than 20 percent, and 
relatively few individuals live long enough to reproduce. Mortality 
within monitored colonies often exceeds recruitment, and some colonies 
have died out. Nevertheless, even where individual colonies have 
collapsed, the total documented population sizes at many protected 
natural areas are stable or increasing, due to discoveries of new 
individuals and colonies. For this reason, MVP levels are more 
appropriately applied to metapopulations rather than individual 
colonies of this cactus.
    The degree of genetic diversity within Tobusch fishhook cactus 
populations is important for several reasons. First, diversity within 
populations should confer greater resistance to pathogens and parasites 
and greater adaptability to environmental stochasticity (random 
variations, such as annual rainfall and temperature patterns) and the 
effects from climate change. Second, low genetic diversity within 
interbreeding populations leads to a higher incidence of inbreeding, 
and potentially to inbreeding depression (reduced biological fitness), 
which lowers a population's ability to survive and reproduce. Finally, 
the breeding system of Tobusch fishhook cactus is primarily out-
crossing, so populations with too little genetic diversity would 
produce fewer progeny.
    Fire, whether natural or prescribed, appears to have little effect 
on individual Tobusch fishhook cactus plants. This outcome is because 
the plants occur where vegetation is very sparse, and the plants 
protrude very little above the ground and are protected by surrounding 
rocks from the heat of vegetation burning nearby. On the other hand, 
periodic fire is likely to be necessary for population persistence to 
reduce juniper encroachment into suitable habitats. Furthermore, the 
diverse shrub and forb vegetation that sustains healthy pollinator 
populations is maintained by periodic wildfire; without fire, dense 
juniper groves frequently displace these shrubs and forbs. Hence, if 
the native plant diversity of entire landscapes surrounding Tobusch 
fishhook cactus populations succumbs to juniper encroachment, 
pollinator populations will likely decline, and reproduction of Tobusch 
fishhook cactus and gene flow between its colonies may be reduced.
    In addition to population resilience, we assessed the subspecies' 
viability in terms of its redundancy (ability to withstand catastrophic 
events) and representation (ability to adapt to changing environmental 
conditions).

[[Page 22395]]

Given that insect parasites are able to devastate large, dense 
populations, a few large populations are much more vulnerable than many 
small populations. The viability of Tobusch fishhook cactus derives not 
merely from the size of metapopulations, but also their density. 
Metapopulations with a low density of colonies may incur loss of 
genetic diversity and increased potential for inbreeding. Conversely, 
vulnerability to insect parasitism increases when metapopulations 
become too dense, or when individual colonies become too large. 
Assessments of resilience (metapopulation size and demographics) and 
redundancy (number of metapopulations within the subspecies' range) 
depend on how metapopulations are delineated. We believe that there 
must be some optimal range of metapopulation density, i.e., the 
distance between metapopulations, and of colony size, although we do 
not currently know what those are.
    One influence on representation is genetic diversity, both within 
and among populations, that is necessary to conserve long-term adaptive 
capability (Shaffer and Stein 2000, pp. 307-308). Genetic diversity 
within a population can be measured by the numbers of variant forms of 
genes represented in that population. One measure of this within-
population genetic diversity is called heterozygosity; possible values 
range from 0 (all members of a population are genetically identical for 
specified genes) to 1.0 (all members of a population are genetically 
different). Another useful measure is the inbreeding coefficient 
(FIS), which ranges from -1 (all members of the population 
are heterozygous, containing two forms of specific genes, and there is 
no evidence of inbreeding) to 1.0 (all members are homozygous, 
containing only one form of specific genes, and inbred). Although there 
are no heterozygosity levels or inbreeding coefficients that are 
considered healthy for all species, we may assess the genetic health of 
Tobusch fishhook cactus by comparison to the observed values of 
reference species, such as other cactus species with similar life 
histories that are abundant and widespread (Rayamajhi 2015, pp. 56, 63; 
Schwabe et al. 2015, pp. 449, 454-455).
    A study by Rayamajhi (2015, entire) determined that the mean 
expected heterozygosity (He) for nine populations of Tobusch 
fishhook cactus was 0.59, and the mean observed heterozygosity 
(Ho) was 0.37 (p. 57). These results indicate relatively low 
levels of genetic differentiation among the nine populations; however, 
this situation is not unusual for endemic taxa and may also indicate a 
recent divergence of subspecies tobuschii from subspecies brevihamatus. 
Through comparison to other columnar cactus species that are endemic or 
have limited geographic distribution, Rayamajhi (2015) concluded that 
for Tobusch fishhook cactus, He was moderately high and 
Ho was moderate (pp. 58-61). The moderate Ho may 
be attributed to small population sizes and elevated levels of 
inbreeding within populations (p. 57). By comparison, He and 
Ho for Sclerocactus glaucus, a federally listed threatened 
cactus species from Colorado, were 0.66 and 0.47, respectively, while 
for Sclerocactus parviflorus, a relatively widespread cactus species, 
He and Ho were 0.62 and 0.39 (Schwabe et al. 
2015, p. 449). Despite low levels of genetic differentiation, the same 
study found evidence of substantial gene flow among Tobusch fishhook 
cactus populations and healthy levels of outbreeding, with a mean 
inbreeding coefficient (FIS) of 0.38 (range of 0.15 to 0.63) 
for ssp. tobuschii and 0.47 for ssp. brevihamatus (pp. 63-64). For 
comparison, the average FIS for S. glaucus and S. 
parviflorus was 0.28 and 0.37 (Schwabe et al. 2015, p. 449). These 
results suggest that Tobusch fishhook cactus currently possesses 
sufficient genetic representation to conserve long-term adaptive 
capability.

Review of the Recovery Plan

    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. Recovery plans identify site-
specific management actions that will achieve recovery of the species, 
measurable criteria that set a trigger for review of the species' 
status, and estimates of the time and cost to recovery.
    Recovery plans are not regulatory documents; instead they are 
intended to establish goals for long-term conservation of listed 
species and define criteria that are designed to indicate when the 
threats facing a species have been removed or reduced to such an extent 
that the species may no longer need the protections of the Act, as well 
as actions that may be employed to achieve reaching the criteria. There 
are many paths to accomplishing recovery of a species, and recovery 
may, at times, be achieved without all criteria being fully met or all 
actions fully implemented. Recovery of a species is a dynamic process 
requiring adaptive management that may, or may not, fully follow the 
guidance provided in a recovery plan.
    The Tobusch fishhook cactus recovery plan was approved by the 
Service on March 18, 1987 (Service 1987). Delisting criteria were not 
established in the recovery plan. However, the recovery plan did 
establish a criterion of 3,000 individuals in each of 4 safe sites for 
reclassification from endangered to threatened. The explanation for how 
this level was calculated is not included in the recovery plan, and to 
date this criterion has not been met. No individual colonies have 
reached this size, and we now understand that insect parasites are able 
to devastate large, dense populations of Tobusch fishhook cactus. Thus, 
the downlisting criterion of 3,000 individuals per population may be 
unattainable or unsustainable. Such large cactus populations would 
eventually host very large parasite populations, leading to their 
collapse (Service 2017, p. 40).
    Currently, many small populations exist, and surveyors have 
documented a total of approximately 4,500 Tobusch fishhook cactus 
individuals in 8 counties of the Edwards Plateau. Monitored 
populations, ranging from 34 to 1,090 individuals, occur on 12 
properties managed either by the State or conservation organizations. 
We conclude that a few large cactus populations are much more 
vulnerable than many small populations, and we will consider revision 
of the 1989 recovery plan to include delisting criteria based on our 
new understanding of Tobusch fishhook cactus demographics.

Summary of Changes From the Proposed Rule

    We have made no changes from the proposed rule.

Summary of Comments and Recommendations

    In the proposed rule published on December 29, 2016 (81 FR 95932), 
we requested that all interested parties submit written comments on the 
proposal by February 27, 2017, and we reopened the public comment 
period from June 13, 2017, to July 13, 2017 (82 FR 27033, June 13, 
2017). We also contacted appropriate Federal and State agencies, 
scientific experts and organizations, and other interested parties and 
invited them to comment on the proposal. Newspaper notices inviting 
general public comment were published in the San Antonio Express News 
on June 13, 2017. We did not receive any requests for a public hearing. 
All substantive information provided during comment periods has

[[Page 22396]]

either been incorporated directly into this final determination or is 
addressed below.
    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from three knowledgeable 
individuals with scientific expertise that included familiarity with 
Tobusch fishhook cactus and its habitat, biological needs, and threats. 
We received responses from all three of the peer reviewers that they 
concurred with our decision to reclassify Tobusch fishhook cactus as a 
threatened subspecies. We received a total of five comments on the 
proposed rule; one from the State of Texas and four from the public. We 
did not receive comments from other Federal agencies or Tribes. We 
reviewed all comments received during the two public comment periods 
for substantive issues and new information regarding the proposed 
reclassification of Tobusch fishhook cactus. Four commenters were in 
favor of the proposed reclassification, and one commenter was in 
support of delisting Tobusch fishhook cactus. Substantive comments we 
received are addressed below.
    (1) Comment: Although locating new populations of Tobusch fishhook 
cactus does not yet ameliorate or offset the many threats to the 
subspecies, Tobusch fishhook cactus does fit the definition of 
threatened and warrants downlisting. As stated in the SSA, Tobusch 
fishhook cactus requires continued conservation, management, and 
protection. Downlisting Tobusch fishhook cactus to threatened will 
allow for these continued efforts.
    Our Response: We concur and look forward to continuing cooperative 
efforts to conserve and recover Tobusch fishhook cactus.
    (2) Comment: The reclassification of Tobusch fishhook cactus is 
fully supported; however, the downlisting should also exempt the 
subspecies from the take prohibition of the Act.
    Our Response: The Act does not prohibit the taking of either 
endangered or threatened plant species that occur on private lands. 
While the Act prohibits the taking of endangered and threatened plant 
species that occur on lands under Federal jurisdiction, the subspecies 
is not known to occur on any Federal lands.
    (3) Comment: We believe that the SSA, representing the Service's 
understanding of the best available scientific and commercial 
information, instead leads to a scientifically supportable conclusion 
that Tobusch fishhook cactus is neither threatened nor endangered with 
extinction within the foreseeable future throughout all or a 
significant portion of its range. We recommend that the Service modify 
its proposed rule to instead remove Tobusch fishhook cactus from the 
Federal List of Endangered and Threatened Plants on the basis that the 
original listing was in error. Such a conclusion is both consistent 
with and directed by the SSA developed by the Service.
    Our Response: The best available scientific information indicates 
that the subspecies remains at risk of extinction in the foreseeable 
future. Our analysis indicates that Tobusch fishhook cactus is likely 
to continue to be negatively affected by factors such as changes in 
vegetation and wildfire frequency, infection from parasites, feral hog 
rooting, and the demographic and genetic consequences of small 
population sizes (see discussion under Reclassification Analysis 
below). The subspecies persists but requires continued management, 
conservation, and protection under the Act to fully alleviate these 
threats.
    We also recognize that the subspecies may be more abundant than 
previously estimated at the time of listing; however, calculations of 
true population size are difficult to make. In the SSA, we estimated 
that the total subspecies population is about 480,000 individuals, and 
total estimated potential habitat ranges over 5 million acres. However, 
this estimate may overstate the actual population size, as only 4,564 
Tobusch fishhook cactus individuals were actually detected from 2003 to 
2015. In Appendix B of the SSA Report, we explained that the estimate 
of the total population size of Tobusch fishhook cactus is a simple 
extrapolation of the average population density within surveys of 
potential habitat to the total amount of potential habitat. The 
extremely uneven distribution of this cactus complicates estimates of 
the true population size (Service 2016, p. 21). In the SSA Report, we 
also stated that the estimated population size is not a precise 
determination, but is the best estimate we are currently able to make 
with available quantitative data that has been obtained from a small 
number of areas (Service 2016, p. 32). One peer reviewer of the SSA 
stated that the general approach we used to estimate the total number 
of plants was sound, but because the areas surveyed were a biased 
sample of potential habitats, our approach likely overestimated the 
amount of potential habitat and population size. This overestimate is 
because State parks and other areas surveyed are not representative of 
all areas of potential habitat within the subspecies' range. We concur 
with these comments. The survey sample size was small and was 
unavoidably biased, and the method we used did not establish confidence 
limits to the estimate. Due to the drastic collapse of many large 
colonies from insect parasites, we require statistically rigorous 
estimates of metapopulation trends to project long-term viability.
    Although the available data do indicate that both the subspecies' 
viability and population sizes are greater than when it was listed and 
that it is not currently in danger of extinction, threats to the 
subspecies remain unabated and Tobusch fishhook cactus is likely to 
become endangered with extinction in the foreseeable future.

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. Tobusch fishhook cactus 
was listed as endangered in 1979 due to: Few known populations, habitat 
destruction, and altered stream flows (Factor A); illegal collection 
(Factor B); and very limited geographic range, small population sizes, 
restricted gene pool, and lack of reproduction (Factor E). We now know 
there are many more populations over a much wider area; approximately 
4,500 individuals have been documented at more than 97 EOs and other 
monitoring sites. Most habitats are relatively secure, given that they 
are in remote, rocky areas that are unsuitable for growing crops. 
However, the great majority is on private lands that are becoming 
increasingly fragmented and may be subject to destruction or 
modification. Many of the known populations are small and isolated, and 
the monitored portions of numerous populations have declined. 
Demographic population viability analyses predict an overall future 
decline in subspecies' viability. However, we do not know how well 
these analyses project the demographic trends of metapopulations 
distributed over larger landscapes. We know that insect parasites are a 
major cause of mortality and may naturally reduce populations to low 
densities. Many populations have sufficient genetic diversity to confer 
long-term adaptive capability, but some small, isolated populations 
have higher levels of inbreeding and may be affected by

[[Page 22397]]

reduced fitness and reproduction. It is likely that projected climate 
changes will affect Tobusch fishhook cactus, but we do not currently 
know whether such changes will have a net positive or negative effect 
on its viability.
    Using the SSA framework, we have carefully assessed the best 
scientific and commercial information available regarding the past, 
present, and future threats to Tobusch fishhook cactus to consider what 
the subspecies needs to maintain viability. We have determined that 
Tobusch fishhook cactus is currently no longer in danger of extinction, 
because it has larger, more numerous populations that are much more 
widely distributed than we previously understood, and therefore the 
subspecies has greater resilience, redundancy, and representation. 
Nevertheless, it is likely to become endangered within the foreseeable 
future because the following threats have not been fully ameliorated 
and are expected to continue into the foreseeable future: Habitat 
destruction and modification due to changes in vegetation and wildfire 
frequency (Factor A), insect parasites and feral hog rooting (Factor 
C), and the demographic and genetic consequences of small population 
sizes and densities (Factor E). In the SSA Report, we projected what 
the future viability of Tobusch fishhook cactus could be using the 
timeframe 2050 to 2074. This is the same timeframe that has been used 
to project future climate conditions for Edwards County, Texas (U.S. 
Geological Survey 2015), and although climate change is not likely a 
direct stressor to Tobusch fishhook cactus viability, the effects from 
climate change on the threats to Tobusch fishhook cactus are likely to 
impact the future viability of the species. We used the National 
Climate Change Viewer (NCCV; U.S. Geological Survey 2015) to compare 
past and projected future climate conditions. The baseline for 
comparison was the observed mean values from 1950 through 2005, and 30 
climate models were used to project future conditions. The NCCV 
generates projections for three timeframes: 2025 to 2049, 2050 to 2074, 
and 2075 to 2099. We chose the intermediate timeframe of 2050 to 2074 
for our projections of the species status in the foreseeable future 
because relatively few changes may be apparent in the earlier 
timeframe, and projection uncertainty is greatest in the later 
timeframe.
    Below we present our analysis of threats to Tobusch fishhook 
cactus. For a complete discussion of all threats, including those 
considered significant at the time of listing and those considered 
potential future threats, please refer to the SSA Report (Service 
2016).

Changes in Vegetation and Wildfire Frequency (Factor A)

    Bray (1904, pp. 14-15, 23-24) documented the rapid transition of 
grasslands to woodlands in the Edwards Plateau occurring more than a 
century ago; he attributed this change to overgrazing, the depletion of 
grasses, and the cessation of wildfires. Fonteyn et al. (1988, p. 79) 
state that savannas covered portions of the pre-settlement Edwards 
Plateau, and since 1850 were transformed to shrubland or woodland 
``primarily by suppression of recurring natural and anthropogenic fires 
and the introduction of livestock.'' They list the fire-sensitive Ashe 
juniper (Juniperus ashei) as the most successful of many woody plants 
that have invaded grasslands. Reemts (2014 p. 1) lists the encroachment 
of woody plants into the rocky, open habitat as one of several 
remaining habitat-related threats that endanger Tobusch fishhook 
cactus. In synthesis, unlike the mountainous conifer forests of the 
arid southwest, where fire frequency has increased, in the Edwards 
Plateau of Texas, poor rangeland management depleted the grass and forb 
cover, and the lack of fine fuels reduced the incidence of wildfire. 
Juniper trees that were formerly limited by relatively frequent 
wildfires have now greatly increased in abundance and cover, and the 
proportion of ground that is shaded has increased. Since Tobusch 
fishhook cactus thrives in full sun, but does not tolerate dense shade, 
these changes in vegetation cover, wildfire frequency, and juniper 
cover threaten this cactus. Replacement of a diverse shrub and forb 
community with monocultural (growth of a single plant species) stands 
of juniper also reduces pollinator populations, which in turn may 
reduce reproduction of Tobusch fishhook cactus and gene flow between 
colonies (Service 2017, p. 37). We expect these threats to continue at 
least through the 2050 to 2074 projection period (described above), 
which we define as the foreseeable future for this threat.
    Vegetation and fire frequency may also be influenced by climate 
changes. The means of 30 climate models project increasing temperatures 
for the Edwards Plateau of Texas over the 2050 to 2074 projection 
period (U.S. Geological Survey 2015). However, these models do not 
simulate well the projected patterns of regional precipitation (IPCC 
2013, p. 11). Average precipitation may increase or decrease, seasonal 
rainfall patterns may change, and annual variation in rainfall may 
increase. Consequently, we do not know what the net effect of climate 
changes will be on vegetation and wildfire frequency nor how these 
changes might affect the viability of Tobusch fishhook cactus.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes (Factor B)

    The listing of Tobusch fishhook cactus as an endangered species (44 
FR 64736) included collection from wild populations for the commercial 
cactus trade as a threat to the species. Subsequently, we have detected 
very little evidence of illicit collection from wild populations; this 
potential threat has not substantively affected the species survival.

Insect Parasites (Factor C)

    The Tobusch fishhook cactus weevil (Gerstaeckeria spp.) and cactus 
longhorn beetle (Moneilema spp.) parasitize and kill Tobusch fishhook 
cactus plants. Populations of these parasites increase rapidly in 
large, dense cactus colonies and have caused drastic declines in many 
of the larger populations (Calvert 2003, entire). Conversely, since the 
parasites are flightless, smaller, widely dispersed colonies may be 
less susceptible to parasite infestation. Periodic outbreaks of insect 
parasitism appear to be an unavoidable natural cycle that may 
exacerbate population declines from other causes, and currently there 
are no management practices to prevent or minimize insect parasitism. 
Therefore, this threat remains unabated, and we expect it will continue 
at least through the foreseeable future (described above), which we 
define as the foreseeable future for this threat.

Other Herbivory (Factor C)

    The incidence of herbivory by jackrabbits, rodents, and other 
native herbivores on Tobusch fishhook cactus is relatively minor (Poole 
and Birnbaum (2003, pp. 11-12). However, introduced feral hogs are 
abundant throughout the subspecies' range and have damaged and 
destroyed Tobusch fishhook cactus individuals and habitats in many 
sites (Reemts 2015, p. 1). Feral hog populations remain undiminished in 
Texas despite active hunting and trapping efforts. Therefore, this 
threat remains unabated, and we expect it will continue at least 
through the 2050 to 2074 projection period (described above), which we 
define as the foreseeable future for this threat.

[[Page 22398]]

The Inadequacy of Existing Regulatory Mechanisms (Factor D)

    Only a very small fraction of the potential habitat of Tobusch 
fishhook cactus occurs on state parks or other public lands where the 
habitat could be directly managed through regulatory mechanisms. 
Regulatory mechanisms cannot ensure habitat management and species 
conservation on the great majority of the species habitats that occur 
on privately owned land. Thus the habitat-related threats and feral hog 
issues described above are anticipated to continue to impact the 
species regardless of existing regulatory mechanisms.

Demographic and Genetic Consequences of Small Population Size and 
Density (Factor E)

    Small populations are less able to recover from losses caused by 
random environmental changes (Shaffer and Stein 2000, pp. 308-310), 
such as fluctuations in recruitment (demographic stochasticity), 
variations in rainfall (environmental stochasticity), or changes in the 
frequency of wildfires. Poole and Birnbaum (2003, p. 1) estimated a 
minimum viable population (MVP) size of 1,200 individuals for Tobusch 
fishhook cactus (Service 2016, section II.7.5, available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0130). Since the 
subspecies has a predominantly out-crossing breeding system, the 
probability of successful fertilization between unrelated individuals 
is reduced in small, isolated populations. The remaining plants would 
produce fewer viable seeds, further reducing population recruitment and 
engendering a downward spiral toward extirpation. The demographic 
consequences of small population size are compounded by genetic 
consequences, because reduced out-crossing corresponds to increased 
inbreeding. In addition to population size, it is likely that 
population density within metapopulations also influences population 
viability; density must be high enough for gene flow within 
metapopulations, but low enough to minimize parasite infestations. 
Small, reproductively isolated populations are also susceptible to the 
loss of genetic diversity, to genetic drift (random fluctuations in the 
numbers of gene variants), and to inbreeding. The loss of genetic 
diversity is likely to cause a loss of fitness and lower chance of 
survival of populations and of the subspecies. Genetic drift may also 
cause the loss of genetic diversity in small populations. Inbreeding 
depression is the loss of fitness among offspring of closely related 
individuals. Rayamajhi (2015, pp. 63-64) found relatively high 
inbreeding coefficients in three of eight populations, which he 
attributed to mating of close relatives within small, isolated 
populations. We conclude that small population sizes, low densities, 
and isolation of populations threaten the survival of Tobusch fishhook 
cactus. We expect that abatement of these threats could not be overcome 
for one or more lifespans. Tobusch fishhook cactus is able to reproduce 
after about 10 years, and may live 50 years or more. Therefore, we 
define the foreseeable future for this threat to be a period of about 
50 years.

Determination

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species that is ``in danger of extinction throughout all or a 
significant portion of its range,'' and a ``threatened species'' as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' The Act requires that we determine whether a species meets the 
definition of ``endangered species'' or ``threatened species'' because 
of any of the following 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. The same factors apply whether we are analyzing 
the species' status throughout all of its range or throughout a 
significant portion of its range.
    On July 1, 2014, we published a final policy interpreting the 
phrase ``significant portion of its range'' (SPR) (79 FR 37578) (SPR 
Policy). Aspects of that policy were vacated for species that occur in 
Arizona by the United States District Court for the District of 
Arizona. CBD v. Jewell, No. CV-14-02506-TUC-RM (Mar. 29, 2017), 
clarified by the court, Mar. 29, 2017. Since the Tobusch fishhook 
cactus does not occur in Arizona, for this finding we rely on the SPR 
Policy, and also provide additional explanation and support for our 
interpretation of the SPR phrase. 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, it, the species, is an 
``endangered species.'' The same analysis applies to ``threatened 
species.''
    Our final policy addresses the consequences of finding that a 
species is in danger of extinction in an SPR, and interprets what would 
constitute an SPR. The final policy includes four elements: (1) If a 
species is found to be endangered or threatened throughout a 
significant portion of its range, the entire species is listed as an 
endangered species or a threatened species, respectively, and the Act's 
protections apply to all individuals of the species wherever found; (2) 
a portion of the range of a species is ``significant'' if the species 
is not currently endangered or threatened throughout all of its range, 
but the portion's contribution to the viability of the species is so 
important that, without the members in that portion, the species would 
be in danger of extinction, or likely to become so in the foreseeable 
future, throughout all of its range; (3) the range of a species is 
considered to be the general geographical area within which that 
species can be found at the time the Service or the National Marine 
Fisheries Service makes any particular status determination; and (4) if 
a vertebrate species is endangered or threatened throughout an SPR, and 
the population in that significant portion is a valid DPS, we will list 
the DPS rather than the entire taxonomic species or subspecies.
    The SPR policy applies to analyses for all status determinations, 
including listing, delisting, and reclassification determinations. As 
described in the first element of our policy, once the Service 
determines that a ``species''--which can include a species, subspecies, 
or distinct population segment (DPS)--meets the definition of 
``endangered species'' or ``threatened species,'' the species must be 
listed in its entirety and the Act's protections applied consistently 
to all individuals of the species wherever found (subject to 
modification of protections through special rules under sections 4(d) 
and 10(j) of the Act).
    For the second element, the policy sets out the procedure for 
analyzing

[[Page 22399]]

whether any portion is an SPR; the procedure is similar, regardless of 
the type of status determination we are making. The first step in our 
assessment of the status of a species is to determine its status 
throughout all of its range. We subsequently examine whether, in light 
of the species' status throughout all of its range, it is necessary to 
determine its status throughout a significant portion 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 is required. The policy explains in detail the bases for this 
conclusion--including that this process ensures that the SPR language 
provides an independent basis for listing; maximizes the flexibility of 
the Service to provide protections for the species; and eliminates the 
potential confusion is a species could meet the definitions of both 
``endangered species'' and ``threatened species'' based on its statuses 
throughout its range and in a significant portion of its range. See, 
e.g., SPR Policy, 79 FR at 37580-81.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to Tobusch fishhook cactus. Based on the analysis in the SSA, and 
information summarized above, we have determined that Tobusch fishhook 
cactus' current viability is higher than was known at the time of 
listing, and we believe that Tobusch fishhook cactus is not in danger 
of extinction throughout all of its range. However, due to continued 
threats from the demographic and genetic consequences of small 
population sizes and geographic isolation, insect parasitism, feral hog 
depredation, and changes in the wildfire cycle and vegetation, as well 
as unknown long-term effects of land use changes and climate changes, 
we find that Tobusch fishhook cactus is likely to become an endangered 
subspecies within the foreseeable future throughout all of its range.
    Consistent with our interpretation that there are two independent 
bases for listing species as described above, after examining the 
status of Tobusch fishhook cactus throughout all of its range, we now 
examine whether it is necessary to determine its status throughout a 
significant portion of its range. Per our final SPR policy, we must 
give operational effect to both the ``throughout all'' of its range 
language and the SPR phrase in the definitions of ``endangered 
species'' and ``threatened species.'' As discussed earlier and in 
greater detail in the SPR Policy, we have concluded that to give 
operational effect to both the ``throughout all'' language and the SPR 
phrase, the Service should conduct an SPR analysis if (and only if) a 
species does not warrant listing according to the ``throughout all'' 
language.
    Because we found that Tobusch fishhook cactus is likely to become 
endangered in the foreseeable future throughout all of its range, per 
our Service's Significant Portion of its Range (SPR) Policy (79 FR 
37578, July 1, 2014), no portion of its range can be significant for 
purposes of the definitions of endangered species and threatened 
species. We therefore do not need to conduct an analysis of whether 
there is any significant portion of its range where the species is in 
danger of extinction or likely to become so in the foreseeable future.
    Therefore, on the basis of the best available scientific and 
commercial information, we are reclassifying Tobusch fishhook cactus as 
a threatened species in accordance with sections 3(6) and 4(a)(1) of 
the Act.
    Under the Act and its implementing regulations, a determination 
that a species is endangered or threatened also requires the Secretary, 
to the maximum extent prudent, to specify any habitat of such species 
which is considered to be critical habitat. The determination that it 
would not be prudent to designate critical habitat for Tobusch fishhook 
cactus that was made at the time the plant was listed as an endangered 
species remains true (44 FR 64737, November 7, 1979). Publication of 
critical habitat maps and cactus population locations increases the 
plants' vulnerability to collection from areas not under Federal 
jurisdiction, an activity that is not prohibited for plants under the 
Act. While there has been no recent evidence of collection of this 
species, collection is a threat to most cactus species, and is likely 
to increase if population sites are publicized. Given the predominance 
of private land ownership patterns for Tobusch fishhook cactus 
habitats, collection still may become a threat in the foreseeable 
future.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. 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.
    Revisions of the plan may be done to address continuing or new 
threats to the species, as new substantive information becomes 
available. The current Tobusch fishhook cactus recovery plan was 
approved by the Service on March 18, 1987 (Service 1987). As a result 
of this reclassification, a revision of the plan is planned to address 
continuing threats to the subspecies, and will also establish delisting 
criteria. When completed, a revised draft and final recovery plan will 
be available on our website (http://www.fws.gov/endangered) or from our 
Austin 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, Tribal, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, 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.
    Following publication of this final reclassification rule, funding 
for recovery actions will continue to be available from a variety of 
sources, including Federal budgets, State programs, and cost share 
grants for non-Federal landowners, the academic

[[Page 22400]]

community, and nongovernmental organizations. In addition, pursuant to 
section 6 of the Act, the State of Texas will continue to be eligible 
for Federal funds to implement management actions that promote the 
protection or recovery of Tobusch fishhook cactus. 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 Tobusch fishhook cactus. Additionally, we invite 
you to submit any new information on this subspecies 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 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)(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 any endangered or threatened 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 management and any other landscape-altering 
activities related to the issuance of section 404 Clean Water Act 
permits by the Army Corps of Engineers, and construction and 
maintenance of roads or highways by the Federal Highway Administration.
    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.
    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 final listing 
on proposed and ongoing activities within the range of a 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 Austin 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Effects of the Rule

    This final rule revises 50 CFR 17.12(h) to reclassify Tobusch 
fishhook cactus from endangered to threatened on the Federal List of 
Endangered and Threatened Plants, and changes the scientific name from 
Ancistrocactus tobuschii to Sclerocactus brevihamatus ssp. tobuschii. 
Because no critical habitat was ever designated for Tobusch fishhook 
cactus, this rule will not affect 50 CFR 17.96.
    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 Tobusch 
fishhook cactus. 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 Tobusch fishhook cactus.

Required Determinations

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.

References Cited

    A complete list of all references cited in this rulemaking is 
available on the internet at http://www.regulations.gov

[[Page 22401]]

and upon request from the Austin Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Austin Ecological Services Field Office, U.S. Fish and Wildlife Service 
(see ADDRESSES).

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; and 4201-4245; 
unless otherwise noted.


0
2. Amend Sec.  17.12(h) by removing the entry for ``Ancistrocactus 
tobuschii'' and adding the following entry to the List of Endangered 
and Threatened Plants in alphabetical order under Flowering Plants:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name              Common name         Where listed        Status         applicable rules
----------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                  * * * * * * *
Sclerocactus brevihamatus ssp.    Tobusch fishhook     Wherever found....            T   44 FR 64736, 11/7/1979;
 tobuschii.                        cactus.                                                83 FR [Insert Federal
                                                                                          Register page where
                                                                                          the document begins],
                                                                                          5/15/2018.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


    Dated: April 20, 2018.
James W. Kurth,
Deputy Director Exercising the Authority of the Director, U.S. Fish and 
Wildlife Service.
[FR Doc. 2018-10206 Filed 5-14-18; 8:45 am]
 BILLING CODE 4333-15-P