Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Acuña Cactus and the Fickeisen Plains Cactus, 55265-55313 [2016-19159]

Download as PDF Vol. 81 Thursday, No. 160 August 18, 2016 Part II Department of the Interior sradovich on DSK3GMQ082PROD with RULES2 Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical ˜ Habitat for the Acuna Cactus and the Fickeisen Plains Cactus; Final Rule VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\18AUR2.SGM 18AUR2 55266 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations available at the U.S. Fish and Wildlife Service Web site and Field Office set out above, and may also be included in the preamble and at https:// www.regulations.gov. DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 FOR FURTHER INFORMATION CONTACT: [Docket No. FWS–R2–ES–2013–0025; 4500090023] Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, 9828 North 31st Ave., Suite C3, Phoenix, AZ 85051; by telephone (602) 242–0210; or by facsimile (602) 242–2513. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: RIN 1018–AZ43 Endangered and Threatened Wildlife and Plants; Designation of Critical ˜ Habitat for the Acuna Cactus and the Fickeisen Plains Cactus Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Echinomastus ˜ erectocentrus var. acunensis (acuna cactus) and the Pediocactus peeblesianus var. fickeiseniae (Fickeisen plains cactus) under the Endangered Species Act. Critical habitat ˜ for the acuna cactus is located in Maricopa, Pima, and Pinal Counties, Arizona, and critical habitat for the Fickeisen plains cactus is located in Coconino and Mohave Counties, Arizona. The effect of this regulation is to designate critical habitat for the ˜ acuna cactus and the Fickeisen plains cactus under the Endangered Species Act. DATES: This rule becomes effective September 19, 2016. ADDRESSES: This final rule is available on the Internet at https:// www.regulations.gov, Docket No. FWS– R2–ES–2013–0025. Comments and materials we received, as well as some supporting documentation used in the preparation of this final rule, are available for public inspection at https:// www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, 9828 North 31st Ave., Suite C3, Phoenix, AZ 85051; telephone 602–242– 0210; facsimile 602–242–2513. The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at https://www.fws.gov/ southwest/es/arizona, at https:// www.regulations.gov in Docket No. FWS–R2–ES–2013–0025, and at the Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we developed for this critical habitat designation will also be sradovich on DSK3GMQ082PROD with RULES2 SUMMARY: VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 Executive Summary This document consists of a final rule to designate critical habitat for Echinomastus erectocentrus var. ˜ acunensis (acuna cactus) and Pediocactus peeblesianus var. fickeiseniae (Fickeisen plains cactus) under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act). In this final rule, we refer to these species by their common names. Why we need to publish a rule. This is a final rule to designate critical ˜ habitat for the acuna cactus and Fickeisen plains cactus. Under the Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule. On October 3, 2012, the U.S. Fish and Wildlife Service (Service) published in the Federal Register a proposed rule to ˜ list the acuna cactus and the Fickeisen plains cactus as endangered species and designate critical habitat for them (77 FR 60509). The Service published in the Federal Register a final rule to list the ˜ acuna cactus and the Fickeisen plains cactus as endangered species on October 1, 2013 (78 FR 60608). Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for ˜ the acuna cactus and the Fickeisen plains cactus. We included unoccupied ˜ areas with suitable acuna cactus habitat in the proposed critical habitat designation; however, we have since changed our determination and concluded that unoccupied habitat is PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 not essential for the conservation of the ˜ acuna cactus and, therefore, removed these areas from the final designation. All areas included in this final critical ˜ habitat designation for both the acuna cactus and the Fickeisen plains cactus are occupied. We are designating: • In total, approximately 7,501 ha (18,535 ac) in six units as critical habitat ˜ for the acuna cactus. • In total, approximately 7,062 ha (17,456 ac) in six units as critical habitat for the Fickeisen plains cactus. Economic analysis. In order to consider economic impacts, we have prepared an analysis of the economic impacts of the critical habitat designations. We announced the availability of the draft economic analysis (DEA) in the Federal Register on March 28, 2013 (78 FR 18938), allowing the public to provide comments on our analysis. We have incorporated the comments and have completed the final economic analysis (FEA, dated August 23, 2013). Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We invited these peer reviewers to comment on our listing and critical habitat proposal. We obtained opinions from two knowledgeable individuals for the ˜ acuna cactus and two knowledgeable individuals for the Fickeisen plains cactus, all with scientific expertise to review our technical assumptions, analysis, and whether or not we had used the best available information for both plants. The comments of these reviewers were focused on the designation of the two species; we received only one review that incorporated a comment on the Fickeisen plains cactus critical habitat designation portion of the draft rule. These peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated into this final rule. We also considered all comments and information received from the public during the comment period. Previous Federal Actions On October 1, 2013, we published in the Federal Register a final ˜ determination to list the acuna cactus and the Fickeisen plains cactus as endangered species under the Act (78 FR 60608). Please refer to the proposed listing and critical habitat rule for the ˜ acuna cactus and the Fickeisen plains cactus (77 FR 60509, October 3, 2012) E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations for a discussion of previous Federal actions that occurred prior to the listing of these taxa. sradovich on DSK3GMQ082PROD with RULES2 Summary of Comments and Recommendations We requested written comments from the public on the proposed designation ˜ of critical habitat for the acuna cactus and the Fickeisen plains cactus during three comment periods. The first comment period associated with the publication of the proposed rule (77 FR 60509) opened on October 3, 2012, and closed on December 3, 2012. We requested comments on the proposed critical habitat designation and associated DEA during a comment period that opened March 28, 2013, and closed on April 29, 2013 (78 FR 18938). We also requested comments on revisions to the proposed critical habitat designation during a comment period that opened July 8, 2013, and closed July 23, 2013 (78 FR 40673). We did not receive a request for a public hearing during any of the three open comment periods. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and DEA during these comment periods. During the public comment periods, we received 13 comment letters, including 1 from a peer reviewer, directly addressing the proposed critical habitat designation. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Peer Review In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals ˜ on the acuna cactus and six on the Fickeisen plains cactus having scientific expertise that included familiarity with the respected taxon and its habitat, biological needs, and threats. We received only one response that incorporated a comment on the critical habitat designation portion of the draft rule. We reviewed the comment received from the peer reviewer for substantive issues and new information regarding the proposed rules to list and designate ˜ critical habitat for the acuna cactus and Fickeisen plains cactus. The peer reviewer generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final rules. Peer reviewer comments are addressed in the following summary VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 and incorporated into this final critical habitat rule as appropriate. Peer Reviewer Comments (1) Comment: One peer reviewer commented that the designation of 1,000 meters (m) (3,280 feet (ft)) of pollination area surrounding each Fickeisen plains cactus population is inadequate to buffer threats. The reviewer suggested increasing the area around each population area by an additional 1,000 m (3,280 ft) for a total of 2,000 m (6,561 ft) to adjust for uncertainties of plant locations, provided that the primary constituent elements are present. Our Response: The Fickeisen plains cactus is dependent on pollinators for reproduction. Thus, preserving the interaction between the cactus and its pollinators is integral for survival. Through our analysis, we found that a 1,000-m (3,280-ft) pollination area was sufficient to support the maximum foraging distance of ground-nesting bees that are the primary pollinators of the cactus. This 1,000-m (3,280-ft) pollination area is not intended to serve as a buffer from threats, but as a primary constituent element necessary to support the essential physical or biological features. We do not have information suggesting that a larger area around plants is necessary to maintain and support plant-pollinator interactions. Federal Comments (2) Comment: The U.S. Air Force provided information on past and planned future activities to conserve the ˜ acuna cactus on the Barry M. Goldwater Gunnery Range (BMGR). Our Response: Based on the information we received, the Service considered land on the BMGR for possible exemption from the final ˜ critical habitat designation for the acuna cactus under the authority of section (4)(a)(3)(B)(i) of the Act. The Service met with the U.S. Air Force to discuss current and planned conservation ˜ measures for the acuna cactus on the BMGR. We have also evaluated the conservation measures for the species as presented in the approved Integrated Natural Resources Management Plan (INRMP) for the BMGR. The revised INRMP provides the following benefits ˜ for the acuna cactus: Avoiding disturbance of vegetation and pollinators within 900 m (2,953 ft) of ˜ known acuna cactus plants; developing and implementing procedures to control trespass livestock; monitoring illegal immigration, contraband trafficking, and border-related enforcement to prevent ˜ acuna cacti from being trampled or run PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 55267 over by vehicles; and continuing to monitor and control invasive plant species to maintain quality habitat and prevent the spread of fire where it was historically infrequent. For these reasons, the BMGR is exempt from the final designation of critical habitat for ˜ the acuna cactus. Please see the Exemptions section of this rule for a more detailed analysis. Tribal Comments (3) Comment: The Tohono O’odham Nation requested both a meeting with the Service and an exclusion from the ˜ acuna cactus critical habitat designation on their lands. They provided information that efforts by the Tohono O’odham Nation’s legislative body to ˜ protect the acuna cactus are under way. Our Response: The Service met with the Tohono O’odham Nation to discuss current and planned conservation ˜ measures for the acuna cactus on Tribal lands. The Service has considered land on the Tohono O’odham Nation for exclusion from the critical habitat designation under section (4)(b)(2) of the Act. We are excluding Tohono O’odham Nation land from the final critical habitat designation because the benefits of exclusion as critical habitat outweigh the benefits of inclusion as critical habitat. As further explained in the Exclusions section of this rule, we have concluded that the Tohono O’odham Nation has a commitment to ˜ protect and manage the acuna cactus habitat on their lands. Exclusion of lands of the Tohono O’odham Nation as critical habitat will allow us to maintain a cooperative working relationship with the Nation, and we expect that the Nation will continue to protect and ˜ manage the acuna cactus on their lands. (4) Comment: The Navajo Nation requested an exclusion from the final Fickeisen plains cactus critical habitat designation and submitted the final Navajo Nation Fickeisen Plains Cactus Management Plan that guides species and habitat management for the cactus on all lands administered by the Tribe. Our Response: The Service has considered land on the Navajo Nation for exclusion under section (4)(b)(2) of the Act and has met with the Navajo Nation to discuss current and planned conservation measures for the Fickeisen plains cactus on Tribal lands. We are excluding Navajo Nation land from the final critical habitat designation because the benefits of exclusion as critical habitat outweigh the benefits of inclusion as critical habitat. As further explained in the Exclusions section of this rule, we have concluded that the Navajo Nation has a commitment to protect and manage the Fickeisen plains E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 55268 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations cactus on their land as described in the final management plan. Exclusion of lands of the Navajo Nation as critical habitat will allow us to maintain a cooperative working relationship with the Nation, and we expect that the Nation will continue to protect and manage Fickeisen plains cactus habitat on their lands. (5) Comment: The Navajo Nation suggests that critical habitat not be designated for the Fickeisen plains cactus due to the possibility of increased illegal collection. It is the position of the Navajo Nation Department of Fish and Wildlife (NNDFW) that illegal collection is a serious threat to the Fickeisen plains cactus and that making population locations public and easily accessible is detrimental to the conservation of the species. Our Response: We acknowledge the concern of the Navajo Nation that designating critical habitat may lead to illegal collection of listed plant species, but we disagree with this conclusion for the Fickeisen plains cactus. Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species, or (ii) such designation of critical habitat would not be beneficial to the species. In the proposed rule, we found no information that the Fickeisen plains cactus is threatened by illegal collection and concluded that the designation of critical habitat is prudent for the plant (77 FR 60509). In addition, during the comment periods for the proposed rule, we did not receive new information from the Navajo Nation or any other entity indicating that illegal collection is occurring across the range of the plant. (6) Comment: The Navajo Nation commented that there is no data showing that microbiotic soil crusts are closely associated with the Fickeisen plains cactus and, therefore, should not be included as a primary constituent element. Our Response: We acknowledge that there is no evidence available indicating that biological soil crusts are essential to the conservation of the Fickeisen plains cactus, only that crusts are a component VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 of the habitat. Therefore, we have revised the primary constituent element language for this species. Please see the Primary Constituent Elements for the Fickeisen Plains Cactus section in the rule. (7) Comment: The Navajo Nation commented that the proposed Fickeisen plains cactus critical habitat locations on their land are based on outdated, approximately 20-year-old data and, thus, are not based on the best scientific information. In addition, the Tribe questioned critical habitat designation in areas containing fewer than 25 cacti when there are larger populations of the plant elsewhere. The Tribe feels that extra conservation efforts should not be focused on smaller populations. Our Response: Section 3(5)(A) of the Act defines critical habitat to mean: (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. The criteria for critical habitat were evaluated using the best scientific and commercial data available including plant surveys that occurred, in some cases, more than 18 years ago and at sites that have not been revisited. In the proposed rule, we specifically requested information from the public on the current status of populations where plants had been documented historically, but the site had not been revisited (77 FR 60509, p. 60512). The Navajo Nation also submitted general information describing the populations on Tribal land, which included records of those that were last observed nearly 20 years ago, and for which they used to estimate the total number of Fickeisen plains cacti on Tribal land. We received no additional information on these populations. Therefore, we have used the best available scientific information in the designation of critical habitat for this species. In addition, we cannot exclude an occupied area from a critical habitat designation based on small population size. Rather, we are required under the Act to apply the critical habitat designation to all areas that meet the definition in section 3(5)(A) outlined above, provided we have not PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 determined that the benefits of exclusion outweigh the benefits of including the area in the critical habitat designation. As mentioned in the response to comment number 4, above, we have made such a determination under section 4(b)(2) of the Act for Navajo Nation lands and are excluding from the final critical habitat designation all Navajo Nation lands, some of which contain small populations of the Fickeisen plains cacti. The exclusion of lands on the Navajo Nation as critical habitat will aid the Service in maintaining a cooperative working relationship with the Nation. In addition, we expect that the Navajo Nation will continue conservation efforts throughout the entire area occupied by the cactus, even where population size is limited. Public Comments (8) Comment: The Babbitt Ranches, LLC, submitted the Draft Babbitt Ranches Fickeisen Plains Cactus Management Plan and requested that their lands be excluded from the final designation of critical habitat. Our Response: The Service considered land managed by the Babbitt Ranches, LLC, for exclusion under section (4)(b)(2) of the Act and has met with the landowners to discuss current and planned conservation measures for the Fickeisen plains cactus. As explained in the Exclusions section of this rule, we are excluding from the critical habitat designation lands owned by the Babbitt Ranches, LLC, and State trust lands that are managed by the Babbitt Ranches, LLC, where a land closure is in place. However, we are not excluding from the final designation the federally owned lands where Babbitt Ranches, LLC, holds grazing permits. (9) Comment: One commenter suggested that the use of the total ˜ number of acuna cactus flowers that bloomed in the spring following a winter with 29.7 centimeters (cm) (11.66 inches (in)) of precipitation recorded is biased. The commenter suggested using the percentage of adults with flowers or the average number of flowers per adult as a different metric. The commenter analyzed the Organ Pipe Cactus National Monument (OPCNM) data with these metrics and found no correlation between precipitation and flowering, adult population counts, or plant mortality. Our Response: The use of the number ˜ of acuna cactus flowers that bloomed in the spring following 29.7 cm (11.66 in) of precipitation was properly used to identify unoccupied areas that could be considered essential to the conservation of the species. In the proposed rule, we E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations discussed survey data gathered from monitoring plots established in 1977; these data illustrate the relationship ˜ between precipitation and acuna cactus ˜ flowering. We noted that acuna cactus flower production and recruitment peaked in 1992 (Holm 2006, p. 2–10) following a winter period with total precipitation of 29.7 cm (11.66 in) (Western Regional Climate Center (WRCC) 2012, entire). Similar peaks in recruitment occurred in the early 1990s (Holm 2006, p. 2–6; NPS 2011a, p. 1) following a 1990 summer period with 24.6 cm (9.7 in) of precipitation (WRCC 2012, entire). Alternatively, we also noted flower production lows in years with markedly low winter precipitation. We also note that Johnson (1992) found that flower production was highest during the 2 wettest years of his study; his analysis suggests that rainfall is positively correlated with the number of ˜ flowers produced in acuna cactus, as well as in other cacti, and cites numerous studies in his conclusion. Therefore, we used this information to identify areas that receive 29.7 cm (11.66 in) or higher total annual ˜ precipitation as necessary for the acuna cactus reproduction and survival. Thus, the best available information indicates that the total number of flowers is an appropriate metric. However, public comments we received provided evidence that this metric should be adjusted to reflect that areas receiving 29.7 cm (11.66 in) or higher in winter precipitation only (not annual precipitation) are necessary for the ˜ acuna cactus. We reassessed our proposed critical habitat based on this metric, but there are no areas in southern Arizona that contain the geology, elevation, and vegetation communities required by the cactus that support this level of precipitation concentrated in the winter months. Thus, in this final critical habitat designation, we removed 12,113 ha (29,933 ac) of proposed critical habitat from multiple units. (10) Comment: One commenter ˜ suggested that the inclusion of acuna cactus critical habitat on private lands in and around the town of Ajo may impede the ability of Ajo to attain funding for infrastructure improvements within the town. Our Response: Despite the fragmented nature of the pollinator habitat in and around the town of Ajo, three juvenile ˜ acuna cacti were found in 2013 from within Ajo town site populations and two juveniles were found in 2013 in the Little Ajo Mountains just south of the New Cornelia Copper Mine. The presence of these juveniles suggests that these areas identified as critical habitat VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 contain the physical and biological ˜ features necessary for acuna cactus survival, including supporting pollinators that may be utilizing habitat within the town of Ajo. As stated in the FEA (2013, p. ES–9), no future projects with a Federal nexus were identified within the areas proposed as critical habitat in the town of Ajo and, thus, no impacts are forecast for community infrastructure and development activities. (11) Comment: One commenter is concerned with the reduction in ˜ proposed acuna cactus critical habitat due to the miscalculation of annual versus winter precipitation. This commenter suggests creating a lower winter precipitation limit necessary for ˜ acuna cactus survival, thus increasing the amount of critical habitat required for the species. Our Response: We recognize that adequate precipitation is necessary for ˜ acuna cactus seedling survival, flowering, and fruit set in adult plants. We also recognize that as climate change progresses, areas with higher precipitation or cooler temperatures may become important for the future survival of the species. However, we lack sufficient monitoring and climate modeling data to adjust the precipitation limit utilized in our proposed rule. We made the public aware of our incorrect usage of annual rainfall data rather than winter rainfall data in our revised proposed rule (July 8, 2013; 78 FR 40673), and we announced that we had removed all of the unoccupied critical habitat proposed in our October 3, 2012, proposed rule (77 FR 60509). We have used the best information available at this time to designate critical habitat. (12) Comment: One commenter stated the DEA fails to account for impacts associated with situations in which an activity does not jeopardize the species’ continued survival, but nonetheless may be subject to project modifications to avoid adverse modification of critical habitat. Our Response: Section 2.3 of the FEA describes the reasons the Service does not anticipate critical habitat designation to result in additional conservation requirements. These reasons are also presented in the Service’s ‘‘Incremental Effects of Critical ˜ Habitat Designation for the Acuna Cactus and the Fickeisen Plains Cactus’’. Conservation measures being implemented in response to the species’ listing status under the Act are expected to sufficiently avoid potential destruction or adverse modification of critical habitat as well. Thus, projects are already avoiding adverse PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 55269 modification under the regulatory baseline, and no additional conservation measures or project modifications are expected following the critical habitat designation. The Service acknowledges there may be rare cases in which localized projects may not adversely affect the plants, but may adversely modify critical habitat. Specifically, this potential scenario could occur in areas of proposed critical habitat where the cacti are at very low densities. However, the best available information does not indicate that such areas are known to exist at this time. (13) Comment: One commenter stated, ‘‘according to the Service, because the ˜ [acuna cactus] is closely tied to its habitat, it is more likely that surface disturbances resulting in critical habitat being adversely modified would likely also constitute jeopardy to the species.’’ In light of this assertion, the commenter stated that a careful analysis of likely reasonable and prudent alternatives (RPAs) must be undertaken when evaluating the costs associated with designating critical habitat. In this case, the DEA contains no such discussion and limits the assessment of costs solely to administrative costs associated with carrying out a section 7 consultation. Our Response: Section 2.3.2 of the FEA describes the analytic framework used to identify incremental impacts of the proposed critical habitat designation. The analytic framework discussed in this section takes into account the above statements. Specifically, the FEA relies upon this statement as the basis for assuming that project modifications recommended to avoid adverse modification would not differ from those recommended to avoid jeopardy. Since all of the designated critical ˜ habitat units for the acuna cactus are occupied, a Federal action requiring section 7 consultation would need to analyze impacts to both the species and critical habitat. If the action jeopardizes the species, the development of RPAs to conserve the species would be the same as those for critical habitat. Therefore, there would be no additional cost to conserve critical habitat beyond what it costs to prevent jeopardizing the species. RPAs are developed in cooperation with the Federal agency and applicant (if any) because often they are the only ones who can determine if an alternative is within their legal authority and jurisdiction, and if it is economically and technologically feasible. As stated in the FEA (ES–6, Appendix C, p. 11), in most cases the types of conservation efforts requested by the Service during section 7 consultation E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 55270 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations regarding the plants are not expected to change with critical habitat designation of occupied habitat due to the fact that the species are closely tied to their habitat and are not mobile. In most instances, we anticipate that the conservation efforts recommended to avoid jeopardy to the species also effectively would avoid the destruction or adverse modification of occupied critical habitat. As a result, critical habitat designation generally will not change the types of plant conservation efforts recommended by the Service. For these reasons, the incremental cost of designating critical habitat is considered administrative (i.e., those costs associated with addressing adverse modification in section 7 consultations). (14) Comment: One commenter asserted that the Service fails to consider the significant expense associated with initiating consultation, including the costs involved in preparing a biological assessment and submitting other information requested by the Service as a part of section 7 consultation. Our Response: The FEA relies on the best available information to estimate the administrative costs of section 7 consultations. As described in Exhibit 2–2 of the FEA, the consultation cost model is based on a review of consultation records and interviews with staff from three Service field offices, telephone interviews with action agencies (e.g., Bureau of Land Management (BLM), U.S. Forest Service, and U.S. Army Corps), and telephone interviews with private consulting firms who perform work in support of permittees. The model is periodically updated with new information received in the course of data collection efforts supporting economic analyses and public comment on more recent critical habitat rules. In addition, the general schedule rates are updated annually. The cost of preparing a biological assessment is included as part of the consultation cost model, with estimated incremental costs ranging from $500 to $5,600 per consultation. These costs are based on interviews with representatives from private consulting firms on the typical costs charged to clients in support of section 7 consultation efforts (e.g., biological survey and preparation of materials to support a biological assessment). (15) Comment: One commenter asserted that the DEA fails to consider that significant project delays result from the section 7 consultation process. Our Response: As discussed in the economic analysis, activities that would require consultation for critical habitat VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 are primarily the same as activities that currently require consultation for the species because all of the proposed critical habitat units are occupied. We do not expect new consultations to result solely from the designation of critical habitat. Accordingly, critical habitat designation is not expected to result in any measurable time delays beyond the time constraints created by the baseline section 7 consultation process. (16) Comment: One commenter stated that the discussion of baseline protections in the proposed rule is inconsistent with how baseline protections are described and assessed in the DEA. Specifically, the commenter asserted that the proposed rule states that current protections are inadequate and do not address threats to the species and its habitat, whereas the DEA states that over 90 percent of the proposed ˜ critical habitat for the acuna cactus has baseline protections. Our Response: Baseline protections are related to the listing of a species as an endangered or threatened species under the Act rather than the designation of critical habitat. In the proposed listing rule, we considered whether the existing regulatory mechanisms were adequate to alleviate the identified threats. The DEA evaluated only the incremental impacts of critical habitat designation. Accordingly, the conclusion that over 90 percent of the proposed critical ˜ habitat for the acuna cactus is subject to baseline protections is based on the species being listed under the Act. (17) Comment: One commenter stated that the DEA did not adequately account for the possibility of private projects being subject to a Federal nexus, and, in turn, does not account for potential modification of these projects as a result of section 7 consultation. Our Response: Approximately 4,690 ha (11,590 ac) (18 percent) of the areas proposed as critical habitat for the ˜ acuna and Fickeisen plains cacti are privately owned. The economic analysis discusses the potential for a Federal nexus on private lands associated with livestock grazing and voluntary on-theground habitat improvement projects. For both activities, the DEA discussed the potential for Federal funding of these activities on private lands to trigger section 7 consultation and forecasted one programmatic consultation with the respective action agency for future projects that may affect proposed critical habitat for the cacti on private lands. The FEA has been revised to include consideration of additional activities on private lands ˜ within acuna cactus Unit 2. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 (18) Comment: One commenter suggested that section 7 consultation could be triggered for projects implemented in the town of Ajo as the result of Federal funding under the U.S. Department of Housing and Urban Development’s (HUD) Community Development Block Grant program. Our Response: We contacted Pima County’s Community Development Block Grant (CDBG) Program. According to discussions with the Program Coordinator, there are two projects currently under way that are funded by the Pima County CDBG program in the town of Ajo and which appear to fall within areas proposed as critical habitat ˜ in acuna cactus critical habitat Unit 2. However, both projects involve improvements to existing structures and do not include any ground-disturbing activities that would trigger section 7 consultation. Section 7 consultation may be triggered for future projects funded under the Pima County CDBG program that involve new construction or ground-disturbing activities. The Pima County CDBG Program Coordinator indicated, however, that it is difficult to forecast projects that may occur in the future. Selection for funding under the Pima County CDBG program follows an annual cycle and is based on a range of factors, including the level of funding provided by HUD, an assessment of feasibility, need, and benefits, and local priorities as determined by the Pima County Board of Supervisors. At this time, the Pima County CDBG program is not aware of any new projects that involve ground-disturbing activities within the area proposed as critical habitat in the town of Ajo. As a result, this analysis does not estimate any future section 7 consultations related to Pima County’s CDBG program. To the extent that new projects funded by the Pima County CDBG program include ground-disturbing activities over the next 20 years, this analysis may underestimate costs in Ajo Unit 2 associated with section 7 consultations. However, this assumption only affects the estimated administrative costs of section 7 consultation. As a result, any future incremental impacts are likely to be minor. The FEA has been revised to include this new information about potentially affected activities related to the CDBG program in the town of Ajo. (19) Comment: One commenter suggested that the DEA fails to conduct a proper Regulatory Flexibility Analysis (RFA) for the town of Ajo, which is a small governmental jurisdiction based on a 2010 population of 3,304. Our Response: A portion of the town ˜ of Ajo overlaps proposed acuna critical E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations habitat in Ajo Unit 2. While we agree that the town of Ajo is a small governmental entity, RFAs are required for small governmental entities only when those entities are also considered directly regulated entities. In the case of ˜ critical habitat designation for the acuna and Fickeisen plains cacti, the only directly regulated entities are the Federal agencies required to consult under section 7 of the Act. As such, the town of Ajo is not considered a directly regulated entity, and an RFA, therefore, is not required. (20) Comment: Two commenters asserted that the DEA fails to consider impacts to mining as a result of critical ˜ habitat designation for the acuna cactus. Specifically, the comments note that ˜ proposed habitat for acuna cactus in Ajo Unit 2 is in an area with historically active mines, as well as an area with potential for future mining. Our Response: A discussion of mining activities within areas proposed as ˜ critical habitat for the acuna cactus in Ajo Unit 2 has been added to the FEA. Mining activities in this area may have a Federal nexus for section 7 consultation through the Federal permitting process with such action agencies as the BLM. Within Ajo Unit 2, at least one inactive copper mine and several unpatented mining claims overlap areas proposed as critical habitat. However, there is significant uncertainty regarding when, or if, any of these areas will be actively mined within the 20-year time period for this analysis. Accordingly, the FEA does not forecast any incremental impacts associated with these mining activities. To the extent that any of the mining resources present in Ajo Unit 2 are actively developed over the next 20 years, this analysis may underestimate the administrative costs associated with section 7 consultations. As Ajo Unit 2 is considered to be occupied by the ˜ acuna cactus, costs associated with implementing any conservation measures would be considered baseline impacts. (21) Comment: One commenter asserted that the DEA fails to assess potential impacts to energy supply distribution or use from the designation ˜ of critical habitat for the acuna cactus, and, therefore, is not in compliance with Executive Order 13211. Our Response: Executive Order 13211 states that Federal agencies must prepare and submit a ‘‘Statement of Energy Effects’’ for all ‘‘significant energy actions.’’ The Office of Management and Budget provided guidance for implementing the Executive Order, and described various outcomes that may constitute ‘‘a VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 significant adverse effect.’’ These are described in A–4 of the FEA. As described in Chapter 3 of the FEA, critical habitat designation for the Fickeisen plains cactus is anticipated to affect uranium mining. Impacts to uranium mining, however, are limited to the administrative costs of one formal consultation for the EZ Mine, totaling less than $900 in costs for the managing company, Energy Fuels Inc., over the 20-year period of analysis. The magnitude of this consultation cost is not anticipated to reduce fuel production or energy production, or increase the cost of energy production or distribution in the United States in excess of 1 percent. Alternatively, as described in Chapter 3 of the FEA, ˜ critical habitat designation for the acuna cactus is not anticipated to affect mining. Therefore, the designation of critical habitat for either species does not exceed any of the thresholds provided by the Office of Management and Budget’s guidance and is not considered a ‘‘significant energy action.’’ Appendix A of the FEA has been updated to reflect this finding. Summary of Changes From the Proposed Rule Since the publication of the October 3, 2012 (77 FR 60509), proposed rule to list and designate critical habitat for the ˜ acuna cactus and Fickeisen plains cactus, we have made the following changes in the final critical habitat rules: (1) Based on information received from public comments, we reevaluated the designation of the Dripping Spring ˜ acuna cactus critical habitat subunit in OPCNM, Arizona. The proposed rule outlined criteria for designation of critical habitat, which included that ˜ unoccupied areas with suitable acuna cactus habitat and that receive higher mean winter precipitation were necessary for the conservation of the species. The additional information provided during the public comment period indicated that the Dripping Spring subunit was unoccupied yet does not receive 29.7 cm (11.66 in) of winter rainfall. As a result, we determined that ˜ it was not essential for acuna cactus conservation and did not include it in this final critical habitat designation, thus removing 1,591 ha (3,931 ac) of proposed critical habitat from Unit 1. (2) Based on information received from public comments, we excluded lands owned and managed by the Tohono O’odham Nation, Arizona, from the designation of critical habitat for the ˜ acuna cactus. Natural resources management already in place on the Tribe aids in the conservation of the PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 55271 species. As a result, 156 ha (385 ac) of critical habitat were removed from ˜ acuna cactus Unit 3. (3) Based on information received from public comments, including a revised section of an existing INRMP, we exempted lands owned and managed by the U.S. Air Force on the BMGR, Arizona, from the designation of critical ˜ habitat for the acuna cactus. Natural resources management for this species, as outlined in the revised INRMP, aids ˜ in the conservation of the acuna cactus. As a result, 378 ha (935 ac) of proposed critical habitat were removed from Unit 3. (4) Based on information received from public comments, we reevaluated ˜ acuna cactus critical habitat in areas receiving total annual precipitation exceeding 29.7 cm (11.66 in). We reassessed this habitat based on areas receiving 29.7 cm (11.66 in) or more of winter precipitation only. As a result, we determined that no areas in southern Arizona that contain the geology, elevation, and vegetation communities ˜ required by acuna cactus support this level of precipitation concentrated within the winter months. Therefore, in this final critical habitat designation, there are no critical habitat areas for the ˜ acuna cactus that receive 29.7 cm (11.66 in) or more of winter precipitation. As a result, 12,113 ha (29,933 ac) of proposed critical habitat were removed from multiple units. This issue is discussed in further detail in the revised proposed critical habitat designation (78 FR 40673, July 8, 2013). (5) Based on information received from public comments, we excluded 3,865 ha (9,554 ac) of Tribal land from the final Fickeisen plains cactus critical habitat. Navajo Nation lands excluded include the entire Tiger Wash Unit (Unit 6), the entire Little Colorado River Overlook Unit (Unit 7), and portions of the Gray Mountain subunit (Subunit 8b) of the proposed Gray Mountain Unit (Unit 8). Natural resources management already in place on and documented in a new management plan for the Navajo Nation aids in the conservation of the species. (6) Based on information received from public comments, we excluded from the Fickeisen plains cactus final critical habitat designation 8,139 ha (20,113 ac) of land that is either: (1) Owned by the Babbitt Ranches, LLC; or (2) managed by the Babbitt Ranches, LLC, but owned by the State and subject to land closure. The excluded area includes the entire proposed Cataract Canyon Unit and private land in the Mays Wash subunit. Exclusion of these lands as critical habitat will allow us to maintain a cooperative working E:\FR\FM\18AUR2.SGM 18AUR2 55272 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations relationship with the Babbitt Ranches, LLC, and we expect that Babbitt Ranches, LLC, will continue to protect and manage the Fickeisen plains cactus habitat on their lands. (7) Based on new information received during the public comment periods, we removed the Snake Gulch Unit (945 ha (2,335 ac)) from the final designation of Fickeisen plains cactus critical habitat, because the unit is no longer considered occupied, and we determined that it is not essential to the conservation of the species. We added the South Canyon Unit (110 ha (272 ac)) on U.S. Forest Service (USFS) land where occupancy was verified in 2013. The rule revising 50 CFR 424.12 was published on February 11, 2016 (81 FR 7413), and became effective on March 14, 2016. As stated in that rule, the revised version of § 424.12 applies only to rulemakings for which the proposed rule is published after that date. Thus, the prior version of § 424.12 will continue to apply to any rulemakings for which a proposed rule was published before that date. Since the ˜ proposed rule for acuna cactus and Fickeisen plains cactus critical habitat was published on October 3, 2012, this final rule follows the version of § 424.12 that was in effect at that time. Critical Habitat sradovich on DSK3GMQ082PROD with RULES2 Background It is our intent to discuss below only those topics directly relevant to the designation of critical habitat for the ˜ acuna cactus and Fickeisen plains cactus. For a complete description of the life history and habitat needs of the ˜ acuna cactus and Fickeisen plains cactus, see the Background section in the final listing rule published on (78 FR 60608, October 1, 2013). Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are the specific elements of physical or biological features that provide for a species’ lifehistory processes, and are essential to the conservation of the species. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the Act’s section 9 prohibitions on taking any individual of the species, indicating taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. ˜ Acuna Cactus sradovich on DSK3GMQ082PROD with RULES2 Physical or Biological Features In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographic, and ecological distributions of a species. We derive the specific physical or biological features required for the ˜ acuna cactus from studies of this species’ habitat, ecology, and life history as described in the Critical Habitat VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 section of the proposed rule to designate critical habitat published in the Federal Register on October 3, 2012 (77 FR 60509), and in the information presented below. Additional information can be found in the final listing rule (78 FR 60608; October 1, 2013). We have determined that the physical or biological features described ˜ below are essential for the acuna cactus. Habitat for Individual and Population Growth, Including Sites for Germination, Pollination, Reproduction, Pollen and Seed Dispersal, and Seed Banks Pollination and Pollen Dispersal— Preservation of the mix of species and interspecific interactions they encompass greatly improves the chances for onsite survival of rare species (Tepedino et al. 1996, p. 245). Bee nesting habitat, foraging plants, and corridors must be preserved to protect ˜ the acuna cactus (Buchmann 2012, pers. comm.; McDonald 2007, p. 4). The ˜ acuna cactus relies solely on the production of seeds for reproduction with pollination highly linked to the ˜ acuna cactus’ survival. A lack of pollinators would lead to a reduction of seed production that would lead, in turn, to a gradual reduction in the seed bank (Wilcock and Neiland 2002, p. 276). Although viability of seed in the seed bank is unknown, germination trials in the greenhouse suggest the seeds are short-lived (Rutman 2007, p. 7). Successful pollination depends on the pollinator species and the distance the pollinator can travel between flowers ˜ (McDonald 2005, p. 15). Acuna cacti are pollinated by a suite of bees from the Andrenidae, Anthophoridae, Anthophorinae, Halictidae, and Megachilidae families; however, the most abundant, robust, and consistent visitors in a 2-year study at OPCNM were the leafcutter bee (Megachile palmensis) and the cactus bee (Diadasia rinconis) (Johnson 1992, p. 406). Leafcutter and cactus bees are native cactus specialist bees requiring a ˜ sufficient quantity of acuna and other cacti pollen throughout their foraging season to provision their nests and support their own survivorship (Blair and Williamson 2008, p. 428). No studies of pollinator dispersal distance have been conducted for the ˜ acuna cactus; however, in a study of a similar rare cactus in Arizona’s Sonoran Desert, the Coryphantha scheeri var. robustispina (Pima pineapple cactus), McDonald (2005, p. 29) determined that the maximum distance the cactus bees travelled between Pima pineapple cactus individuals was 900 m (2,953 ft). PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 55273 The maximum distance travelled by the leafcutter bee is not known, though it is thought to be less than this (Buchmann 2012, pers. comm.). Because of the ˜ similarity of the acuna cactus and Pima pineapple cactus, we estimate that 900 ˜ m (2,953 ft) around individual acuna cacti is needed to support pollinator foraging, nesting, and survivorship. Therefore, based on our review of the best available information, we identify a pollination area with a radius of 900 m ˜ (2,953 ft) around each individual acuna cactus plant as a physical or biological ˜ feature of acuna cactus habitat. Seed Dispersal, Germination, Growth, and Seed Banks—Bare soils within the ˜ seed dispersal range of the acuna cactus are necessary for recruitment and soil seed banking. Primary and secondary dispersal of these seeds can occur via a number of mechanisms including gravity, ants, wind, or rain (Butterwick 1982 to 1992, entire; Rutman 1996b, pers. comm.; Rutman 2001, pers. comm.; Anderson 2011, p. 1). Primary dispersal is the movement of seeds short distances from the plant, whereas secondary dispersal involves the redistribution of seeds by living (e.g., insects) or non-living (e.g., wind) factors (van Rheede van Oudtshorrn and van Rooyen 1999, pp. 186–187). As evidenced by their commonly ˜ clumped habit, the majority of the acuna cactus seeds are dispersed by gravity; that is, they fall very close to the mother plant, which serves as a nurse plant for germination (Johnson et al. 1993, p. 178). With this type of dispersal, the distance seeds travel is limited. The immediate environment of the mother plant is typically highly suitable for establishment, and closely dispersed seeds have a better chance of germination, establishment, and survival than seeds dispersed by other mechanisms (van Rheede van Oudtshorrn and van Rooyen 1999, p. 91). Ants have been reported to both transport and consume the seeds of the ˜ acuna cactus (Butterwick 1982 to 1992, entire; Rutman 1996b, pers. comm.; Rutman 2001, pers. comm.; Anderson 2011, p. 1). Transported seeds may be dropped, discarded, or buried at either an appropriate or inappropriate depth for germination and emergence (van Rheede van Oudtshorrn and van Rooyen 1999, p. 15). Transported seed has the benefit of reduced competition from other seeds and reduced rodent predation that more commonly occurs near the mother plant (O’Dowd and Hay 1980, p. 536; Vander Wall et al. 2005, p. 802). The maximum distance seeds are dispersed by ants is typically less than 3 m (10 ft) and rarely more than 10 E:\FR\FM\18AUR2.SGM 18AUR2 55274 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 m (33 ft) (van Rheede van Oudtshorrn and van Rooyen 1999, p. 186). The maximum distance seeds are dispersed by wind depends on many factors including the height of the plant, characteristics of the surrounding vegetation, seed mass and size, and wind conditions (van Rheede van Oudtshorrn and van Rooyen 1999, p. 186). Secondary dispersal by wind can be farther in deserts, where vegetation is widely spaced and interspaces between trees and shrubs support wind velocities as much as four times higher than under trees and shrubs (van Rheede van Oudtshorrn and van Rooyen 1999, p. 187). Wind-blown soil, litter, and small seeds accumulate under shrubs and trees, or in soil surface depressions (Shreve 1942, p. 205; van Rheede van Oudtshorrn and van Rooyen 1999, p. 187). Dispersal of seed from rain wash or sheet flow (downslope movement of water in a thin, continuous flow) over the ground is considered to occur across a relatively short distance; in hot deserts, many plants disperse seed by rain (van Rheede van Oudtshorrn and van Rooyen 1999, pp. 69, 76). The ˜ distance that the acuna cactus seeds travel by either wind or water is not known; however, spacing of associated nurse trees and shrubs where soil, litter, and seed could accumulate is roughly 8 m (26 ft). This number was determined by using the average height of the largest tree associate, Cercidium microphyllum (palo verde) (Shreve 1942, pp. 202–203; Kearney and Peebles 1951, p. 407). Therefore, based on our review of the best available information regarding the maximum distance that seeds may ˜ disperse, and within which the acuna cactus seed banks, seedling establishment, and seedling growth can occur, we identify bare soils immediately adjacent to and within 10 ˜ m (33 ft) of existing reproductive acuna cactus plants as a physical or biological ˜ feature of acuna cactus habitat. Appropriate Geological Layers and Topography that Support Individual ˜ Acuna Cactus Plants Geology—Bedrock and soil chemistry could help explain the current ˜ distribution of the acuna cactus across small islands of habitat in southern Arizona. Various reports describe the ˜ acuna cactus occurring on both fineand coarse-textured soils derived from volcanic, granitic, and metamorphic rocks (Geraghty and Miller 1997, p. 3; Rutman 2007, pp. 1–2). Specifically, parent rock materials of preferred habitat include extrusive felsic volcanic rocks of rhyolite, andesite, and tuff, and intrusive igneous rocks composed of VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 granite, granodiorite, diorite, and quartz monzonite (Rutman 2007, pp. 1–2). We applied this knowledge of the ˜ acuna cactus geologic habitat preference by analyzing geology features and known plant locations attained for populations occurring within the United States using Geographic Information Systems (GIS). We determined 11 geologic feature classes that occur ˜ within the known locations of the acuna cactus in the United States (Arizona State Land Department 2012, GIS data layer). These feature classes can be summarized as volcanic rocks from the middle Miocene to Oligocene and from the Jurassic; granitoid rocks from the early Tertiary to Late Cretaceous and from the Jurassic; granitic rocks from the early Tertiary to Late Cretaceous; metamorphic rocks from the early Proterozoic; and surficial deposits from the Holocene to the latest Pliocene. Therefore, based on our review of the best available information regarding bedrock geology and associated soils ˜ required by the acuna cacti, we identify the presence of any one of these 11 feature classes as a physical or ˜ biological feature of acuna cactus habitat. These feature classes can be further summarized to include the following rock types as identified in the literature for this species: rhyolite, andesite, tuff, granite, granodiorite, diorite, or Cornelia quartz monzonite (Rutman 2007, pp. 1, 2). ˜ Topography—The acuna cactus is known to occur in valley bottoms and on ridge tops or small knolls, on slopes up to 30 percent (Phillips et al. 1982, p. 4; Geraghty and Miller 1997, p. 3). We ˜ applied this knowledge of the acuna topographic habitat preference by analyzing topography features using a digital elevation model in GIS. Therefore, based on our review of the best available information regarding topography, we identify valley bottoms, ridge tops, and small knolls with slopes of 30 percent or less as a physical or ˜ biological feature of acuna cactus habitat. Appropriate Vegetation Community and Elevation Range That Support ˜ Individual Acuna Cactus Plants Nurse Plants—Known populations of ˜ acuna cactus have been reported from between 365 and 1,150 m (1,198 to 3,773 ft) elevation within the paloverdecacti-mixed scrub series of the Arizona Upland Subdivision of the Sonoran Desert-scrub (Brown 1994, p. 200; Arizona Rare Plant Guide Committee 2001, unnumbered pages; Arizona Game and Fish Department (AGFD) 2011, entire). This scrubland or low woodland contains leguminous trees, shrubs, and PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 succulents including palo verde, Olneya tesota (ironwood), Larrea tridentata var. tridentata (creosote bush), Ambrosia spp. (bursage), and Carnegia gigantea ˜ (saguaro). The acuna cactus seedlings benefit from the protection of these native Sonoran Desert trees and shrubs, ˜ as well as other larger acuna cacti that act as nurse plants by providing protection from temperature extremes and physical damage (Felger 2000, p. 208; Johnson et al. 1993, p. 178). The ˜ acuna cactus individuals are generally more robust next to nurse plants, as opposed to in open, exposed locations (Felger 2000, p. 208). Therefore, based on the information above, we identify the presence of creosote bush, ironwood, palo verde, and other native protective plants to be a physical or ˜ biological feature necessary for acuna cactus habitat. Native Vegetation Dominance—The ˜ acuna cactus habitat should be relatively free from perennial grass invaders as these alter structure, function, dominance, and disturbance regimes, and have been shown to drastically lower species diversity within the Sonoran Desert (Olsson et al. 2012, p. 10). Such changes have great ˜ potential to impact acuna cacti and their pollinators. In addition, such introduced grasses as Pennisetum ciliare (buffelgrass) form continuous mats and remove open bare ground for nesting bees such as Diadasia spp. (Buchmann 2007, p. 13). These bees move nesting sites yearly to shed parasites, thereby requiring the continued availability of sandy, well-drained, bare ground available to create nests (Buchmann 2012, pers. comm.). Therefore, based on our review of the best available information, we identify Sonoran Desert-scrub habitat dominated by native plant species to be a physical or ˜ biological feature necessary for acuna cactus habitat. Primary Constituent Elements for the ˜ Acuna Cactus Under the Act and its implementing regulations, we are required to identify the physical or biological features ˜ essential to the conservation of acuna cactus in areas occupied at the time of listing, focusing on the features’ primary constituent elements. We consider primary constituent elements to be the elements of physical or biological features that provide for a species’ lifehistory processes and are essential to the conservation of the species. Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species’ life-history processes, we determine that the E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 primary constituent elements specific to ˜ the acuna cactus are: (i) Native vegetation within the Paloverde-Cacti-Mixed Scrub Series of the Arizona Upland Subdivision of the Sonoran Desert-scrub at elevations between 365 to 1,150 m (1,198 to 3,773 ft). This vegetation must contain predominantly native plant species that: ˜ a. Provide protection to the acuna cactus. Examples of such plants are creosote bush, ironwood, and palo verde. b. Provide for pollinator habitat with a radius of 900 m (2,953 ft) around each ˜ individual, reproducing acuna cactus. c. Allow for seed dispersal through the presence of bare soils immediately adjacent to and within 10 m (33 ft) of ˜ individual acuna cactus. (ii) Soils overlying rhyolite, andesite, tuff, granite, granodiorite, diorite, or Cornelia quartz monzonite bedrock that are in valley bottoms, on small knolls, or on ridgetops, and are generally on slopes of less than 30 percent. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. All areas designated as critical habitat as described below may require some level of management to address the current and future threats to the physical or biological features essential to the ˜ conservation of the acuna cactus. In all of the described units, special management may be required to ensure that the primary constituent elements for the cactus are conserved and the habitat provides for the biological needs of the cactus. Some of the management activities that could ameliorate these threats include, but are not limited to, those discussed below. (1) Practice livestock grazing in a manner that maintains, improves, and expands the quantity and quality of Sonoran desertscrub habitat. Special management considerations or protection may include the following: manage livestock grazing sustainably with the natural landscape by determining appropriate areas, seasons, and use consistent within the carrying capacity of rangeland in response to current and future drought and warming trends; improve monitoring and documentation of grazing practices; manage cattle and feral hoofed mammals (ungulates) (e.g., burros) to reduce the risk of plants trampled and VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 soil compaction; and manage for other small mammal species to restore desired processes to increase habitat quality and quantity. (2) Minimize construction of new border control facilities, roads, towers, or fences. Special management considerations or protections may include the following: protect lands that support suitable habitat such that destruction of individual plants and their habitat is minimized and habitat is preserved. (3) Manage or protect native Sonoran desertscrub vegetation communities from recreational impacts. Special management considerations or protection may include the following: manage trails, campsites, and off-road vehicles (ORVs); reduce the likelihood ˜ of wildfires affecting the acuna cactus populations and nearby plant communities. (4) Protect suitable habitat from mineral development and associated infrastructure (new access roads). These activities could result in direct plant and habitat loss, or alteration by removing or degrading soils to such an extent that the soils would no longer ˜ support the growth of the acuna cactus. Special management considerations or protection may include the following: protect lands that support suitable habitat such that destruction is minimized and habitat is preserved. (5) Manage for nonnative, invasive species, such as buffelgrass, by minimizing conditions that may promote or encourage encroachment or establishment of nonnative, invasive species and restore or reestablish conditions that allow native plants to ˜ thrive. Within the range of the acuna cactus, the establishment and success of nonnative, invasive species has been a result of historic land use and management practices such as grazing, wildfire suppression actions, mining, and ORV use. Actions have been taken by some land management agencies to reduce the spread of invasive species and reduce the risk of wildfire they pose from creating fine fuel loads. Nonnative, ˜ invasive species occur near acuna cactus populations and may pose a threat through competition for resources or increase the risk of fire. Special management considerations or protection may include the following: Prevent or restrict establishment of nonnative, invasive species; minimize ground-disturbing activities that may facilitate their spread; conduct postdisturbance restoration activities such as native plant propagation; practice active removal of nonnative, invasive plant species and targeted herbicide application (provided herbicides can be PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 55275 shown not to negatively impact the ˜ acuna cactus or the native pollinators); and improve monitoring and documentation on a site-by-site basis where nonnative, invasive species are present in occupied habitat to assess any effect (beneficial or negative) they pose of the cactus. These management activities will protect the physical or biological features essential to the conservation of ˜ the acuna cactus by reducing the direct and indirect effects of habitat loss, alteration, or fragmentation; preserving the geology and soils that form the basis of its habitat; and maintaining the native vegetation communities and pollinators. In summary, the primary constituent ˜ elements of the acuna cactus habitat may be impacted by livestock grazing; U.S.-Mexico border activities; recreational impacts; mineral development and associated transportation infrastructure; and nonnative, invasive species. Currently some of these threats are not identified to occur at a level that threatens populations with extirpation; however, without management of these threats, they could rise to this level. The units designated as critical habitat within the geographical area occupied by the species at the time of listing contain the physical or biological features essential ˜ to the conservation of the acuna cactus. Special management considerations or protection may be required to eliminate, or reduce to a negligible level, the threats affecting each unit or subunit and to preserve and maintain the essential features that the critical habitat units and subunits provide to the cactus. Criteria Used To Identify Critical Habitat As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulations at 50 CFR 424.12(b), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing— are necessary to ensure the conservation of the species. We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing as described in the final rule to list the ˜ acuna cactus and the Fickeisen plains cactus (see the ‘‘Distribution and Range’’ section of the final listing rule (78 FR 60608, October 1, 2013)) and that contain one or more of the identified primary constituent elements. We are E:\FR\FM\18AUR2.SGM 18AUR2 55276 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations not designating any additional areas outside those currently occupied by the ˜ species as critical habitat for acuna cactus. We reviewed available information and supporting data that pertain to the ˜ habitat requirements of the acuna cactus. This information included research published in peer-reviewed articles and presented in academic theses and agency reports, as well as data collected from long-term monitoring plots, interviews with experts, and regional climate data and GIS coverage. Sources of information include, but are not limited to: Brown 1994, Buchmann 2007, Butterwick 1982–1992, Felger 2000, Holm 2006, Johnson 1992, Johnson et al. 1993, McDonald 2007, Olsson et al. 2012, Phillips et al. 1982, National Park Service 2011a, National Park Service 2011b, Rutman 2007, van Rheede van Oudtshorrn and van Rooyen 1999, and Western Regional Climate Center 2012. Based on this information, we developed a strategy for determining which areas meet the definition of ˜ critical habitat for acuna cactus. Occupied Area at the Time of Listing In identifying proposed critical ˜ habitat units for acuna cactus, we proceeded through a multi-step process. ˜ We obtained all records for acuna cactus distribution from AGFD, as well as both published and unpublished documentation from our files. There is no information on the historical range of this species; survey results confirm that plant distribution in the United States comprises disjunct occupied habitat in two general areas of south-central Arizona. Our approach to delineating critical habitat units was applied in the following manner: ˜ (1) We overlaid acuna cactus locations into a GIS database. This provided us with the ability to examine slope, aspect, elevation, geologic type, vegetation community, and topographic features. These data points verified and slightly expanded the previously ˜ recorded elevation ranges for acuna cactus. (2) In addition to the GIS layers listed above, we then included a 900-m (2,953ft) pollination area around known populations to ensure that all potential pollinators would have a sufficient land base to establish nesting sites and to ˜ provide pollinating services for acuna cactus, as described in Physical or ˜ Biological Features for the acuna cactus above. (3) We then drew critical habitat boundaries that captured the locations elucidated under (1) and (2) above. Critical habitat designations were then mapped using Albers Equal Area (Albers) North American Datum 83 (NAD 83) coordinates. We defined six critical habitat units and subunits within the current distribution of the species in two general areas of south-central Arizona. The units and subunits contain approximately 2,580 individuals. Within these units and subunits, several geologic, topographic, elevation, slope, and vegetation community features have been defined, which in combination ˜ create acuna cactus habitat that is essential to the conservation of the species, though not all lands containing ˜ this combination support the acuna cacti. Although we no longer regard additional unoccupied areas as essential for the conservation of the species (refer to the revised proposed critical habitat ˜ designation for the acuna cactus and the Fickeisen plains cactus (78 FR 40673, July 8, 2013), we recognize that areas containing the physical or biological ˜ features necessary for the acuna cactus and which receive higher precipitation levels may be useful for ex situ (offsite) conservation measures at a future time. When determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for ˜ the acuna cactus. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text and are not designated as critical habitat. Therefore, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on https:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0025, on our Internet sites https://www.fws.gov/ southwest/es/arizona/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above). Critical Habitat Designation for the ˜ Acuna Cactus We are designating six units as critical ˜ habitat for the acuna cactus. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical ˜ habitat for the acuna cactus. The six units we are designating as critical habitat are: (1) Organ Pipe Cactus National Monument, (2) Ajo, (3) Sauceda Mountains, (4) Sand Tank Mountains, (5) Mineral Mountain, and (6) Box O Wash. All six units were ˜ occupied by the acuna cactus at the time of listing. The approximate area of each critical habitat unit is shown in Table 1. ˜ TABLE 1—DESIGNATED CRITICAL HABITAT UNITS FOR THE ACUNA CACTUS Federal State Private Total Unit or subunit sradovich on DSK3GMQ082PROD with RULES2 Ha 1—Organ Pipe Cactus National Monument Unit ............. 2—Ajo Townsites Subunit ................................................ 2—Ajo Little Ajo Mountains Subunit ................................ 3—Sauceda Mountains Unit ............................................ 4—Sand Tank Mountains Unit ......................................... 5—Mineral Mountain Unit ................................................ 6—Box O Wash Subunit A .............................................. 6—Box O Wash Subunit B .............................................. VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Ac Ha Ac 2,416 89 106 1,102 549 570 4 0 5,971 220 263 2,724 1,355 1,408 9 0 0 0 0 0 0 217 1,348 158 0 0 0 0 0 537 3,332 391 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM Ha 0 330 141 0 0 0 369 102 18AUR2 Ac 0 815 347 0 0 0 913 251 Ha Ac 2,416 419 247 1,102 549 787 1,721 260 5,971 1,035 610 2,724 1,355 1,945 4,253 642 55277 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations ˜ TABLE 1—DESIGNATED CRITICAL HABITAT UNITS FOR THE ACUNA CACTUS—Continued Federal State Private Total Unit or subunit Ha Total .......................................................................... Ac 4,836 11,950 Ha Ac Ha 1,723 4,260 942 Ac Ha 2,326 7,501 Ac 18,535 Note: Area sizes may not sum due to rounding. We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the ˜ acuna cactus, below. Unit 1: Organ Pipe Cactus National Monument The unit consists of 2,416 ha (5,971 ac) within OPCNM in southwestern Pima County, Arizona. The unit is on federally owned land administered by the National Park Service. Land within this unit was occupied at the time of listing with the largest known ˜ population of the acuna cactus, approximately 2,000 individuals. This unit contains all of the primary constituent elements of the physical or biological features essential to the ˜ conservation of the acuna cactus. This unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. Grazing and mining are not permitted within OPCNM; however, nonnative, invasive species issues and off-road border-related activities do occur in OPCNM. Special management considerations or protection may be required within this unit to address offroad border-related human disturbances or to prevent or remove nonnative, ˜ invasive species within the acuna cactus habitat. sradovich on DSK3GMQ082PROD with RULES2 Unit 2: Ajo Unit 2 is located in and near the town of Ajo in southwestern Pima County, Arizona. The unit consists of two subunits totaling 666 ha (1,645 ac). This unit contains 195 ha (483 ac) of federally owned land and 470 ha (1,162 ac) of private land. The Federal land is administered by the BLM. This entire unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. Subunit 2a: Townsites—Subunit 2a consists of 330 ha (815 ac) of private land and 89 ha (220 ac) of BLM land in and around the town of Ajo, Arizona. This subunit comprises four separate ˜ populations of the acuna cactus on private and BLM lands, which are close enough in proximity to be combined VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 within the 900-m (2,953-ft) radius defined for pollinators. Lands within this subunit are occupied at the time of listing; the combined number of plants occurring within this subunit is 70. This subunit contains all of the primary constituent elements of the physical or biological features essential to the ˜ conservation of the acuna cactus. Subunit 2b: Little Ajo Mountains— Subunit 2b consists of 106 ha (263 ac) of BLM lands and 141 ha (347 ac) of private lands south of the town of Ajo, Arizona. Lands within this subunit are occupied at the time of listing, containing seven individual plants. This subunit contains all of the primary constituent elements of the physical or biological features essential to the ˜ conservation of the acuna cactus. The features essential to the conservation of the species within both subunits are threatened by mining; urban development; off-road U.S.Mexican border activities; and nonnative, invasive species issues. Special management considerations or protection may be required within the subunits to minimize habitat fragmentation; to minimize disturbance ˜ to acuna cactus individuals, soil, and associated native vegetation; and to prevent or remove nonnative, invasive ˜ species within the acuna cactus habitat. Unit 3: Sauceda Mountains Unit 3 is located in the Sauceda Mountains of northwestern Pima and southwestern Maricopa Counties, Arizona. We are excluding approximately 156 ha (385 ac) of Tohono O’odham land and exempting 378 ha (935 ac) of BMGR land from this unit, leaving 1,102 ha (2,724 ac) of federally owned land administered by the BLM (refer to the Exclusions and Exemptions sections of the preamble to this rule). This unit comprises four separate populations that are close enough in proximity as to be combined within the 900-m (2,953–ft) radius defined for pollinators. Lands within this unit were occupied at the time of listing; the combined number of plants occurring within this unit is 212. This subunit contains all of the primary constituent elements of the physical or biological features essential to the ˜ conservation of the acuna cactus. This PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. The features essential to the conservation of the species within the unit are threatened by mining; grazing; nonnative, invasive species issues; and off-road U.S.-Mexican border activities. Special management considerations or protection may be required within the unit to minimize habitat fragmentation; to minimize disturbance to individual ˜ acuna cactus individuals, soil, and associated native vegetation; and to prevent or remove nonnative, invasive ˜ species within acuna cactus habitat. Unit 4: Sand Tank Mountains Unit 4 consists of 549 ha (1,355 ac) within the Sonoran Desert National Monument of southwestern Maricopa County, Arizona. The unit is on federally owned land administered by the BLM. Land within this unit was occupied at the time of listing; the combined number of plants occurring within this unit is 200 individuals in 3 separate populations. This unit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the ˜ acuna cactus. This unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. Grazing and mining are not permitted within the Sonoran Desert National Monument; however, off-road borderrelated activities; nonnative, invasive species issues; and trespass livestock grazing may occur in this unit. Special management considerations or protection may be required within this ˜ unit to minimize disturbance to acuna cactus individuals, the soil, and associated native vegetation; and to prevent or remove nonnative, invasive ˜ species within acuna cactus habitat. Unit 5: Mineral Mountain Unit 5 consists of 787 ha (1,945 ac) on Mineral Mountain of north-central Pinal County, Arizona. This unit contains 570 ha (1,408 ac) of federally owned land and 217 ha (537 ac) of State-owned E:\FR\FM\18AUR2.SGM 18AUR2 55278 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 land. The Federal land is administered by the BLM (569 ha (1,406 ac)) and the Bureau of Reclamation (1 ha (2 ac)). This unit contains 5 separate known populations totaling 33 individuals on lands administered by the BLM and the State of Arizona. This unit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the ˜ acuna cactus. This unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. Livestock grazing and ORV activity occur in this unit, and mining occurs nearby. Nonnative, invasive species issues may occur in or nearby this unit. Special management considerations or protection may be required within the unit to minimize habitat fragmentation; ˜ to minimize disturbance to acuna cactus individuals, soil, and associated native vegetation; and to prevent or remove nonnative, invasive species within ˜ acuna cactus habitat. Unit 6: Box O Wash Unit 6 is located near Box O Wash of north-central Pinal County, Arizona. This unit consists of two subunits totaling 1,981 ha (4,895 ac). This unit contains 4 ha (9 ac) of federally owned land, 1,506 ha (3,722 ac) of State-owned land, and 471 ha (1,164 ac) of privately owned land. The Federal land is administered by the BLM. This entire unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. Subunit 6a: Box O Wash A—Subunit 6a consists of 4 ha (9 ac) of BLM land, 369 ha (913 ac) of private land, and 1,348 ha (3,332 ac) of State land east of Florence, Arizona. This subunit comprises two separate populations of ˜ the acuna cactus on private and Stateowned lands, which are close enough in proximity to be combined within the 900-m (2,953-ft) radius defined for pollinators. Lands within this subunit were occupied at the time of listing; the combined number of plants occurring within this subunit is 11. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of ˜ the acuna cactus. Subunit 6b: Box O Wash B—Subunit 6b consists of 158 ha (391 ac) of Stateowned land and 102 ha (251 ac) of private land east of Florence, Arizona. This subunit comprises one population ˜ of the acuna cactus on State-owned land; the 900-m (2,953–ft) radius VerDate Sep<11>2014 19:04 Aug 17, 2016 Jkt 238001 defined for pollinators overlaps into private land. This area was surveyed ˜ twice in 2008, with 32 living acuna cacti found in 1 survey and 45 in a second survey. A 2011 survey resulted in no living plants located; however, this was not a complete survey of the area. Since the 2011 survey was not a comprehensive survey, and a relatively large number of plants were found here in 2008, we assume the plants still occur in this subunit. Therefore, we consider lands within this subunit occupied at the time of listing. This subunit contains all of the primary constituent elements of the physical or biological features essential to the ˜ conservation of the acuna cactus. Livestock grazing and ORV activity occur within both subunits, and mining occurs nearby. Nonnative, invasive species issues may occur in or nearby this unit. Special management considerations or protection may be required within the subunits to minimize habitat fragmentation; to ˜ minimize disturbance to acuna cactus individuals, soil, and associated native vegetation; and to prevent or remove nonnative, invasive species within ˜ acuna cactus habitat. Fickeisen Plains Cactus Physical or Biological Features We derive the specific physical or biological features required for the Fickeisen plains cactus from studies of the species’ habitat, ecology, and life history as described below. We have determined that the Fickeisen plains cactus requires the following physical or biological features: Appropriate Topography and Elevation Range That Support Individual Fickeisen Plains Cactus Plants The Fickeisen plains cactus is a narrow endemic with a wide distribution on the Colorado Plateau in Coconino and Mohave Counties, Arizona. Populations are found at elevations from 1,280 to 1,814 m (4,200 to 5,950 ft) with approximately 1,132 plants in 33 populations documented within an 8,668-square-kilometer (sq km) (3,347-square-mile (sq mi)) range. About 90 percent of individuals occur in Coconino County. The Colorado Plateau consists of a series of subplateaus that are dissected by major structural features (Foos 1999, pp. 2–4). The Fickeisen plains cactus is found on several subplateaus and tablelands including the Coconino, Kaibab, Kanab, Shivwits, and Uinkaret Plateaus, and House Rock Valley. These landforms are characterized by normal faults (Hurricane, Toroweap, and Sevier PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 Faults), monoclines (Grandview and Black Point Monoclines), synclines (Cataract Syncline), deep-seated canyons (Marble Canyon, Cataract Canyon of the Grand Canyon), and deep washes (Mays Wash) (Billingsley and Dyer 2003, p. 3; Billingsley et al. 2006, pp. 1–3; Billingsley et al. 2007, pp. 2– 3), which form boundaries separating the subplateaus, and act as topographic barriers isolating populations of the Fickeisen plains cactus. The Fickeisen plains cactus is found exclusively on limestone soils derived predominantly from the Harrisburg Member of the Kaibab Formation. The Harrisburg Member consists of reddishgray and brownish-gray, slope-forming gypsum, siltstone, sandstone, and limestone; and includes an upper, middle, and lower part. The upper bed consists of gray, cherty limestone that forms the bedrock surface while the middle unit comprises thick, cliffforming limestone beds and the lower bed consists of slope-forming gypsiferous siltstone, sandstone, limestone, and gypsum (Billingsley 2000, pp. 3–4). Folding and uplifting of bedrock, basalt flows, and erosional processes across the Colorado Plateau exposes other sedimentary rock formations found in occupied habitat. The Hurricane Cliffs exposes the Kaibab Formation on the upper part and much of the bedrock surface of the Shivwits and Uinkaret Plateaus, while siltstone, sandstone, and limestone of the Toroweap Formation is well exposed on the lower steep slopes and ledges (Billingsley and Dyer 2003, pp. 3–4). East of the Hurricane Cliffs and in the habitat of the Clayhole Wash population, ledge-forming limestone beds that are separated by slopes of gypsiferous siltsone of the Moenkopi Formation are exposed under Quarterary basalt flows (Billingsley 1994, p. 2). Erosional unconformities separate the Kaibab and Moenkopi Formations in this area (Billingsley et al. 2002, p. 3). In House Rock Valley, the Kaibab Formation forms most of the bedrock surface and rims along Marble Canyon. In some places, the Kaibab Formation is covered by siltstone and sandstone of the Moenkopi Formation (Billingsley and Priest 2010, p. 5). Exposed limestone surfaces include mesas, plateaus, fan terraces, flat to gentle sloping hills, along canyon rims, and washes, which provide habitat to support the cactus. Individuals are found on the western, southwestern, and southern-facing exposures with slopes less than 20 percent (Arizona Rare Plant Committee 2001; AGFD 2011a, p. 2), although most plants are E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations observed on slopes less than 10 percent. The surface material is derived from the erosion of limestone and sandstone in the form of alluvium, colluvium, or eolian deposits. Based on the above information, we identify mesas, plateaus, terraces, flat to gently sloping hills less than 20 percent slope; margins of canyon rims and desert washes that are overlain with alluvium, colluvium, or eolian deposits, or eolian sand over alluvium; alluvium derived predominantly from limestone of the Harrisburg Member of the Kaibab Formation; and limestone, siltstone, and sandstone of the Toroweap and Moenkopi Formations as a physical or biological feature essential to the conservation of the Fickeisen plains cactus. Appropriate Soil Structure and Vegetation Community That Support Individual Fickeisen Plains Cactus Plants The presence of unique soil structure and chemistry may determine where a rare plant species exits. The Fickeisen plains cactus is found on gravelly limestone soils underlain by alluvium. There are several soil series associations that support the Fickeisen plains cactus (Table 2). These share common properties or characteristics of soil that is well-drained, nonsaline to slightly saline with a soil pH from 7.9 to 8.4 (NatureServe 2011; Natural Resources Conservation Service (NRCS) 2012), and shallow (15 to 51 cm (6 to 20 in) to bedrock), although some are moderately 55279 deep to very deep (more than 203 cm (80 in) to bedrock). Most Fickeisen plains cacti are found in shallow soils. Fewer plants are found on deeper soils, but these plants may not persist longterm from being water logged after rainstorms or subjected to debris flows. The texture of the surface layer includes gravelly loam, fine sandy loam, gravelly sandy loam, clay loam, cobbly loam, and stony loam (NRCS 2012). The finetextured and very loose soil texture may enable the plant to be completely buried once retracted (Navajo National Heritage Program (NNHP) 1994, p. 3), thereby protecting the apex from exposure to low temperatures during the winter season. The habitat is also stable with little soil movement following runoff events. TABLE 2—SOIL CLASS ASSOCIATED WITH THE FICKEISEN PLAINS CACTUS HABITAT Soil series classification Percent slope sradovich on DSK3GMQ082PROD with RULES2 Dutchman-McCullan complex .......................................................................................................................................................... Kinan gravelly loam ......................................................................................................................................................................... Kinan-Pennell complex .................................................................................................................................................................... Mellenthin very gravelly loam .......................................................................................................................................................... Mellenthin-Progresso complex ........................................................................................................................................................ Mellenthin-Rock outcrop-Torriorthents complex .............................................................................................................................. Mellenthin-Tanbark complex ............................................................................................................................................................ Moenkopie-Goblin complex ............................................................................................................................................................. Monierco clay loam .......................................................................................................................................................................... Monue-Seeg complex ...................................................................................................................................................................... Pennell cobbly loam ........................................................................................................................................................................ Pennell gravelly sandy loam ............................................................................................................................................................ Saido-Brinkerhoff complex ............................................................................................................................................................... Strych very gravelly loam ................................................................................................................................................................ Twist sandy loam ............................................................................................................................................................................. Winona gravelly loam ...................................................................................................................................................................... Winona stony loam .......................................................................................................................................................................... Winona-Boysag gravelly loams ....................................................................................................................................................... Winona-Rock outcrop complex ........................................................................................................................................................ The Fickeisen plains cactus is primarily found in sparsely vegetated areas in full sun. However, habitat in Mohave County, Arizona, supports dense patches of grasses and desert shrubs. Adult Fickeisen plains cacti that are growing underneath a shrub canopy or in partially shaded clumps of grama grass have been observed to be larger and fuller than those growing in fully open areas (Robertson 2011, p. 1). Similar observations have been reported on the Navajo Nation (NNHP 1994, p. 4). Some amount of canopy cover may create suitable microhabitat conditions that enhance Fickeisen plains cactus’ survival by providing protection from the sun and wind, and by decreasing the rate of evapotranspiration (Milne 1987, p. 34). Microbiologic soil crusts are present across areas of the Colorado Plateau and occur near the Fickeisen plains cactus VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 (United States Forest Service (USFS) 1999, entire; BLM 2007a, pp. 3–15). Biological soil crusts are formed by a community of living organisms that can include cyanobacteria, green algae, microfungi, mosses, liverworts, and lichens (Belnap 2006, pp. 361–362). These crusts provide many positive benefits to the larger vegetation community by providing fixed carbon and nitrogen on sparsely vegetated soils, soil stabilization and erosion control, water infiltration, improved plant growth, and seedling germination (Rychert et al. 1978, entire; NRCS 1997, pp. 8–10; Floyd et al. 2003, p. 1704; Belnap 2006, entire). Although there is no information indicating a relationship between the Fickeisen plains cactus and benefits derived from the soil crust, their presence supports native desert vegetation that also supports the Fickeisen plains cactus habitat. PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 1–10 1–15 4–15 1–25 1–7 10–70 5–50 5–50 2–15 1–6 3–10 20–45 1–5 2–10 2–10 0–8 0–8 0–8 15–30 and 30–70 The specific physiological and soil nutritional needs of the Fickeisen plains cactus are not known at this time. Locations containing apparently suitable habitat on the Arizona Strip have been searched between the years of 1986 and 2010, and no additional individuals or populations have been found to date. The factors limiting the taxon’s distribution are unknown, but could be related to microsite differences (such as nutrient availability, soil microflora, soil texture, or moisture). Although we do not have information to fully explain what components the plant prefers, a preliminary soil study on the Kaibab National Forest suggested that sites having higher density of plants occur in gravelly soils and these have higher levels of micro and macro nutrients compared to sandier soils where fewer plants are found. The higher amounts of potassium, nitrate, E:\FR\FM\18AUR2.SGM 18AUR2 55280 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations (family Halictidae) (Milne 1987, p. 21; NNHP 1994, p. 3). Although flies may pollinate flowers of the Fickeisen plains cactus when they eat pollen or nectar, the primary pollinators for the Fickeisen plains cactus are believed to be halictid bees from the genera Lasioglossum, Halictus, and Agapostemon, based on several studied species of Pediocactus (Tepedino 2012, pers. comm.). Since pollination is essential to the conservation of the Fickeisen plains cactus, we evaluated alternatives for determining the effective pollinator distance for the taxon. Foraging distances vary by species and body size (Greenleaf et al. 2007, p. 592), but the typical flight distances of halictid bees in the genera Lasioglossum are 10 to 410 Habitat for Individual and Population m (33 to 1,345 ft). The foraging distance Growth, Including Sites for for the largest bodied bee in the genera Germination, Pollination, Reproduction, Agapostemon (sweat bees in the Family Pollen and Seed Dispersal, and Seed Halictidae) is approximately 1,000 m Banks (3,280 ft) (Tepedino 2012, pers. comm.). The Fickeisen plains cactus habitat is We believe 1,000 m (3,280 ft) represents found within the Great Basin Desert and a reasonable estimate of the area needed is associated with the Plains and Great around the Fickeisen plains cactus Basin grasslands and Great Basin population to provide sufficient habitat desertscrub (Benson 1982, p. 764; for the pollinator community. As noted NatureServe 2011). Dominant native above, many other insects likely plant species that are commonly contribute to the pollination of this associated with these biotic species, and some may travel greater communities include: Artemisia distances than others. However, these tridentata (sagebrush), Atriplex pollinators may also forage, nest, canescens (four-wing saltbush), Atriplex overwinter, or reproduce within 1,000 confertifolia (shadscale), Bouteloua m (3,280 ft) of Fickeisen plains cactus. eriopoda (black grama), Bouteloua As a result, we considered the Fickeisen gracilis (blue grama), Bromus spp. plains cactus pollinator area to be 1,000 (brome), Chrysothamnus spp. (rabbitm (3,280 ft) around individual plants, bush), Ephedra torreyana (Mormon tea), based on the rationale that pollinators Kraschenninikovia lanata (winterfat), using habitat farther away may not be as Gutierrezia sarothrae (broom likely to contribute to the conservation snakeweed), Pleuraphis jamesii (James’s and recovery of this species. galleta), Achnatherum hymenoides The Fickeisen plains cactus relies (Indian ricegrass), Sphaeralcea spp. solely on the production of seed for (globe-mallow), and Stipa spp. reproduction (Pimienta-Barrios and del (needlegrass). Other native species that Castillo 2002, p. 79). Optimal seed set are commonly found include Agave occurs through visitation and utahensis (century plants), Echinocactus pollination by native bees and other polycephalus spp. and Escobaria insect pollinators. Seed production in vivipara var. rosea (foxtail cactus) the Fickeisen plains cactus is (Brown 1994, pp. 115–121; Turner 1994, considered to be low (Hughes 2011, pp. 145–155; Hughes 1996b, p. 2; pers. comm.), and most species of Goodwin 2011a, p. 4; NatureServe Pediocactus have poor seed dispersal 2011). mechanisms (Benson 1982, p. 750). We These grasslands also support native do not know the soil moisture, nutrient, annuals and perennial flowering plants or temperature requirements for that support a diversity of native bees Fickeisen plains cactus germination. and insect pollinators, which are Seedlings are often observed near the essential for Fickeisen plains cactus parent plant (Goodwin 2011a, p. 9) and reproduction. Reproduction for plant do better when shade is provided by a species within the genera of Pediocactus parent or nurse rock (Nobel 1984, p. occurs by cross-pollination (Pimienta316; Milne 1987, p. 34). Maintaining genetic diversity is Barrios and del Castillo 2002, p. 79). essential for persistence of the Fickeisen Pollinators observed visiting flowers of plains cactus because of its endemism, the Fickeisen plains cactus include small population size, and disjunct hover flies (family Syrphidae), bee flies populations (Tepedino et al. 1996, p. (family Bombyliidae), mining bees 245). In general, maintaining adequate (family Andrenidae), and sweat bees sradovich on DSK3GMQ082PROD with RULES2 sodium, zinc, copper, and soluble phosphate in the gravelly soil may be a result of weathering over time (MacDonald (USFS) 2013, pers. comm.). While further investigation is warranted at other populations, it may help distinguish the quality of habitat for the taxon across its range. Based on the above information, we identify soils from the appropriate soil series that are well-drained, shallow to moderately deep, stable, and consist of gravelly loam, fine sandy loam, gravelly sandy loam, clay loam, and cobbly loam with limestone and chert gravel as a physical or biological feature essential to the conservation of the Fickeisen plains cactus. VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 populations of the Fickeisen plains cactus’ primary pollinators, which likely depends on the presence and diversity of other native plant species in sufficient numbers within, near, and between populations, is essential to facilitate gene flow (NatureServe 2011). Moreover, maintaining areas with a high diversity of native plant species is necessary to sustain populations of native pollinators (Peach et al. 1993, p. 314). Low numbers of abundant flowers offering little reward can lead to low rates of plants visited by pollinators (Wilcox and Neiland 2002, pp. 272– 273). As the Fickeisen plains cactus does not reproduce vegetatively, pollination is highly linked to their survival. A lack of pollinators would gradually decrease the number of seeds in the seed bank and the conservation potential for the Fickeisen plains cactus (Wilcock and Neiland 2002, p. 276). Therefore, based on the best available information above, we identify a pollination area with a radius of 1,000 m (3,280 ft) around each Fickeisen plains cactus that includes native vegetation of the Great Basin desertscrub and Plains and Great Basin grasslands, and habitat for pollinators as a physical or biological feature essential to the conservation of the Fickeisen plains cactus. Habitats That Are Protected From Disturbance or Representative of the Historical, Geographical, and Ecological Distribution of the Species The Fickeisen plains cactus has a restricted geographical distribution. Endemic species whose populations exhibit a high degree of isolation are extremely susceptible to extinction from random and non-random, catastrophic, natural or human-caused events. Therefore, the conservation of the Fickeisen plains cactus is dependent on several factors, including, but not limited to: (1) Maintenance of areas of sufficient size and configuration to sustain natural ecosystem components, functions, and processes (such as sun exposure, native shrubs or grasses that provide microhabitats for seedlings, natural fire and hydrologic regimes, preservation of biological soil crusts that support the surrounding vegetation community, and adequate biotic balance to prevent excessive herbivory); (2) protection of the existing substrate continuity and structure; (3) connectivity among clusters of plants within geographic proximity to facilitate gene flow among these sites through pollination activity and seed dispersal; and (4) sufficient adjacent suitable habitat for reproduction and population expansion. E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 A natural, generally intact surface and subsurface that is free of inappropriate disturbance associated with land use activities (such as trampling and soil compaction from livestock grazing) and associated physical processes such as the hydrologic regime are necessary to provide water, minerals, and other physiological needs for the Fickeisen plains cactus. A natural intact surface and subsurface includes the preservation of soil qualities (texture, slope, rooting depth) to enable the seasonal ability of plants to retract below the subsurface to enter dormancy, but emerge when conditions are favorable. A natural hydrologic regime includes the seasonal retention of soil moisture followed by the drying out of the substrate to promote growth of plants for the following season. These processes enable populations to develop and maintain seed banks, and to provide for successful seedling survival, adult growth, and expansion of populations. The Fickeisen plains cactus must sustain and expand in number if ecological representation of this species is to be ensured. Therefore, based on the information above, we identify natural, generally intact surface and subsurface that preserves the physical processes, such as soil quality and the natural hydrology of a natural vegetation community, to be physical or biological features for this species. Primary Constituent Elements for the Fickeisen Plains Cactus Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species’ life-history processes, we determine that the primary constituent elements specific to the Fickeisen plains cactus are: 1. Soils derived from limestone that are found on mesas, plateaus, terraces, the toe of gently sloping hills with up to 20 percent slope, margins of canyon rims, and desert washes. These soils have the following features: a. They occur on the Colorado Plateau in Coconino and Mohave Counties of northern Arizona and are within the appropriate series found in occupied areas; b. They are derived from alluvium, colluvium, or eolian deposits of limestone from the Harrisburg Member of the Kaibab Formation and limestone, siltstone, and sandstone of the Toroweap and Moenkopi Formations; c. They are nonsaline to slightly saline, gravelly, shallow to moderately deep, and well-drained with little signs of soil movement. Soil texture consists of gravelly loam, fine sandy loam, gravelly sandy loam, very gravelly VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 sandy loam, clay loam, and cobbly loam. 2. Native vegetation within the Plains and Great Basin grassland and Great Basin desertscrub vegetation communities from 1,310 to 1,813 m (4,200 to 5,950 ft) in elevation that has a natural, generally intact surface and subsurface that preserves the bedrock substrate and are supportive of microbiotic soil crusts where they are naturally found. 3. Native vegetation that provides for habitat of identified pollinators within the effective pollinator distance of 1,000 m (3,280 ft) around each individual Fickeisen plains cactus. Special Management Considerations or Protections When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. All areas designated as critical habitat as described below may require some level of management to address the current and future threats to the physical or biological features essential to the conservation of the Fickeisen plains cactus. In all of the described units, special management may be required to ensure that the primary constituent elements for the cactus are conserved and the habitat provides for the biological needs of the cactus. Some of the management activities that could ameliorate these threats include, but are not limited to, those discussed below. (1) Practice livestock grazing in a manner that maintains, improves, and expands the quantity and quality of desertscrub and grassland habitat. Special management considerations or protection may include the following: Manage livestock grazing sustainably with the natural landscape by determining appropriate areas, seasons, and use consistent within the carrying capacity of rangeland in response to current and future drought and warming trends; improve monitoring and documentation of grazing practices; manage cattle and feral hoofed mammals (ungulates) (e.g., horses, burros) to reduce the risk of plants trampled and soil compaction; and manage for other small mammal species to restore desired processes to increase habitat quality and quantity. (2) Manage for nonnative, invasive species, such as Bromus tectorum (cheatgrass), Bromus rubens (red brome), or Erodium cicutarium (redstem filaree), by minimizing conditions that PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 55281 may promote or encourage encroachment or establishment of nonnative, invasive species and restore or reestablish conditions that allow native plants to thrive. Within the range of the Fickeisen plains cactus, the establishment and success of nonnative, invasive species has been a result of historic land use and management practices such as logging, grazing, wildfire suppression actions, mining, and ORV use. Actions have been taken by land management agencies to reduce the spread of invasive species and reduce the risk of wildfire they pose from creating fine fuel loads. Nonnative, invasive species occur near Fickeisen plains cactus habitat and may pose a threat through competition for resources or increase the risk of fire. Special management considerations or protection may include the following: Prevent or restrict establishment of nonnative, invasive species; minimize ground-disturbing activities that may facilitate their spread; implement postdisturbance restoration activities such as native plant propagation; practice active removal of nonnative, invasive plant species and targeted herbicide application (provided herbicides can be shown not to negatively impact the Fickeisen plains cactus or the native pollinators); and improve monitoring and documentation on a site-by-site basis where nonnative, invasive species are present in occupied habitat to assess any effect (beneficial or negative) they pose of the cactus. (3) Protect bedrock surfaces and associated limestone soils that provide suitable habitat from mineral development and associated infrastructure (new roads). Numerous breccia pipes (vertical, pipe-shaped bodies of highly fractured rock that collapsed into voids created by dissolution of underlying rock) are located across the Colorado Plateau and are expressed as circular collapse structures, minor folds, and other surface irregularities associated with the Kaibab and Toroweap Formations. Exploration and development of uranium has peaked and waned in accordance with market values. Areas of interest and oil and gas leasing/ exploration overlap Fickeisen plains cactus habitat. These activities could result in direct habitat loss or alteration by removing or degrading limestone soils to such an extent that the soils would no longer support the growth of the Fickeisen plains cactus. Special management considerations or protection may include the following: Protect lands that support suitable habitat and site future development E:\FR\FM\18AUR2.SGM 18AUR2 55282 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 such that the destruction or removal of limestone from the Kaibab, Toroweap, and Moenkopi formations is minimized and depositional areas are preserved. (4) Manage or protect native desertscrub and plains grassland vegetation communities from recreational impacts. Special management considerations or protections may include the following: Managing trails, campsites, and ORVs; and reduce the likelihood of wildfires affecting the population and nearby plant community. These management activities will protect the physical or biological features essential to the conservation of the Fickeisen plains cactus by reducing the direct and indirect effects of habitat loss, alteration, or fragmentation; preserving the bedrock surfaces and associated limestone soils that form the basis of its habitat; and maintaining the native vegetation communities and its pollinators. In summary, the primary constituent elements of the Fickeisen plains cactus habitat may be impacted by livestock grazing; nonnative, invasive species; mineral development and associated transportation infrastructure; and recreation. We find that these activities may not be direct threats to the species as a whole, but may negatively impact the primary constituent elements. The areas designated as critical habitat within the geographical area occupied by the taxon at the time of listing contain the physical or biological features essential to the conservation of the Fickeisen plains cactus. Special management considerations or protection may be required to eliminate, or reduce to a negligible level, the threats affecting each unit or subunit and to preserve and maintain the essential features that the critical habitat units and subunits provide to the cactus. Criteria Used To Identify Critical Habitat As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we consider whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing— are necessary to ensure the conservation of the species. We have determined that all areas we are designating as critical habitat are within the geographical area occupied by the species at the time of listing (see the ‘‘Abundance and VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 Trends’’ section in the final listing rule (78 FR 60608, October 1, 2013) for more information). Based on the best available information, we conclude that the six critical habitat units are occupied by the Fickeisen plains cactus. We acknowledge that several of the populations have not been visited for more than 18 years, but we have determined they should be considered occupied at the time of listing. We are making this conclusion because the unvisited populations are within close proximity to other occupied areas within suitable habitat that includes monitored sites; they occur in areas with the same geology, elevation, and vegetation community as nearby known occupied sites; the environmental conditions at these sites have not been severe enough to result in loss of habitat, thereby causing possible extirpation of cactus from these areas or impeded establishment; information is insufficient to suggest that populations no longer are viable (lack of observations does not mean those populations have been extirpated); and the cactus has a lifespan of 10 to 15 years. The best available science indicates that there were once small populations of the cactus at these sites, and there is no evidence known to indicate otherwise. Please refer to the proposed listing and critical habitat rule (77 FR 60509, October 3, 2012) for more information on our rationale for including them within the final designation of critical habitat. We considered areas outside the geographical area occupied by the Fickeisen plains cactus at the time of listing, but we are not designating any areas outside the geographical area occupied by the Fickeisen plains cactus. In our review, the Fickeisen plains cactus occurs across a broad range with different topography, large elevational gradients, and vegetation communities (AGFD 2011b, entire). Due to the vastness and diversity of the range, there are areas within its geographical range that provides for in-situ (on-site) conservation if needed in the future. Therefore, we determined that a subset of occupied lands within the species’ current range is adequate to ensure the conservation of the Fickeisen plains cactus. We reviewed available information and supporting data that pertains to the habitat requirements of the Fickeisen plains cactus. This information included research published in peerreviewed articles, soil surveys, agency reports, special land assessments, and data collected from long-term monitoring plots, interviews with PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 experts, and regional climate data and GIS coverage. Sources of information include, but are not limited to: AGFD 2011b, AZGS 2011, Billingsley et al. 2002, Billingsley and Dyer 2003, Billingsley et al. 2006, Billingsley et al. 2007, Billingsley and Priest 2010, BLM 2007a, Calico 2012, Goodwin 2011a, Hazelton 2012a, Milne 1987, NNHP 2011a, NRCS 2012, Phillips et al. 1982, Travis 1987, and Western Regional Climate Center 2012. Based on this information, we developed a strategy for determining which areas meet the definition of critical habitat for the Fickeisen plains cactus. In identifying critical habitat units for the Fickeisen plains cactus, we proceeded through a multi-step process. We obtained all records for the distribution of the Fickeisen plains cactus from AGFD, as well as both published and unpublished documentation from our files. Recent survey results confirm that current plant distribution is similar to documented distribution records with the exception that additional populations have been found following survey efforts. Our approach to delineating critical habitat units was applied in the following manner: (1) We overlaid locations of the Fickeisen plains cactus into a GIS database. This provided us with the ability to examine slope, elevation, geologic type, vegetation community, and topographic features. These data points verified and slightly expanded the previously recorded elevation ranges for the Fickeisen plains cactus. (2) In addition to the GIS layers listed above, we then included a 1,000-m (3,280-ft) pollination area around known individual Fickeisen plains cacti to encompass native vegetation surrounding individual Fickeisen plains cacti, as described in Primary Constituent Elements for the Fickeisen Plains Cactus, above. (3) We then drew critical habitat boundaries that captured the locations elucidated under (1) and (2) above. Critical habitat designations were then mapped using Albers Equal Area (Albers) North American Datum 83 (NAD 83) coordinates. Occupied Area at the Time of Listing Areas where plants are or have been documented within the species’ described range were considered to be occupied at the time of listing. The known range of the Fickeisen plains cactus is in Arizona from Mainstreet Valley and Hurricane Valley in Mohave County to House Rock Valley in Coconino County on the Arizona Strip; along the canyon rims of the Colorado E:\FR\FM\18AUR2.SGM 18AUR2 55283 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations River and Little Colorado River to the area of Gray Mountain; and along the rims of Cataract Canyon on the Coconino Plateau. Occupied occurrences or clusters of the Fickeisen plains cactus that were located in proximity to one another, but distributed within a large area, were grouped into one unit (e.g., Hurricane Cliffs and House Rock Valley). Areas where individual plants are distributed over a large distance (e.g., Cataract Ranch) were also categorized into one unit. All of the units contained all of the identified elements of physical or biological features and support multiple life-history processes. The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on https:// www.regulations.gov at Docket No. FWS–R2–ES–2013–0025, on our Internet sites https://www.fws.gov/ southwest/es/arizona/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above). Critical Habitat Designation for the Fickeisen Plains Cactus We are designating six units as critical habitat for the Fickeisen plains cactus. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Fickeisen plains cactus. The six units we are designating as critical habitat are: (1) Hurricane Cliffs; (2) Sunshine Ridge; (3) Clayhole Valley; (4) South Canyon; (5) House Rock Valley; and (6) Gray Mountain. All of the six critical habitat units were occupied by the Fickeisen plains cactus at the time of listing. The approximate area of each critical habitat unit is shown in Table 3. TABLE 3—DESIGNATED CRITICAL HABITAT UNITS FOR THE FICKEISEN PLAINS CACTUS Federal State Private Total Critical habitat unit Ha 1. Hurricane Cliffs: 1a. Dutchman Draw .................................................. 1b. Salaratus Draw ................................................... 1c. Temple Trail ........................................................ 1d. Toquer Tank ....................................................... 2. Sunshine Ridge ........................................................... 3. Clayhole Valley ............................................................ 4. South Canyon .............................................................. 5. House Rock Valley: 5a. Beanhole Well .................................................... 5b. North Canyon Wash ........................................... 5c. Marble Canyon ................................................... 5d. South Canyon ..................................................... 6. Gray Mountain: 6a. Mays Wash ......................................................... 6b. Gray Mountain .................................................... Total ................................................................... Ac Ha Ac Ha Ac Ha Ac 1,525 445 443 350 612 338 110 3,769 1,098 1,096 865 1,512 836 272 0 266 0 0 142 76 0 0 658 0 0 351 188 0 2 13 0 0 0 0 0 5 33 0 0 0 0 0 1,527 724 443 350 754 414 110 3,774 1,789 1,096 865 1,863 1,024 272 745 472 214 336 1,841 1,166 528 831 126 0 0 0 312 0 0 0 0 0 0 0 0 0 0 0 871 472 214 336 2,153 1,166 528 831 246 0 609 0 80 7 198 17 0 514 0 1,271 326 521 807 1,288 5,836 14,423 697 1,724 529 1,309 7,062 17,456 Note: Area sizes may not sum due to rounding. We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Fickeisen plains cactus, below. sradovich on DSK3GMQ082PROD with RULES2 Unit 1: Hurricane Cliffs The Hurricane Cliffs Unit is located on the Arizona Strip in the north-central area of Mohave County, Arizona. The unit lies predominantly on the Shivwits Plateau and is bounded to the west by Mainstreet Valley and to the east by the Hurricane Cliffs. The unit consists of four subunits totaling 3,044 ha (7,524 ac) and includes small areas of private land, lands owned by the State of Arizona, and federally owned land managed by the BLM. The entire unit occurs within the area referred as the Arizona Strip that is managed by the BLM for multiple land use purposes such as livestock grazing, fuels management, energy, and recreation. The BLM manages grazing leases for VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 large allotments comprised of a mix of their lands as well as State lands. Occupancy of the Hurricane Cliffs Unit by the Fickeisen plains cactus has been documented since 1986 (BLM 1986, p. 1). The taxon was considered generally rare, but in abundant numbers at Dutchman Draw with a few scattered individuals located in small clusters adjacent to Dutchman Draw populations. These smaller clusters include the Navajo, Ward, Salaratus Draw I, Salaratus Draw II, Temple Trail, and Toquer Tank populations. This entire unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. Subunit 1a: Dutchman Draw— Subunit 1a consists of 1,527 ha (3,774 ac) of land near Dutchman Draw in Mainstreet Valley. The subunit occurs within the Shivwits Plateau and along PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 an exposed fault. Lands within this subunit were occupied at the time of listing. A monitoring plot was established at this site in 1986. The BLM has visited the plot regularly since then. Monitoring information has shown fluctuations in plant numbers between years, but among all years, there is an overall decline in plant numbers from a peak of 219 individuals in 1992 to 5 individuals in 2012. This subunit also includes the Navajo and Ward cluster plots that were established to note presence or absence of the cactus. These small plots were last visited in 2001, and 10 plants were found at each of the plots. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. Occupied habitat areas in this subunit occur predominantly within the Plains and Great Basin E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 55284 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations grassland with a small portion in the Great Basin desertscrub vegetation communities. Plants occur amongst tall, dense clumps of grama grass with some desert shrubs. The subunit is located at the foot of a gently sloping hill in fine alluvium deposits. Most of the bedrock surface is limestone, siltstone, and gypsum of the Kaibab Formation. Subunit 1b: Salaratus Draw—Subunit 1b consists of 724 ha (1,789 ac) of land near Salaratus Draw. The subunit overlies an active fault on the Shivwits Plateau. Lands within this subunit were occupied at the time of listing and include Salaratus Draw I and Salaratus Draw II populations. This site was visited only three times between 1986 and 2001. At most, 44 plants were located in this subunit when last visited in 1994. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. Subunit 1c: Temple Trail—Subunit 1c consists of 443 ha (1,096 ac) of land in Lower Hurricane Valley. This subunit lies on the Hurricane Cliffs. It is bounded by the Shivwits Plateau to the west and the Uinkaret Plateau to the east, separated by an active fault that runs north along the Hurricane Cliffs. Lands within this subunit were occupied at the time of listing. This site was last visited in 2001 when seven individuals were found. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. Subunit 1d: Toquer Tank—Subunit 1d consists of 350 ha (865 ac) of land in Lower Hurricane Valley. Lands within this subunit were occupied at the time of listing. This site was regularly monitored from 1986 to 1991, when abundance counts ranged from 7 to 13 plants. This site was last visited in 1994, and seven individuals were found. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. The features essential to the conservation of the species within this unit are threatened by livestock grazing; nonnative, invasive species issues; small mammal predation on the cactus; and long-term drought coupled with increased minimum winter temperatures. Special management considerations or protection may be required to minimize habitat disturbance to Fickeisen plains cactus individuals, soil, and associated native vegetation; and to prevent or remove VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 to the conservation of the Fickeisen plains cactus. This unit helps to maintain the geographical range of the Unit 2: Sunshine Ridge species and provide opportunity for The Sunshine Ridge Unit is located population growth. This unit also on the Arizona Strip and lies on the provides a core population of the Kanab Plateau in Mohave County, species. Arizona. The unit totals 754 ha (1,863 The features essential to the ac). This unit contains land that is conservation of the species within this federally and State owned. The entire unit are threatened by livestock grazing; unit is managed primarily by the BLM nonnative, invasive species issues; for multiple land use purposes such as small mammal predation on the cactus; livestock grazing, fuels management, and long-term drought coupled with energy, and recreation. Plants are increased minimum winter located east of the Uinkaret Plateau and temperatures. Special management east of the range of the Pediocactus sileri considerations or protection may be (Siler pincushion cactus). Occupancy of required to minimize habitat the Sunshine Ridge Unit by the disturbance to Fickeisen plains cactus Fickeisen plains cactus has been individuals, soil, and associated native documented since 1977 (AGFD 2011b, vegetation; and to prevent or remove entire). This population has been nonnative, invasive species within its regularly monitored since 1986, and has habitat. 34 plants as of 2011. Land within this Unit 4: South Canyon unit was occupied at the time of listing The South Canyon is located on the and contains all of the primary eastern boundary of the North Kaibab constituent elements of the physical or Ranger District of the Kaibab National biological features essential to the Forest in Coconino County, Arizona. It conservation of the Fickeisen plains is bounded by the Colorado River near cactus. This unit helps to maintain the Marble Canyon at House Rock Valley. It geographical range of the species and includes land originally designated as provide opportunity for population the Grand Canyon National Game growth. This unit also provides a core Preserve that is now referred to as the population of the species. Buffalo Ranch Management Area. It The features essential to the contains 110 ha (272 ac) of federally conservation of the species within this unit are threatened by livestock grazing; owned land that is administered by the Kaibab National Forest. This unit nonnative, invasive species issues; contains at least 62 individual Fickeisen small mammal predation on the cactus; plains cactus scattered among 6 areas and long-term drought coupled with along the rim of South Canyon Point. increased minimum winter This unit contains all of the primary temperatures. Special management constituent elements of the physical or considerations or protection may be biological features essential to the required to minimize habitat conservation of the Fickeisen plains disturbance to Fickeisen plains cactus cactus. This unit helps to maintain the individuals, soil, and associated native geographical range of the species and vegetation; and to prevent or remove provide opportunity for population nonnative, invasive species within its growth. This unit also provides a core habitat. population of the species. Unit 3: Clayhole Valley The primary land uses within this The Clayhole Valley Unit is located in unit include big game hunting and recreational activities throughout the Upper Clayhole Valley on the Arizona year. The area is very remote and may Strip and lies within the Uinkaret receive limited numbers of hikers, Plateau in Mohave County, Arizona. The unit consists of 414 ha (1,024 ac) of hunters, or campers. Under a memorandum of understanding, the land that is federally and State owned. The entire unit is managed primarily by Kaibab National Forest and the AGFD the BLM for multiple land use purposes commit to managing the natural resources of this area, mainly big game including livestock grazing. Occupancy species, to ensure that sensitive of the Clayhole Valley Unit by the resources are not impacted and desired Fickeisen plains cactus has been conditions are achieved (USFS 2012, p. documented since 1980 (AGFD 2011b, 92). Livestock grazing by cattle and entire). The population has been mining activities are not authorized monitored annually since 1986. As of 2011, the population contains 42 plants. within the Buffalo Ranch Management Area. Special management Land within this unit was occupied at the time of listing and contains all of the considerations or protection may be required within the unit to minimize primary constituent elements of the habitat disturbance to the soil and physical or biological features essential nonnative, invasive species within its habitat. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 associated native vegetation, and prevent invasion of nonnative plants. The features essential to the conservation of the species within this unit are threatened by nonnative, invasive species issues and long-term drought coupled with increased minimum winter temperatures. Special management considerations or protection may be required to minimize conditions that may promote or encourage encroachment and establishment of nonnative, invasive species; and reduce the likelihood of wildfires affecting the population and nearby plant community. Unit 5: House Rock Valley The House Rock Valley is located on the eastern edge of the Arizona Strip near the North Rim of the Grand Canyon National Park in Coconino County, Arizona. The unit consists of four subunits totaling 1,893 ha (4,678 ac) of land. The unit consists of land that is federally and State owned. The entire unit is managed primarily by the BLM, mainly for livestock grazing. Lands within this unit were occupied at the time of listing and contain all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. This entire unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. Occupancy of the Fickeisen plains cactus in the House Rock Valley Unit was first documented in 1979 (Phillips 1979, entire; AGFD 2011b, entire), at Beanhole Well, Marble Canyon, and South Canyon. These sites have not been visited for more than 21 years. However, we have no reason to believe these sites were not occupied at the time of listing for reasons provided in the ‘‘Distribution and Range’’ section of the final listing rule (78 FR 60608). Occupancy at the North Canyon Wash site was documented in 1986, and it has been regularly monitored since. The House Rock Valley Unit is bounded by the Colorado River to the east, U.S. Highway 89A to the north, and the Kaibab National Forest to the west. Subunit 5a: Beanhole Well—Subunit 5a consists of 745 ha (1,841 ac) of federally owned land that is managed by the BLM, and 126 ha (312 ac) of Stateowned land. Lands within this subunit were occupied at the time of listing. Three plants were documented at Beanhole Well in 1979, and the site has been visited by Hughes since then, and while occupied habitat was observed, no plant numbers were reported to us VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 (Calico 2012, pers. comm.). This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. Subunit 5b: North Canyon Wash— Subunit 5b consists of 472 ha (1,166 ac) of federally owned land that is managed by the BLM. Lands within this subunit were occupied at the time of listing. This site has been regularly monitored since 1986. As of 2011, the site contains 39 Fickeisen plains cacti. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. Subunit 5c: Marble Canyon—Subunit 5c consists of 214 ha (528 ac) of federally owned land that is managed by the BLM. Lands within this subunit were occupied at the time of listing. Eight plants were documented at Marble Canyon in 1979. This site has not been visited for many years. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. Subunit 5d: South Canyon—Subunit 5d consists of 336 ha (831 ac) of Federal land in House Rock Valley along the rim of Marble Canyon. Lands within this subunit were occupied at the time of listing. A total of 52 plants have been documented at this site historically. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. The features essential to the conservation of the species within this unit are threatened by livestock grazing; nonnative, invasive species issues; small mammal predation on the cactus; and long-term drought coupled with increased minimum winter temperatures. Special management considerations or protection may be required to minimize habitat disturbance to Fickeisen plains cactus individuals, soil, and associated native vegetation; and to prevent or remove nonnative, invasive species within its habitat. Unit 6: Gray Mountain The Gray Mountain Unit is located in the vicinity of the town of Gray Mountain, Arizona, on Highway 89 in Coconino County. The unit consists of two subunits totaling 847 ha (2,095 ac). The unit includes a checkerboard mix of private land, lands owned by the State, and federally owned land managed by the BLM. Lands within this unit are considered occupied at the time of listing. Occupancy at the Gray Mountain PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 55285 unit was first documented in 1962, and consists of two very small populations on both sides of Highway 89. Occupied sites were visited in 2013, and a few plants in flower were observed. This unit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. This entire unit helps to maintain the geographical range of the species and provide opportunity for population growth. This unit also provides a core population of the species. Subunit 6a: Mays Wash—Subunit 6a is located southeast of Highway 89 and consists of 326 ha (807 ac) of land. The subunit includes private land, land owned by the State, and federally owned land managed by the BLM. The entire subunit lies within a cattle ranch and is managed privately for livestock grazing. Lands in this subunit are considered occupied at the time of listing. Occupancy at this site was documented in 1981 and 1984, when 31 plants were found (AGFD 2011b, entire). A site visit to BLM land in 2013 located a few plants in flower. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. Subunit 6b: Gray Mountain—Subunit 6b is located west of Highway 89 and borders the boundary of the Navajo Nation. This subunit consists of 521 ha (1,288 ac) of land that is owned by the State and privately owned land. The entire subunit lies within a cattle ranch and is managed privately for livestock grazing. Lands in this subunit are considered occupied at the time of listing. Occupancy was documented in 2009 when three individuals were found (NNHP 2011a, p. 2). An individual in bloom was observed in 2013. This subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus. The features essential to the conservation of the species within this unit are threatened by livestock grazing by horses and sheep; nonnative, invasive species issues; mineral development and associated infrastructure; and long-term drought coupled with increased minimum winter temperatures. Special management considerations or protection may be required to minimize disturbance or destruction to the bedrock substrate and associated limestone soils; to prevent or remove nonnative, invasive species within its E:\FR\FM\18AUR2.SGM 18AUR2 55286 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations habitat; and protect the native vegetation communities. Effects of Critical Habitat Designation ˜ for Acuna Cactus and Fickeisen Plains Cactus sradovich on DSK3GMQ082PROD with RULES2 Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. We published a final regulation with a new definition of destruction or adverse modification on February 11, 2016 (81 FR 7214) which becomes effective on March 14, 2016. Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation. As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the ˜ conservation of the the acuna cactus or the Fickeisen plains cactus. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of these species or that preclude or significantly delay development of such features. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should ˜ result in consultation for the acuna cactus or the Fickeisen plains cactus. These activities include, but are not limited to, actions that would adversely affect the composition and structure of soil within the designated critical ˜ habitat for the acuna cactus or Fickeisen plains cactus through land disturbances that result in soil compaction or erosion, removal or degradation of native vegetation, or fragmentation of the ˜ acuna cactus or Fickeisen plains cactus populations or their pollinators. Such activities within the designated ˜ critical habitat for the acuna cactus could include, but are not limited to: (1) Actions within or near designated critical habitat areas that would result in the loss, disturbance, or compaction of soils. Such activities could include, but are not limited to: livestock grazing; U.S.–Mexican border activities; recreational or other ORV use; mining operations; fire management, including clearing of vegetation for fuel management; and road construction. (2) Activities that would result in changes in the vegetation composition, such as a reduction in nurse plants or an introduction or proliferation of invasive, nonnative plant cover that may lead to unnatural fires or competition for nutrients, water, or space, resulting in decreased density or ˜ vigor of individual acuna cactus. (3) Actions within or near designated critical habitat that would significantly E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations reduce pollination or seed set (reproduction). Such activities could include, but are not limited to: Use of pesticides; herbicides; mowing; fuels management projects such as prescribed burning; and post-wildfire rehabilitation activities using plant species that may ˜ compete with the acuna cactus. (4) Actions within or near designated critical habitat areas that would result in the significant alteration of intact, native, Sonoran desertscrub vegetation communities within the range of the ˜ acuna cactus. Such activities could include: ORV activities and dispersed recreation; U.S.–Mexico border activities; new road construction or widening or existing road maintenance; new energy transmission lines or expansion of existing energy transmission lines; new border infrastructure; maintenance of any existing energy transmission line corridors or border infrastructure; fuels management projects such as prescribed burning; and rehabilitation or restoration activities using plant species ˜ that may compete with the acuna cactus. These activities could result in the replacement or fragmentation of Sonoran desertscrub vegetation communities through the degradation or loss of native shrubs, grasses, and forbs in a manner that promotes increased wildfire frequency and intensity, and an increase in the cover of invasive, nonnative plant species that would compete for soil matrix components and moisture necessary to support the ˜ growth and reproduction of the acuna cactus. For the Fickeisen plains cactus these activities could include, but are not limited to: (1) Actions within or near designated critical habitat areas that would result in the loss, degradation, or compaction of soils along canyon rims, mesa tops or ridge tops, terraces, or other areas of suitable habitat (e.g., near the base of gently sloping hills). Such activities could include, but are not limited to: Livestock grazing; recreational or other ORV use; fire management, including clearing of vegetation for fuel management; and road construction. (2) Actions that would result in the loss of limestone substrate or limestonederived soils. Such activities could include, but are not limited to mineral development; development for infrastructure (roads); or changes in land-use practices such as conversion of native grasslands or desertscrub communities to residential or commercial development. (3) Activities that would result in changes in soil composition leading to VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 changes in the vegetation composition, such as an introduction or proliferation of invasive, nonnative plant cover that may lead to competition for nutrients, water, or space, resulting in decreased density or vigor of individual Fickeisen plains cactus. (4) Actions within or near designated critical habitat that would significantly reduce pollination or seed set (reproduction). Such activities could include, but are not limited to: use of pesticides; herbicides; mowing; fuels management projects such as prescribed burning; and post-wildfire rehabilitation activities using plant species that may compete with the Fickeisen plains cactus. (5) Actions within or near designated critical habitat areas that would result in the significant alteration of intact, native, desertscrub and grassland habitat within the range of the Fickeisen plains cactus. Such activities could include: ORV activities and dispersed recreation; new road construction or widening or existing road maintenance; new energy transmission lines or expansion of existing energy transmission lines; maintenance of any existing energy transmission line corridors; fuels management projects such as prescribed burning; and rehabilitation or restoration activities using plant species that may compete with the Fickeisen plains cactus. These activities could result in the replacement or fragmentation of desertscrub and grassland habitat through the degradation or loss of native shrubs, grasses, and forbs in a manner that promotes increased wildfire frequency and intensity, and an increase in the cover of invasive, nonnative plant species that would compete for soil matrix components and moisture necessary to support the growth and reproduction of the Fickeisen plains cactus. Exemptions Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an Integrated Natural Resources Management Plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes: (1) An assessment of the ecological needs on the installation, including the PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 55287 need to provide for the conservation of listed species; (2) A statement of goals and priorities; (3) A detailed description of management actions to be implemented to provide for these ecological needs; and (4) A monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108– 136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: ‘‘The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.’’ We consult with the military on the development and implementation of INRMPs for installations with listed species. We analyzed INRMPs developed by military installations located within the range of the critical ˜ habitat designation for the acuna cactus to determine if they meet the criteria for exemption from critical habitat under section 4(a)(3) of the Act. The following areas are Department of Defense lands with completed, Service-approved INRMPs within the proposed revised critical habitat designation. ˜ Approved INRMP for the Acuna Cactus Barry M. Goldwater Gunnery Range— Arizona The BMGR has an approved INRMP and is committed to working closely with the Service to continually refine the existing INRMP as part of the Sikes Act’s INRMP review process. Based on our review of the INRMP for this military installation, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the portion of the ˜ acuna cactus habitat within this installation, identified as meeting the definition of critical habitat, is subject to the INRMP, and that conservation efforts identified in this INRMP will E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 55288 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations ˜ provide a benefit to the acuna cactus. Therefore, lands within this installation are exempt from critical habitat designation under section 4(a)(3)(B)(i) of the Act. We are not including 378 ha (935 ac) of habitat on BMGR in the critical habitat designation because of this exemption. The BMGR completed a revision to the INRMP in relation to ongoing and planned conservation efforts for the ˜ acuna cactus and provided this revision to us during the public comment period. ˜ The benefits for acuna cactus from this revised INRMP include: avoiding disturbance of vegetation and pollinators within 900 m (2,953 ft) of ˜ known acuna cactus plants; developing and implementing procedures to control trespass livestock; monitoring illegal immigration, contraband trafficking, and border-related enforcement; and continuing to monitor and control invasive plant species to maintain quality habitat and prevent unnatural fire. Further, BMGR’s environmental staff reviews projects and enforces existing regulations and orders that, through their implementation, projects avoid and minimize impacts to natural ˜ resources, including acuna cacti and their habitat. In addition, BMGR’s ˜ INRMP provides protection to acuna cactus habitat by prohibiting both mining and agriculture on their lands. The BMGR INRMP specifies periodic monitoring of the distribution and ˜ abundance of acuna cacti populations on the range. Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that conservation efforts for ˜ the acuna cactus identified in the BMGR’s INRMP provide a benefit to the ˜ acuna cactus and its habitat. Therefore, lands subject to the INRMP for BMGR, which includes the lands leased from the Department of Defense by other parties, are exempt from critical habitat designation under section 4(a)(3) of the Act, and we are not including approximately 378 ha (935 ac) of habitat in this critical habitat designation. Consideration of Impacts Under section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the protection from destruction of adverse modification as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan that provides equal to or more conservation than a critical habitat designation would provide. In the case of both cactus species, the benefits of critical habitat include public awareness of the two cactus species’ presence and the importance of habitat protection. Where a Federal nexus exists, the designations of critical habitat may also increase habitat protection for the two cactus species due to the protection from adverse modification or destruction of critical habitat. In practice, a Federal nexus exists primarily on Federal lands or for projects undertaken by Federal agencies or permits issued by Federal agencies. Because the Service finalized the listing rules for these species on October 1, 2013, we have not been regularly consulting with Federal agencies on their effects to the cacti for projects on Federal lands, or for projects on privately owned lands that had a Federal nexus to trigger consultation under section 7 of the Act. We found one project that considered effects to the ˜ acuna cactus and eight projects that considered effects to the Fickeisen plains cactus over the past 20 years. In these cases, the Federal action agency requested our technical assistance in developing conservation recommendations aimed at minimizing or reducing effects to the species in order to preclude the need for listing PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 and in furtherance of their authorities under section 7(a)(1) of the Act. When we evaluate the existence of a conservation plan when considering the benefits of exclusion, we consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information. After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation. Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we considered whether certain ˜ lands in the proposed acuna cactus critical habitat Unit 3 and proposed Fickeisen plains cactus critical habitat Units 6, 7, 8, and 9 were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. In particular, we considered whether the following were appropriate for exclusion: 156 ha (385 ac) of Tohono ˜ O’odham Nation land in Unit 3 of acuna cactus proposed critical habitat; 3,865 ha (9,554 ac) of Navajo Nation land in proposed Fickeisen plains cactus critical habitat Units 6, 7, and 8 (Subunit 8b); and 8,139 ha (20,113 ac) of Babbitt Ranch, LLC, lands in proposed Fickeisen plains cactus critical habitat Units 8 (Subunit 8a) and Unit 9, respectively, of the Fickeisen plains cactus proposed critical habitat. Table 4 below provides approximate areas (ac, ha) of lands that meet the definition of critical habitat but are being excluded under section 4(b)(2) of the Act from the final critical habitat rule. In the sections that follow, we present our discretionary exclusion analysis under section 4(b)(2) of the Act for those areas listed in Table 4. E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations 55289 TABLE 4—AREAS EXCLUDED FROM CRITICAL HABITAT DESIGNATION BY CRITICAL HABITAT UNIT Proposed critical habitat unit Areas meeting the definition of critical habitat, in hectares (acres) Areas excluded from critical habitat, in hectares (acres) 1,637 (4,044) 156 (385) Areas proposed as critical habitat, in hectares (acres) Specific area Areas excluded from critical habitat, in hectares (acres) 380 (940) 1,497 (3,700) 380 (940) 1,170 (2,891) 697 (1,724) 960 (2,371) 7, 768 (19,196) 380 (940) 1,497 (3,700) 380 (940) 1,170 (2,891) 371 (917) 438 (1,083) 7,768 (19,196) ˜ Acuna Cactus 3—Sauceda Mountains Unit ................................. Sauceda Mountains .............................................. Proposed critical habitat unit Specific area Fickeisen Plains Cactus 6—Tiger Wash Unit .............................................. 7—Little Colorado River Overlook Unit ................ 8—Gray Mountain Unit ......................................... 9—Cataract Canyon Unit ..................................... sradovich on DSK3GMQ082PROD with RULES2 Consideration of Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a DEA of the proposed critical habitat designation (which included areas we were considering for exclusion) and related factors (Industrial Economics 2012, entire). The draft analysis, dated February 22, 2013, was made available for public review from March 28, 2013, through April 29, 2013 (78 FR 18938). Following the close of the comment period, a final economic analysis (FEA, dated August 23, 2013) of the potential economic effects of the designation was developed taking into consideration the public comments and any new information (IEc 2013, entire). The intent of the FEA is to quantify the economic impacts of all potential ˜ conservation efforts for the acuna cactus and the Fickeisen plains cactus; some of these costs will likely be incurred regardless of whether we designate critical habitat (baseline). The economic impact of the final critical habitat designation is analyzed by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The ‘‘with critical habitat’’ scenario describes the incremental impacts associated specifically with the designation of critical habitat for the VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 Tiger Wash 1 Subunit .......................................... Tiger Wash 2 Subunit .......................................... Shinumo Wash Subunit ........................................ Little Colorado River Overlook ............................. Mays Wash Subunit ............................................. Gray Mountain Subunit ........................................ Cataract Canyon .................................................. species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat. For a further description of the methodology of the analysis, see Chapter 2, ‘‘Framework for the Analysis,’’ of the FEA. The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decisionmakers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. The economic analysis provides estimated costs of the foreseeable potential economic impacts of the critical habitat designation for the two cacti over the next 20 years (2013 to 2032), which was determined to be the appropriate period for analysis. This is PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 because limited planning information is available for most activities to forecast activity levels for projects beyond a 20year timeframe. The FEA quantifies economic impacts ˜ of the acuna cactus and Fickeisen plains cactus conservation efforts associated with the following categories of activity: (1) U.S.-Mexican border activities; (2) livestock grazing; (3) uranium mining; (4) commercial development; (5) recreational activities; (6) road construction and maintenance; and (7) species and habitat management. The total potential incremental economic impacts for all of the categories in areas ˜ proposed as acuna cactus critical habitat over the next 20 years is $34,000, an annualized impact of $2,200 (assuming a 7 percent discount rate). The total potential incremental economic impacts for the Fickeisen plains cactus are forecast to be $39,000, an annualized impact of $2,500, in areas proposed for critical habitat designation and $22,000, an annualized impact of $1,400, in areas considered for exclusion. The Service considered the economic impacts of the critical habitat designation and the Secretary is not exercising her discretion to exclude any areas from this designation of critical ˜ habitat for the acuna cactus and Fickeisen plains cactus based on economic impacts. A copy of the FEA with supporting documents may be obtained by contacting the Arizona Ecological Services Field Office (see ADDRESSES) or by downloading from the Internet at https://www.regulations.gov. E:\FR\FM\18AUR2.SGM 18AUR2 55290 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations Exclusions Based on National Security Impacts or Homeland Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands where a national security impact might exist. Department of Defense lands that are exempted from critical habitat ˜ designation for the acuna cactus in this final rule include the BMGR, as discussed above in Application of Section 4(a)(3) of the Act, above. Additionally, there are specific areas of ˜ acuna cactus habitat included in this final rule that are not owned or managed by the Department of Defense, but on which the U.S. Customs and Border Protection (CBP) operates along the U.S.–Mexico border. The U.S. Customs and Border Protection is tasked with maintaining national security interests along the nation’s international borders. In order to achieve and maintain effective control of the United States border, CBP, through its component, the U.S. Border Patrol, requires continuing and regular access to certain portions of the area designated as critical habitat. Because CBP’s border security mission has an important link to national security, CBP may identify impacts to national security that may result from designating critical habitat. We do not have information currently indicating that lands within the designation of ˜ critical habitat for the acuna cactus will have an impact on national security. We also anticipate no impact on national security from the final designation of critical habitat for the Fickeisen plains cactus. Therefore, we did not propose an exclusion on this basis. sradovich on DSK3GMQ082PROD with RULES2 Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation. VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service. We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement. (i) The degree to which the plan or agreement provides for the conservation of the species or the essential physical or biological features (if present) for the species; (ii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented; (iii) The demonstrated implementation and success of the chosen conservation measures; (iv) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership; (v) The extent of public participation in the development of the conservation plan; (vi) The degree to which there has been agency review and required determinations (e.g., State regulatory requirements), as necessary and appropriate; (vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) compliance was required; and (viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 can be modified in the future in response to new information. Babbitt Ranches, LLC, Partnership We have determined that the private lands owned by the Babbitt Ranches, LLC, and State land with a land closure in place that is managed by the Babbitt Ranches, LLC, warrant exclusion from the final designation of critical habitat under section 4(b)(2) of the Act. We made this determination because the benefits of exclusion outweigh the benefits of including those lands in critical habitat based on our conservation partnership with the Babbitt Ranches, LLC, and their efforts to preserve the integrity of the cactus’ habitat as evidenced by their management plan. The following represents our rationale for excluding certain lands owned or managed by the Babbitt Ranches, LLC, that are within the proposed Cataract Canyon Unit and Gray Mountain Unit from the final designated critical habitat for the Fickeisen plains cactus. The Babbitt Ranches, LLC, is a familyowned business that has been in operation for over 120 years. It has dedicated itself to managing large landholdings in northern Arizona while raising cattle and American Quarter Horses in a sustainable manner. They own and operate three cattle ranches in northern Arizona—the Cataract, CO Bar, and Espee Ranches. The Cataract and CO Bar Ranch include areas occupied by the Fickeisen plains cactus and areas proposed as critical habitat (as described above). Besides cattle ranching, the Babbitt Ranches, LLC, support public recreational opportunities, wildlife conservation, and scientific research on the lands they own or manage. We proposed to designate Fickeisen plains cactus critical habitat in the proposed Cataract Canyon Unit and Gray Mountain Unit, both of which are located on a mix of State trust land, Federal land, and private land owned by the Babbitt Ranches. The proposed Cataract Canyon Unit is located on the Cataract Ranch. It contains 7,768 ha (19,196 ac) of State trust and private land that is managed collectively as an active cattle ranch. The Gray Mountain Unit (Unit 6) contains two subunits that straddle both sides of Highway 89 and total 1,656 ha (4,095 ac), and the unit are within the CO Bar Ranch. These subunits are located by the town of Gray Mountain and are adjacent to the boundary of the Navajo Nation. The proposed Mays Wash Subunit 6a contains 697 ha (1,724 ac) and is a checkerboard of Federal, State trust, and private parcels within the CO Bar E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations Ranch. The proposed Gray Mountain Subunit 6b contains 960 ha (2,371 ac) of State trust and private parcels with a small number of acres owned by the Babbitt Ranches, LLC, and the remainder to another private landowner. The Babbitt Ranches, LLC, has a strong record of land stewardship, and they have developed a strong partnership with the Service as a result. Their commitment to conserving species is supported by their cooperative efforts with other private organizations, State, and other Federal agencies to better understand and preserve natural resources. For example, the Babbitt Ranches, LLC, participated with AGFD in the release of federally endangered black-footed ferrets (Mustela nigripes) on their ranch. In support of the ferret release program, the Babbitt Ranches, LLC, also invited AGFD to annually map and monitor Gunnison’s prairie dog (Cynomes gunnissioni) colonies. Another example of the Babbitt Ranches, LLC, commitment to conservation is their gift of a 24-acre parcel of land to Northern Arizona University for an ecological center to be used by faculty and students. The Fickeisen plains cactus has been documented on all three of the cattle ranches where critical habitat was proposed. The second largest population of Fickeisen plains cactus in existence occurs on the Cataract Ranch, which supports 66 percent of the 466 individual Fickeisen plains cacti in the rangewide population. Individual cacti were first documented on Cataract Ranch in 2006. The population appeared to be healthy and viable by the different age classes observed, and the surrounding habitat showed little disturbance with the natural vegetative community intact. Thus, the status of this population further confirms that the holistic management of Cataract Ranch has been beneficial to the Fickeisen plains cactus. On the State lands that are part of the Cataract Ranch, a land closure order was put in place in 1986. The order states: ‘‘The State land commissioner has determined that the best interests of the State trust would be served by closing the State land described in the caption of this Order to mineral claim location, new mineral prospecting permit applications, and new mineral lease applications.’’ In 2011, a second closure order was enacted in which the State land commissioner determined that the best interests of the Trust would be served by closing ‘‘the State subsurface land to mineral claim location, new mineral exploration permits applications and new mineral lease applications.’’ VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 The Babbitt Ranches, LLC, also submitted to the Service a Draft Fickeisen Plains Cactus Management Plan for Cataract Ranch and the Draft Espee Ranch Regional Conservation and Land Use Plan. Although the latter incorporates the Fickeisen Plains Cactus Management Plan into a broader, regional vision and focuses on conservation actions across all of the Babbitt Ranches, we focused our review on the commitments described for the Fickeisen plains cactus on Cataract Ranch because the majority of the proposed critical habitat occurs there. The Draft Fickeisen Plains Cactus Management Plan for Cataract Ranch commits to continuing to sustain healthy ecosystems, wildlife habitats, and biological diversity. As an active ranching operation, they have practiced this philosophy in the past, and will continue to adhere to their land ethics, which have preserved native grasslands and shrub-steppe habitats that incidentally benefit the Fickeisen plains cactus and its pollinators. They have a commitment to managing the ranches in an ecologically responsible fashion, which is evident in The Nature Conservancy’s assessment of the land for a conservation easement, and by NRCS’ rangeland inventory. Additional conservation measures for the Fickeisen plains cactus and its habitat within lands owned or managed by the Babbitt Ranches, LLC, include: • A commitment to continuing surveys for the Fickeisen plains cactus on the three ranches and to working with the Service and others to develop Fickeisen plains cactus survey and monitoring protocols that can be employed rangewide. • Utilizing the best grazing management practices to sustain rangeland health and Fickeisen plains cactus habitat over time through a rest rotation grazing system and by moving livestock among pastures based upon forage utilization and seasonal moisture. By this method, the timing, intensity, and frequency of grazing is controlled to allow forage and rangeland habitats to recover between grazing periods. Depending upon range conditions and the terms of grazing leases, maximum utilization of the forage production can range from roughly 35 to 50 percent. Babbitt Ranches, LLC, generally keeps their stocking rates below standard Animal Unit Months and grazing lease maximums. Although a written prescription is not followed for determining the number of cattle to keep on a pasture and length of time, livestock will continue to be managed to sustain productive forage and an intact ecosystem that integrates their PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 55291 commitment to conservation and healthy landscapes. • Willingness to participate in any study or program related to collection, propagation, banking, and translocation of the Fickeisen plains cactus if such measures are considered feasible or desirable for survival and recovery of the taxon in response to climate change and extended droughts. • Collecting information on small mammal predation during monitoring, and if it becomes an issue on lands owned or managed by the Babbitt Ranches, LLC, measures designed to exclude predators from Fickeisen plains cactus populations will be investigated. Benefits of Inclusion—Babbitt Ranches, LLC As discussed above under Application of Section 4(b)(2) of the Act, the primary effect of designating any particular area as critical habitat is the requirement for Federal agencies to consult with us under section 7 of the Act to ensure actions they carry out, authorize, or fund do not adversely modify designated critical habitat. Absent critical habitat designation in occupied areas, Federal agencies remain obligated under section 7 of the Act to consult with us on actions that may affect a federally listed species to ensure such actions do not jeopardize the species’ continued existence. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. The regulatory standard is different, as the jeopardy analysis investigates the action’s impact on the survival and recovery of the species, while the adverse modification analysis focuses on the action’s effects on the designated habitat’s contribution to conservation. This will, in many instances, lead to different results and different regulatory requirements. Thus, critical habitat designations may provide greater benefits to the recovery of the species than listing alone. For some species (including Fickeisen plains cactus), and in some locations (in particular, those occupied by the taxon), the outcome of these analyses will be similar, because effects to habitat will often also result in effects to the species, and it is often difficult or impossible to differentiate between actions that avoid jeopardy to the species and actions needed solely to avoid destruction or adverse modification of critical habitat. Although all of the land excluded in this critical habitat designation is occupied by the taxon, the taxon occurs in low densities with individuals E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 55292 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations commonly spaced far apart. In some areas, impacts to critical habitat or, more specifically, the primary constituent elements will not result in direct impacts to the Fickeisen plains cactus. Therefore, the outcome of an adverse modification analysis in these areas would differ from the outcome of a jeopardy analysis. Critical habitat may provide a regulatory benefit for the Fickeisen plains cactus when there is a Federal nexus present for a project that might adversely modify critical habitat. A Federal nexus generally exists where land is federally owned, or where actions proposed on non-Federal lands require a Federal permit or Federal funding. In the absence of a Federal nexus, the regulatory benefit provided through section 7 consultation under the Act does not exist. Any activities over which a Federal agency has discretionary involvement or control affecting designated critical habitat on Federal land would trigger a requirement to consult under section 7 of the Act. The Mays Wash subunit contains Federal land; the remainder of the proposed critical habitat in the proposed Cataract Canyon Unit and Gray Mountain Unit comprise State trust land and private land. On the CO Bar Ranch, there are 87 ha (215 ac) of State trust land and 246 ha (609 ac) of BLM land that are split estate with BLM having subsurface mineral rights. These lands were included in the Gray Mountain Unit in the proposed critical habitat designation. On these lands, there is the potential for subsurface mineral operations, which would be outside of the management control of the Babbitt Ranches, LLC. Inclusion of these lands in a critical habitat designation would require the BLM to consult with the Service in order to ensure that the primary constituent elements are not adversely modified or destroyed. These regulatory benefits of inclusion are limited to areas with the potential to have a Federal nexus, and, thus, generally limited to these 87 ha (215 ac) of split estate State trust land and 246 ha (609 ac) of BLM land. Although no Federal land exists within the proposed Cataract Canyon Unit, there is potential for a Federal nexus for activities proposed on the Cataract Ranch due to Federal funding. The Babbitt Ranches, LLC, have partnered with the NRCS in the past and may again in the future. Most Federal actions would be beneficial such as rangeland improvements, invasive plant eradication, and wildlife habitat enhancements. However, as a result of the establishment and implementation VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 of protections associated with a 13,953ha (34,480-ac) conservation easement referred to as the Coconino Plateau Natural Reserve Lands, it is unlikely that future Federal actions would impact the overall goal of the easement. The land was placed under the easement for the goal of protecting and preserving the historical and cultural aspects of the property as an active agricultural and livestock operation; and to preserve the conservation and open space values of the property by continuing to establish, define, and promote private land stewardship and a historical sense of obligation and responsibility for the land and its ecology. Because of protection of these lands, it is unlikely that future Federal actions would cause adverse modification of Fickeisen plains cactus critical habitat. If actions that could affect Fickeisen plains cacti and their habitat do occur, it is likely that the protections provided the taxon and its habitat under section 7(a)(2) of the Act would be largely redundant with the protections offered by the conservation easement. Additionally, lands in the proposed Cataract Canyon Unit may have additional conservation value because the Babbitt Ranches, LLC, practice sustainable cattle ranching to maintain native vegetation communities and to improve and protect overall rangeland health. These efforts promote the conservation of suitable Fickeisen plains cactus habitat. The established purpose of the conservation easement is intended to protect the existing functional values of the native biotic communities, which sustain the cactus. Therefore, it is unlikely that Federal actions or actions conducted by the Babbitt Ranches, LLC, would result in depreciable diminishment or a longterm reduction of the capability of Fickeisen plains cactus habitat to recover. As a result, any rare Federal action that may result in formal consultation will likely result in only discretionary conservation recommendations (i.e., adverse modification threshold is not likely to be reached). We believe there is an extremely low probability of mandatory elements (i.e., reasonable and prudent alternatives) arising from formal section 7 consultations that include consideration of designated Fickeisen plains cactus critical habitat. As a result, the benefits of including these lands in the final critical habitat designation are reduced. The designation of critical habitat for the Fickeisen plains cactus on Babbitt Ranches, LLC, would bring awareness of the cactus’ presence to the State of PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 Arizona during their review of mining leases, exploratory permits, or other land use activities under State control. Prior to any land-disturbing activity on State trust land by a project proponent, the Arizona State Land Department requires a pre-construction native plant survey. The required native plan survey would determine the compensation that must be paid to the Arizona State Land Department for the removal of specific cacti, including the Fickeisen plains cactus, which is currently considered a ‘‘highly safeguarded protected’’ plant. However, any action taken between the State and an application to protect or conserve the Fickeisen plains cactus or designated critical habitat from mineral activities would be at their discretion. Because it is unlikely that there would be a Federal nexus on State trust land unless a permit is required from a Federal agency or funding is appropriated, the educational benefits of including these lands in the final designation of critical habitat is minimized. Another important benefit of including Babbitt Ranches, LLC, lands in a critical habitat designation is that the designation can serve to educate other landowners, agencies, neighboring tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the Fickeisen plains cactus, its endemism, and its rarity, that reaches a wide audience, including parties engaged in conservation activities, is valuable. However, the educational benefits of designating critical habitat for the Fickeisen plains cactus on the Babbitt Ranches, LLC, are small compared to those derived through conservation efforts currently being implemented. Benefits of Exclusion—Babbitt Ranches, LLC The benefits of excluding land owned by the Babbitt Ranches, LLC, from the designation of critical habitat for the Fickeisen plains cactus are substantial and include: (1) Continuance and strengthening of our effective working relationship with the Babbitt Ranches, LLC, NRCS, and the Arizona State Land Department to promote voluntary, proactive conservation of the Fickeisen plains cactus and its habitat as opposed to reactive regulation; (2) allowance for continued meaningful collaboration and cooperation in working toward species recovery, including conservation benefits that might not otherwise occur; and (3) encouragement of developing additional conservation easements and E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations other conservation and management plans in the future for other federally listed and sensitive species. Additionally, many landowners perceive critical habitat as an unfair and unnecessary regulatory burden. According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main et al. 1999, p. 1,263; Bean 2002, p. 2). The magnitude of this negative outcome is greatly amplified in situations where active management measures (such as reintroduction, fire management, and control of invasive species) are necessary for species conservation (Bean 2002, pp. 3–4). We believe the judicious exclusion of specific areas of non-federally owned lands from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone. The Service believes that, where consistent with the discretion provided by the Act, it is necessary to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove et al. 1996, pp. 1–15; Bean 2002, pp. 1–7). We believe it is essential for the recovery of the Fickeisen plains cactus to build on continued conservation activities such as these with proven partners like the Babbitt Ranches, LLC. Exclusion of the entire Cataract Ranch (on the proposed Cataract Canyon Unit) will help preserve the partnership that we have established with the Babbitt Ranches, LLC, and with State agencies and local governments to foster future partnerships and encourage the establishment of future conservation and management of habitat for the Fickeisen plains cactus and other sensitive taxa. Furthermore, exclusion of the portions of the proposed Mays Wash subunit that are privately owned and managed by the Babbitt Ranches, LLC, will help preserve our partnership. The Babbitt Ranches, LLC, have maintained an effective working relationship with many public and government entities including the Service for many years for the purpose of achieving their own values as agricultural landowners, which are described in the Constitution of Babbitt Ranches and evidenced by their management actions. The Babbitt Ranches, LLC, management plan and the conservation easement establishing the Coconino Plateau Natural Reserve Lands provides substantial protection and management for the Fickeisen VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 plains cactus. Specifically, both the management plan and easement provide protection and management of the physical or biological features essential to the conservation of the taxon, and address conservation issues from a coordinated, integrated perspective. Therefore, the management plan and easement are expected to result in coordinated landscape-scale conservation that can contribute to genetic diversity by preserving the population, habitat, and native pollinators and their habitat that support recovery of the cactus and other endemic wildlife species. In summary, we believe excluding State trust land (subject to land closure) managed by the Babbitt Ranches, LLC, and lands owned by the Babbitt Ranches, LLC, from the critical habitat designation will provide the significant benefit of maintaining our existing partnership and fostering new ones. Benefits of Exclusion Outweigh the Benefits of Inclusion We evaluated the exclusion of approximately 7,768 ha (19,196 ac) of private and State land within the boundaries of the proposed Cataract Canyon Unit from our proposed designation of critical habitat, and we determined the benefits of excluding all of these lands outweigh the benefits of including them as critical habitat for the Fickeisen plains cactus. We also evaluated the exclusion of approximately 1,656 ha (4,095 ac) of private, State, and Federal land managed by the Babbitt Ranches, LLC, within the boundaries of the proposed Gray Mountain Unit from our proposed designation of critical habitat. We have determined the benefits of excluding 371 ha (917 ac) of private land within the Mays Wash Subunit of the Gray Mountain Unit outweigh the benefits of including the area as critical habitat for the Fickeisen plains cactus. The Babbitt Ranches have been and will continue to be managed to support sustainable cattle operations in response to variable annual climatic conditions and long-term shifts in global temperatures and precipitation, and in a manner that is consistent with the philosophy and land ethic of Babbitt Ranches, LLC, that is formalized in their constitution. Their holistic approach to managing their land use activities with the economic and social communities has contributed to the existence of a large, reproducing Fickeisen plains cactus population, which we recognized in the October 1, 2013, final listing rule (78 FR 60608). The Service believes the additional regulatory and educational benefits of PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 55293 including these lands as critical habitat are relatively small, because of the unlikelihood of a Federal nexus on the private and State trust lands within the proposed critical habitat designation. These benefits are further reduced by the existence of a 13,953-ha (34,480-ac) conservation easement on the Cataract Ranch that contains 2,848 ha (7,037 ac) of proposed critical habitat. We anticipate that there will be little additional Federal regulatory benefit to the taxon on State trust land because there is a low likelihood that those parcels will be negatively affected to any significant degree by Federal activities requiring section 7 consultation, and ongoing management activities indicate there would be no additional requirements pursuant to a consultation that addresses critical habitat. All areas that were proposed for critical habitat on the Babbitt Ranches, LLC, are occupied by the taxon. The educational benefits of including these lands are small. The designation of critical habitat can serve to educate the general public as well as conservation organizations regarding the potential conservation value of an area, but this goal is already being accomplished. Through the identification of deeded land as the Coconino Plateau Natural Reserve Lands and the Babbitt Ranches Land Steward Institute, an educational and research platform is already established for partners wishing to collaborate with the Babbitt Ranches on ecological research needs. Given the history of collaborating and partnering with Federal and State agencies, local governments, research institutions, and other partners to sustain native grasslands and wildlife conservation, the Service anticipates that the conservation strategies described in the Babbitt Ranches draft Fickeisen Plains Cactus Management Plan will be implemented in the future. In summary, we find that excluding areas from critical habitat that are receiving both long-term conservation and management for the purpose of protecting the native grassland ecosystem, and thus the habitat that supports the Fickeisen plains cactus, will preserve our partnership with the Babbitt Ranches, LLC, and encourage future collaboration towards conservation and recovery of listed species. The partnership benefits are significant and outweigh the small potential regulatory, educational, and ancillary benefits of including the land in the final critical habitat for the Fickeisen plains cactus. Therefore, the conservation easement and the overall management of Babbitt Ranches, LLC, E:\FR\FM\18AUR2.SGM 18AUR2 55294 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations provides greater protection of habitat for the Fickeisen plains cactus than could be gained through the project-by-project analysis of a critical habitat designation. sradovich on DSK3GMQ082PROD with RULES2 Exclusion Will Not Result in Extinction of the Species—Babbitt Ranches, LLC We determined that the exclusion of 7,768 ha (19,196 ac) of land within the boundaries of the proposed Cataract Canyon Unit and 371 ha (917 ac) of private land within Mays Wash Subunit of the Gray Mountain Unit for the Fickeisen plains cactus will not result in extinction of the taxon. Protections afforded the taxon and its habitat by the conservation easement and the history of land stewardship of Babbitt Ranches, LLC, as described in the Babbitt Ranches Draft Fickeisen Plains Cactus Management Plan, provide assurances that the taxon will not go extinct as a result of excluding these lands from the critical habitat designation. The jeopardy standard of section 7 of the Act will also provide protection in these occupied areas when there is a Federal nexus. Therefore, based on the above discussion, the Secretary is exercising her discretion to exclude 8,139 ha (20,113 ac) of land from the designation of critical habitat for Fickeisen plains cactus. Tribal Lands There are several Executive Orders, Secretarial Orders, and policies that relate to working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and directs the Service to consult with Tribes on a government-to-government basis. A joint Secretarial Order that applies to both FWS and NMFS, Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, S.O. 3206 explicitly recognizes the right of Tribes to participate fully in the listing process, including designation of critical habitat. The Order also states: ‘‘Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.’’ In light of this instruction, when we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider exclusions of Tribal lands under section 4(b)(2) of the Act prior to finalizing a designation of critical habitat, and will give great weight to Tribal concerns in analyzing the benefits of exclusion. However, S.O. 3206 does not preclude us from designating Tribal lands or waters as critical habitat, nor does it state that Tribal lands or waters cannot meet the Act’s definition of ‘‘critical habitat.’’ We are directed by the Act to identify areas that meet the definition of ‘‘critical habitat’’ (i.e., areas occupied at the time of listing that contain the essential physical or biological features that may require special management or protection and unoccupied areas that are essential to the conservation of a species), without regard to landownership. While S.O. 3206 provides important direction, it expressly states that it does not modify the Secretaries’ statutory authority. Tohono O’odham Nation We have worked with the Tohono O’odham Nation to consolidate information on their past, present, and future voluntary measures and ˜ management to conserve the acuna cactus and its habitat on their lands. We have determined, pursuant to section 4(b)(2) of the Act, that we will exclude approximately 156 ha (385 ac) of Tohono O’odham Nation land in Unit 3 from the final designation of critical ˜ habitat for the acuna cactus. As described in our discretionary exclusion analysis below, we have reached this determination because the benefits of excluding their lands from the final critical habitat designation outweigh the benefits of including their lands in the designation due to our ongoing and effective working partnership with the Tohono O’odham Nation. The Tohono O’odham Nation is located in southern Arizona on lands in Pima, Pinal, and Maricopa Counties. The Tohono O’odham Nation encompasses 1,133,120 ha (2,800,000 ac) of land and is divided into 11 districts. The Tohono O’odham Nation’s eastern boundary is located approximately 24 kilometers (km) (15 miles (mi)) west of the city of Tucson, and the administrative center is in the town of Sells, approximately 89 km (55 mi) southwest of Tucson. We continue to work with the Tohono O’odham Nation and the Bureau of Indian Affairs PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 (BIA) on wildlife and plant-related projects including recovery efforts for Sonoran pronghorn (Antilocapra americana sonoriensis) and jaguar (Panthera onca) as well as surveys and monitoring for Pima pineapple cactus, jaguar, ocelot (Leopardus pardalis), lesser long-nosed bat (Leptonycteris curasoae yerbabuenae), and cactus ferruginous pygmy owls (Glaucidium brasilianum cactorum). We have established and maintain a cooperative working relationship with the Tohono O’odham Nation and the BIA when they request review of environmental assessments, seek technical advice, and conduct consultations for Tohono O’odham Nation projects. Surveys for any listed species are conducted by the BIA or Tohono O’odham Nation personnel prior to implementation of projects. In April of 2003, the Tohono O’odham Nation and the Service signed a Statement of Relationship that indicates the Tohono O’odham Nation, through its Natural Resources Department, will work in close collaboration with the Service to provide effective protections for listed species. In addition, the Service awarded a Tribal Wildlife Grant to the Tohono O’odham Nation in 2010 to conduct an inventory of the flora and fauna of the Baboquivari Mountains on Tribal lands. This information will be used to inform the management and conservation of wildlife and plant resources on Tribal lands in this area, including listed and sensitive species. As a sovereign entity, the Tohono O’odham Nation seeks to continue to protect and manage their resources according to their traditional and cultural practices. The Tohono O’odham Nation requested that their land be excluded from the designation of critical ˜ habitat for the acuna cactus due to their sovereign status and their right to manage their own resources. They are concerned that critical habitat designation on their land would limit the Nation’s right to self-determination and self-governance. The Tohono O’odham Nation recognizes that their ˜ land contains acuna cactus individuals ˜ and habitat, and they consider acuna cactus, like all cacti, to be culturally significant. Tohono O’odham Nation conservation measures to protect the ˜ acuna cactus include project review prior to ground-disturbing activity and surveys. Benefits of Inclusion—Tohono O’odham Nation Federal agencies, in consultation with the Service, must ensure that their actions are not likely to jeopardize the continued existence of any listed E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations species or result in the destruction or adverse modification of any designated critical habitat of such species. The difference in the outcomes of the jeopardy analysis and the adverse modification analysis represents the regulatory benefit and costs of critical habitat. The areas proposed as critical habitat that occur within the Tohono O’odham Nation are occupied by the ˜ acuna cactus and, therefore, if a Federal action or permitting occurs, there is a catalyst for evaluation under section 7 of the Act whether or not the area is designated as critical habitat. ˜ Few regulatory benefits to the acuna cactus would be gained from a designation of critical habitat on the Tohono O’odham Nation lands, because the Nation already requires project review prior to any ground-disturbing activity due to the recognition of the cactus as a culturally significant plant and because the species is already listed. Because these conservation measures are already in place, it would be highly unlikely that any consultation would result in a determination of adverse modification. In addition, during coordination with the Tohono O’odham Nation, the Tribe indicated that they are not considering any project ˜ actions in the area where acuna cactus occur. Therefore, we also do not anticipate that Tribal actions would be likely to result in adverse impacts to ˜ acuna cactus requiring formal section 7 consultations. For these reasons, the regulatory benefit of a critical habitat designation on these lands is minimized. There is the possible benefit that additional funding could be generated for habitat improvement in an area being designated as critical habitat. Tribes often seek additional sources of funding in order to conduct wildliferelated conservation activities. Therefore, having an area designated as critical habitat could improve the ˜ chances of receiving funding for acuna cactus habitat-related projects. Another possible benefit of including lands in a critical habitat designation is that the designation can serve to educate the public regarding the potential conservation value of an area, and this may focus conservation efforts on areas of high conservation value for certain species. However, the Tohono O’odham Nation lands were included in the proposed designation of critical habitat; the proposal itself has reached a wide audience and has, thus, provided information to the broader public, as well as the BIA and the Tribe, about the conservation value of this area. Since publication of the proposed critical habitat designation, the Tribe has VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 ˜ conducted a survey to locate acuna cactus within areas proposed as critical habitat. Therefore, additional ˜ educational benefits of an acuna cactus critical habitat designation on Tohono O’odham Nation lands are minimized. Benefits of Exclusion—Tohono O’odham Nation The proposed critical habitat designation includes approximately 156 ha (385 ac) of Sonoran desert-scrub habitat with the Tohono O’odham Nation boundaries. Benefits of excluding these Tribal lands from designated critical habitat include the continuance and strengthening of our ongoing and effective working relationship with Tohono O’odham Nation to promote the conservation of ˜ listed species, including the acuna cactus and its habitat. We recognize and endorse the resource management activities of the Nation with regard to listed species and have been informed of the development of a draft land management plan for the Tohono O’odham Nation, which will include ˜ conservation measures for the acuna cactus. We have established a working relationship with Tohono O’odham Nation through informal and formal meetings that offered information sharing, technical advice, assistance, and recommended conservation ˜ measures for acuna cactus and its habitat. We find that conservation ˜ benefits (e.g., acuna cactus surveys and project review) are being provided to the ˜ acuna cactus and its habitat through our cooperative working relationship with the Tohono O’odham Nation. We assign great weight to the benefits of excluding Tribal lands, which would honor our cooperative partnership with the Tribe. During our discussions with the Tohono O’odham Nation and through a letter received during our first public comment period, we were informed that the designation of critical habitat on Tribal land would be viewed as an intrusion on their sovereign ability to manage natural resources in accordance with their own policies, customs, and laws. To this end, we found that the Tohono O’odham Nation would prefer to work with us on a government-to-government basis. For these reasons, we believe that our working relationship with the Tohono O’odham Nation would be better maintained and more effective if they are excluded from the designation of ˜ critical habitat for the acuna cactus. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans for this and other listed species. If this PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 55295 area is designated as critical habitat, we believe it is unlikely that sharing of ˜ information related to the acuna cactus would occur. Benefits of Exclusion Outweigh the Benefits of Inclusion—Tohono O’odham Nation The benefits of including the Tohono O’odham Nation in critical habitat are small and are limited to educational and regulatory benefits. However, as discussed above, these educational benefits are minimized because they have been provided for already through including lands on the Nation in the proposed critical habitat designation. Similarly, the regulatory benefits are minimized because all areas proposed as critical habitat within the Tohono O’odham Nation are occupied and, thus, already subject to section 7 of the Act regardless of a critical habitat designation. Therefore, it is highly unlikely that any consultation would result in a determination of adverse modification. Alternatively, the benefits of excluding these areas from critical ˜ habitat for the acuna cactus are more significant and include encouraging the continued partnership with the Tribe as well as development and implementation of special management measures such as project review prior to ground-disturbing activity and surveys. These activities will allow the Tohono O’odham Nation to manage their natural ˜ resources to benefit the acuna cactus without the perception of Federal government intrusion that would occur if we designated critical habitat on their land. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of this area will likely also provide additional benefits to the species that would not otherwise be available to encourage and maintain cooperative working relationships. Therefore, we find that the benefits of excluding Tohono O’odham Nation lands from critical habitat designation outweigh the benefits of including this area. Exclusion Will Not Result in Extinction of the Species—Tohono O’odham Nation As noted above, the Secretary, under section 4(b)(2) of the Act, may exclude areas from the critical habitat designation unless it is determined, ‘‘based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.’’ We have determined that exclusion of the Tohono O’odham Nation from the E:\FR\FM\18AUR2.SGM 18AUR2 55296 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 critical habitat designation will not ˜ result in the extinction of the acuna cactus. The Tohono O’odham Nation has committed to protecting and ˜ managing the acuna cactus and is in the process of creating a natural resources management plan, which will include ˜ the acuna cactus as well as all listed plant and animal species found on their lands. In summary, the Tohono O’odham Nation has committed to ˜ conservation measures for the acuna cactus on their land that are at least equal to the conservation value that would be available through the designation of critical habitat. With the implementation of these conservation measures and ongoing coordination with the Tribe with regard to ˜ conservation of the acuna cactus, the exclusion of Tohono O’odham Nation land from proposed critical habitat will not result in extinction of the species. Accordingly, we have determined that the Tohono O’odham Nation should be ˜ excluded from acuna cactus critical habitat designation under section 4(b)(2) of the Act, because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species. Navajo Nation We have determined, pursuant to section 4(b)(2) of the Act, that we will exclude approximately 3,865 ha (9,554 ac) of Navajo Nation land in proposed Fickeisen plains cactus critical habitat Units 6 (Tiger Wash Unit), 7 (Little Colorado River Overlook Unit), and Subunit 8b (Gray Mountain Subunit) from the final designation of critical habitat for the Fickeisen plains cactus. We are excluding the entire Unit 6 and 7, along with all portions of Subunit 8b on Navajo Nation lands. As described in our discretionary exclusion analysis below, we have reached this determination because the benefits of excluding their lands from the final critical habitat designation outweigh the benefits of including their lands in the designation due to our ongoing and effective working relationship with the Navajo Nation. The Navajo Nation recognizes the Fickeisen plains cactus as a species in need of protection and special management on lands they administer (RCF–014–91) (Navajo Nation 2013, p. 5). Their management plan would serve as a tool for conserving the cactus and its habitat on the Navajo Nation. The Navajo Nation Department of Fish and Wildlife (NNDFW) will review their management plan for effectiveness and make revisions according to the current status of the cactus under Navajo and Federal law. Reviews will be conducted VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 every 5 years or when new, significant information about threats or management becomes available for the Fickeisen plains cactus. The Navajo Nation Code, at 17 NNC section 507, recognizes the importance of endangered species, establishes a penalty for the disturbance of these species, and charges the Director, NNDFW, with the responsibility to recommend to the Resources Committee of the Navajo Nation Council updates to the Navajo Endangered Species List (NESL). The first record of the Fickeisen plains cactus on the Navajo Nation is from 1956 (Navajo Nation 2013, p.10). The Navajo Nation listed the Fickeisen plains cactus as a Group 3 endangered species on the NESL in 1991 (RCF–014– 91). A Group 3 species is a species or subspecies whose prospects of survival or recruitment are likely to be in jeopardy in the foreseeable future. The cactus was included on the NESL due to its limited geographic range, specificity of habitat requirements, low recruitment rate and decline in numbers, and threats from livestock grazing, ORV use, potential for recreational development within its habit, and illegal collection. There are 15 known occurrences of the Fickeisen plains cactus on the Navajo Nation with an estimated total population of 506 individuals. The NNDFW has management authority for fish, wildlife, and native plants with regard to endangered and threatened species protection; and all temporary and permanent developments must receive clearance from the NNDFW. The NNDFW reviews a project’s potential impact on protected wildlife or their habitat by using their Natural Heritage Database and various Tribal and Federal wildlife protection regulations, and recommends approval, disapproval, or conditional approval to the Resources and Development Committee. As a species included on the NESL, the Fickeisen plains cactus is protected from disturbance, and conservation of the cactus and its habitat will be facilitated primarily through the Navajo Nation’s existing policies for managing and conserving natural resources. In 2003, the Resources Committee of the Navajo Nation Council, by Resolution No. RCMA–34–03, approved the Biological Resources Land Use Clearance Policies and Procedures, also known as the Navajo Nation Resource Conservation Plan (RCP). The RCP is a tool used by the Navajo Nation, local chapters, and developers to guide environmentally responsible development and to protect resources of high conservation value, including PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 habitats of listed species. The RCP is based on comprehensive rare and threatened species data held in a NNDFW NNHP database and identifies and defines habitats and landscapes on the Navajo Nation based on their conservation value. The RCP divides the Navajo Nation into six land status categories based on their biological sensitivity and uses these categories to manage actions in a way that minimizes impacts to sensitive species and habitats. The Fickeisen plains cactus is located in areas designated as Area 5 (biological preserves), Area 2 (medium sensitivity) and Area 3 (low sensitivity). Documentation of impacts that a proposed project may have on biological resources is required for each of these areas. The NNDFW provides technical assistance to the Nation, chapters, and developers in following the RCP, and assesses adherence to the RCP during project review for making recommendations to the Resources and Development Committee. Area 5 lands (biological preserves) are landscapes of high wildlife value and little or no current development or disturbance, or are particularly important for one or more protected species. Permanent or temporary development within biological preserves is prohibited unless it is compatible with the management of those areas as wildlife habitat. For development in biological preserves, the standard process for planning and approval of development, as described in the RCP, must be implemented. The NNDFW is committed to ensuring that any development that occurs in biological preserves is consistent with ecotourism principles. The proposed Tiger Wash Unit, proposed Little Colorado River Overlook Unit, and portions of the proposed Gray Mountain Subunit occur on the Navajo Nation. These 3 proposed critical habitat units, including 9 of the 15 Fickeisen plains cactus populations on the Navajo Nation, are located within 2 biological preserves. These biological preserves are the Little Colorado River and Marble Canyon Preserves (Navajo Nation 2013, p. 17). The RCP thus creates an avenue for the NNDFW to recommend conservation measures to avoid or minimize impacts to plants and its habitat. Proposed development projects must demonstrate that impacts to protected species will be minimal, and the NNDFW strongly urges relocating projects to less sensitive habitats if possible. Although NNDFW makes a strong effort to avoid impacts to habitats of sensitive species through project evaluation, some necessary E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations developments may occur and efforts will be made to reduce, minimize, or mitigate potential project impacts. When a project could disturb Fickeisen plains cactus habitat, NNDFW requires the project sponsor to adhere to protocol surveys and avoidance restrictions. Projects with the potential to disturb or affect its habitat require a 61-m (200-ft) avoidance buffer from known plants. The size of the buffer is more or less dependent on the scope and scale of the proposed project. The NNDFW recognizes the impact nonnative, invasive species have on the native vegetation community and to other listed species they manage on their land. They are uncertain whether exotic annual species negatively impact the Fickeisen plains cactus and its habitat. The Navajo Nation will monitor the presence of exotic annual species within occupied habitat and document any effects exotics may pose, including effects from a potential fire caused by overabundance of these species. The NNHP staff will incorporate a plant community survey into their monitoring efforts to record if there is a relationship between weed abundance and the status of the cactus population. If studies establish a causal relationship between abundance of exotics and declines in the Fickeisen plains cactus, they will implement conservation measures to control weed abundance. Proposed research with the Navajo Nation and other partners would examine potential effects of invasive species on the germination and establishment of the Pediocactus bradyi (Brady pincushion cactus). The results of the study, if conducted, could be applicable to the Fickeisen plains cactus since both Pediocactus species share similar habitats and have similar life-history traits. The Navajo Nation is working with the BIA and other partners to develop an Integrated Weed Management Plan for the Navajo Nation. While livestock grazing is a traditional way of life for the Navajo people, the Navajo Nation recognizes that management is needed to address impacts that grazing has on the entire ecosystem, which supports habitat the Fickeisen plains cactus relies upon for survival. Efforts are under way by Navajo policy makers and agencies to address past grazing impacts on the Navajo Nation and to improve grazing enforcement and protection of Navajo resources and ecosystems. For example, this year the Navajo Departments of Resource Enforcement and Agriculture, in the Division of Natural Resources, partnering with local chapters (municipal subdivisions of the Navajo government), have been conducting VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 roundups to reduce overgrazing by stray, feral, and unpermitted livestock. Additionally, the Navajo Nation and BIA have been conducting public outreach regarding grazing impacts and the necessity of immediate and proactive steps to be taken to reduce grazing pressure and restore productivity of Navajo Nation rangelands. Benefits of Inclusion—Navajo Nation As discussed above under Application of Section 4(b)(2) of the Act, Federal agencies, in consultation with the Service, must ensure that their actions are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of any designated critical habitat of such species. The difference in the outcomes of the jeopardy analysis and the adverse modification analysis represents the regulatory benefit and cost of critical habitat designation. One important benefit of including lands in a critical habitat designation is that the designation can serve to educate the public regarding the potential conservation value of an area, and it may help focus management efforts on areas of high value for certain species. Any information about the Fickeisen plains cactus that reaches a wide audience, including parties engaged in conservation activities, is valuable. The Navajo Nation is currently working with the Service to address Fickeisen plains cactus habitat and conservation, participate in research on the taxon to further our knowledge and recovery objectives, and exchange management information. Because the Navajo Nation has developed a Fickeisen Plains Cactus Management Plan, has been involved with the critical habitat designation process, and is aware of the value of their lands for conservation of the plant, the educational benefits of a Fickeisen plains cactus critical habitat designation on the Navajo Nation are minimized. There is the possible benefit that additional funding could be generated for habitat improvement in an area being designated as critical habitat. Tribes often seek additional sources of funding in order to conduct wildliferelated conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for Fickeisen plains cactus habitat-related projects. Therefore, because of the implementation of their tribal management plan, rare initiation of formal section 7 consultations for listed plants and other listed species, and PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 55297 overall coordination with the Navajo Nation on the Fickeisen plains cactus, it is anticipated that there may be some, but limited, benefits from including tribal land in a Fickeisen plains cactus critical habitat designation. The principal benefit of any designated critical habitat is that activities in and affecting such habitat require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid destruction or adverse modification of critical habitat. However, with the Navajo Nation implementing the RCP, which acts already to conserve Fickeisen plains cactus habitat combined with the rarity of Federal actions resulting in formal section 7 consultations, the benefits of a critical habitat designation are minimized. Benefits of Exclusion—Navajo Nation The proposed critical habitat designation includes approximately 3,865 ha (9,554 ac) of habitat within the Navajo Nation boundaries. Benefits of excluding these Tribal lands from designated critical habitat include the continuance and strengthening of our ongoing and effective working relationship with Navajo Nation to promote the conservation of listed species, including the Fickeisen plains cactus and its habitat. We recognize and endorse the resource management activities of the Tribe with regard to listed species and have collaborated with the Tribe in the development of a Fickeisen plains cactus management plan. We have established a working relationship with the Navajo Nation through informal and formal meetings that offered information sharing, technical advice, assistance, and recommended conservation measures for the Fickeisen plains cactus and its habitat. We find that conservation benefits are being provided to the Fickeisen plains cactus and its habitat through our cooperative working relationship with the Navajo Nation. As evidence of this partnership, during the development of the Fickeisen plains cactus critical habitat proposal, we met informally and communicated with staff of the NNDFW and NNHP to discuss how the Navajo Nation might be affected by the regulations associated with Fickeisen plains cactus management, recovery, and the designation of critical habitat. As such, we established a relationship specific to Fickeisen plains cactus listing. As part of our relationship, we provided technical assistance to them in their development of a Fickeisen plains cactus management plan, which documented measures they have been E:\FR\FM\18AUR2.SGM 18AUR2 sradovich on DSK3GMQ082PROD with RULES2 55298 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations implementing for the conservation of this species and its habitat on their lands. This plan is in our supporting record for this decision. Consistent with long-standing tribal sovereignty concepts and past consultations with tribes, the Navajo Nation expressed that they have an inherent right to sovereignty and self-determination over their own lands and natural resources. Additionally, their lands are connected to their cultural and religious beliefs, and as a result they have a strong commitment and reverence toward its stewardship and conservation. They recognize that promoting healthy ecosystems and protecting the Fickeisen plains cactus and its habitat are common goals they share with the Service. As described above, the Navajo Nation has a project-by-project review process in place that allows evaluation and implementation of conservation measures to minimize, or eliminate adverse impacts to the Fickeisen plains cactus and its habitat. The NNHP conduct surveys for the Fickeisen plains cactus and maintains a database on the quality of its habitat throughout Navajo Nation lands that includes the status and occurrence of the cactus. Having this information available creates effective conservation through any project review process. The implementation of their RCP has been coordinated and approved through appropriate Tribal processes. Overall, the commitment toward management of the Fickeisen plains cactus habitat likely accomplishes greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis. We have an established and effective working relationship with the Navajo Nation spanning several decades. This relationship has resulted in the implementation or facilitation of actions and plans that have benefited the conservation of numerous candidate and listed species on the Navajo Nation, including preparation of a recovery plan and status reviews for the Service, section 6 funding for inventory and monitoring, conservation projects, cooperative enforcement efforts, ongoing sharing of information, permitting Service personnel to conduct recovery activates on the Navajo Nation, and cooperation in section 7 consultations. We assign great weight to the benefits of excluding Navajo Nation lands, which would honor our cooperative partnership with this Tribe. The Navajo Nation submitted comments in the second comment period stating that in VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 weighing critical habitat exclusions the Service should consider the working relationship we have with tribes and the potential damage to the relationship if the Service intrudes on the sovereign authority of Tribal natural resource programs and Tribal plans for managing species. Furthermore, the Navajo Nation stated that Tribal trust lands are not public lands and are not subjected to the same Federal regulations or cultural context as those on public lands. Therefore, designation of critical habitat on their land may undermine internal efforts by the Navajo Nation to address impacts to the Fickeisen plains cactus through comprehensive reform (NNDFW 2012, pp. 4–5). Evidence of this partnership is the Fickeisen Plains Cactus Management Plan, and the Navajo Nation has developed management plans to include conservation efforts for other listed species and their habitats. We believe that the Navajo Nation is willing to continue working cooperatively with us and others to benefit other listed species, but only if they view the relationship as mutually beneficial. Consequently, the development of future voluntary management actions for other listed species may be compromised if the Navajo Tribal lands are designated as critical habitat for the Fickeisen plains cactus. Thus, we place great weight on the benefits of excluding these lands due to this partnership in light of the future conservation efforts that would benefit Fickeisen plains cactus and other listed species. Benefits of Exclusion Outweigh the Benefits of Inclusion—Navajo Nation The benefits of including the Navajo Nation in the critical habitat designation are the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other laws and regulations. However, as discussed in detail above, we believe these benefits are minimized because they are provided for through other mechanisms, such as: (1) The advancement of our Federal Indian Trust obligations; (2) the conservation benefits to the Fickeisen plains cactus and its habitat from implementation of the Navajo Nation Fickeisen plains cactus management plan; and (3) the maintenance of effective collaboration and cooperation to promote the conservation of the cactus and its habitat. If there is a Federal nexus for a project on the Navajo Nation, the action agency PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 would be required to consult under section 7 of the Act to ensure the actions they fund, authorize, or carry out would not jeopardize the continued existence of the listed species. For critical habitat, projects undergoing section 7 consultation would need to evaluate effects to the primary constituent elements within the critical habitat unit, but there is no prohibition for take for plants, only recommended conservation measures. This consultation requirement appears to be comparable to requirements the Navajo Nation already has for project review, development of biological evaluations, and mitigation or avoidance to minimize negative effects to NESL-listed species, including plants. Navajo Nation policies offer additional or stricter protection over those defined in the Act such as a penalty for take of listed plants and a general avoidance distance of 61 m (200 ft). Not all projects occurring on the Navajo Nation would have a Federal nexus. For those projects proposed by the Tribe or a non-Federal entity, for which section 7 would not apply, Tribal policies would be in effect. Overlaying the requirements for section 7 of the Act on top of the requirements in the RCP would not provide additional benefits to conserve the Fickeisen plains cactus. Therefore, the regulatory and conservation benefits of a critical habitat designation on these lands are minimized. The benefits of excluding these areas from critical habitat designation are more significant and include recognition and fostering of the partnership with the Navajo Nation, which is evidenced by the continued implementation of Tribal management and conservation measures such as monitoring, survey, habitat management and protection, and development of insitu (on-site) conservation activities that are planned for future recovery of the taxon. Through these measures the Navajo Nation will continue to manage their natural resources to benefit habitat along canyon rims of the Colorado and Little Colorado Rivers for the Fickeisen plains cactus, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to the Fickeisen plains cactus that would not otherwise be available without the Service’s maintaining a cooperative working relationship with the Tribe. In conclusion, we find that the benefits of excluding Tribal land on the Navajo Nation in Arizona from critical habitat E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations designation for the Fickeisen plains cactus outweigh the benefits of including those areas. sradovich on DSK3GMQ082PROD with RULES2 Exclusion Will Not Result in Extinction of the Species—Navajo Nation As noted above, the Secretary, under section 4(b)(2) of the Act, may exclude areas from the critical habitat designation unless it is determined, ‘‘based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.’’ We have determined that exclusion of the Navajo Nation from the critical habitat designation will not result in the extinction of the Fickeisen plains cactus. Federal activities on these areas that may affect the Fickeisen plains cactus will still require consultation under section 7 of the Act. 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 listed species. Therefore, even without critical habitat designation on the Navajo Nation lands, activities that occur on these lands cannot jeopardize the continued existence of the Fickeisen plains cactus. Even so, our record demonstrates that formal section 7 consultations rarely occur on tribal lands, which is likely a result of existing conservation planning. Second, the Navajo Nation has committed to protecting and managing its habitat according to their management plan and natural resource management objectives. We believe this commitment, in conjunction with listing of the plant on the NESL, accomplishes greater conservation than would be available through the designation of critical habitat. With the implementation of their RCP and their protection of the Fickeisen plains cactus, we have concluded that this exclusion from critical habitat will not result in the extinction of the cactus. Accordingly, we have determined that the Navajo Nation should be excluded under subsection 4(b)(2) of the Act, because the benefits of excluding these lands from critical habitat for the Fickeisen plains cactus outweigh the benefits of inclusion, and the exclusion of these lands from the designation will not result in the extinction of the taxon. Required Determinations Regulatory Planning and Review— Executive Orders 12866 and 13563 Executive Order 12866 provides that the Office of Information and Regulatory VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866, while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 55299 than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. The Service’s current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7 only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, the final critical habitat designation will not have a significant economic impact on a substantial number of small entities. Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The Office of Management and Budget indicates that this statement is required only when a rulemaking is both significant under E.O. 12866 and exceeds one or more of the nine threshold levels outlined in their guidance on implementation of E.O. E:\FR\FM\18AUR2.SGM 18AUR2 55300 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 13211. The critical habitat designation for Fickeisen plains cactus is not a significant rulemaking under E.O. 12866. Critical habitat designation for the Fickeisen plains cactus is anticipated to affect uranium mining. Impacts to uranium mining, however, are limited to the administrative costs of one formal consultation for the EZ Mine, totaling less than $900 in costs for the managing company, Energy Fuels Inc., over the 20-year period of analysis. The magnitude of these consultation costs is not anticipated to reduce fuel production or energy production, or increase the cost of energy production or distribution in the United States in excess of one percent. Thus, none of the nine threshold levels outlined by the Office of Management and Budget’s guidance for implementing this Executive Order is exceeded. Therefore, we do not expect the designation of this final critical habitat to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings: (1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or Tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this rule would significantly or uniquely affect small governments. The lands being designated for critical habitat are predominantly owned by the BLM, Bureau of Reclamation, U.S. Military, USFS, National Park Service, State of Arizona, and Tohono O’odham and Navajo Nations. None of these government entities fit the definition of ‘‘small governmental jurisdiction.’’ Therefore, a Small Government Agency Plan is not required. Takings—Executive Order 12630 In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of ˜ designating critical habitat for the acuna cactus and Fickeisen plains cactus in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this designation of ˜ critical habitat for the acuna cactus and Fickeisen plains cactus does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with Executive Order 13132 (Federalism), this final rule does not have significant Federalism effects. A Federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this final critical habitat designation with appropriate State resource agencies in Arizona. The designation of critical habitat in areas currently occupied by ˜ the acuna cactus or the Fickeisen plains cactus may impose nominal additional regulatory restrictions to those currently in place and, therefore, may have little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for caseby-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have designated critical habitat in accordance with the provisions of the Act. This final rule uses standard property descriptions and identifies the elements of physical or biological features essential to the ˜ conservation of the acuna cactus and Fickeisen plains cactus within the designated areas to assist the public in understanding the habitat needs of the species. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on state or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) sradovich on DSK3GMQ082PROD with RULES2 It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). 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. We included some Tohono O’odham Nation lands in Pima County, Arizona, ˜ in the proposed designation of acuna cactus critical habitat and Navajo Nation lands in Coconino County, Arizona, in the proposed designation of Fickeisen plains cactus critical habitat. Less than ˜ one percent of all known acuna cacti occur on Tohono O’odham Nation lands; 15 percent of all known Fickeisen plains cactus occur on Navajo Nation lands. Using the criteria found in the Criteria Used To Identify Critical Habitat section, we determined that all of the areas proposed for designation on tribal lands were essential to the ˜ conservation of the acuna cactus and Fickeisen plains cactus. We sought government-to-government consultation with the Tohono O’odham and the Navajo Nations throughout the proposal and development of this final ˜ designation of acuna cactus and Fickeisen plains cactus critical habitat, and we spoke to tribal representatives at meetings about the designation. We communicated with tribes through PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 55301 letters, electronic messages, and telephone calls about our exclusion process under section 4(b)(2) of the Act, and we provided information to develop management plans, technical assistance and review of management plans, and critical habitat designation information and schedule updates. We considered these tribal areas for exclusion from final critical habitat designation to the extent consistent with the requirements of section 4(b)(2) of the Act, and subsequently, excluded all tribal lands from this final designation. References Cited A complete list of references cited in this final rulemaking is available on the Internet at https://www.regulations.gov and upon request from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this package are the staff members of the Arizona Ecological Services Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we hereby amend amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; 4201–4245; unless otherwise noted. 2. Amend § 17.12(h), the List of Endangered and Threatened Plants, by revising the entries for ‘‘Echinomastus erectocentrus var. acunensis’’ and ‘‘Pediocactus peeblesianus var. fickeiseniae’’ under FLOWERING PLANTS, to read as follows: ■ § 17.12 * Endangered and threatened plants. * * (h) * * * E:\FR\FM\18AUR2.SGM 18AUR2 * * 55302 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations Scientific name Common name Where listed Listing citations and applicable rules Status Flowering Plants * Echinomastus erectocentrus var. acunensis. * * * ˜ Acuna cactus ............... Wherever found ........... E * Pediocactus peeblesianus var. fickeiseniae. * * * Fickeisen plains cactus Wherever found ........... E * * * 3. Amend § 17.96(a) by adding entries for ‘‘Echinomastus erectocentrus var. ˜ acunensis (acuna cactus)’’ and ‘‘Pediocactus peeblesianus var. fickeiseniae (Fickeisen plains cactus),’’ in alphabetical order under the family Cactaceae, to read as follows: ■ § 17.96 Critical habitat—plants. sradovich on DSK3GMQ082PROD with RULES2 (a) Flowering plants. * * * * * Family Cactaceae: Echinomastus ˜ erectocentrus var. acunensis (acuna cactus) (1) Critical habitat units are depicted for Maricopa, Pima, and Pinal Counties, Arizona, on the maps below. (2) Within these areas, the primary constituent elements of the physical or biological features essential to the ˜ conservation of the acuna cactus consist of: (i) Native vegetation within the Paloverde-Cacti-Mixed-Scrub Series of the Arizona Upland Subdivision of the Sonoran Desert-scrub at elevations VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 * * * 78 FR 60607; 10/1/2013 50 CFR 17.96(a)CH * * * 78 FR 60607; 10/1/2013 50 CFR 17.96(a)CH * * between 365 to 1,150 m (1,198 to 3,773 ft). This vegetation must contain predominantly native plant species that: ˜ (A) Provide protection to the acuna cactus (Examples of such plants are creosote bush, ironwood, and palo verde.); (B) Provide for pollinator habitat with a radius of 900 m (2,953 ft) around each ˜ individual reproducing acuna cactus; (C) Allow for seed dispersal through the presence of bare soils immediately adjacent to and within 10 m (33 ft) of ˜ individual acuna cactus. (ii) Soils overlying rhyolite, andesite, tuff, granite, granodiorite, diorite, or Cornelia quartz monzonite bedrock that are in valley bottoms, on small knolls, or on ridgetops, and are generally on slopes of less than 30 percent. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on September 19, 2016. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 * * (4) Critical habitat map units. Digital data layers defining map units were created using geology, topography, elevation, vegetation community, mean annual precipitation from the 1971 to ˜ 2000 period of record, and acuna cactus herbarium and site visit records from 1952 to the present; these were mapped using Universal Transverse Mercator coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site (https://www.fws.gov/southwest/es/ arizona/), https://www.regulations.gov at Docket No. FWS–R2–ES–2013–0025, and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Index map follows: E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations 55303 BILLING CODE 4333–15–P VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.000</GPH> sradovich on DSK3GMQ082PROD with RULES2 (6) Unit 1: Organ Pipe Cactus National Monument, Pima County, AZ. Map of Unit 1 follows: 55304 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.001</GPH> sradovich on DSK3GMQ082PROD with RULES2 (7) Unit 2: Ajo Unit, Pima County, AZ. Map of Unit 2 follows: Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 of Unit 3 is provided at paragraph (7) of this entry. PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 (9) Unit 4: Sand Tank Mountains Unit, Maricopa County, AZ. Map of Unit 4 follows: E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.002</GPH> sradovich on DSK3GMQ082PROD with RULES2 (8) Unit 3: Sauceda Mountains Unit, Maricopa and Pima Counties, AZ. Map 55305 55306 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.003</GPH> sradovich on DSK3GMQ082PROD with RULES2 (10) Unit 5: Mineral Mountain Unit, Pinal County, AZ. Map of Units 5 and 6 follows: (11) Unit 6: Box O Wash Unit, Pinal County, AZ. Map of Unit 6 is provided at paragraph (10) of this entry. * * * * * Family Cactaceae: Pediocactus peeblesianus var. fickeiseniae (Fickeisen plains cactus) (1) Critical habitat units are depicted for Mohave and Coconino Counties, Arizona, on the maps below. VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Fickeisen plains cactus consist of: (i) Soils derived from limestone that are found on mesas, plateaus, terraces, the toe of gentle sloping hills with up to 20 percent slope, margins of canyon rims, and desert washes. These soils have the following features: PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 55307 (A) They occur on the Colorado Plateau in Coconino and Mohave Counties of northern Arizona and are within the appropriate series found in occupied areas; (B) They are derived from alluvium, colluvium, or eolian deposits of limestone from the Harrisburg member of the Kaibab Formation and limestone, siltstone, and sandstone of the Toroweap and Moenkopi Formations; E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.004</GPH> sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations 55308 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 (C) They are nonsaline to slightly saline, gravelly, shallow to moderately deep, and well-drained with little signs of soil movement. Soil texture consists of gravelly loam, fine sandy loam, gravelly sandy loam, very gravelly sandy loam, clay loam, and cobbly loam. (ii) Native vegetation within the Plains and Great Basin grassland and Great Basin desertscrub vegetation communities from 1,310 to 1,813 m VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 (4,200 to 5,950 ft) in elevation that has a natural, generally intact surface and subsurface that preserves the bedrock substrate and is supportive of microbiotic soil crusts where they are naturally found. (iii) Native vegetation that provides for habitat of identified pollinators within the effective pollinator distance of 1,000 m (3,280 ft) around each individual Fickeisen plains cactus. (3) Critical habitat does not include manmade structures (such as buildings, PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on September 19, 2016. (4) Critical habitat map units. Data layers defining map units were created using a base of U.S. Geological Survey 7.5’ quadrangle maps. Critical habitat units were then mapped using Universal Transverse Mercator zone 11, North American Datum 1983 coordinates. (5) Note: Index map follows: E:\FR\FM\18AUR2.SGM 18AUR2 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations 55309 VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.005</GPH> sradovich on DSK3GMQ082PROD with RULES2 (6) Unit 1: Hurricane Cliffs Unit, Mohave County, AZ. Map of Unit 1 follows: 55310 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.006</GPH> sradovich on DSK3GMQ082PROD with RULES2 (7) Unit 2: Sunshine Ridge Unit, Mohave County, AZ. Map of Units 2 and 3 follows: Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 (9) Unit 4: South Canyon Unit, Coconino County, AZ. Map of Unit 4 follows: PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.007</GPH> sradovich on DSK3GMQ082PROD with RULES2 (8) Unit 3: Clayhole Valley Unit, Mohave County, AZ. Map of Unit 3 is provided at paragraph (7) of this entry. 55311 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 (10) Unit 5: House Rock Valley Unit, Coconino County, AZ. Map of Unit 5 is provided at paragraph (9) of this entry. VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 (11) Unit 6: Gray Mountain Unit, Coconino County, AZ. Map of Unit 6 follows: PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.008</GPH> 55312 Federal Register / Vol. 81, No. 160 / Thursday, August 18, 2016 / Rules and Regulations * * * Dated: July 22, 2016. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. * [FR Doc. 2016–19159 Filed 8–17–16; 8:45 am] BILLING CODE 4333–15–C VerDate Sep<11>2014 18:31 Aug 17, 2016 Jkt 238001 PO 00000 Frm 00049 Fmt 4701 Sfmt 9990 E:\FR\FM\18AUR2.SGM 18AUR2 ER18AU16.009</GPH> sradovich on DSK3GMQ082PROD with RULES2 * 55313

Agencies

[Federal Register Volume 81, Number 160 (Thursday, August 18, 2016)]
[Rules and Regulations]
[Pages 55265-55313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19159]

[[Page 55265]]

Vol. 81

Thursday,

No. 160

August 18, 2016

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Acu[ntilde]a Cactus and the Fickeisen Plains Cactus;
Final Rule

Federal Register / Vol. 81 , No. 160 / Thursday, August 18, 2016 /
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0025; 4500090023]
RIN 1018-AZ43

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Acu[ntilde]a Cactus and the Fickeisen Plains
Cactus

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Echinomastus erectocentrus var. acunensis
(acu[ntilde]a cactus) and the Pediocactus peeblesianus var.
fickeiseniae (Fickeisen plains cactus) under the Endangered Species
Act. Critical habitat for the acu[ntilde]a cactus is located in
Maricopa, Pima, and Pinal Counties, Arizona, and critical habitat for
the Fickeisen plains cactus is located in Coconino and Mohave Counties,
Arizona. The effect of this regulation is to designate critical habitat
for the acu[ntilde]a cactus and the Fickeisen plains cactus under the
Endangered Species Act.

DATES: This rule becomes effective September 19, 2016.

ADDRESSES: This final rule is available on the Internet at https://www.regulations.gov, Docket No. FWS-R2-ES-2013-0025. Comments and
materials we received, as well as some supporting documentation used in
the preparation of this final rule, are available for public inspection
at https://www.regulations.gov. All of the comments, materials, and
documentation that we considered in this rulemaking are available by
appointment, during normal business hours at: U.S. Fish and Wildlife
Service, 9828 North 31st Ave., Suite C3, Phoenix, AZ 85051; telephone
602-242-0210; facsimile 602-242-2513.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at https://www.fws.gov/southwest/es/arizona, at https://www.regulations.gov in Docket No. FWS-R2-ES-2013-
0025, and at the Arizona Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT). Any additional tools or supporting information
that we developed for this critical habitat designation will also be
available at the U.S. Fish and Wildlife Service Web site and Field
Office set out above, and may also be included in the preamble and at
https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, 9828 North 31st Ave., Suite C3, Phoenix, AZ
85051; by telephone (602) 242-0210; or by facsimile (602) 242-2513.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

This document consists of a final rule to designate critical
habitat for Echinomastus erectocentrus var. acunensis (acu[ntilde]a
cactus) and Pediocactus peeblesianus var. fickeiseniae (Fickeisen
plains cactus) under the Endangered Species Act of 1973, as amended (16
U.S.C. 1531 et seq.) (Act). In this final rule, we refer to these
species by their common names.
Why we need to publish a rule. This is a final rule to designate
critical habitat for the acu[ntilde]a cactus and Fickeisen plains
cactus. Under the Act, any species that is determined to be an
endangered or threatened species requires critical habitat to be
designated, to the maximum extent prudent and determinable.
Designations and revisions of critical habitat can only be completed by
issuing a rule.
On October 3, 2012, the U.S. Fish and Wildlife Service (Service)
published in the Federal Register a proposed rule to list the
acu[ntilde]a cactus and the Fickeisen plains cactus as endangered
species and designate critical habitat for them (77 FR 60509). The
Service published in the Federal Register a final rule to list the
acu[ntilde]a cactus and the Fickeisen plains cactus as endangered
species on October 1, 2013 (78 FR 60608). Section 4(b)(2) of the Act
states that the Secretary shall designate critical habitat on the basis
of the best available scientific data after taking into consideration
the economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat.
The critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for the acu[ntilde]a cactus and the
Fickeisen plains cactus. We included unoccupied areas with suitable
acu[ntilde]a cactus habitat in the proposed critical habitat
designation; however, we have since changed our determination and
concluded that unoccupied habitat is not essential for the conservation
of the acu[ntilde]a cactus and, therefore, removed these areas from the
final designation. All areas included in this final critical habitat
designation for both the acu[ntilde]a cactus and the Fickeisen plains
cactus are occupied. We are designating:
In total, approximately 7,501 ha (18,535 ac) in six units
as critical habitat for the acu[ntilde]a cactus.
In total, approximately 7,062 ha (17,456 ac) in six units
as critical habitat for the Fickeisen plains cactus.
Economic analysis. In order to consider economic impacts, we have
prepared an analysis of the economic impacts of the critical habitat
designations. We announced the availability of the draft economic
analysis (DEA) in the Federal Register on March 28, 2013 (78 FR 18938),
allowing the public to provide comments on our analysis. We have
incorporated the comments and have completed the final economic
analysis (FEA, dated August 23, 2013).
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We invited these peer reviewers to comment on
our listing and critical habitat proposal. We obtained opinions from
two knowledgeable individuals for the acu[ntilde]a cactus and two
knowledgeable individuals for the Fickeisen plains cactus, all with
scientific expertise to review our technical assumptions, analysis, and
whether or not we had used the best available information for both
plants. The comments of these reviewers were focused on the designation
of the two species; we received only one review that incorporated a
comment on the Fickeisen plains cactus critical habitat designation
portion of the draft rule. These peer reviewers generally concurred
with our methods and conclusions and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated into this final rule. We
also considered all comments and information received from the public
during the comment period.

Previous Federal Actions

On October 1, 2013, we published in the Federal Register a final
determination to list the acu[ntilde]a cactus and the Fickeisen plains
cactus as endangered species under the Act (78 FR 60608). Please refer
to the proposed listing and critical habitat rule for the acu[ntilde]a
cactus and the Fickeisen plains cactus (77 FR 60509, October 3, 2012)

[[Page 55267]]

for a discussion of previous Federal actions that occurred prior to the
listing of these taxa.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed
designation of critical habitat for the acu[ntilde]a cactus and the
Fickeisen plains cactus during three comment periods. The first comment
period associated with the publication of the proposed rule (77 FR
60509) opened on October 3, 2012, and closed on December 3, 2012. We
requested comments on the proposed critical habitat designation and
associated DEA during a comment period that opened March 28, 2013, and
closed on April 29, 2013 (78 FR 18938). We also requested comments on
revisions to the proposed critical habitat designation during a comment
period that opened July 8, 2013, and closed July 23, 2013 (78 FR
40673). We did not receive a request for a public hearing during any of
the three open comment periods. We also contacted appropriate Federal,
State, and local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed rule and
DEA during these comment periods.
During the public comment periods, we received 13 comment letters,
including 1 from a peer reviewer, directly addressing the proposed
critical habitat designation. All substantive information provided
during comment periods has either been incorporated directly into this
final determination or addressed below.

Peer Review

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from three knowledgeable
individuals on the acu[ntilde]a cactus and six on the Fickeisen plains
cactus having scientific expertise that included familiarity with the
respected taxon and its habitat, biological needs, and threats. We
received only one response that incorporated a comment on the critical
habitat designation portion of the draft rule.
We reviewed the comment received from the peer reviewer for
substantive issues and new information regarding the proposed rules to
list and designate critical habitat for the acu[ntilde]a cactus and
Fickeisen plains cactus. The peer reviewer generally concurred with our
methods and conclusions and provided additional information,
clarifications, and suggestions to improve the final rules. Peer
reviewer comments are addressed in the following summary and
incorporated into this final critical habitat rule as appropriate.

Peer Reviewer Comments

(1) Comment: One peer reviewer commented that the designation of
1,000 meters (m) (3,280 feet (ft)) of pollination area surrounding each
Fickeisen plains cactus population is inadequate to buffer threats. The
reviewer suggested increasing the area around each population area by
an additional 1,000 m (3,280 ft) for a total of 2,000 m (6,561 ft) to
adjust for uncertainties of plant locations, provided that the primary
constituent elements are present.
Our Response: The Fickeisen plains cactus is dependent on
pollinators for reproduction. Thus, preserving the interaction between
the cactus and its pollinators is integral for survival. Through our
analysis, we found that a 1,000-m (3,280-ft) pollination area was
sufficient to support the maximum foraging distance of ground-nesting
bees that are the primary pollinators of the cactus. This 1,000-m
(3,280-ft) pollination area is not intended to serve as a buffer from
threats, but as a primary constituent element necessary to support the
essential physical or biological features. We do not have information
suggesting that a larger area around plants is necessary to maintain
and support plant-pollinator interactions.

Federal Comments

(2) Comment: The U.S. Air Force provided information on past and
planned future activities to conserve the acu[ntilde]a cactus on the
Barry M. Goldwater Gunnery Range (BMGR).
Our Response: Based on the information we received, the Service
considered land on the BMGR for possible exemption from the final
critical habitat designation for the acu[ntilde]a cactus under the
authority of section (4)(a)(3)(B)(i) of the Act. The Service met with
the U.S. Air Force to discuss current and planned conservation measures
for the acu[ntilde]a cactus on the BMGR. We have also evaluated the
conservation measures for the species as presented in the approved
Integrated Natural Resources Management Plan (INRMP) for the BMGR. The
revised INRMP provides the following benefits for the acu[ntilde]a
cactus: Avoiding disturbance of vegetation and pollinators within 900 m
(2,953 ft) of known acu[ntilde]a cactus plants; developing and
implementing procedures to control trespass livestock; monitoring
illegal immigration, contraband trafficking, and border-related
enforcement to prevent acu[ntilde]a cacti from being trampled or run
over by vehicles; and continuing to monitor and control invasive plant
species to maintain quality habitat and prevent the spread of fire
where it was historically infrequent. For these reasons, the BMGR is
exempt from the final designation of critical habitat for the
acu[ntilde]a cactus. Please see the Exemptions section of this rule for
a more detailed analysis.

Tribal Comments

(3) Comment: The Tohono O'odham Nation requested both a meeting
with the Service and an exclusion from the acu[ntilde]a cactus critical
habitat designation on their lands. They provided information that
efforts by the Tohono O'odham Nation's legislative body to protect the
acu[ntilde]a cactus are under way.
Our Response: The Service met with the Tohono O'odham Nation to
discuss current and planned conservation measures for the acu[ntilde]a
cactus on Tribal lands. The Service has considered land on the Tohono
O'odham Nation for exclusion from the critical habitat designation
under section (4)(b)(2) of the Act. We are excluding Tohono O'odham
Nation land from the final critical habitat designation because the
benefits of exclusion as critical habitat outweigh the benefits of
inclusion as critical habitat. As further explained in the Exclusions
section of this rule, we have concluded that the Tohono O'odham Nation
has a commitment to protect and manage the acu[ntilde]a cactus habitat
on their lands. Exclusion of lands of the Tohono O'odham Nation as
critical habitat will allow us to maintain a cooperative working
relationship with the Nation, and we expect that the Nation will
continue to protect and manage the acu[ntilde]a cactus on their lands.
(4) Comment: The Navajo Nation requested an exclusion from the
final Fickeisen plains cactus critical habitat designation and
submitted the final Navajo Nation Fickeisen Plains Cactus Management
Plan that guides species and habitat management for the cactus on all
lands administered by the Tribe.
Our Response: The Service has considered land on the Navajo Nation
for exclusion under section (4)(b)(2) of the Act and has met with the
Navajo Nation to discuss current and planned conservation measures for
the Fickeisen plains cactus on Tribal lands. We are excluding Navajo
Nation land from the final critical habitat designation because the
benefits of exclusion as critical habitat outweigh the benefits of
inclusion as critical habitat. As further explained in the Exclusions
section of this rule, we have concluded that the Navajo Nation has a
commitment to protect and manage the Fickeisen plains

[[Page 55268]]

cactus on their land as described in the final management plan.
Exclusion of lands of the Navajo Nation as critical habitat will allow
us to maintain a cooperative working relationship with the Nation, and
we expect that the Nation will continue to protect and manage Fickeisen
plains cactus habitat on their lands.
(5) Comment: The Navajo Nation suggests that critical habitat not
be designated for the Fickeisen plains cactus due to the possibility of
increased illegal collection. It is the position of the Navajo Nation
Department of Fish and Wildlife (NNDFW) that illegal collection is a
serious threat to the Fickeisen plains cactus and that making
population locations public and easily accessible is detrimental to the
conservation of the species.
Our Response: We acknowledge the concern of the Navajo Nation that
designating critical habitat may lead to illegal collection of listed
plant species, but we disagree with this conclusion for the Fickeisen
plains cactus. Section 4(a)(3) of the Act and implementing regulations
(50 CFR 424.12), require that, to the maximum extent prudent and
determinable, the Secretary designate critical habitat at the time the
species is determined to be an endangered or threatened species. Our
regulations (50 CFR 424.12(a)(1)) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (i) The species is threatened by taking or other
human activity, and identification of critical habitat can be expected
to increase the degree of such threat to the species, or (ii) such
designation of critical habitat would not be beneficial to the species.
In the proposed rule, we found no information that the Fickeisen plains
cactus is threatened by illegal collection and concluded that the
designation of critical habitat is prudent for the plant (77 FR 60509).
In addition, during the comment periods for the proposed rule, we did
not receive new information from the Navajo Nation or any other entity
indicating that illegal collection is occurring across the range of the
plant.
(6) Comment: The Navajo Nation commented that there is no data
showing that microbiotic soil crusts are closely associated with the
Fickeisen plains cactus and, therefore, should not be included as a
primary constituent element.
Our Response: We acknowledge that there is no evidence available
indicating that biological soil crusts are essential to the
conservation of the Fickeisen plains cactus, only that crusts are a
component of the habitat. Therefore, we have revised the primary
constituent element language for this species. Please see the Primary
Constituent Elements for the Fickeisen Plains Cactus section in the
rule.
(7) Comment: The Navajo Nation commented that the proposed
Fickeisen plains cactus critical habitat locations on their land are
based on outdated, approximately 20-year-old data and, thus, are not
based on the best scientific information. In addition, the Tribe
questioned critical habitat designation in areas containing fewer than
25 cacti when there are larger populations of the plant elsewhere. The
Tribe feels that extra conservation efforts should not be focused on
smaller populations.
Our Response: Section 3(5)(A) of the Act defines critical habitat
to mean: (i) The specific areas within the geographical area occupied
by the species, at the time it is listed in accordance with the
provisions of section 4 of this Act, on which are found those physical
or biological features essential to the conservation of the species and
which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the provisions of
section 4 of this Act, upon a determination by the Secretary that such
areas are essential for the conservation of the species. The criteria
for critical habitat were evaluated using the best scientific and
commercial data available including plant surveys that occurred, in
some cases, more than 18 years ago and at sites that have not been
revisited. In the proposed rule, we specifically requested information
from the public on the current status of populations where plants had
been documented historically, but the site had not been revisited (77
FR 60509, p. 60512). The Navajo Nation also submitted general
information describing the populations on Tribal land, which included
records of those that were last observed nearly 20 years ago, and for
which they used to estimate the total number of Fickeisen plains cacti
on Tribal land. We received no additional information on these
populations. Therefore, we have used the best available scientific
information in the designation of critical habitat for this species.
In addition, we cannot exclude an occupied area from a critical
habitat designation based on small population size. Rather, we are
required under the Act to apply the critical habitat designation to all
areas that meet the definition in section 3(5)(A) outlined above,
provided we have not determined that the benefits of exclusion outweigh
the benefits of including the area in the critical habitat designation.
As mentioned in the response to comment number 4, above, we have made
such a determination under section 4(b)(2) of the Act for Navajo Nation
lands and are excluding from the final critical habitat designation all
Navajo Nation lands, some of which contain small populations of the
Fickeisen plains cacti. The exclusion of lands on the Navajo Nation as
critical habitat will aid the Service in maintaining a cooperative
working relationship with the Nation. In addition, we expect that the
Navajo Nation will continue conservation efforts throughout the entire
area occupied by the cactus, even where population size is limited.

Public Comments

(8) Comment: The Babbitt Ranches, LLC, submitted the Draft Babbitt
Ranches Fickeisen Plains Cactus Management Plan and requested that
their lands be excluded from the final designation of critical habitat.
Our Response: The Service considered land managed by the Babbitt
Ranches, LLC, for exclusion under section (4)(b)(2) of the Act and has
met with the landowners to discuss current and planned conservation
measures for the Fickeisen plains cactus. As explained in the
Exclusions section of this rule, we are excluding from the critical
habitat designation lands owned by the Babbitt Ranches, LLC, and State
trust lands that are managed by the Babbitt Ranches, LLC, where a land
closure is in place. However, we are not excluding from the final
designation the federally owned lands where Babbitt Ranches, LLC, holds
grazing permits.
(9) Comment: One commenter suggested that the use of the total
number of acu[ntilde]a cactus flowers that bloomed in the spring
following a winter with 29.7 centimeters (cm) (11.66 inches (in)) of
precipitation recorded is biased. The commenter suggested using the
percentage of adults with flowers or the average number of flowers per
adult as a different metric. The commenter analyzed the Organ Pipe
Cactus National Monument (OPCNM) data with these metrics and found no
correlation between precipitation and flowering, adult population
counts, or plant mortality.
Our Response: The use of the number of acu[ntilde]a cactus flowers
that bloomed in the spring following 29.7 cm (11.66 in) of
precipitation was properly used to identify unoccupied areas that could
be considered essential to the conservation of the species. In the
proposed rule, we

[[Page 55269]]

discussed survey data gathered from monitoring plots established in
1977; these data illustrate the relationship between precipitation and
acu[ntilde]a cactus flowering. We noted that acu[ntilde]a cactus flower
production and recruitment peaked in 1992 (Holm 2006, p. 2-10)
following a winter period with total precipitation of 29.7 cm (11.66
in) (Western Regional Climate Center (WRCC) 2012, entire). Similar
peaks in recruitment occurred in the early 1990s (Holm 2006, p. 2-6;
NPS 2011a, p. 1) following a 1990 summer period with 24.6 cm (9.7 in)
of precipitation (WRCC 2012, entire). Alternatively, we also noted
flower production lows in years with markedly low winter precipitation.
We also note that Johnson (1992) found that flower production was
highest during the 2 wettest years of his study; his analysis suggests
that rainfall is positively correlated with the number of flowers
produced in acu[ntilde]a cactus, as well as in other cacti, and cites
numerous studies in his conclusion. Therefore, we used this information
to identify areas that receive 29.7 cm (11.66 in) or higher total
annual precipitation as necessary for the acu[ntilde]a cactus
reproduction and survival. Thus, the best available information
indicates that the total number of flowers is an appropriate metric.
However, public comments we received provided evidence that this metric
should be adjusted to reflect that areas receiving 29.7 cm (11.66 in)
or higher in winter precipitation only (not annual precipitation) are
necessary for the acu[ntilde]a cactus. We reassessed our proposed
critical habitat based on this metric, but there are no areas in
southern Arizona that contain the geology, elevation, and vegetation
communities required by the cactus that support this level of
precipitation concentrated in the winter months. Thus, in this final
critical habitat designation, we removed 12,113 ha (29,933 ac) of
proposed critical habitat from multiple units.
(10) Comment: One commenter suggested that the inclusion of
acu[ntilde]a cactus critical habitat on private lands in and around the
town of Ajo may impede the ability of Ajo to attain funding for
infrastructure improvements within the town.
Our Response: Despite the fragmented nature of the pollinator
habitat in and around the town of Ajo, three juvenile acu[ntilde]a
cacti were found in 2013 from within Ajo town site populations and two
juveniles were found in 2013 in the Little Ajo Mountains just south of
the New Cornelia Copper Mine. The presence of these juveniles suggests
that these areas identified as critical habitat contain the physical
and biological features necessary for acu[ntilde]a cactus survival,
including supporting pollinators that may be utilizing habitat within
the town of Ajo. As stated in the FEA (2013, p. ES-9), no future
projects with a Federal nexus were identified within the areas proposed
as critical habitat in the town of Ajo and, thus, no impacts are
forecast for community infrastructure and development activities.
(11) Comment: One commenter is concerned with the reduction in
proposed acu[ntilde]a cactus critical habitat due to the miscalculation
of annual versus winter precipitation. This commenter suggests creating
a lower winter precipitation limit necessary for acu[ntilde]a cactus
survival, thus increasing the amount of critical habitat required for
the species.
Our Response: We recognize that adequate precipitation is necessary
for acu[ntilde]a cactus seedling survival, flowering, and fruit set in
adult plants. We also recognize that as climate change progresses,
areas with higher precipitation or cooler temperatures may become
important for the future survival of the species. However, we lack
sufficient monitoring and climate modeling data to adjust the
precipitation limit utilized in our proposed rule. We made the public
aware of our incorrect usage of annual rainfall data rather than winter
rainfall data in our revised proposed rule (July 8, 2013; 78 FR 40673),
and we announced that we had removed all of the unoccupied critical
habitat proposed in our October 3, 2012, proposed rule (77 FR 60509).
We have used the best information available at this time to designate
critical habitat.
(12) Comment: One commenter stated the DEA fails to account for
impacts associated with situations in which an activity does not
jeopardize the species' continued survival, but nonetheless may be
subject to project modifications to avoid adverse modification of
critical habitat.
Our Response: Section 2.3 of the FEA describes the reasons the
Service does not anticipate critical habitat designation to result in
additional conservation requirements. These reasons are also presented
in the Service's ``Incremental Effects of Critical Habitat Designation
for the Acu[ntilde]a Cactus and the Fickeisen Plains Cactus''.
Conservation measures being implemented in response to the species'
listing status under the Act are expected to sufficiently avoid
potential destruction or adverse modification of critical habitat as
well. Thus, projects are already avoiding adverse modification under
the regulatory baseline, and no additional conservation measures or
project modifications are expected following the critical habitat
designation. The Service acknowledges there may be rare cases in which
localized projects may not adversely affect the plants, but may
adversely modify critical habitat. Specifically, this potential
scenario could occur in areas of proposed critical habitat where the
cacti are at very low densities. However, the best available
information does not indicate that such areas are known to exist at
this time.
(13) Comment: One commenter stated, ``according to the Service,
because the [acu[ntilde]a cactus] is closely tied to its habitat, it is
more likely that surface disturbances resulting in critical habitat
being adversely modified would likely also constitute jeopardy to the
species.'' In light of this assertion, the commenter stated that a
careful analysis of likely reasonable and prudent alternatives (RPAs)
must be undertaken when evaluating the costs associated with
designating critical habitat. In this case, the DEA contains no such
discussion and limits the assessment of costs solely to administrative
costs associated with carrying out a section 7 consultation.
Our Response: Section 2.3.2 of the FEA describes the analytic
framework used to identify incremental impacts of the proposed critical
habitat designation. The analytic framework discussed in this section
takes into account the above statements. Specifically, the FEA relies
upon this statement as the basis for assuming that project
modifications recommended to avoid adverse modification would not
differ from those recommended to avoid jeopardy.
Since all of the designated critical habitat units for the
acu[ntilde]a cactus are occupied, a Federal action requiring section 7
consultation would need to analyze impacts to both the species and
critical habitat. If the action jeopardizes the species, the
development of RPAs to conserve the species would be the same as those
for critical habitat. Therefore, there would be no additional cost to
conserve critical habitat beyond what it costs to prevent jeopardizing
the species. RPAs are developed in cooperation with the Federal agency
and applicant (if any) because often they are the only ones who can
determine if an alternative is within their legal authority and
jurisdiction, and if it is economically and technologically feasible.
As stated in the FEA (ES-6, Appendix C, p. 11), in most cases the
types of conservation efforts requested by the Service during section 7
consultation

[[Page 55270]]

regarding the plants are not expected to change with critical habitat
designation of occupied habitat due to the fact that the species are
closely tied to their habitat and are not mobile. In most instances, we
anticipate that the conservation efforts recommended to avoid jeopardy
to the species also effectively would avoid the destruction or adverse
modification of occupied critical habitat. As a result, critical
habitat designation generally will not change the types of plant
conservation efforts recommended by the Service. For these reasons, the
incremental cost of designating critical habitat is considered
administrative (i.e., those costs associated with addressing adverse
modification in section 7 consultations).
(14) Comment: One commenter asserted that the Service fails to
consider the significant expense associated with initiating
consultation, including the costs involved in preparing a biological
assessment and submitting other information requested by the Service as
a part of section 7 consultation.
Our Response: The FEA relies on the best available information to
estimate the administrative costs of section 7 consultations. As
described in Exhibit 2-2 of the FEA, the consultation cost model is
based on a review of consultation records and interviews with staff
from three Service field offices, telephone interviews with action
agencies (e.g., Bureau of Land Management (BLM), U.S. Forest Service,
and U.S. Army Corps), and telephone interviews with private consulting
firms who perform work in support of permittees.
The model is periodically updated with new information received in
the course of data collection efforts supporting economic analyses and
public comment on more recent critical habitat rules. In addition, the
general schedule rates are updated annually. The cost of preparing a
biological assessment is included as part of the consultation cost
model, with estimated incremental costs ranging from $500 to $5,600 per
consultation. These costs are based on interviews with representatives
from private consulting firms on the typical costs charged to clients
in support of section 7 consultation efforts (e.g., biological survey
and preparation of materials to support a biological assessment).
(15) Comment: One commenter asserted that the DEA fails to consider
that significant project delays result from the section 7 consultation
process.
Our Response: As discussed in the economic analysis, activities
that would require consultation for critical habitat are primarily the
same as activities that currently require consultation for the species
because all of the proposed critical habitat units are occupied. We do
not expect new consultations to result solely from the designation of
critical habitat. Accordingly, critical habitat designation is not
expected to result in any measurable time delays beyond the time
constraints created by the baseline section 7 consultation process.
(16) Comment: One commenter stated that the discussion of baseline
protections in the proposed rule is inconsistent with how baseline
protections are described and assessed in the DEA. Specifically, the
commenter asserted that the proposed rule states that current
protections are inadequate and do not address threats to the species
and its habitat, whereas the DEA states that over 90 percent of the
proposed critical habitat for the acu[ntilde]a cactus has baseline
protections.
Our Response: Baseline protections are related to the listing of a
species as an endangered or threatened species under the Act rather
than the designation of critical habitat. In the proposed listing rule,
we considered whether the existing regulatory mechanisms were adequate
to alleviate the identified threats. The DEA evaluated only the
incremental impacts of critical habitat designation. Accordingly, the
conclusion that over 90 percent of the proposed critical habitat for
the acu[ntilde]a cactus is subject to baseline protections is based on
the species being listed under the Act.
(17) Comment: One commenter stated that the DEA did not adequately
account for the possibility of private projects being subject to a
Federal nexus, and, in turn, does not account for potential
modification of these projects as a result of section 7 consultation.
Our Response: Approximately 4,690 ha (11,590 ac) (18 percent) of
the areas proposed as critical habitat for the acu[ntilde]a and
Fickeisen plains cacti are privately owned. The economic analysis
discusses the potential for a Federal nexus on private lands associated
with livestock grazing and voluntary on-the-ground habitat improvement
projects. For both activities, the DEA discussed the potential for
Federal funding of these activities on private lands to trigger section
7 consultation and forecasted one programmatic consultation with the
respective action agency for future projects that may affect proposed
critical habitat for the cacti on private lands. The FEA has been
revised to include consideration of additional activities on private
lands within acu[ntilde]a cactus Unit 2.
(18) Comment: One commenter suggested that section 7 consultation
could be triggered for projects implemented in the town of Ajo as the
result of Federal funding under the U.S. Department of Housing and
Urban Development's (HUD) Community Development Block Grant program.
Our Response: We contacted Pima County's Community Development
Block Grant (CDBG) Program. According to discussions with the Program
Coordinator, there are two projects currently under way that are funded
by the Pima County CDBG program in the town of Ajo and which appear to
fall within areas proposed as critical habitat in acu[ntilde]a cactus
critical habitat Unit 2. However, both projects involve improvements to
existing structures and do not include any ground-disturbing activities
that would trigger section 7 consultation.
Section 7 consultation may be triggered for future projects funded
under the Pima County CDBG program that involve new construction or
ground-disturbing activities. The Pima County CDBG Program Coordinator
indicated, however, that it is difficult to forecast projects that may
occur in the future. Selection for funding under the Pima County CDBG
program follows an annual cycle and is based on a range of factors,
including the level of funding provided by HUD, an assessment of
feasibility, need, and benefits, and local priorities as determined by
the Pima County Board of Supervisors. At this time, the Pima County
CDBG program is not aware of any new projects that involve ground-
disturbing activities within the area proposed as critical habitat in
the town of Ajo. As a result, this analysis does not estimate any
future section 7 consultations related to Pima County's CDBG program.
To the extent that new projects funded by the Pima County CDBG program
include ground-disturbing activities over the next 20 years, this
analysis may underestimate costs in Ajo Unit 2 associated with section
7 consultations. However, this assumption only affects the estimated
administrative costs of section 7 consultation. As a result, any future
incremental impacts are likely to be minor. The FEA has been revised to
include this new information about potentially affected activities
related to the CDBG program in the town of Ajo.
(19) Comment: One commenter suggested that the DEA fails to conduct
a proper Regulatory Flexibility Analysis (RFA) for the town of Ajo,
which is a small governmental jurisdiction based on a 2010 population
of 3,304.
Our Response: A portion of the town of Ajo overlaps proposed
acu[ntilde]a critical

[[Page 55271]]

habitat in Ajo Unit 2. While we agree that the town of Ajo is a small
governmental entity, RFAs are required for small governmental entities
only when those entities are also considered directly regulated
entities. In the case of critical habitat designation for the
acu[ntilde]a and Fickeisen plains cacti, the only directly regulated
entities are the Federal agencies required to consult under section 7
of the Act. As such, the town of Ajo is not considered a directly
regulated entity, and an RFA, therefore, is not required.
(20) Comment: Two commenters asserted that the DEA fails to
consider impacts to mining as a result of critical habitat designation
for the acu[ntilde]a cactus. Specifically, the comments note that
proposed habitat for acu[ntilde]a cactus in Ajo Unit 2 is in an area
with historically active mines, as well as an area with potential for
future mining.
Our Response: A discussion of mining activities within areas
proposed as critical habitat for the acu[ntilde]a cactus in Ajo Unit 2
has been added to the FEA. Mining activities in this area may have a
Federal nexus for section 7 consultation through the Federal permitting
process with such action agencies as the BLM. Within Ajo Unit 2, at
least one inactive copper mine and several unpatented mining claims
overlap areas proposed as critical habitat. However, there is
significant uncertainty regarding when, or if, any of these areas will
be actively mined within the 20-year time period for this analysis.
Accordingly, the FEA does not forecast any incremental impacts
associated with these mining activities. To the extent that any of the
mining resources present in Ajo Unit 2 are actively developed over the
next 20 years, this analysis may underestimate the administrative costs
associated with section 7 consultations. As Ajo Unit 2 is considered to
be occupied by the acu[ntilde]a cactus, costs associated with
implementing any conservation measures would be considered baseline
impacts.
(21) Comment: One commenter asserted that the DEA fails to assess
potential impacts to energy supply distribution or use from the
designation of critical habitat for the acu[ntilde]a cactus, and,
therefore, is not in compliance with Executive Order 13211.
Our Response: Executive Order 13211 states that Federal agencies
must prepare and submit a ``Statement of Energy Effects'' for all
``significant energy actions.'' The Office of Management and Budget
provided guidance for implementing the Executive Order, and described
various outcomes that may constitute ``a significant adverse effect.''
These are described in A-4 of the FEA. As described in Chapter 3 of the
FEA, critical habitat designation for the Fickeisen plains cactus is
anticipated to affect uranium mining. Impacts to uranium mining,
however, are limited to the administrative costs of one formal
consultation for the EZ Mine, totaling less than $900 in costs for the
managing company, Energy Fuels Inc., over the 20-year period of
analysis. The magnitude of this consultation cost is not anticipated to
reduce fuel production or energy production, or increase the cost of
energy production or distribution in the United States in excess of 1
percent. Alternatively, as described in Chapter 3 of the FEA, critical
habitat designation for the acu[ntilde]a cactus is not anticipated to
affect mining. Therefore, the designation of critical habitat for
either species does not exceed any of the thresholds provided by the
Office of Management and Budget's guidance and is not considered a
``significant energy action.'' Appendix A of the FEA has been updated
to reflect this finding.

Summary of Changes From the Proposed Rule

Since the publication of the October 3, 2012 (77 FR 60509),
proposed rule to list and designate critical habitat for the
acu[ntilde]a cactus and Fickeisen plains cactus, we have made the
following changes in the final critical habitat rules:
(1) Based on information received from public comments, we
reevaluated the designation of the Dripping Spring acu[ntilde]a cactus
critical habitat subunit in OPCNM, Arizona. The proposed rule outlined
criteria for designation of critical habitat, which included that
unoccupied areas with suitable acu[ntilde]a cactus habitat and that
receive higher mean winter precipitation were necessary for the
conservation of the species. The additional information provided during
the public comment period indicated that the Dripping Spring subunit
was unoccupied yet does not receive 29.7 cm (11.66 in) of winter
rainfall. As a result, we determined that it was not essential for
acu[ntilde]a cactus conservation and did not include it in this final
critical habitat designation, thus removing 1,591 ha (3,931 ac) of
proposed critical habitat from Unit 1.
(2) Based on information received from public comments, we excluded
lands owned and managed by the Tohono O'odham Nation, Arizona, from the
designation of critical habitat for the acu[ntilde]a cactus. Natural
resources management already in place on the Tribe aids in the
conservation of the species. As a result, 156 ha (385 ac) of critical
habitat were removed from acu[ntilde]a cactus Unit 3.
(3) Based on information received from public comments, including a
revised section of an existing INRMP, we exempted lands owned and
managed by the U.S. Air Force on the BMGR, Arizona, from the
designation of critical habitat for the acu[ntilde]a cactus. Natural
resources management for this species, as outlined in the revised
INRMP, aids in the conservation of the acu[ntilde]a cactus. As a
result, 378 ha (935 ac) of proposed critical habitat were removed from
Unit 3.
(4) Based on information received from public comments, we
reevaluated acu[ntilde]a cactus critical habitat in areas receiving
total annual precipitation exceeding 29.7 cm (11.66 in). We reassessed
this habitat based on areas receiving 29.7 cm (11.66 in) or more of
winter precipitation only. As a result, we determined that no areas in
southern Arizona that contain the geology, elevation, and vegetation
communities required by acu[ntilde]a cactus support this level of
precipitation concentrated within the winter months. Therefore, in this
final critical habitat designation, there are no critical habitat areas
for the acu[ntilde]a cactus that receive 29.7 cm (11.66 in) or more of
winter precipitation. As a result, 12,113 ha (29,933 ac) of proposed
critical habitat were removed from multiple units. This issue is
discussed in further detail in the revised proposed critical habitat
designation (78 FR 40673, July 8, 2013).
(5) Based on information received from public comments, we excluded
3,865 ha (9,554 ac) of Tribal land from the final Fickeisen plains
cactus critical habitat. Navajo Nation lands excluded include the
entire Tiger Wash Unit (Unit 6), the entire Little Colorado River
Overlook Unit (Unit 7), and portions of the Gray Mountain subunit
(Subunit 8b) of the proposed Gray Mountain Unit (Unit 8). Natural
resources management already in place on and documented in a new
management plan for the Navajo Nation aids in the conservation of the
species.
(6) Based on information received from public comments, we excluded
from the Fickeisen plains cactus final critical habitat designation
8,139 ha (20,113 ac) of land that is either: (1) Owned by the Babbitt
Ranches, LLC; or (2) managed by the Babbitt Ranches, LLC, but owned by
the State and subject to land closure. The excluded area includes the
entire proposed Cataract Canyon Unit and private land in the Mays Wash
subunit. Exclusion of these lands as critical habitat will allow us to
maintain a cooperative working

[[Page 55272]]

relationship with the Babbitt Ranches, LLC, and we expect that Babbitt
Ranches, LLC, will continue to protect and manage the Fickeisen plains
cactus habitat on their lands.
(7) Based on new information received during the public comment
periods, we removed the Snake Gulch Unit (945 ha (2,335 ac)) from the
final designation of Fickeisen plains cactus critical habitat, because
the unit is no longer considered occupied, and we determined that it is
not essential to the conservation of the species. We added the South
Canyon Unit (110 ha (272 ac)) on U.S. Forest Service (USFS) land where
occupancy was verified in 2013.
The rule revising 50 CFR 424.12 was published on February 11, 2016
(81 FR 7413), and became effective on March 14, 2016. As stated in that
rule, the revised version of Sec. 424.12 applies only to rulemakings
for which the proposed rule is published after that date. Thus, the
prior version of Sec. 424.12 will continue to apply to any rulemakings
for which a proposed rule was published before that date. Since the
proposed rule for acu[ntilde]a cactus and Fickeisen plains cactus
critical habitat was published on October 3, 2012, this final rule
follows the version of Sec. 424.12 that was in effect at that time.

Critical Habitat

Background

It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the acu[ntilde]a
cactus and Fickeisen plains cactus. For a complete description of the
life history and habitat needs of the acu[ntilde]a cactus and Fickeisen
plains cactus, see the Background section in the final listing rule
published on (78 FR 60608, October 1, 2013).
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are the
specific elements of physical or biological features that provide for a
species' life-history processes, and are essential to the conservation
of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is

[[Page 55273]]

unimportant or may not be needed for recovery of the species. Areas
that are important to the conservation of the species, both inside and
outside the critical habitat designation, will continue to be subject
to: (1) Conservation actions implemented under section 7(a)(1) of the
Act, (2) regulatory protections afforded by the requirement in section
7(a)(2) of the Act for Federal agencies to ensure their actions are not
likely to jeopardize the continued existence of any endangered or
threatened species, and (3) the Act's section 9 prohibitions on taking
any individual of the species, indicating taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans, or other species conservation planning efforts if
new information available at the time of these planning efforts calls
for a different outcome.

Acu[ntilde]a Cactus

Physical or Biological Features

In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection.
These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographic, and ecological
distributions of a species.
We derive the specific physical or biological features required for
the acu[ntilde]a cactus from studies of this species' habitat, ecology,
and life history as described in the Critical Habitat section of the
proposed rule to designate critical habitat published in the Federal
Register on October 3, 2012 (77 FR 60509), and in the information
presented below. Additional information can be found in the final
listing rule (78 FR 60608; October 1, 2013). We have determined that
the physical or biological features described below are essential for
the acu[ntilde]a cactus.
Habitat for Individual and Population Growth, Including Sites for
Germination, Pollination, Reproduction, Pollen and Seed Dispersal, and
Seed Banks
Pollination and Pollen Dispersal--Preservation of the mix of
species and interspecific interactions they encompass greatly improves
the chances for onsite survival of rare species (Tepedino et al. 1996,
p. 245). Bee nesting habitat, foraging plants, and corridors must be
preserved to protect the acu[ntilde]a cactus (Buchmann 2012, pers.
comm.; McDonald 2007, p. 4). The acu[ntilde]a cactus relies solely on
the production of seeds for reproduction with pollination highly linked
to the acu[ntilde]a cactus' survival. A lack of pollinators would lead
to a reduction of seed production that would lead, in turn, to a
gradual reduction in the seed bank (Wilcock and Neiland 2002, p. 276).
Although viability of seed in the seed bank is unknown, germination
trials in the greenhouse suggest the seeds are short-lived (Rutman
2007, p. 7).
Successful pollination depends on the pollinator species and the
distance the pollinator can travel between flowers (McDonald 2005, p.
15). Acu[ntilde]a cacti are pollinated by a suite of bees from the
Andrenidae, Anthophoridae, Anthophorinae, Halictidae, and Megachilidae
families; however, the most abundant, robust, and consistent visitors
in a 2-year study at OPCNM were the leafcutter bee (Megachile
palmensis) and the cactus bee (Diadasia rinconis) (Johnson 1992, p.
406). Leafcutter and cactus bees are native cactus specialist bees
requiring a sufficient quantity of acu[ntilde]a and other cacti pollen
throughout their foraging season to provision their nests and support
their own survivorship (Blair and Williamson 2008, p. 428).
No studies of pollinator dispersal distance have been conducted for
the acu[ntilde]a cactus; however, in a study of a similar rare cactus
in Arizona's Sonoran Desert, the Coryphantha scheeri var. robustispina
(Pima pineapple cactus), McDonald (2005, p. 29) determined that the
maximum distance the cactus bees travelled between Pima pineapple
cactus individuals was 900 m (2,953 ft). The maximum distance travelled
by the leafcutter bee is not known, though it is thought to be less
than this (Buchmann 2012, pers. comm.). Because of the similarity of
the acu[ntilde]a cactus and Pima pineapple cactus, we estimate that 900
m (2,953 ft) around individual acu[ntilde]a cacti is needed to support
pollinator foraging, nesting, and survivorship.
Therefore, based on our review of the best available information,
we identify a pollination area with a radius of 900 m (2,953 ft) around
each individual acu[ntilde]a cactus plant as a physical or biological
feature of acu[ntilde]a cactus habitat.
Seed Dispersal, Germination, Growth, and Seed Banks--Bare soils
within the seed dispersal range of the acu[ntilde]a cactus are
necessary for recruitment and soil seed banking. Primary and secondary
dispersal of these seeds can occur via a number of mechanisms including
gravity, ants, wind, or rain (Butterwick 1982 to 1992, entire; Rutman
1996b, pers. comm.; Rutman 2001, pers. comm.; Anderson 2011, p. 1).
Primary dispersal is the movement of seeds short distances from the
plant, whereas secondary dispersal involves the redistribution of seeds
by living (e.g., insects) or non-living (e.g., wind) factors (van
Rheede van Oudtshorrn and van Rooyen 1999, pp. 186-187).
As evidenced by their commonly clumped habit, the majority of the
acu[ntilde]a cactus seeds are dispersed by gravity; that is, they fall
very close to the mother plant, which serves as a nurse plant for
germination (Johnson et al. 1993, p. 178). With this type of dispersal,
the distance seeds travel is limited. The immediate environment of the
mother plant is typically highly suitable for establishment, and
closely dispersed seeds have a better chance of germination,
establishment, and survival than seeds dispersed by other mechanisms
(van Rheede van Oudtshorrn and van Rooyen 1999, p. 91).
Ants have been reported to both transport and consume the seeds of
the acu[ntilde]a cactus (Butterwick 1982 to 1992, entire; Rutman 1996b,
pers. comm.; Rutman 2001, pers. comm.; Anderson 2011, p. 1).
Transported seeds may be dropped, discarded, or buried at either an
appropriate or inappropriate depth for germination and emergence (van
Rheede van Oudtshorrn and van Rooyen 1999, p. 15). Transported seed has
the benefit of reduced competition from other seeds and reduced rodent
predation that more commonly occurs near the mother plant (O'Dowd and
Hay 1980, p. 536; Vander Wall et al. 2005, p. 802). The maximum
distance seeds are dispersed by ants is typically less than 3 m (10 ft)
and rarely more than 10

[[Page 55274]]

m (33 ft) (van Rheede van Oudtshorrn and van Rooyen 1999, p. 186).
The maximum distance seeds are dispersed by wind depends on many
factors including the height of the plant, characteristics of the
surrounding vegetation, seed mass and size, and wind conditions (van
Rheede van Oudtshorrn and van Rooyen 1999, p. 186). Secondary dispersal
by wind can be farther in deserts, where vegetation is widely spaced
and interspaces between trees and shrubs support wind velocities as
much as four times higher than under trees and shrubs (van Rheede van
Oudtshorrn and van Rooyen 1999, p. 187). Wind-blown soil, litter, and
small seeds accumulate under shrubs and trees, or in soil surface
depressions (Shreve 1942, p. 205; van Rheede van Oudtshorrn and van
Rooyen 1999, p. 187).
Dispersal of seed from rain wash or sheet flow (downslope movement
of water in a thin, continuous flow) over the ground is considered to
occur across a relatively short distance; in hot deserts, many plants
disperse seed by rain (van Rheede van Oudtshorrn and van Rooyen 1999,
pp. 69, 76). The distance that the acu[ntilde]a cactus seeds travel by
either wind or water is not known; however, spacing of associated nurse
trees and shrubs where soil, litter, and seed could accumulate is
roughly 8 m (26 ft). This number was determined by using the average
height of the largest tree associate, Cercidium microphyllum (palo
verde) (Shreve 1942, pp. 202-203; Kearney and Peebles 1951, p. 407).
Therefore, based on our review of the best available information
regarding the maximum distance that seeds may disperse, and within
which the acu[ntilde]a cactus seed banks, seedling establishment, and
seedling growth can occur, we identify bare soils immediately adjacent
to and within 10 m (33 ft) of existing reproductive acu[ntilde]a cactus
plants as a physical or biological feature of acu[ntilde]a cactus
habitat.
Appropriate Geological Layers and Topography that Support Individual
Acu[ntilde]a Cactus Plants
Geology--Bedrock and soil chemistry could help explain the current
distribution of the acu[ntilde]a cactus across small islands of habitat
in southern Arizona. Various reports describe the acu[ntilde]a cactus
occurring on both fine- and coarse-textured soils derived from
volcanic, granitic, and metamorphic rocks (Geraghty and Miller 1997, p.
3; Rutman 2007, pp. 1-2). Specifically, parent rock materials of
preferred habitat include extrusive felsic volcanic rocks of rhyolite,
andesite, and tuff, and intrusive igneous rocks composed of granite,
granodiorite, diorite, and quartz monzonite (Rutman 2007, pp. 1-2).
We applied this knowledge of the acu[ntilde]a cactus geologic
habitat preference by analyzing geology features and known plant
locations attained for populations occurring within the United States
using Geographic Information Systems (GIS). We determined 11 geologic
feature classes that occur within the known locations of the
acu[ntilde]a cactus in the United States (Arizona State Land Department
2012, GIS data layer). These feature classes can be summarized as
volcanic rocks from the middle Miocene to Oligocene and from the
Jurassic; granitoid rocks from the early Tertiary to Late Cretaceous
and from the Jurassic; granitic rocks from the early Tertiary to Late
Cretaceous; metamorphic rocks from the early Proterozoic; and surficial
deposits from the Holocene to the latest Pliocene. Therefore, based on
our review of the best available information regarding bedrock geology
and associated soils required by the acu[ntilde]a cacti, we identify
the presence of any one of these 11 feature classes as a physical or
biological feature of acu[ntilde]a cactus habitat. These feature
classes can be further summarized to include the following rock types
as identified in the literature for this species: rhyolite, andesite,
tuff, granite, granodiorite, diorite, or Cornelia quartz monzonite
(Rutman 2007, pp. 1, 2).
Topography--The acu[ntilde]a cactus is known to occur in valley
bottoms and on ridge tops or small knolls, on slopes up to 30 percent
(Phillips et al. 1982, p. 4; Geraghty and Miller 1997, p. 3). We
applied this knowledge of the acu[ntilde]a topographic habitat
preference by analyzing topography features using a digital elevation
model in GIS. Therefore, based on our review of the best available
information regarding topography, we identify valley bottoms, ridge
tops, and small knolls with slopes of 30 percent or less as a physical
or biological feature of acu[ntilde]a cactus habitat.
Appropriate Vegetation Community and Elevation Range That Support
Individual Acu[ntilde]a Cactus Plants
Nurse Plants--Known populations of acu[ntilde]a cactus have been
reported from between 365 and 1,150 m (1,198 to 3,773 ft) elevation
within the paloverde-cacti-mixed scrub series of the Arizona Upland
Subdivision of the Sonoran Desert-scrub (Brown 1994, p. 200; Arizona
Rare Plant Guide Committee 2001, unnumbered pages; Arizona Game and
Fish Department (AGFD) 2011, entire). This scrubland or low woodland
contains leguminous trees, shrubs, and succulents including palo verde,
Olneya tesota (ironwood), Larrea tridentata var. tridentata (creosote
bush), Ambrosia spp. (bursage), and Carnegia gigantea (saguaro). The
acu[ntilde]a cactus seedlings benefit from the protection of these
native Sonoran Desert trees and shrubs, as well as other larger
acu[ntilde]a cacti that act as nurse plants by providing protection
from temperature extremes and physical damage (Felger 2000, p. 208;
Johnson et al. 1993, p. 178). The acu[ntilde]a cactus individuals are
generally more robust next to nurse plants, as opposed to in open,
exposed locations (Felger 2000, p. 208). Therefore, based on the
information above, we identify the presence of creosote bush, ironwood,
palo verde, and other native protective plants to be a physical or
biological feature necessary for acu[ntilde]a cactus habitat.
Native Vegetation Dominance--The acu[ntilde]a cactus habitat should
be relatively free from perennial grass invaders as these alter
structure, function, dominance, and disturbance regimes, and have been
shown to drastically lower species diversity within the Sonoran Desert
(Olsson et al. 2012, p. 10). Such changes have great potential to
impact acu[ntilde]a cacti and their pollinators. In addition, such
introduced grasses as Pennisetum ciliare (buffelgrass) form continuous
mats and remove open bare ground for nesting bees such as Diadasia spp.
(Buchmann 2007, p. 13). These bees move nesting sites yearly to shed
parasites, thereby requiring the continued availability of sandy, well-
drained, bare ground available to create nests (Buchmann 2012, pers.
comm.). Therefore, based on our review of the best available
information, we identify Sonoran Desert-scrub habitat dominated by
native plant species to be a physical or biological feature necessary
for acu[ntilde]a cactus habitat.

Primary Constituent Elements for the Acu[ntilde]a Cactus

Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of acu[ntilde]a cactus in areas occupied at the time of
listing, focusing on the features' primary constituent elements. We
consider primary constituent elements to be the elements of physical or
biological features that provide for a species' life-history processes
and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the

[[Page 55275]]

primary constituent elements specific to the acu[ntilde]a cactus are:
(i) Native vegetation within the Paloverde-Cacti-Mixed Scrub Series
of the Arizona Upland Subdivision of the Sonoran Desert-scrub at
elevations between 365 to 1,150 m (1,198 to 3,773 ft). This vegetation
must contain predominantly native plant species that:
a. Provide protection to the acu[ntilde]a cactus. Examples of such
plants are creosote bush, ironwood, and palo verde.
b. Provide for pollinator habitat with a radius of 900 m (2,953 ft)
around each individual, reproducing acu[ntilde]a cactus.
c. Allow for seed dispersal through the presence of bare soils
immediately adjacent to and within 10 m (33 ft) of individual
acu[ntilde]a cactus.
(ii) Soils overlying rhyolite, andesite, tuff, granite,
granodiorite, diorite, or Cornelia quartz monzonite bedrock that are in
valley bottoms, on small knolls, or on ridgetops, and are generally on
slopes of less than 30 percent.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. All areas designated as critical habitat as described below
may require some level of management to address the current and future
threats to the physical or biological features essential to the
conservation of the acu[ntilde]a cactus. In all of the described units,
special management may be required to ensure that the primary
constituent elements for the cactus are conserved and the habitat
provides for the biological needs of the cactus. Some of the management
activities that could ameliorate these threats include, but are not
limited to, those discussed below.
(1) Practice livestock grazing in a manner that maintains,
improves, and expands the quantity and quality of Sonoran desertscrub
habitat. Special management considerations or protection may include
the following: manage livestock grazing sustainably with the natural
landscape by determining appropriate areas, seasons, and use consistent
within the carrying capacity of rangeland in response to current and
future drought and warming trends; improve monitoring and documentation
of grazing practices; manage cattle and feral hoofed mammals
(ungulates) (e.g., burros) to reduce the risk of plants trampled and
soil compaction; and manage for other small mammal species to restore
desired processes to increase habitat quality and quantity.
(2) Minimize construction of new border control facilities, roads,
towers, or fences. Special management considerations or protections may
include the following: protect lands that support suitable habitat such
that destruction of individual plants and their habitat is minimized
and habitat is preserved.
(3) Manage or protect native Sonoran desertscrub vegetation
communities from recreational impacts. Special management
considerations or protection may include the following: manage trails,
campsites, and off-road vehicles (ORVs); reduce the likelihood of
wildfires affecting the acu[ntilde]a cactus populations and nearby
plant communities.
(4) Protect suitable habitat from mineral development and
associated infrastructure (new access roads). These activities could
result in direct plant and habitat loss, or alteration by removing or
degrading soils to such an extent that the soils would no longer
support the growth of the acu[ntilde]a cactus. Special management
considerations or protection may include the following: protect lands
that support suitable habitat such that destruction is minimized and
habitat is preserved.
(5) Manage for nonnative, invasive species, such as buffelgrass, by
minimizing conditions that may promote or encourage encroachment or
establishment of nonnative, invasive species and restore or reestablish
conditions that allow native plants to thrive. Within the range of the
acu[ntilde]a cactus, the establishment and success of nonnative,
invasive species has been a result of historic land use and management
practices such as grazing, wildfire suppression actions, mining, and
ORV use. Actions have been taken by some land management agencies to
reduce the spread of invasive species and reduce the risk of wildfire
they pose from creating fine fuel loads. Nonnative, invasive species
occur near acu[ntilde]a cactus populations and may pose a threat
through competition for resources or increase the risk of fire. Special
management considerations or protection may include the following:
Prevent or restrict establishment of nonnative, invasive species;
minimize ground-disturbing activities that may facilitate their spread;
conduct post-disturbance restoration activities such as native plant
propagation; practice active removal of nonnative, invasive plant
species and targeted herbicide application (provided herbicides can be
shown not to negatively impact the acu[ntilde]a cactus or the native
pollinators); and improve monitoring and documentation on a site-by-
site basis where nonnative, invasive species are present in occupied
habitat to assess any effect (beneficial or negative) they pose of the
cactus.
These management activities will protect the physical or biological
features essential to the conservation of the acu[ntilde]a cactus by
reducing the direct and indirect effects of habitat loss, alteration,
or fragmentation; preserving the geology and soils that form the basis
of its habitat; and maintaining the native vegetation communities and
pollinators.
In summary, the primary constituent elements of the acu[ntilde]a
cactus habitat may be impacted by livestock grazing; U.S.-Mexico border
activities; recreational impacts; mineral development and associated
transportation infrastructure; and nonnative, invasive species.
Currently some of these threats are not identified to occur at a level
that threatens populations with extirpation; however, without
management of these threats, they could rise to this level. The units
designated as critical habitat within the geographical area occupied by
the species at the time of listing contain the physical or biological
features essential to the conservation of the acu[ntilde]a cactus.
Special management considerations or protection may be required to
eliminate, or reduce to a negligible level, the threats affecting each
unit or subunit and to preserve and maintain the essential features
that the critical habitat units and subunits provide to the cactus.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We reviewed
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulations at
50 CFR 424.12(b), we considered whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--are necessary to ensure the conservation of the species. We
are designating critical habitat in areas within the geographical area
occupied by the species at the time of listing as described in the
final rule to list the acu[ntilde]a cactus and the Fickeisen plains
cactus (see the ``Distribution and Range'' section of the final listing
rule (78 FR 60608, October 1, 2013)) and that contain one or more of
the identified primary constituent elements. We are

[[Page 55276]]

not designating any additional areas outside those currently occupied
by the species as critical habitat for acu[ntilde]a cactus.
We reviewed available information and supporting data that pertain
to the habitat requirements of the acu[ntilde]a cactus. This
information included research published in peer-reviewed articles and
presented in academic theses and agency reports, as well as data
collected from long-term monitoring plots, interviews with experts, and
regional climate data and GIS coverage. Sources of information include,
but are not limited to: Brown 1994, Buchmann 2007, Butterwick 1982-
1992, Felger 2000, Holm 2006, Johnson 1992, Johnson et al. 1993,
McDonald 2007, Olsson et al. 2012, Phillips et al. 1982, National Park
Service 2011a, National Park Service 2011b, Rutman 2007, van Rheede van
Oudtshorrn and van Rooyen 1999, and Western Regional Climate Center
2012. Based on this information, we developed a strategy for
determining which areas meet the definition of critical habitat for
acu[ntilde]a cactus.
Occupied Area at the Time of Listing
In identifying proposed critical habitat units for acu[ntilde]a
cactus, we proceeded through a multi-step process. We obtained all
records for acu[ntilde]a cactus distribution from AGFD, as well as both
published and unpublished documentation from our files. There is no
information on the historical range of this species; survey results
confirm that plant distribution in the United States comprises disjunct
occupied habitat in two general areas of south-central Arizona.
Our approach to delineating critical habitat units was applied in
the following manner:
(1) We overlaid acu[ntilde]a cactus locations into a GIS database.
This provided us with the ability to examine slope, aspect, elevation,
geologic type, vegetation community, and topographic features. These
data points verified and slightly expanded the previously recorded
elevation ranges for acu[ntilde]a cactus.
(2) In addition to the GIS layers listed above, we then included a
900-m (2,953-ft) pollination area around known populations to ensure
that all potential pollinators would have a sufficient land base to
establish nesting sites and to provide pollinating services for
acu[ntilde]a cactus, as described in Physical or Biological Features
for the acu[ntilde]a cactus above.
(3) We then drew critical habitat boundaries that captured the
locations elucidated under (1) and (2) above. Critical habitat
designations were then mapped using Albers Equal Area (Albers) North
American Datum 83 (NAD 83) coordinates.
We defined six critical habitat units and subunits within the
current distribution of the species in two general areas of south-
central Arizona. The units and subunits contain approximately 2,580
individuals. Within these units and subunits, several geologic,
topographic, elevation, slope, and vegetation community features have
been defined, which in combination create acu[ntilde]a cactus habitat
that is essential to the conservation of the species, though not all
lands containing this combination support the acu[ntilde]a cacti.
Although we no longer regard additional unoccupied areas as essential
for the conservation of the species (refer to the revised proposed
critical habitat designation for the acu[ntilde]a cactus and the
Fickeisen plains cactus (78 FR 40673, July 8, 2013), we recognize that
areas containing the physical or biological features necessary for the
acu[ntilde]a cactus and which receive higher precipitation levels may
be useful for ex situ (offsite) conservation measures at a future time.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features for the acu[ntilde]a cactus. The scale of the maps
we prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text and are not designated as critical habitat. Therefore, a Federal
action involving these lands would not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-2013-0025, on our Internet
sites https://www.fws.gov/southwest/es/arizona/, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT
above).

Critical Habitat Designation for the Acu[ntilde]a Cactus

We are designating six units as critical habitat for the
acu[ntilde]a cactus. The critical habitat areas we describe below
constitute our current best assessment of areas that meet the
definition of critical habitat for the acu[ntilde]a cactus. The six
units we are designating as critical habitat are: (1) Organ Pipe Cactus
National Monument, (2) Ajo, (3) Sauceda Mountains, (4) Sand Tank
Mountains, (5) Mineral Mountain, and (6) Box O Wash. All six units were
occupied by the acu[ntilde]a cactus at the time of listing. The
approximate area of each critical habitat unit is shown in Table 1.

Table 1--Designated Critical Habitat Units for the Acu[ntilde]a Cactus
----------------------------------------------------------------------------------------------------------------
Federal State Private Total
Unit or subunit -------------------------------------------------------------------------------
Ha Ac Ha Ac Ha Ac Ha Ac
----------------------------------------------------------------------------------------------------------------
1--Organ Pipe Cactus National 2,416 5,971 0 0 0 0 2,416 5,971
Monument Unit..................
2--Ajo Townsites Subunit........ 89 220 0 0 330 815 419 1,035
2--Ajo Little Ajo Mountains 106 263 0 0 141 347 247 610
Subunit........................
3--Sauceda Mountains Unit....... 1,102 2,724 0 0 0 0 1,102 2,724
4--Sand Tank Mountains Unit..... 549 1,355 0 0 0 0 549 1,355
5--Mineral Mountain Unit........ 570 1,408 217 537 0 0 787 1,945
6--Box O Wash Subunit A......... 4 9 1,348 3,332 369 913 1,721 4,253
6--Box O Wash Subunit B......... 0 0 158 391 102 251 260 642
-------------------------------------------------------------------------------

[[Page 55277]]

Total....................... 4,836 11,950 1,723 4,260 942 2,326 7,501 18,535
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the acu[ntilde]a cactus,
below.
Unit 1: Organ Pipe Cactus National Monument
The unit consists of 2,416 ha (5,971 ac) within OPCNM in
southwestern Pima County, Arizona. The unit is on federally owned land
administered by the National Park Service. Land within this unit was
occupied at the time of listing with the largest known population of
the acu[ntilde]a cactus, approximately 2,000 individuals. This unit
contains all of the primary constituent elements of the physical or
biological features essential to the conservation of the acu[ntilde]a
cactus. This unit helps to maintain the geographical range of the
species and provide opportunity for population growth. This unit also
provides a core population of the species.
Grazing and mining are not permitted within OPCNM; however,
nonnative, invasive species issues and off-road border-related
activities do occur in OPCNM. Special management considerations or
protection may be required within this unit to address off-road border-
related human disturbances or to prevent or remove nonnative, invasive
species within the acu[ntilde]a cactus habitat.
Unit 2: Ajo
Unit 2 is located in and near the town of Ajo in southwestern Pima
County, Arizona. The unit consists of two subunits totaling 666 ha
(1,645 ac). This unit contains 195 ha (483 ac) of federally owned land
and 470 ha (1,162 ac) of private land. The Federal land is administered
by the BLM. This entire unit helps to maintain the geographical range
of the species and provide opportunity for population growth. This unit
also provides a core population of the species.
Subunit 2a: Townsites--Subunit 2a consists of 330 ha (815 ac) of
private land and 89 ha (220 ac) of BLM land in and around the town of
Ajo, Arizona. This subunit comprises four separate populations of the
acu[ntilde]a cactus on private and BLM lands, which are close enough in
proximity to be combined within the 900-m (2,953-ft) radius defined for
pollinators. Lands within this subunit are occupied at the time of
listing; the combined number of plants occurring within this subunit is
70. This subunit contains all of the primary constituent elements of
the physical or biological features essential to the conservation of
the acu[ntilde]a cactus.
Subunit 2b: Little Ajo Mountains--Subunit 2b consists of 106 ha
(263 ac) of BLM lands and 141 ha (347 ac) of private lands south of the
town of Ajo, Arizona. Lands within this subunit are occupied at the
time of listing, containing seven individual plants. This subunit
contains all of the primary constituent elements of the physical or
biological features essential to the conservation of the acu[ntilde]a
cactus.
The features essential to the conservation of the species within
both subunits are threatened by mining; urban development; off-road
U.S.-Mexican border activities; and nonnative, invasive species issues.
Special management considerations or protection may be required within
the subunits to minimize habitat fragmentation; to minimize disturbance
to acu[ntilde]a cactus individuals, soil, and associated native
vegetation; and to prevent or remove nonnative, invasive species within
the acu[ntilde]a cactus habitat.
Unit 3: Sauceda Mountains
Unit 3 is located in the Sauceda Mountains of northwestern Pima and
southwestern Maricopa Counties, Arizona. We are excluding approximately
156 ha (385 ac) of Tohono O'odham land and exempting 378 ha (935 ac) of
BMGR land from this unit, leaving 1,102 ha (2,724 ac) of federally
owned land administered by the BLM (refer to the Exclusions and
Exemptions sections of the preamble to this rule). This unit comprises
four separate populations that are close enough in proximity as to be
combined within the 900-m (2,953-ft) radius defined for pollinators.
Lands within this unit were occupied at the time of listing; the
combined number of plants occurring within this unit is 212. This
subunit contains all of the primary constituent elements of the
physical or biological features essential to the conservation of the
acu[ntilde]a cactus. This unit helps to maintain the geographical range
of the species and provide opportunity for population growth. This unit
also provides a core population of the species.
The features essential to the conservation of the species within
the unit are threatened by mining; grazing; nonnative, invasive species
issues; and off-road U.S.-Mexican border activities. Special management
considerations or protection may be required within the unit to
minimize habitat fragmentation; to minimize disturbance to individual
acu[ntilde]a cactus individuals, soil, and associated native
vegetation; and to prevent or remove nonnative, invasive species within
acu[ntilde]a cactus habitat.
Unit 4: Sand Tank Mountains
Unit 4 consists of 549 ha (1,355 ac) within the Sonoran Desert
National Monument of southwestern Maricopa County, Arizona. The unit is
on federally owned land administered by the BLM. Land within this unit
was occupied at the time of listing; the combined number of plants
occurring within this unit is 200 individuals in 3 separate
populations. This unit contains all of the primary constituent elements
of the physical or biological features essential to the conservation of
the acu[ntilde]a cactus. This unit helps to maintain the geographical
range of the species and provide opportunity for population growth.
This unit also provides a core population of the species.
Grazing and mining are not permitted within the Sonoran Desert
National Monument; however, off-road border-related activities;
nonnative, invasive species issues; and trespass livestock grazing may
occur in this unit. Special management considerations or protection may
be required within this unit to minimize disturbance to acu[ntilde]a
cactus individuals, the soil, and associated native vegetation; and to
prevent or remove nonnative, invasive species within acu[ntilde]a
cactus habitat.
Unit 5: Mineral Mountain
Unit 5 consists of 787 ha (1,945 ac) on Mineral Mountain of north-
central Pinal County, Arizona. This unit contains 570 ha (1,408 ac) of
federally owned land and 217 ha (537 ac) of State-owned

[[Page 55278]]

land. The Federal land is administered by the BLM (569 ha (1,406 ac))
and the Bureau of Reclamation (1 ha (2 ac)).
This unit contains 5 separate known populations totaling 33
individuals on lands administered by the BLM and the State of Arizona.
This unit contains all of the primary constituent elements of the
physical or biological features essential to the conservation of the
acu[ntilde]a cactus. This unit helps to maintain the geographical range
of the species and provide opportunity for population growth. This unit
also provides a core population of the species.
Livestock grazing and ORV activity occur in this unit, and mining
occurs nearby. Nonnative, invasive species issues may occur in or
nearby this unit. Special management considerations or protection may
be required within the unit to minimize habitat fragmentation; to
minimize disturbance to acu[ntilde]a cactus individuals, soil, and
associated native vegetation; and to prevent or remove nonnative,
invasive species within acu[ntilde]a cactus habitat.
Unit 6: Box O Wash
Unit 6 is located near Box O Wash of north-central Pinal County,
Arizona. This unit consists of two subunits totaling 1,981 ha (4,895
ac). This unit contains 4 ha (9 ac) of federally owned land, 1,506 ha
(3,722 ac) of State-owned land, and 471 ha (1,164 ac) of privately
owned land. The Federal land is administered by the BLM. This entire
unit helps to maintain the geographical range of the species and
provide opportunity for population growth. This unit also provides a
core population of the species.
Subunit 6a: Box O Wash A--Subunit 6a consists of 4 ha (9 ac) of BLM
land, 369 ha (913 ac) of private land, and 1,348 ha (3,332 ac) of State
land east of Florence, Arizona. This subunit comprises two separate
populations of the acu[ntilde]a cactus on private and State-owned
lands, which are close enough in proximity to be combined within the
900-m (2,953-ft) radius defined for pollinators. Lands within this
subunit were occupied at the time of listing; the combined number of
plants occurring within this subunit is 11. This subunit contains all
of the primary constituent elements of the physical or biological
features essential to the conservation of the acu[ntilde]a cactus.
Subunit 6b: Box O Wash B--Subunit 6b consists of 158 ha (391 ac) of
State-owned land and 102 ha (251 ac) of private land east of Florence,
Arizona. This subunit comprises one population of the acu[ntilde]a
cactus on State-owned land; the 900-m (2,953-ft) radius defined for
pollinators overlaps into private land. This area was surveyed twice in
2008, with 32 living acu[ntilde]a cacti found in 1 survey and 45 in a
second survey. A 2011 survey resulted in no living plants located;
however, this was not a complete survey of the area. Since the 2011
survey was not a comprehensive survey, and a relatively large number of
plants were found here in 2008, we assume the plants still occur in
this subunit. Therefore, we consider lands within this subunit occupied
at the time of listing. This subunit contains all of the primary
constituent elements of the physical or biological features essential
to the conservation of the acu[ntilde]a cactus.
Livestock grazing and ORV activity occur within both subunits, and
mining occurs nearby. Nonnative, invasive species issues may occur in
or nearby this unit. Special management considerations or protection
may be required within the subunits to minimize habitat fragmentation;
to minimize disturbance to acu[ntilde]a cactus individuals, soil, and
associated native vegetation; and to prevent or remove nonnative,
invasive species within acu[ntilde]a cactus habitat.

Fickeisen Plains Cactus

Physical or Biological Features

We derive the specific physical or biological features required for
the Fickeisen plains cactus from studies of the species' habitat,
ecology, and life history as described below. We have determined that
the Fickeisen plains cactus requires the following physical or
biological features:
Appropriate Topography and Elevation Range That Support Individual
Fickeisen Plains Cactus Plants
The Fickeisen plains cactus is a narrow endemic with a wide
distribution on the Colorado Plateau in Coconino and Mohave Counties,
Arizona. Populations are found at elevations from 1,280 to 1,814 m
(4,200 to 5,950 ft) with approximately 1,132 plants in 33 populations
documented within an 8,668-square-kilometer (sq km) (3,347-square-mile
(sq mi)) range. About 90 percent of individuals occur in Coconino
County.
The Colorado Plateau consists of a series of subplateaus that are
dissected by major structural features (Foos 1999, pp. 2-4). The
Fickeisen plains cactus is found on several subplateaus and tablelands
including the Coconino, Kaibab, Kanab, Shivwits, and Uinkaret Plateaus,
and House Rock Valley. These landforms are characterized by normal
faults (Hurricane, Toroweap, and Sevier Faults), monoclines (Grandview
and Black Point Monoclines), synclines (Cataract Syncline), deep-seated
canyons (Marble Canyon, Cataract Canyon of the Grand Canyon), and deep
washes (Mays Wash) (Billingsley and Dyer 2003, p. 3; Billingsley et al.
2006, pp. 1-3; Billingsley et al. 2007, pp. 2-3), which form boundaries
separating the subplateaus, and act as topographic barriers isolating
populations of the Fickeisen plains cactus.
The Fickeisen plains cactus is found exclusively on limestone soils
derived predominantly from the Harrisburg Member of the Kaibab
Formation. The Harrisburg Member consists of reddish-gray and brownish-
gray, slope-forming gypsum, siltstone, sandstone, and limestone; and
includes an upper, middle, and lower part. The upper bed consists of
gray, cherty limestone that forms the bedrock surface while the middle
unit comprises thick, cliff-forming limestone beds and the lower bed
consists of slope-forming gypsiferous siltstone, sandstone, limestone,
and gypsum (Billingsley 2000, pp. 3-4).
Folding and uplifting of bedrock, basalt flows, and erosional
processes across the Colorado Plateau exposes other sedimentary rock
formations found in occupied habitat.
The Hurricane Cliffs exposes the Kaibab Formation on the upper part
and much of the bedrock surface of the Shivwits and Uinkaret Plateaus,
while siltstone, sandstone, and limestone of the Toroweap Formation is
well exposed on the lower steep slopes and ledges (Billingsley and Dyer
2003, pp. 3-4). East of the Hurricane Cliffs and in the habitat of the
Clayhole Wash population, ledge-forming limestone beds that are
separated by slopes of gypsiferous siltsone of the Moenkopi Formation
are exposed under Quarterary basalt flows (Billingsley 1994, p. 2).
Erosional unconformities separate the Kaibab and Moenkopi Formations in
this area (Billingsley et al. 2002, p. 3). In House Rock Valley, the
Kaibab Formation forms most of the bedrock surface and rims along
Marble Canyon. In some places, the Kaibab Formation is covered by
siltstone and sandstone of the Moenkopi Formation (Billingsley and
Priest 2010, p. 5).
Exposed limestone surfaces include mesas, plateaus, fan terraces,
flat to gentle sloping hills, along canyon rims, and washes, which
provide habitat to support the cactus. Individuals are found on the
western, southwestern, and southern-facing exposures with slopes less
than 20 percent (Arizona Rare Plant Committee 2001; AGFD 2011a, p. 2),
although most plants are

[[Page 55279]]

observed on slopes less than 10 percent. The surface material is
derived from the erosion of limestone and sandstone in the form of
alluvium, colluvium, or eolian deposits.
Based on the above information, we identify mesas, plateaus,
terraces, flat to gently sloping hills less than 20 percent slope;
margins of canyon rims and desert washes that are overlain with
alluvium, colluvium, or eolian deposits, or eolian sand over alluvium;
alluvium derived predominantly from limestone of the Harrisburg Member
of the Kaibab Formation; and limestone, siltstone, and sandstone of the
Toroweap and Moenkopi Formations as a physical or biological feature
essential to the conservation of the Fickeisen plains cactus.
Appropriate Soil Structure and Vegetation Community That Support
Individual Fickeisen Plains Cactus Plants
The presence of unique soil structure and chemistry may determine
where a rare plant species exits. The Fickeisen plains cactus is found
on gravelly limestone soils underlain by alluvium. There are several
soil series associations that support the Fickeisen plains cactus
(Table 2). These share common properties or characteristics of soil
that is well-drained, nonsaline to slightly saline with a soil pH from
7.9 to 8.4 (NatureServe 2011; Natural Resources Conservation Service
(NRCS) 2012), and shallow (15 to 51 cm (6 to 20 in) to bedrock),
although some are moderately deep to very deep (more than 203 cm (80
in) to bedrock). Most Fickeisen plains cacti are found in shallow
soils. Fewer plants are found on deeper soils, but these plants may not
persist long-term from being water logged after rainstorms or subjected
to debris flows. The texture of the surface layer includes gravelly
loam, fine sandy loam, gravelly sandy loam, clay loam, cobbly loam, and
stony loam (NRCS 2012). The fine-textured and very loose soil texture
may enable the plant to be completely buried once retracted (Navajo
National Heritage Program (NNHP) 1994, p. 3), thereby protecting the
apex from exposure to low temperatures during the winter season. The
habitat is also stable with little soil movement following runoff
events.

Table 2--Soil Class Associated With the Fickeisen Plains Cactus Habitat
------------------------------------------------------------------------
Soil series classification Percent slope
------------------------------------------------------------------------
Dutchman-McCullan complex............................. 1-10
Kinan gravelly loam................................... 1-15
Kinan-Pennell complex................................. 4-15
Mellenthin very gravelly loam......................... 1-25
Mellenthin-Progresso complex.......................... 1-7
Mellenthin-Rock outcrop-Torriorthents complex......... 10-70
Mellenthin-Tanbark complex............................ 5-50
Moenkopie-Goblin complex.............................. 5-50
Monierco clay loam.................................... 2-15
Monue-Seeg complex.................................... 1-6
Pennell cobbly loam................................... 3-10
Pennell gravelly sandy loam........................... 20-45
Saido-Brinkerhoff complex............................. 1-5
Strych very gravelly loam............................. 2-10
Twist sandy loam...................................... 2-10
Winona gravelly loam.................................. 0-8
Winona stony loam..................................... 0-8
Winona-Boysag gravelly loams.......................... 0-8
Winona-Rock outcrop complex........................... 15-30 and
30-70
------------------------------------------------------------------------

The Fickeisen plains cactus is primarily found in sparsely
vegetated areas in full sun. However, habitat in Mohave County,
Arizona, supports dense patches of grasses and desert shrubs. Adult
Fickeisen plains cacti that are growing underneath a shrub canopy or in
partially shaded clumps of grama grass have been observed to be larger
and fuller than those growing in fully open areas (Robertson 2011, p.
1). Similar observations have been reported on the Navajo Nation (NNHP
1994, p. 4). Some amount of canopy cover may create suitable
microhabitat conditions that enhance Fickeisen plains cactus' survival
by providing protection from the sun and wind, and by decreasing the
rate of evapotranspiration (Milne 1987, p. 34).
Microbiologic soil crusts are present across areas of the Colorado
Plateau and occur near the Fickeisen plains cactus (United States
Forest Service (USFS) 1999, entire; BLM 2007a, pp. 3-15). Biological
soil crusts are formed by a community of living organisms that can
include cyanobacteria, green algae, microfungi, mosses, liverworts, and
lichens (Belnap 2006, pp. 361-362). These crusts provide many positive
benefits to the larger vegetation community by providing fixed carbon
and nitrogen on sparsely vegetated soils, soil stabilization and
erosion control, water infiltration, improved plant growth, and
seedling germination (Rychert et al. 1978, entire; NRCS 1997, pp. 8-10;
Floyd et al. 2003, p. 1704; Belnap 2006, entire). Although there is no
information indicating a relationship between the Fickeisen plains
cactus and benefits derived from the soil crust, their presence
supports native desert vegetation that also supports the Fickeisen
plains cactus habitat.
The specific physiological and soil nutritional needs of the
Fickeisen plains cactus are not known at this time. Locations
containing apparently suitable habitat on the Arizona Strip have been
searched between the years of 1986 and 2010, and no additional
individuals or populations have been found to date. The factors
limiting the taxon's distribution are unknown, but could be related to
microsite differences (such as nutrient availability, soil microflora,
soil texture, or moisture). Although we do not have information to
fully explain what components the plant prefers, a preliminary soil
study on the Kaibab National Forest suggested that sites having higher
density of plants occur in gravelly soils and these have higher levels
of micro and macro nutrients compared to sandier soils where fewer
plants are found. The higher amounts of potassium, nitrate,

[[Page 55280]]

sodium, zinc, copper, and soluble phosphate in the gravelly soil may be
a result of weathering over time (MacDonald (USFS) 2013, pers. comm.).
While further investigation is warranted at other populations, it may
help distinguish the quality of habitat for the taxon across its range.
Based on the above information, we identify soils from the
appropriate soil series that are well-drained, shallow to moderately
deep, stable, and consist of gravelly loam, fine sandy loam, gravelly
sandy loam, clay loam, and cobbly loam with limestone and chert gravel
as a physical or biological feature essential to the conservation of
the Fickeisen plains cactus.
Habitat for Individual and Population Growth, Including Sites for
Germination, Pollination, Reproduction, Pollen and Seed Dispersal, and
Seed Banks
The Fickeisen plains cactus habitat is found within the Great Basin
Desert and is associated with the Plains and Great Basin grasslands and
Great Basin desertscrub (Benson 1982, p. 764; NatureServe 2011).
Dominant native plant species that are commonly associated with these
biotic communities include: Artemisia tridentata (sagebrush), Atriplex
canescens (four-wing saltbush), Atriplex confertifolia (shadscale),
Bouteloua eriopoda (black grama), Bouteloua gracilis (blue grama),
Bromus spp. (brome), Chrysothamnus spp. (rabbit-bush), Ephedra
torreyana (Mormon tea), Kraschenninikovia lanata (winterfat),
Gutierrezia sarothrae (broom snakeweed), Pleuraphis jamesii (James's
galleta), Achnatherum hymenoides (Indian ricegrass), Sphaeralcea spp.
(globe-mallow), and Stipa spp. (needlegrass). Other native species that
are commonly found include Agave utahensis (century plants),
Echinocactus polycephalus spp. and Escobaria vivipara var. rosea
(foxtail cactus) (Brown 1994, pp. 115-121; Turner 1994, pp. 145-155;
Hughes 1996b, p. 2; Goodwin 2011a, p. 4; NatureServe 2011).
These grasslands also support native annuals and perennial
flowering plants that support a diversity of native bees and insect
pollinators, which are essential for Fickeisen plains cactus
reproduction. Reproduction for plant species within the genera of
Pediocactus occurs by cross-pollination (Pimienta-Barrios and del
Castillo 2002, p. 79). Pollinators observed visiting flowers of the
Fickeisen plains cactus include hover flies (family Syrphidae), bee
flies (family Bombyliidae), mining bees (family Andrenidae), and sweat
bees (family Halictidae) (Milne 1987, p. 21; NNHP 1994, p. 3). Although
flies may pollinate flowers of the Fickeisen plains cactus when they
eat pollen or nectar, the primary pollinators for the Fickeisen plains
cactus are believed to be halictid bees from the genera Lasioglossum,
Halictus, and Agapostemon, based on several studied species of
Pediocactus (Tepedino 2012, pers. comm.).
Since pollination is essential to the conservation of the Fickeisen
plains cactus, we evaluated alternatives for determining the effective
pollinator distance for the taxon. Foraging distances vary by species
and body size (Greenleaf et al. 2007, p. 592), but the typical flight
distances of halictid bees in the genera Lasioglossum are 10 to 410 m
(33 to 1,345 ft). The foraging distance for the largest bodied bee in
the genera Agapostemon (sweat bees in the Family Halictidae) is
approximately 1,000 m (3,280 ft) (Tepedino 2012, pers. comm.). We
believe 1,000 m (3,280 ft) represents a reasonable estimate of the area
needed around the Fickeisen plains cactus population to provide
sufficient habitat for the pollinator community. As noted above, many
other insects likely contribute to the pollination of this species, and
some may travel greater distances than others. However, these
pollinators may also forage, nest, overwinter, or reproduce within
1,000 m (3,280 ft) of Fickeisen plains cactus. As a result, we
considered the Fickeisen plains cactus pollinator area to be 1,000 m
(3,280 ft) around individual plants, based on the rationale that
pollinators using habitat farther away may not be as likely to
contribute to the conservation and recovery of this species.
The Fickeisen plains cactus relies solely on the production of seed
for reproduction (Pimienta-Barrios and del Castillo 2002, p. 79).
Optimal seed set occurs through visitation and pollination by native
bees and other insect pollinators. Seed production in the Fickeisen
plains cactus is considered to be low (Hughes 2011, pers. comm.), and
most species of Pediocactus have poor seed dispersal mechanisms (Benson
1982, p. 750). We do not know the soil moisture, nutrient, or
temperature requirements for Fickeisen plains cactus germination.
Seedlings are often observed near the parent plant (Goodwin 2011a, p.
9) and do better when shade is provided by a parent or nurse rock
(Nobel 1984, p. 316; Milne 1987, p. 34).
Maintaining genetic diversity is essential for persistence of the
Fickeisen plains cactus because of its endemism, small population size,
and disjunct populations (Tepedino et al. 1996, p. 245). In general,
maintaining adequate populations of the Fickeisen plains cactus'
primary pollinators, which likely depends on the presence and diversity
of other native plant species in sufficient numbers within, near, and
between populations, is essential to facilitate gene flow (NatureServe
2011). Moreover, maintaining areas with a high diversity of native
plant species is necessary to sustain populations of native pollinators
(Peach et al. 1993, p. 314). Low numbers of abundant flowers offering
little reward can lead to low rates of plants visited by pollinators
(Wilcox and Neiland 2002, pp. 272-273). As the Fickeisen plains cactus
does not reproduce vegetatively, pollination is highly linked to their
survival. A lack of pollinators would gradually decrease the number of
seeds in the seed bank and the conservation potential for the Fickeisen
plains cactus (Wilcock and Neiland 2002, p. 276).
Therefore, based on the best available information above, we
identify a pollination area with a radius of 1,000 m (3,280 ft) around
each Fickeisen plains cactus that includes native vegetation of the
Great Basin desertscrub and Plains and Great Basin grasslands, and
habitat for pollinators as a physical or biological feature essential
to the conservation of the Fickeisen plains cactus.
Habitats That Are Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distribution of the Species
The Fickeisen plains cactus has a restricted geographical
distribution. Endemic species whose populations exhibit a high degree
of isolation are extremely susceptible to extinction from random and
non-random, catastrophic, natural or human-caused events. Therefore,
the conservation of the Fickeisen plains cactus is dependent on several
factors, including, but not limited to: (1) Maintenance of areas of
sufficient size and configuration to sustain natural ecosystem
components, functions, and processes (such as sun exposure, native
shrubs or grasses that provide microhabitats for seedlings, natural
fire and hydrologic regimes, preservation of biological soil crusts
that support the surrounding vegetation community, and adequate biotic
balance to prevent excessive herbivory); (2) protection of the existing
substrate continuity and structure; (3) connectivity among clusters of
plants within geographic proximity to facilitate gene flow among these
sites through pollination activity and seed dispersal; and (4)
sufficient adjacent suitable habitat for reproduction and population
expansion.

[[Page 55281]]

A natural, generally intact surface and subsurface that is free of
inappropriate disturbance associated with land use activities (such as
trampling and soil compaction from livestock grazing) and associated
physical processes such as the hydrologic regime are necessary to
provide water, minerals, and other physiological needs for the
Fickeisen plains cactus. A natural intact surface and subsurface
includes the preservation of soil qualities (texture, slope, rooting
depth) to enable the seasonal ability of plants to retract below the
subsurface to enter dormancy, but emerge when conditions are favorable.
A natural hydrologic regime includes the seasonal retention of soil
moisture followed by the drying out of the substrate to promote growth
of plants for the following season. These processes enable populations
to develop and maintain seed banks, and to provide for successful
seedling survival, adult growth, and expansion of populations. The
Fickeisen plains cactus must sustain and expand in number if ecological
representation of this species is to be ensured. Therefore, based on
the information above, we identify natural, generally intact surface
and subsurface that preserves the physical processes, such as soil
quality and the natural hydrology of a natural vegetation community, to
be physical or biological features for this species.

Primary Constituent Elements for the Fickeisen Plains Cactus

Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to the Fickeisen plains cactus are:
1. Soils derived from limestone that are found on mesas, plateaus,
terraces, the toe of gently sloping hills with up to 20 percent slope,
margins of canyon rims, and desert washes. These soils have the
following features:
a. They occur on the Colorado Plateau in Coconino and Mohave
Counties of northern Arizona and are within the appropriate series
found in occupied areas;
b. They are derived from alluvium, colluvium, or eolian deposits of
limestone from the Harrisburg Member of the Kaibab Formation and
limestone, siltstone, and sandstone of the Toroweap and Moenkopi
Formations;
c. They are nonsaline to slightly saline, gravelly, shallow to
moderately deep, and well-drained with little signs of soil movement.
Soil texture consists of gravelly loam, fine sandy loam, gravelly sandy
loam, very gravelly sandy loam, clay loam, and cobbly loam.
2. Native vegetation within the Plains and Great Basin grassland
and Great Basin desertscrub vegetation communities from 1,310 to 1,813
m (4,200 to 5,950 ft) in elevation that has a natural, generally intact
surface and subsurface that preserves the bedrock substrate and are
supportive of microbiotic soil crusts where they are naturally found.
3. Native vegetation that provides for habitat of identified
pollinators within the effective pollinator distance of 1,000 m (3,280
ft) around each individual Fickeisen plains cactus.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. All areas designated as critical habitat as described below
may require some level of management to address the current and future
threats to the physical or biological features essential to the
conservation of the Fickeisen plains cactus. In all of the described
units, special management may be required to ensure that the primary
constituent elements for the cactus are conserved and the habitat
provides for the biological needs of the cactus. Some of the management
activities that could ameliorate these threats include, but are not
limited to, those discussed below.
(1) Practice livestock grazing in a manner that maintains,
improves, and expands the quantity and quality of desertscrub and
grassland habitat. Special management considerations or protection may
include the following: Manage livestock grazing sustainably with the
natural landscape by determining appropriate areas, seasons, and use
consistent within the carrying capacity of rangeland in response to
current and future drought and warming trends; improve monitoring and
documentation of grazing practices; manage cattle and feral hoofed
mammals (ungulates) (e.g., horses, burros) to reduce the risk of plants
trampled and soil compaction; and manage for other small mammal species
to restore desired processes to increase habitat quality and quantity.
(2) Manage for nonnative, invasive species, such as Bromus tectorum
(cheatgrass), Bromus rubens (red brome), or Erodium cicutarium (redstem
filaree), by minimizing conditions that may promote or encourage
encroachment or establishment of nonnative, invasive species and
restore or reestablish conditions that allow native plants to thrive.
Within the range of the Fickeisen plains cactus, the establishment and
success of nonnative, invasive species has been a result of historic
land use and management practices such as logging, grazing, wildfire
suppression actions, mining, and ORV use. Actions have been taken by
land management agencies to reduce the spread of invasive species and
reduce the risk of wildfire they pose from creating fine fuel loads.
Nonnative, invasive species occur near Fickeisen plains cactus habitat
and may pose a threat through competition for resources or increase the
risk of fire. Special management considerations or protection may
include the following: Prevent or restrict establishment of nonnative,
invasive species; minimize ground-disturbing activities that may
facilitate their spread; implement post-disturbance restoration
activities such as native plant propagation; practice active removal of
nonnative, invasive plant species and targeted herbicide application
(provided herbicides can be shown not to negatively impact the
Fickeisen plains cactus or the native pollinators); and improve
monitoring and documentation on a site-by-site basis where nonnative,
invasive species are present in occupied habitat to assess any effect
(beneficial or negative) they pose of the cactus.
(3) Protect bedrock surfaces and associated limestone soils that
provide suitable habitat from mineral development and associated
infrastructure (new roads). Numerous breccia pipes (vertical, pipe-
shaped bodies of highly fractured rock that collapsed into voids
created by dissolution of underlying rock) are located across the
Colorado Plateau and are expressed as circular collapse structures,
minor folds, and other surface irregularities associated with the
Kaibab and Toroweap Formations. Exploration and development of uranium
has peaked and waned in accordance with market values. Areas of
interest and oil and gas leasing/exploration overlap Fickeisen plains
cactus habitat. These activities could result in direct habitat loss or
alteration by removing or degrading limestone soils to such an extent
that the soils would no longer support the growth of the Fickeisen
plains cactus. Special management considerations or protection may
include the following: Protect lands that support suitable habitat and
site future development

[[Page 55282]]

such that the destruction or removal of limestone from the Kaibab,
Toroweap, and Moenkopi formations is minimized and depositional areas
are preserved.
(4) Manage or protect native desertscrub and plains grassland
vegetation communities from recreational impacts. Special management
considerations or protections may include the following: Managing
trails, campsites, and ORVs; and reduce the likelihood of wildfires
affecting the population and nearby plant community.
These management activities will protect the physical or biological
features essential to the conservation of the Fickeisen plains cactus
by reducing the direct and indirect effects of habitat loss,
alteration, or fragmentation; preserving the bedrock surfaces and
associated limestone soils that form the basis of its habitat; and
maintaining the native vegetation communities and its pollinators.
In summary, the primary constituent elements of the Fickeisen
plains cactus habitat may be impacted by livestock grazing; nonnative,
invasive species; mineral development and associated transportation
infrastructure; and recreation. We find that these activities may not
be direct threats to the species as a whole, but may negatively impact
the primary constituent elements. The areas designated as critical
habitat within the geographical area occupied by the taxon at the time
of listing contain the physical or biological features essential to the
conservation of the Fickeisen plains cactus. Special management
considerations or protection may be required to eliminate, or reduce to
a negligible level, the threats affecting each unit or subunit and to
preserve and maintain the essential features that the critical habitat
units and subunits provide to the cactus.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--are necessary to ensure the conservation of the species. We
have determined that all areas we are designating as critical habitat
are within the geographical area occupied by the species at the time of
listing (see the ``Abundance and Trends'' section in the final listing
rule (78 FR 60608, October 1, 2013) for more information).
Based on the best available information, we conclude that the six
critical habitat units are occupied by the Fickeisen plains cactus. We
acknowledge that several of the populations have not been visited for
more than 18 years, but we have determined they should be considered
occupied at the time of listing. We are making this conclusion because
the unvisited populations are within close proximity to other occupied
areas within suitable habitat that includes monitored sites; they occur
in areas with the same geology, elevation, and vegetation community as
nearby known occupied sites; the environmental conditions at these
sites have not been severe enough to result in loss of habitat, thereby
causing possible extirpation of cactus from these areas or impeded
establishment; information is insufficient to suggest that populations
no longer are viable (lack of observations does not mean those
populations have been extirpated); and the cactus has a lifespan of 10
to 15 years. The best available science indicates that there were once
small populations of the cactus at these sites, and there is no
evidence known to indicate otherwise. Please refer to the proposed
listing and critical habitat rule (77 FR 60509, October 3, 2012) for
more information on our rationale for including them within the final
designation of critical habitat.
We considered areas outside the geographical area occupied by the
Fickeisen plains cactus at the time of listing, but we are not
designating any areas outside the geographical area occupied by the
Fickeisen plains cactus. In our review, the Fickeisen plains cactus
occurs across a broad range with different topography, large
elevational gradients, and vegetation communities (AGFD 2011b, entire).
Due to the vastness and diversity of the range, there are areas within
its geographical range that provides for in-situ (on-site) conservation
if needed in the future. Therefore, we determined that a subset of
occupied lands within the species' current range is adequate to ensure
the conservation of the Fickeisen plains cactus.
We reviewed available information and supporting data that pertains
to the habitat requirements of the Fickeisen plains cactus. This
information included research published in peer-reviewed articles, soil
surveys, agency reports, special land assessments, and data collected
from long-term monitoring plots, interviews with experts, and regional
climate data and GIS coverage. Sources of information include, but are
not limited to: AGFD 2011b, AZGS 2011, Billingsley et al. 2002,
Billingsley and Dyer 2003, Billingsley et al. 2006, Billingsley et al.
2007, Billingsley and Priest 2010, BLM 2007a, Calico 2012, Goodwin
2011a, Hazelton 2012a, Milne 1987, NNHP 2011a, NRCS 2012, Phillips et
al. 1982, Travis 1987, and Western Regional Climate Center 2012. Based
on this information, we developed a strategy for determining which
areas meet the definition of critical habitat for the Fickeisen plains
cactus.
In identifying critical habitat units for the Fickeisen plains
cactus, we proceeded through a multi-step process. We obtained all
records for the distribution of the Fickeisen plains cactus from AGFD,
as well as both published and unpublished documentation from our files.
Recent survey results confirm that current plant distribution is
similar to documented distribution records with the exception that
additional populations have been found following survey efforts.
Our approach to delineating critical habitat units was applied in
the following manner:
(1) We overlaid locations of the Fickeisen plains cactus into a GIS
database. This provided us with the ability to examine slope,
elevation, geologic type, vegetation community, and topographic
features. These data points verified and slightly expanded the
previously recorded elevation ranges for the Fickeisen plains cactus.
(2) In addition to the GIS layers listed above, we then included a
1,000-m (3,280-ft) pollination area around known individual Fickeisen
plains cacti to encompass native vegetation surrounding individual
Fickeisen plains cacti, as described in Primary Constituent Elements
for the Fickeisen Plains Cactus, above.
(3) We then drew critical habitat boundaries that captured the
locations elucidated under (1) and (2) above. Critical habitat
designations were then mapped using Albers Equal Area (Albers) North
American Datum 83 (NAD 83) coordinates.
Occupied Area at the Time of Listing
Areas where plants are or have been documented within the species'
described range were considered to be occupied at the time of listing.
The known range of the Fickeisen plains cactus is in Arizona from
Mainstreet Valley and Hurricane Valley in Mohave County to House Rock
Valley in Coconino County on the Arizona Strip; along the canyon rims
of the Colorado

[[Page 55283]]

River and Little Colorado River to the area of Gray Mountain; and along
the rims of Cataract Canyon on the Coconino Plateau.
Occupied occurrences or clusters of the Fickeisen plains cactus
that were located in proximity to one another, but distributed within a
large area, were grouped into one unit (e.g., Hurricane Cliffs and
House Rock Valley). Areas where individual plants are distributed over
a large distance (e.g., Cataract Ranch) were also categorized into one
unit. All of the units contained all of the identified elements of
physical or biological features and support multiple life-history
processes.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-2013-0025, on our Internet
sites https://www.fws.gov/southwest/es/arizona/, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT
above).

Critical Habitat Designation for the Fickeisen Plains Cactus

We are designating six units as critical habitat for the Fickeisen
plains cactus. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for the Fickeisen plains cactus. The six units we are
designating as critical habitat are: (1) Hurricane Cliffs; (2) Sunshine
Ridge; (3) Clayhole Valley; (4) South Canyon; (5) House Rock Valley;
and (6) Gray Mountain. All of the six critical habitat units were
occupied by the Fickeisen plains cactus at the time of listing. The
approximate area of each critical habitat unit is shown in Table 3.

Table 3--Designated Critical Habitat Units for the Fickeisen Plains Cactus
----------------------------------------------------------------------------------------------------------------
Federal State Private Total
Critical habitat unit -------------------------------------------------------------------------------
Ha Ac Ha Ac Ha Ac Ha Ac
----------------------------------------------------------------------------------------------------------------
1. Hurricane Cliffs:
1a. Dutchman Draw........... 1,525 3,769 0 0 2 5 1,527 3,774
1b. Salaratus Draw.......... 445 1,098 266 658 13 33 724 1,789
1c. Temple Trail............ 443 1,096 0 0 0 0 443 1,096
1d. Toquer Tank............. 350 865 0 0 0 0 350 865
2. Sunshine Ridge............... 612 1,512 142 351 0 0 754 1,863
3. Clayhole Valley.............. 338 836 76 188 0 0 414 1,024
4. South Canyon................. 110 272 0 0 0 0 110 272
5. House Rock Valley:
5a. Beanhole Well........... 745 1,841 126 312 0 0 871 2,153
5b. North Canyon Wash....... 472 1,166 0 0 0 0 472 1,166
5c. Marble Canyon........... 214 528 0 0 0 0 214 528
5d. South Canyon............ 336 831 0 0 0 0 336 831
6. Gray Mountain:
6a. Mays Wash............... 246 609 80 198 0 0 326 807
6b. Gray Mountain........... 0 0 7 17 514 1,271 521 1,288
-------------------------------------------------------------------------------
Total................... 5,836 14,423 697 1,724 529 1,309 7,062 17,456
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Fickeisen plains
cactus, below.
Unit 1: Hurricane Cliffs
The Hurricane Cliffs Unit is located on the Arizona Strip in the
north-central area of Mohave County, Arizona. The unit lies
predominantly on the Shivwits Plateau and is bounded to the west by
Mainstreet Valley and to the east by the Hurricane Cliffs. The unit
consists of four subunits totaling 3,044 ha (7,524 ac) and includes
small areas of private land, lands owned by the State of Arizona, and
federally owned land managed by the BLM. The entire unit occurs within
the area referred as the Arizona Strip that is managed by the BLM for
multiple land use purposes such as livestock grazing, fuels management,
energy, and recreation. The BLM manages grazing leases for large
allotments comprised of a mix of their lands as well as State lands.
Occupancy of the Hurricane Cliffs Unit by the Fickeisen plains cactus
has been documented since 1986 (BLM 1986, p. 1). The taxon was
considered generally rare, but in abundant numbers at Dutchman Draw
with a few scattered individuals located in small clusters adjacent to
Dutchman Draw populations. These smaller clusters include the Navajo,
Ward, Salaratus Draw I, Salaratus Draw II, Temple Trail, and Toquer
Tank populations. This entire unit helps to maintain the geographical
range of the species and provide opportunity for population growth.
This unit also provides a core population of the species.
Subunit 1a: Dutchman Draw--Subunit 1a consists of 1,527 ha (3,774
ac) of land near Dutchman Draw in Mainstreet Valley. The subunit occurs
within the Shivwits Plateau and along an exposed fault. Lands within
this subunit were occupied at the time of listing. A monitoring plot
was established at this site in 1986. The BLM has visited the plot
regularly since then. Monitoring information has shown fluctuations in
plant numbers between years, but among all years, there is an overall
decline in plant numbers from a peak of 219 individuals in 1992 to 5
individuals in 2012. This subunit also includes the Navajo and Ward
cluster plots that were established to note presence or absence of the
cactus. These small plots were last visited in 2001, and 10 plants were
found at each of the plots.
This subunit contains all of the primary constituent elements of
the physical or biological features essential to the conservation of
the Fickeisen plains cactus. Occupied habitat areas in this subunit
occur predominantly within the Plains and Great Basin

[[Page 55284]]

grassland with a small portion in the Great Basin desertscrub
vegetation communities. Plants occur amongst tall, dense clumps of
grama grass with some desert shrubs. The subunit is located at the foot
of a gently sloping hill in fine alluvium deposits. Most of the bedrock
surface is limestone, siltstone, and gypsum of the Kaibab Formation.
Subunit 1b: Salaratus Draw--Subunit 1b consists of 724 ha (1,789
ac) of land near Salaratus Draw. The subunit overlies an active fault
on the Shivwits Plateau. Lands within this subunit were occupied at the
time of listing and include Salaratus Draw I and Salaratus Draw II
populations. This site was visited only three times between 1986 and
2001. At most, 44 plants were located in this subunit when last visited
in 1994. This subunit contains all of the primary constituent elements
of the physical or biological features essential to the conservation of
the Fickeisen plains cactus.
Subunit 1c: Temple Trail--Subunit 1c consists of 443 ha (1,096 ac)
of land in Lower Hurricane Valley. This subunit lies on the Hurricane
Cliffs. It is bounded by the Shivwits Plateau to the west and the
Uinkaret Plateau to the east, separated by an active fault that runs
north along the Hurricane Cliffs. Lands within this subunit were
occupied at the time of listing. This site was last visited in 2001
when seven individuals were found. This subunit contains all of the
primary constituent elements of the physical or biological features
essential to the conservation of the Fickeisen plains cactus.
Subunit 1d: Toquer Tank--Subunit 1d consists of 350 ha (865 ac) of
land in Lower Hurricane Valley. Lands within this subunit were occupied
at the time of listing. This site was regularly monitored from 1986 to
1991, when abundance counts ranged from 7 to 13 plants. This site was
last visited in 1994, and seven individuals were found. This subunit
contains all of the primary constituent elements of the physical or
biological features essential to the conservation of the Fickeisen
plains cactus.
The features essential to the conservation of the species within
this unit are threatened by livestock grazing; nonnative, invasive
species issues; small mammal predation on the cactus; and long-term
drought coupled with increased minimum winter temperatures. Special
management considerations or protection may be required to minimize
habitat disturbance to Fickeisen plains cactus individuals, soil, and
associated native vegetation; and to prevent or remove nonnative,
invasive species within its habitat.
Unit 2: Sunshine Ridge
The Sunshine Ridge Unit is located on the Arizona Strip and lies on
the Kanab Plateau in Mohave County, Arizona. The unit totals 754 ha
(1,863 ac). This unit contains land that is federally and State owned.
The entire unit is managed primarily by the BLM for multiple land use
purposes such as livestock grazing, fuels management, energy, and
recreation. Plants are located east of the Uinkaret Plateau and east of
the range of the Pediocactus sileri (Siler pincushion cactus).
Occupancy of the Sunshine Ridge Unit by the Fickeisen plains cactus has
been documented since 1977 (AGFD 2011b, entire). This population has
been regularly monitored since 1986, and has 34 plants as of 2011. Land
within this unit was occupied at the time of listing and contains all
of the primary constituent elements of the physical or biological
features essential to the conservation of the Fickeisen plains cactus.
This unit helps to maintain the geographical range of the species and
provide opportunity for population growth. This unit also provides a
core population of the species.
The features essential to the conservation of the species within
this unit are threatened by livestock grazing; nonnative, invasive
species issues; small mammal predation on the cactus; and long-term
drought coupled with increased minimum winter temperatures. Special
management considerations or protection may be required to minimize
habitat disturbance to Fickeisen plains cactus individuals, soil, and
associated native vegetation; and to prevent or remove nonnative,
invasive species within its habitat.
Unit 3: Clayhole Valley
The Clayhole Valley Unit is located in Upper Clayhole Valley on the
Arizona Strip and lies within the Uinkaret Plateau in Mohave County,
Arizona. The unit consists of 414 ha (1,024 ac) of land that is
federally and State owned. The entire unit is managed primarily by the
BLM for multiple land use purposes including livestock grazing.
Occupancy of the Clayhole Valley Unit by the Fickeisen plains cactus
has been documented since 1980 (AGFD 2011b, entire). The population has
been monitored annually since 1986. As of 2011, the population contains
42 plants. Land within this unit was occupied at the time of listing
and contains all of the primary constituent elements of the physical or
biological features essential to the conservation of the Fickeisen
plains cactus. This unit helps to maintain the geographical range of
the species and provide opportunity for population growth. This unit
also provides a core population of the species.
The features essential to the conservation of the species within
this unit are threatened by livestock grazing; nonnative, invasive
species issues; small mammal predation on the cactus; and long-term
drought coupled with increased minimum winter temperatures. Special
management considerations or protection may be required to minimize
habitat disturbance to Fickeisen plains cactus individuals, soil, and
associated native vegetation; and to prevent or remove nonnative,
invasive species within its habitat.
Unit 4: South Canyon
The South Canyon is located on the eastern boundary of the North
Kaibab Ranger District of the Kaibab National Forest in Coconino
County, Arizona. It is bounded by the Colorado River near Marble Canyon
at House Rock Valley. It includes land originally designated as the
Grand Canyon National Game Preserve that is now referred to as the
Buffalo Ranch Management Area. It contains 110 ha (272 ac) of federally
owned land that is administered by the Kaibab National Forest. This
unit contains at least 62 individual Fickeisen plains cactus scattered
among 6 areas along the rim of South Canyon Point. This unit contains
all of the primary constituent elements of the physical or biological
features essential to the conservation of the Fickeisen plains cactus.
This unit helps to maintain the geographical range of the species and
provide opportunity for population growth. This unit also provides a
core population of the species.
The primary land uses within this unit include big game hunting and
recreational activities throughout the year. The area is very remote
and may receive limited numbers of hikers, hunters, or campers. Under a
memorandum of understanding, the Kaibab National Forest and the AGFD
commit to managing the natural resources of this area, mainly big game
species, to ensure that sensitive resources are not impacted and
desired conditions are achieved (USFS 2012, p. 92). Livestock grazing
by cattle and mining activities are not authorized within the Buffalo
Ranch Management Area. Special management considerations or protection
may be required within the unit to minimize habitat disturbance to the
soil and

[[Page 55285]]

associated native vegetation, and prevent invasion of nonnative plants.
The features essential to the conservation of the species within
this unit are threatened by nonnative, invasive species issues and
long-term drought coupled with increased minimum winter temperatures.
Special management considerations or protection may be required to
minimize conditions that may promote or encourage encroachment and
establishment of nonnative, invasive species; and reduce the likelihood
of wildfires affecting the population and nearby plant community.
Unit 5: House Rock Valley
The House Rock Valley is located on the eastern edge of the Arizona
Strip near the North Rim of the Grand Canyon National Park in Coconino
County, Arizona. The unit consists of four subunits totaling 1,893 ha
(4,678 ac) of land. The unit consists of land that is federally and
State owned. The entire unit is managed primarily by the BLM, mainly
for livestock grazing. Lands within this unit were occupied at the time
of listing and contain all of the primary constituent elements of the
physical or biological features essential to the conservation of the
Fickeisen plains cactus. This entire unit helps to maintain the
geographical range of the species and provide opportunity for
population growth. This unit also provides a core population of the
species.
Occupancy of the Fickeisen plains cactus in the House Rock Valley
Unit was first documented in 1979 (Phillips 1979, entire; AGFD 2011b,
entire), at Beanhole Well, Marble Canyon, and South Canyon. These sites
have not been visited for more than 21 years. However, we have no
reason to believe these sites were not occupied at the time of listing
for reasons provided in the ``Distribution and Range'' section of the
final listing rule (78 FR 60608). Occupancy at the North Canyon Wash
site was documented in 1986, and it has been regularly monitored since.
The House Rock Valley Unit is bounded by the Colorado River to the
east, U.S. Highway 89A to the north, and the Kaibab National Forest to
the west.
Subunit 5a: Beanhole Well--Subunit 5a consists of 745 ha (1,841 ac)
of federally owned land that is managed by the BLM, and 126 ha (312 ac)
of State-owned land. Lands within this subunit were occupied at the
time of listing. Three plants were documented at Beanhole Well in 1979,
and the site has been visited by Hughes since then, and while occupied
habitat was observed, no plant numbers were reported to us (Calico
2012, pers. comm.). This subunit contains all of the primary
constituent elements of the physical or biological features essential
to the conservation of the Fickeisen plains cactus.
Subunit 5b: North Canyon Wash--Subunit 5b consists of 472 ha (1,166
ac) of federally owned land that is managed by the BLM. Lands within
this subunit were occupied at the time of listing. This site has been
regularly monitored since 1986. As of 2011, the site contains 39
Fickeisen plains cacti. This subunit contains all of the primary
constituent elements of the physical or biological features essential
to the conservation of the Fickeisen plains cactus.
Subunit 5c: Marble Canyon--Subunit 5c consists of 214 ha (528 ac)
of federally owned land that is managed by the BLM. Lands within this
subunit were occupied at the time of listing. Eight plants were
documented at Marble Canyon in 1979. This site has not been visited for
many years. This subunit contains all of the primary constituent
elements of the physical or biological features essential to the
conservation of the Fickeisen plains cactus.
Subunit 5d: South Canyon--Subunit 5d consists of 336 ha (831 ac) of
Federal land in House Rock Valley along the rim of Marble Canyon. Lands
within this subunit were occupied at the time of listing. A total of 52
plants have been documented at this site historically. This subunit
contains all of the primary constituent elements of the physical or
biological features essential to the conservation of the Fickeisen
plains cactus.
The features essential to the conservation of the species within
this unit are threatened by livestock grazing; nonnative, invasive
species issues; small mammal predation on the cactus; and long-term
drought coupled with increased minimum winter temperatures. Special
management considerations or protection may be required to minimize
habitat disturbance to Fickeisen plains cactus individuals, soil, and
associated native vegetation; and to prevent or remove nonnative,
invasive species within its habitat.
Unit 6: Gray Mountain
The Gray Mountain Unit is located in the vicinity of the town of
Gray Mountain, Arizona, on Highway 89 in Coconino County. The unit
consists of two subunits totaling 847 ha (2,095 ac). The unit includes
a checkerboard mix of private land, lands owned by the State, and
federally owned land managed by the BLM. Lands within this unit are
considered occupied at the time of listing. Occupancy at the Gray
Mountain unit was first documented in 1962, and consists of two very
small populations on both sides of Highway 89. Occupied sites were
visited in 2013, and a few plants in flower were observed. This unit
contains all of the primary constituent elements of the physical or
biological features essential to the conservation of the Fickeisen
plains cactus. This entire unit helps to maintain the geographical
range of the species and provide opportunity for population growth.
This unit also provides a core population of the species.
Subunit 6a: Mays Wash--Subunit 6a is located southeast of Highway
89 and consists of 326 ha (807 ac) of land. The subunit includes
private land, land owned by the State, and federally owned land managed
by the BLM. The entire subunit lies within a cattle ranch and is
managed privately for livestock grazing. Lands in this subunit are
considered occupied at the time of listing. Occupancy at this site was
documented in 1981 and 1984, when 31 plants were found (AGFD 2011b,
entire). A site visit to BLM land in 2013 located a few plants in
flower. This subunit contains all of the primary constituent elements
of the physical or biological features essential to the conservation of
the Fickeisen plains cactus.
Subunit 6b: Gray Mountain--Subunit 6b is located west of Highway 89
and borders the boundary of the Navajo Nation. This subunit consists of
521 ha (1,288 ac) of land that is owned by the State and privately
owned land. The entire subunit lies within a cattle ranch and is
managed privately for livestock grazing. Lands in this subunit are
considered occupied at the time of listing. Occupancy was documented in
2009 when three individuals were found (NNHP 2011a, p. 2). An
individual in bloom was observed in 2013. This subunit contains all of
the primary constituent elements of the physical or biological features
essential to the conservation of the Fickeisen plains cactus.
The features essential to the conservation of the species within
this unit are threatened by livestock grazing by horses and sheep;
nonnative, invasive species issues; mineral development and associated
infrastructure; and long-term drought coupled with increased minimum
winter temperatures. Special management considerations or protection
may be required to minimize disturbance or destruction to the bedrock
substrate and associated limestone soils; to prevent or remove
nonnative, invasive species within its

[[Page 55286]]

habitat; and protect the native vegetation communities.

Effects of Critical Habitat Designation for Acu[ntilde]a Cactus and
Fickeisen Plains Cactus

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final regulation with a new definition of
destruction or adverse modification on February 11, 2016 (81 FR 7214)
which becomes effective on March 14, 2016. Destruction or adverse
modification means a direct or indirect alteration that appreciably
diminishes the value of critical habitat for the conservation of a
listed species. Such alterations may include, but are not limited to,
those that alter the physical or biological features essential to the
conservation of a species or that preclude or significantly delay
development of such features.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that result in a direct or
indirect alteration that appreciably diminishes the value of critical
habitat for the conservation of the the acu[ntilde]a cactus or the
Fickeisen plains cactus. Such alterations may include, but are not
limited to, those that alter the physical or biological features
essential to the conservation of these species or that preclude or
significantly delay development of such features. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the acu[ntilde]a cactus or the Fickeisen plains
cactus. These activities include, but are not limited to, actions that
would adversely affect the composition and structure of soil within the
designated critical habitat for the acu[ntilde]a cactus or Fickeisen
plains cactus through land disturbances that result in soil compaction
or erosion, removal or degradation of native vegetation, or
fragmentation of the acu[ntilde]a cactus or Fickeisen plains cactus
populations or their pollinators.
Such activities within the designated critical habitat for the
acu[ntilde]a cactus could include, but are not limited to:
(1) Actions within or near designated critical habitat areas that
would result in the loss, disturbance, or compaction of soils. Such
activities could include, but are not limited to: livestock grazing;
U.S.-Mexican border activities; recreational or other ORV use; mining
operations; fire management, including clearing of vegetation for fuel
management; and road construction.
(2) Activities that would result in changes in the vegetation
composition, such as a reduction in nurse plants or an introduction or
proliferation of invasive, nonnative plant cover that may lead to
unnatural fires or competition for nutrients, water, or space,
resulting in decreased density or vigor of individual acu[ntilde]a
cactus.
(3) Actions within or near designated critical habitat that would
significantly

[[Page 55287]]

reduce pollination or seed set (reproduction). Such activities could
include, but are not limited to: Use of pesticides; herbicides; mowing;
fuels management projects such as prescribed burning; and post-wildfire
rehabilitation activities using plant species that may compete with the
acu[ntilde]a cactus.
(4) Actions within or near designated critical habitat areas that
would result in the significant alteration of intact, native, Sonoran
desertscrub vegetation communities within the range of the acu[ntilde]a
cactus. Such activities could include: ORV activities and dispersed
recreation; U.S.-Mexico border activities; new road construction or
widening or existing road maintenance; new energy transmission lines or
expansion of existing energy transmission lines; new border
infrastructure; maintenance of any existing energy transmission line
corridors or border infrastructure; fuels management projects such as
prescribed burning; and rehabilitation or restoration activities using
plant species that may compete with the acu[ntilde]a cactus.
These activities could result in the replacement or fragmentation
of Sonoran desertscrub vegetation communities through the degradation
or loss of native shrubs, grasses, and forbs in a manner that promotes
increased wildfire frequency and intensity, and an increase in the
cover of invasive, nonnative plant species that would compete for soil
matrix components and moisture necessary to support the growth and
reproduction of the acu[ntilde]a cactus.
For the Fickeisen plains cactus these activities could include, but
are not limited to:
(1) Actions within or near designated critical habitat areas that
would result in the loss, degradation, or compaction of soils along
canyon rims, mesa tops or ridge tops, terraces, or other areas of
suitable habitat (e.g., near the base of gently sloping hills). Such
activities could include, but are not limited to: Livestock grazing;
recreational or other ORV use; fire management, including clearing of
vegetation for fuel management; and road construction.
(2) Actions that would result in the loss of limestone substrate or
limestone-derived soils. Such activities could include, but are not
limited to mineral development; development for infrastructure (roads);
or changes in land-use practices such as conversion of native
grasslands or desertscrub communities to residential or commercial
development.
(3) Activities that would result in changes in soil composition
leading to changes in the vegetation composition, such as an
introduction or proliferation of invasive, nonnative plant cover that
may lead to competition for nutrients, water, or space, resulting in
decreased density or vigor of individual Fickeisen plains cactus.
(4) Actions within or near designated critical habitat that would
significantly reduce pollination or seed set (reproduction). Such
activities could include, but are not limited to: use of pesticides;
herbicides; mowing; fuels management projects such as prescribed
burning; and post-wildfire rehabilitation activities using plant
species that may compete with the Fickeisen plains cactus.
(5) Actions within or near designated critical habitat areas that
would result in the significant alteration of intact, native,
desertscrub and grassland habitat within the range of the Fickeisen
plains cactus. Such activities could include: ORV activities and
dispersed recreation; new road construction or widening or existing
road maintenance; new energy transmission lines or expansion of
existing energy transmission lines; maintenance of any existing energy
transmission line corridors; fuels management projects such as
prescribed burning; and rehabilitation or restoration activities using
plant species that may compete with the Fickeisen plains cactus.
These activities could result in the replacement or fragmentation
of desertscrub and grassland habitat through the degradation or loss of
native shrubs, grasses, and forbs in a manner that promotes increased
wildfire frequency and intensity, and an increase in the cover of
invasive, nonnative plant species that would compete for soil matrix
components and moisture necessary to support the growth and
reproduction of the Fickeisen plains cactus.

Exemptions

Application of Section 4(a)(3) of the Act

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an Integrated Natural Resources Management Plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for the acu[ntilde]a cactus to determine
if they meet the criteria for exemption from critical habitat under
section 4(a)(3) of the Act. The following areas are Department of
Defense lands with completed, Service-approved INRMPs within the
proposed revised critical habitat designation.
Approved INRMP for the Acu[ntilde]a Cactus
Barry M. Goldwater Gunnery Range--Arizona
The BMGR has an approved INRMP and is committed to working closely
with the Service to continually refine the existing INRMP as part of
the Sikes Act's INRMP review process. Based on our review of the INRMP
for this military installation, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the portion of the
acu[ntilde]a cactus habitat within this installation, identified as
meeting the definition of critical habitat, is subject to the INRMP,
and that conservation efforts identified in this INRMP will

[[Page 55288]]

provide a benefit to the acu[ntilde]a cactus. Therefore, lands within
this installation are exempt from critical habitat designation under
section 4(a)(3)(B)(i) of the Act. We are not including 378 ha (935 ac)
of habitat on BMGR in the critical habitat designation because of this
exemption.
The BMGR completed a revision to the INRMP in relation to ongoing
and planned conservation efforts for the acu[ntilde]a cactus and
provided this revision to us during the public comment period. The
benefits for acu[ntilde]a cactus from this revised INRMP include:
avoiding disturbance of vegetation and pollinators within 900 m (2,953
ft) of known acu[ntilde]a cactus plants; developing and implementing
procedures to control trespass livestock; monitoring illegal
immigration, contraband trafficking, and border-related enforcement;
and continuing to monitor and control invasive plant species to
maintain quality habitat and prevent unnatural fire. Further, BMGR's
environmental staff reviews projects and enforces existing regulations
and orders that, through their implementation, projects avoid and
minimize impacts to natural resources, including acu[ntilde]a cacti and
their habitat. In addition, BMGR's INRMP provides protection to
acu[ntilde]a cactus habitat by prohibiting both mining and agriculture
on their lands. The BMGR INRMP specifies periodic monitoring of the
distribution and abundance of acu[ntilde]a cacti populations on the
range.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
for the acu[ntilde]a cactus identified in the BMGR's INRMP provide a
benefit to the acu[ntilde]a cactus and its habitat. Therefore, lands
subject to the INRMP for BMGR, which includes the lands leased from the
Department of Defense by other parties, are exempt from critical
habitat designation under section 4(a)(3) of the Act, and we are not
including approximately 378 ha (935 ac) of habitat in this critical
habitat designation.
Consideration of Impacts Under section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction of adverse modification as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
In the case of both cactus species, the benefits of critical
habitat include public awareness of the two cactus species' presence
and the importance of habitat protection. Where a Federal nexus exists,
the designations of critical habitat may also increase habitat
protection for the two cactus species due to the protection from
adverse modification or destruction of critical habitat.
In practice, a Federal nexus exists primarily on Federal lands or
for projects undertaken by Federal agencies or permits issued by
Federal agencies. Because the Service finalized the listing rules for
these species on October 1, 2013, we have not been regularly consulting
with Federal agencies on their effects to the cacti for projects on
Federal lands, or for projects on privately owned lands that had a
Federal nexus to trigger consultation under section 7 of the Act. We
found one project that considered effects to the acu[ntilde]a cactus
and eight projects that considered effects to the Fickeisen plains
cactus over the past 20 years. In these cases, the Federal action
agency requested our technical assistance in developing conservation
recommendations aimed at minimizing or reducing effects to the species
in order to preclude the need for listing and in furtherance of their
authorities under section 7(a)(1) of the Act.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, we consider a variety of
factors, including but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical or
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we considered whether
certain lands in the proposed acu[ntilde]a cactus critical habitat Unit
3 and proposed Fickeisen plains cactus critical habitat Units 6, 7, 8,
and 9 were appropriate for exclusion from this final designation
pursuant to section 4(b)(2) of the Act. In particular, we considered
whether the following were appropriate for exclusion: 156 ha (385 ac)
of Tohono O'odham Nation land in Unit 3 of acu[ntilde]a cactus proposed
critical habitat; 3,865 ha (9,554 ac) of Navajo Nation land in proposed
Fickeisen plains cactus critical habitat Units 6, 7, and 8 (Subunit
8b); and 8,139 ha (20,113 ac) of Babbitt Ranch, LLC, lands in proposed
Fickeisen plains cactus critical habitat Units 8 (Subunit 8a) and Unit
9, respectively, of the Fickeisen plains cactus proposed critical
habitat. Table 4 below provides approximate areas (ac, ha) of lands
that meet the definition of critical habitat but are being excluded
under section 4(b)(2) of the Act from the final critical habitat rule.
In the sections that follow, we present our discretionary exclusion
analysis under section 4(b)(2) of the Act for those areas listed in
Table 4.

[[Page 55289]]

Table 4--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of Areas excluded
Proposed critical habitat unit Specific area critical habitat, from critical
in hectares habitat, in
(acres) hectares (acres)
----------------------------------------------------------------------------------------------------------------
Acu[ntilde]a Cactus
----------------------------------------------------------------------------------------------------------------
3--Sauceda Mountains Unit................. Sauceda Mountains........... 1,637 (4,044) 156 (385)
----------------------------------------------------------------------------------------------------------------
Proposed critical habitat unit Specific area Areas proposed as Areas excluded
critical habitat, from critical
in hectares habitat, in
(acres) hectares (acres)
----------------------------------------------------------------------------------------------------------------
Fickeisen Plains Cactus
----------------------------------------------------------------------------------------------------------------
6--Tiger Wash Unit........................ Tiger Wash 1 Subunit........ 380 (940) 380 (940)
Tiger Wash 2 Subunit........ 1,497 (3,700) 1,497 (3,700)
Shinumo Wash Subunit........ 380 (940) 380 (940)
7--Little Colorado River Overlook Unit.... Little Colorado River 1,170 (2,891) 1,170 (2,891)
Overlook.
8--Gray Mountain Unit..................... Mays Wash Subunit........... 697 (1,724) 371 (917)
Gray Mountain Subunit....... 960 (2,371) 438 (1,083)
9--Cataract Canyon Unit................... Cataract Canyon............. 7, 768 (19,196) 7,768 (19,196)
----------------------------------------------------------------------------------------------------------------

Consideration of Economic Impacts

Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a DEA of the proposed critical
habitat designation (which included areas we were considering for
exclusion) and related factors (Industrial Economics 2012, entire). The
draft analysis, dated February 22, 2013, was made available for public
review from March 28, 2013, through April 29, 2013 (78 FR 18938).
Following the close of the comment period, a final economic analysis
(FEA, dated August 23, 2013) of the potential economic effects of the
designation was developed taking into consideration the public comments
and any new information (IEc 2013, entire).
The intent of the FEA is to quantify the economic impacts of all
potential conservation efforts for the acu[ntilde]a cactus and the
Fickeisen plains cactus; some of these costs will likely be incurred
regardless of whether we designate critical habitat (baseline). The
economic impact of the final critical habitat designation is analyzed
by comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur with the designation of critical habitat. For a further
description of the methodology of the analysis, see Chapter 2,
``Framework for the Analysis,'' of the FEA.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. The economic analysis provides estimated costs of
the foreseeable potential economic impacts of the critical habitat
designation for the two cacti over the next 20 years (2013 to 2032),
which was determined to be the appropriate period for analysis. This is
because limited planning information is available for most activities
to forecast activity levels for projects beyond a 20-year timeframe.
The FEA quantifies economic impacts of the acu[ntilde]a cactus and
Fickeisen plains cactus conservation efforts associated with the
following categories of activity: (1) U.S.-Mexican border activities;
(2) livestock grazing; (3) uranium mining; (4) commercial development;
(5) recreational activities; (6) road construction and maintenance; and
(7) species and habitat management. The total potential incremental
economic impacts for all of the categories in areas proposed as
acu[ntilde]a cactus critical habitat over the next 20 years is $34,000,
an annualized impact of $2,200 (assuming a 7 percent discount rate).
The total potential incremental economic impacts for the Fickeisen
plains cactus are forecast to be $39,000, an annualized impact of
$2,500, in areas proposed for critical habitat designation and $22,000,
an annualized impact of $1,400, in areas considered for exclusion.
The Service considered the economic impacts of the critical habitat
designation and the Secretary is not exercising her discretion to
exclude any areas from this designation of critical habitat for the
acu[ntilde]a cactus and Fickeisen plains cactus based on economic
impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Arizona Ecological Services Field Office (see ADDRESSES)
or by downloading from the Internet at https://www.regulations.gov.

[[Page 55290]]

Exclusions Based on National Security Impacts or Homeland Security
Impacts

Under section 4(b)(2) of the Act, we consider whether there are
lands where a national security impact might exist. Department of
Defense lands that are exempted from critical habitat designation for
the acu[ntilde]a cactus in this final rule include the BMGR, as
discussed above in Application of Section 4(a)(3) of the Act, above.
Additionally, there are specific areas of acu[ntilde]a cactus habitat
included in this final rule that are not owned or managed by the
Department of Defense, but on which the U.S. Customs and Border
Protection (CBP) operates along the U.S.-Mexico border. The U.S.
Customs and Border Protection is tasked with maintaining national
security interests along the nation's international borders. In order
to achieve and maintain effective control of the United States border,
CBP, through its component, the U.S. Border Patrol, requires continuing
and regular access to certain portions of the area designated as
critical habitat. Because CBP's border security mission has an
important link to national security, CBP may identify impacts to
national security that may result from designating critical habitat. We
do not have information currently indicating that lands within the
designation of critical habitat for the acu[ntilde]a cactus will have
an impact on national security.
We also anticipate no impact on national security from the final
designation of critical habitat for the Fickeisen plains cactus.
Therefore, we did not propose an exclusion on this basis.

Exclusions Based on Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances, or whether there are non-permitted conservation agreements
and partnerships that would be encouraged by designation of, or
exclusion from, critical habitat. In addition, we look at the existence
of tribal conservation plans and partnerships and consider the
government-to-government relationship of the United States with tribal
entities. We also consider any social impacts that might occur because
of the designation.

Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships, in General

We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service.
We evaluate a variety of factors to determine how the benefits of
any exclusion and the benefits of inclusion are affected by the
existence of private or other non-Federal conservation plans or
agreements and their attendant partnerships when we undertake a
discretionary 4(b)(2) exclusion analysis. A non-exhaustive list of
factors that we will consider for non-permitted plans or agreements is
shown below. These factors are not required elements of plans or
agreements, and all items may not apply to every plan or agreement.
(i) The degree to which the plan or agreement provides for the
conservation of the species or the essential physical or biological
features (if present) for the species;
(ii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented;
(iii) The demonstrated implementation and success of the chosen
conservation measures;
(iv) The degree to which the record of the plan supports a
conclusion that a critical habitat designation would impair the
realization of benefits expected from the plan, agreement, or
partnership;
(v) The extent of public participation in the development of the
conservation plan;
(vi) The degree to which there has been agency review and required
determinations (e.g., State regulatory requirements), as necessary and
appropriate;
(vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) compliance was required; and
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.

Babbitt Ranches, LLC, Partnership

We have determined that the private lands owned by the Babbitt
Ranches, LLC, and State land with a land closure in place that is
managed by the Babbitt Ranches, LLC, warrant exclusion from the final
designation of critical habitat under section 4(b)(2) of the Act. We
made this determination because the benefits of exclusion outweigh the
benefits of including those lands in critical habitat based on our
conservation partnership with the Babbitt Ranches, LLC, and their
efforts to preserve the integrity of the cactus' habitat as evidenced
by their management plan. The following represents our rationale for
excluding certain lands owned or managed by the Babbitt Ranches, LLC,
that are within the proposed Cataract Canyon Unit and Gray Mountain
Unit from the final designated critical habitat for the Fickeisen
plains cactus.
The Babbitt Ranches, LLC, is a family-owned business that has been
in operation for over 120 years. It has dedicated itself to managing
large landholdings in northern Arizona while raising cattle and
American Quarter Horses in a sustainable manner. They own and operate
three cattle ranches in northern Arizona--the Cataract, CO Bar, and
Espee Ranches. The Cataract and CO Bar Ranch include areas occupied by
the Fickeisen plains cactus and areas proposed as critical habitat (as
described above). Besides cattle ranching, the Babbitt Ranches, LLC,
support public recreational opportunities, wildlife conservation, and
scientific research on the lands they own or manage.
We proposed to designate Fickeisen plains cactus critical habitat
in the proposed Cataract Canyon Unit and Gray Mountain Unit, both of
which are located on a mix of State trust land, Federal land, and
private land owned by the Babbitt Ranches. The proposed Cataract Canyon
Unit is located on the Cataract Ranch. It contains 7,768 ha (19,196 ac)
of State trust and private land that is managed collectively as an
active cattle ranch. The Gray Mountain Unit (Unit 6) contains two
subunits that straddle both sides of Highway 89 and total 1,656 ha
(4,095 ac), and the unit are within the CO Bar Ranch. These subunits
are located by the town of Gray Mountain and are adjacent to the
boundary of the Navajo Nation. The proposed Mays Wash Subunit 6a
contains 697 ha (1,724 ac) and is a checkerboard of Federal, State
trust, and private parcels within the CO Bar

[[Page 55291]]

Ranch. The proposed Gray Mountain Subunit 6b contains 960 ha (2,371 ac)
of State trust and private parcels with a small number of acres owned
by the Babbitt Ranches, LLC, and the remainder to another private
landowner.
The Babbitt Ranches, LLC, has a strong record of land stewardship,
and they have developed a strong partnership with the Service as a
result. Their commitment to conserving species is supported by their
cooperative efforts with other private organizations, State, and other
Federal agencies to better understand and preserve natural resources.
For example, the Babbitt Ranches, LLC, participated with AGFD in the
release of federally endangered black-footed ferrets (Mustela nigripes)
on their ranch. In support of the ferret release program, the Babbitt
Ranches, LLC, also invited AGFD to annually map and monitor Gunnison's
prairie dog (Cynomes gunnissioni) colonies. Another example of the
Babbitt Ranches, LLC, commitment to conservation is their gift of a 24-
acre parcel of land to Northern Arizona University for an ecological
center to be used by faculty and students.
The Fickeisen plains cactus has been documented on all three of the
cattle ranches where critical habitat was proposed. The second largest
population of Fickeisen plains cactus in existence occurs on the
Cataract Ranch, which supports 66 percent of the 466 individual
Fickeisen plains cacti in the rangewide population. Individual cacti
were first documented on Cataract Ranch in 2006. The population
appeared to be healthy and viable by the different age classes
observed, and the surrounding habitat showed little disturbance with
the natural vegetative community intact. Thus, the status of this
population further confirms that the holistic management of Cataract
Ranch has been beneficial to the Fickeisen plains cactus.
On the State lands that are part of the Cataract Ranch, a land
closure order was put in place in 1986. The order states: ``The State
land commissioner has determined that the best interests of the State
trust would be served by closing the State land described in the
caption of this Order to mineral claim location, new mineral
prospecting permit applications, and new mineral lease applications.''
In 2011, a second closure order was enacted in which the State land
commissioner determined that the best interests of the Trust would be
served by closing ``the State subsurface land to mineral claim
location, new mineral exploration permits applications and new mineral
lease applications.''
The Babbitt Ranches, LLC, also submitted to the Service a Draft
Fickeisen Plains Cactus Management Plan for Cataract Ranch and the
Draft Espee Ranch Regional Conservation and Land Use Plan. Although the
latter incorporates the Fickeisen Plains Cactus Management Plan into a
broader, regional vision and focuses on conservation actions across all
of the Babbitt Ranches, we focused our review on the commitments
described for the Fickeisen plains cactus on Cataract Ranch because the
majority of the proposed critical habitat occurs there. The Draft
Fickeisen Plains Cactus Management Plan for Cataract Ranch commits to
continuing to sustain healthy ecosystems, wildlife habitats, and
biological diversity. As an active ranching operation, they have
practiced this philosophy in the past, and will continue to adhere to
their land ethics, which have preserved native grasslands and shrub-
steppe habitats that incidentally benefit the Fickeisen plains cactus
and its pollinators. They have a commitment to managing the ranches in
an ecologically responsible fashion, which is evident in The Nature
Conservancy's assessment of the land for a conservation easement, and
by NRCS' rangeland inventory. Additional conservation measures for the
Fickeisen plains cactus and its habitat within lands owned or managed
by the Babbitt Ranches, LLC, include:
A commitment to continuing surveys for the Fickeisen
plains cactus on the three ranches and to working with the Service and
others to develop Fickeisen plains cactus survey and monitoring
protocols that can be employed rangewide.
Utilizing the best grazing management practices to sustain
rangeland health and Fickeisen plains cactus habitat over time through
a rest rotation grazing system and by moving livestock among pastures
based upon forage utilization and seasonal moisture. By this method,
the timing, intensity, and frequency of grazing is controlled to allow
forage and rangeland habitats to recover between grazing periods.
Depending upon range conditions and the terms of grazing leases,
maximum utilization of the forage production can range from roughly 35
to 50 percent. Babbitt Ranches, LLC, generally keeps their stocking
rates below standard Animal Unit Months and grazing lease maximums.
Although a written prescription is not followed for determining the
number of cattle to keep on a pasture and length of time, livestock
will continue to be managed to sustain productive forage and an intact
ecosystem that integrates their commitment to conservation and healthy
landscapes.
Willingness to participate in any study or program related
to collection, propagation, banking, and translocation of the Fickeisen
plains cactus if such measures are considered feasible or desirable for
survival and recovery of the taxon in response to climate change and
extended droughts.
Collecting information on small mammal predation during
monitoring, and if it becomes an issue on lands owned or managed by the
Babbitt Ranches, LLC, measures designed to exclude predators from
Fickeisen plains cactus populations will be investigated.
Benefits of Inclusion--Babbitt Ranches, LLC
As discussed above under Application of Section 4(b)(2) of the Act,
the primary effect of designating any particular area as critical
habitat is the requirement for Federal agencies to consult with us
under section 7 of the Act to ensure actions they carry out, authorize,
or fund do not adversely modify designated critical habitat. Absent
critical habitat designation in occupied areas, Federal agencies remain
obligated under section 7 of the Act to consult with us on actions that
may affect a federally listed species to ensure such actions do not
jeopardize the species' continued existence. The analysis of effects to
critical habitat is a separate and different analysis from that of the
effects to the species. Therefore, the difference in outcomes of these
two analyses represents the regulatory benefit of critical habitat. The
regulatory standard is different, as the jeopardy analysis investigates
the action's impact on the survival and recovery of the species, while
the adverse modification analysis focuses on the action's effects on
the designated habitat's contribution to conservation. This will, in
many instances, lead to different results and different regulatory
requirements. Thus, critical habitat designations may provide greater
benefits to the recovery of the species than listing alone.
For some species (including Fickeisen plains cactus), and in some
locations (in particular, those occupied by the taxon), the outcome of
these analyses will be similar, because effects to habitat will often
also result in effects to the species, and it is often difficult or
impossible to differentiate between actions that avoid jeopardy to the
species and actions needed solely to avoid destruction or adverse
modification of critical habitat. Although all of the land excluded in
this critical habitat designation is occupied by the taxon, the taxon
occurs in low densities with individuals

[[Page 55292]]

commonly spaced far apart. In some areas, impacts to critical habitat
or, more specifically, the primary constituent elements will not result
in direct impacts to the Fickeisen plains cactus. Therefore, the
outcome of an adverse modification analysis in these areas would differ
from the outcome of a jeopardy analysis.
Critical habitat may provide a regulatory benefit for the Fickeisen
plains cactus when there is a Federal nexus present for a project that
might adversely modify critical habitat. A Federal nexus generally
exists where land is federally owned, or where actions proposed on non-
Federal lands require a Federal permit or Federal funding. In the
absence of a Federal nexus, the regulatory benefit provided through
section 7 consultation under the Act does not exist. Any activities
over which a Federal agency has discretionary involvement or control
affecting designated critical habitat on Federal land would trigger a
requirement to consult under section 7 of the Act. The Mays Wash
subunit contains Federal land; the remainder of the proposed critical
habitat in the proposed Cataract Canyon Unit and Gray Mountain Unit
comprise State trust land and private land.
On the CO Bar Ranch, there are 87 ha (215 ac) of State trust land
and 246 ha (609 ac) of BLM land that are split estate with BLM having
subsurface mineral rights. These lands were included in the Gray
Mountain Unit in the proposed critical habitat designation. On these
lands, there is the potential for subsurface mineral operations, which
would be outside of the management control of the Babbitt Ranches, LLC.
Inclusion of these lands in a critical habitat designation would
require the BLM to consult with the Service in order to ensure that the
primary constituent elements are not adversely modified or destroyed.
These regulatory benefits of inclusion are limited to areas with the
potential to have a Federal nexus, and, thus, generally limited to
these 87 ha (215 ac) of split estate State trust land and 246 ha (609
ac) of BLM land.
Although no Federal land exists within the proposed Cataract Canyon
Unit, there is potential for a Federal nexus for activities proposed on
the Cataract Ranch due to Federal funding. The Babbitt Ranches, LLC,
have partnered with the NRCS in the past and may again in the future.
Most Federal actions would be beneficial such as rangeland
improvements, invasive plant eradication, and wildlife habitat
enhancements. However, as a result of the establishment and
implementation of protections associated with a 13,953-ha (34,480-ac)
conservation easement referred to as the Coconino Plateau Natural
Reserve Lands, it is unlikely that future Federal actions would impact
the overall goal of the easement. The land was placed under the
easement for the goal of protecting and preserving the historical and
cultural aspects of the property as an active agricultural and
livestock operation; and to preserve the conservation and open space
values of the property by continuing to establish, define, and promote
private land stewardship and a historical sense of obligation and
responsibility for the land and its ecology. Because of protection of
these lands, it is unlikely that future Federal actions would cause
adverse modification of Fickeisen plains cactus critical habitat. If
actions that could affect Fickeisen plains cacti and their habitat do
occur, it is likely that the protections provided the taxon and its
habitat under section 7(a)(2) of the Act would be largely redundant
with the protections offered by the conservation easement.
Additionally, lands in the proposed Cataract Canyon Unit may have
additional conservation value because the Babbitt Ranches, LLC,
practice sustainable cattle ranching to maintain native vegetation
communities and to improve and protect overall rangeland health. These
efforts promote the conservation of suitable Fickeisen plains cactus
habitat. The established purpose of the conservation easement is
intended to protect the existing functional values of the native biotic
communities, which sustain the cactus. Therefore, it is unlikely that
Federal actions or actions conducted by the Babbitt Ranches, LLC, would
result in depreciable diminishment or a long-term reduction of the
capability of Fickeisen plains cactus habitat to recover. As a result,
any rare Federal action that may result in formal consultation will
likely result in only discretionary conservation recommendations (i.e.,
adverse modification threshold is not likely to be reached). We believe
there is an extremely low probability of mandatory elements (i.e.,
reasonable and prudent alternatives) arising from formal section 7
consultations that include consideration of designated Fickeisen plains
cactus critical habitat. As a result, the benefits of including these
lands in the final critical habitat designation are reduced.
The designation of critical habitat for the Fickeisen plains cactus
on Babbitt Ranches, LLC, would bring awareness of the cactus' presence
to the State of Arizona during their review of mining leases,
exploratory permits, or other land use activities under State control.
Prior to any land-disturbing activity on State trust land by a project
proponent, the Arizona State Land Department requires a pre-
construction native plant survey. The required native plan survey would
determine the compensation that must be paid to the Arizona State Land
Department for the removal of specific cacti, including the Fickeisen
plains cactus, which is currently considered a ``highly safeguarded
protected'' plant. However, any action taken between the State and an
application to protect or conserve the Fickeisen plains cactus or
designated critical habitat from mineral activities would be at their
discretion. Because it is unlikely that there would be a Federal nexus
on State trust land unless a permit is required from a Federal agency
or funding is appropriated, the educational benefits of including these
lands in the final designation of critical habitat is minimized.
Another important benefit of including Babbitt Ranches, LLC, lands
in a critical habitat designation is that the designation can serve to
educate other landowners, agencies, neighboring tribes, and the public
regarding the potential conservation value of an area, and may help
focus conservation efforts on areas of high conservation value for
certain species. Any information about the Fickeisen plains cactus, its
endemism, and its rarity, that reaches a wide audience, including
parties engaged in conservation activities, is valuable. However, the
educational benefits of designating critical habitat for the Fickeisen
plains cactus on the Babbitt Ranches, LLC, are small compared to those
derived through conservation efforts currently being implemented.
Benefits of Exclusion--Babbitt Ranches, LLC
The benefits of excluding land owned by the Babbitt Ranches, LLC,
from the designation of critical habitat for the Fickeisen plains
cactus are substantial and include: (1) Continuance and strengthening
of our effective working relationship with the Babbitt Ranches, LLC,
NRCS, and the Arizona State Land Department to promote voluntary,
proactive conservation of the Fickeisen plains cactus and its habitat
as opposed to reactive regulation; (2) allowance for continued
meaningful collaboration and cooperation in working toward species
recovery, including conservation benefits that might not otherwise
occur; and (3) encouragement of developing additional conservation
easements and

[[Page 55293]]

other conservation and management plans in the future for other
federally listed and sensitive species.
Additionally, many landowners perceive critical habitat as an
unfair and unnecessary regulatory burden. According to some
researchers, the designation of critical habitat on private lands
significantly reduces the likelihood that landowners will support and
carry out conservation actions (Main et al. 1999, p. 1,263; Bean 2002,
p. 2). The magnitude of this negative outcome is greatly amplified in
situations where active management measures (such as reintroduction,
fire management, and control of invasive species) are necessary for
species conservation (Bean 2002, pp. 3-4). We believe the judicious
exclusion of specific areas of non-federally owned lands from critical
habitat designations can contribute to species recovery and provide a
superior level of conservation than critical habitat alone. The Service
believes that, where consistent with the discretion provided by the
Act, it is necessary to implement policies that provide positive
incentives to private landowners to voluntarily conserve natural
resources and that remove or reduce disincentives to conservation
(Wilcove et al. 1996, pp. 1-15; Bean 2002, pp. 1-7).
We believe it is essential for the recovery of the Fickeisen plains
cactus to build on continued conservation activities such as these with
proven partners like the Babbitt Ranches, LLC. Exclusion of the entire
Cataract Ranch (on the proposed Cataract Canyon Unit) will help
preserve the partnership that we have established with the Babbitt
Ranches, LLC, and with State agencies and local governments to foster
future partnerships and encourage the establishment of future
conservation and management of habitat for the Fickeisen plains cactus
and other sensitive taxa. Furthermore, exclusion of the portions of the
proposed Mays Wash subunit that are privately owned and managed by the
Babbitt Ranches, LLC, will help preserve our partnership.
The Babbitt Ranches, LLC, have maintained an effective working
relationship with many public and government entities including the
Service for many years for the purpose of achieving their own values as
agricultural landowners, which are described in the Constitution of
Babbitt Ranches and evidenced by their management actions. The Babbitt
Ranches, LLC, management plan and the conservation easement
establishing the Coconino Plateau Natural Reserve Lands provides
substantial protection and management for the Fickeisen plains cactus.
Specifically, both the management plan and easement provide protection
and management of the physical or biological features essential to the
conservation of the taxon, and address conservation issues from a
coordinated, integrated perspective. Therefore, the management plan and
easement are expected to result in coordinated landscape-scale
conservation that can contribute to genetic diversity by preserving the
population, habitat, and native pollinators and their habitat that
support recovery of the cactus and other endemic wildlife species.
In summary, we believe excluding State trust land (subject to land
closure) managed by the Babbitt Ranches, LLC, and lands owned by the
Babbitt Ranches, LLC, from the critical habitat designation will
provide the significant benefit of maintaining our existing partnership
and fostering new ones.
Benefits of Exclusion Outweigh the Benefits of Inclusion
We evaluated the exclusion of approximately 7,768 ha (19,196 ac) of
private and State land within the boundaries of the proposed Cataract
Canyon Unit from our proposed designation of critical habitat, and we
determined the benefits of excluding all of these lands outweigh the
benefits of including them as critical habitat for the Fickeisen plains
cactus. We also evaluated the exclusion of approximately 1,656 ha
(4,095 ac) of private, State, and Federal land managed by the Babbitt
Ranches, LLC, within the boundaries of the proposed Gray Mountain Unit
from our proposed designation of critical habitat. We have determined
the benefits of excluding 371 ha (917 ac) of private land within the
Mays Wash Subunit of the Gray Mountain Unit outweigh the benefits of
including the area as critical habitat for the Fickeisen plains cactus.
The Babbitt Ranches have been and will continue to be managed to
support sustainable cattle operations in response to variable annual
climatic conditions and long-term shifts in global temperatures and
precipitation, and in a manner that is consistent with the philosophy
and land ethic of Babbitt Ranches, LLC, that is formalized in their
constitution. Their holistic approach to managing their land use
activities with the economic and social communities has contributed to
the existence of a large, reproducing Fickeisen plains cactus
population, which we recognized in the October 1, 2013, final listing
rule (78 FR 60608).
The Service believes the additional regulatory and educational
benefits of including these lands as critical habitat are relatively
small, because of the unlikelihood of a Federal nexus on the private
and State trust lands within the proposed critical habitat designation.
These benefits are further reduced by the existence of a 13,953-ha
(34,480-ac) conservation easement on the Cataract Ranch that contains
2,848 ha (7,037 ac) of proposed critical habitat. We anticipate that
there will be little additional Federal regulatory benefit to the taxon
on State trust land because there is a low likelihood that those
parcels will be negatively affected to any significant degree by
Federal activities requiring section 7 consultation, and ongoing
management activities indicate there would be no additional
requirements pursuant to a consultation that addresses critical
habitat.
All areas that were proposed for critical habitat on the Babbitt
Ranches, LLC, are occupied by the taxon. The educational benefits of
including these lands are small. The designation of critical habitat
can serve to educate the general public as well as conservation
organizations regarding the potential conservation value of an area,
but this goal is already being accomplished. Through the identification
of deeded land as the Coconino Plateau Natural Reserve Lands and the
Babbitt Ranches Land Steward Institute, an educational and research
platform is already established for partners wishing to collaborate
with the Babbitt Ranches on ecological research needs. Given the
history of collaborating and partnering with Federal and State
agencies, local governments, research institutions, and other partners
to sustain native grasslands and wildlife conservation, the Service
anticipates that the conservation strategies described in the Babbitt
Ranches draft Fickeisen Plains Cactus Management Plan will be
implemented in the future.
In summary, we find that excluding areas from critical habitat that
are receiving both long-term conservation and management for the
purpose of protecting the native grassland ecosystem, and thus the
habitat that supports the Fickeisen plains cactus, will preserve our
partnership with the Babbitt Ranches, LLC, and encourage future
collaboration towards conservation and recovery of listed species. The
partnership benefits are significant and outweigh the small potential
regulatory, educational, and ancillary benefits of including the land
in the final critical habitat for the Fickeisen plains cactus.
Therefore, the conservation easement and the overall management of
Babbitt Ranches, LLC,

[[Page 55294]]

provides greater protection of habitat for the Fickeisen plains cactus
than could be gained through the project-by-project analysis of a
critical habitat designation.
Exclusion Will Not Result in Extinction of the Species--Babbitt
Ranches, LLC
We determined that the exclusion of 7,768 ha (19,196 ac) of land
within the boundaries of the proposed Cataract Canyon Unit and 371 ha
(917 ac) of private land within Mays Wash Subunit of the Gray Mountain
Unit for the Fickeisen plains cactus will not result in extinction of
the taxon. Protections afforded the taxon and its habitat by the
conservation easement and the history of land stewardship of Babbitt
Ranches, LLC, as described in the Babbitt Ranches Draft Fickeisen
Plains Cactus Management Plan, provide assurances that the taxon will
not go extinct as a result of excluding these lands from the critical
habitat designation. The jeopardy standard of section 7 of the Act will
also provide protection in these occupied areas when there is a Federal
nexus. Therefore, based on the above discussion, the Secretary is
exercising her discretion to exclude 8,139 ha (20,113 ac) of land from
the designation of critical habitat for Fickeisen plains cactus.
Tribal Lands
There are several Executive Orders, Secretarial Orders, and
policies that relate to working with Tribes. These guidance documents
generally confirm our trust responsibilities to Tribes, recognize that
Tribes have sovereign authority to control Tribal lands, emphasize the
importance of developing partnerships with Tribal governments, and
directs the Service to consult with Tribes on a government-to-
government basis.
A joint Secretarial Order that applies to both FWS and NMFS,
Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act (June 5, 1997)
(S.O. 3206), is the most comprehensive of the various guidance
documents related to Tribal relationships and Act implementation, and
it provides the most detail directly relevant to the designation of
critical habitat. In addition to the general direction discussed above,
S.O. 3206 explicitly recognizes the right of Tribes to participate
fully in the listing process, including designation of critical
habitat. The Order also states: ``Critical habitat shall not be
designated in such areas unless it is determined essential to conserve
a listed species. In designating critical habitat, the Services shall
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands.'' In light of this instruction, when we undertake a
discretionary 4(b)(2) exclusion analysis, we will always consider
exclusions of Tribal lands under section 4(b)(2) of the Act prior to
finalizing a designation of critical habitat, and will give great
weight to Tribal concerns in analyzing the benefits of exclusion.
However, S.O. 3206 does not preclude us from designating Tribal
lands or waters as critical habitat, nor does it state that Tribal
lands or waters cannot meet the Act's definition of ``critical
habitat.'' We are directed by the Act to identify areas that meet the
definition of ``critical habitat'' (i.e., areas occupied at the time of
listing that contain the essential physical or biological features that
may require special management or protection and unoccupied areas that
are essential to the conservation of a species), without regard to
landownership. While S.O. 3206 provides important direction, it
expressly states that it does not modify the Secretaries' statutory
authority.
Tohono O'odham Nation
We have worked with the Tohono O'odham Nation to consolidate
information on their past, present, and future voluntary measures and
management to conserve the acu[ntilde]a cactus and its habitat on their
lands. We have determined, pursuant to section 4(b)(2) of the Act, that
we will exclude approximately 156 ha (385 ac) of Tohono O'odham Nation
land in Unit 3 from the final designation of critical habitat for the
acu[ntilde]a cactus. As described in our discretionary exclusion
analysis below, we have reached this determination because the benefits
of excluding their lands from the final critical habitat designation
outweigh the benefits of including their lands in the designation due
to our ongoing and effective working partnership with the Tohono
O'odham Nation.
The Tohono O'odham Nation is located in southern Arizona on lands
in Pima, Pinal, and Maricopa Counties. The Tohono O'odham Nation
encompasses 1,133,120 ha (2,800,000 ac) of land and is divided into 11
districts. The Tohono O'odham Nation's eastern boundary is located
approximately 24 kilometers (km) (15 miles (mi)) west of the city of
Tucson, and the administrative center is in the town of Sells,
approximately 89 km (55 mi) southwest of Tucson. We continue to work
with the Tohono O'odham Nation and the Bureau of Indian Affairs (BIA)
on wildlife and plant-related projects including recovery efforts for
Sonoran pronghorn (Antilocapra americana sonoriensis) and jaguar
(Panthera onca) as well as surveys and monitoring for Pima pineapple
cactus, jaguar, ocelot (Leopardus pardalis), lesser long-nosed bat
(Leptonycteris curasoae yerbabuenae), and cactus ferruginous pygmy owls
(Glaucidium brasilianum cactorum). We have established and maintain a
cooperative working relationship with the Tohono O'odham Nation and the
BIA when they request review of environmental assessments, seek
technical advice, and conduct consultations for Tohono O'odham Nation
projects. Surveys for any listed species are conducted by the BIA or
Tohono O'odham Nation personnel prior to implementation of projects. In
April of 2003, the Tohono O'odham Nation and the Service signed a
Statement of Relationship that indicates the Tohono O'odham Nation,
through its Natural Resources Department, will work in close
collaboration with the Service to provide effective protections for
listed species. In addition, the Service awarded a Tribal Wildlife
Grant to the Tohono O'odham Nation in 2010 to conduct an inventory of
the flora and fauna of the Baboquivari Mountains on Tribal lands. This
information will be used to inform the management and conservation of
wildlife and plant resources on Tribal lands in this area, including
listed and sensitive species.
As a sovereign entity, the Tohono O'odham Nation seeks to continue
to protect and manage their resources according to their traditional
and cultural practices. The Tohono O'odham Nation requested that their
land be excluded from the designation of critical habitat for the
acu[ntilde]a cactus due to their sovereign status and their right to
manage their own resources. They are concerned that critical habitat
designation on their land would limit the Nation's right to self-
determination and self-governance. The Tohono O'odham Nation recognizes
that their land contains acu[ntilde]a cactus individuals and habitat,
and they consider acu[ntilde]a cactus, like all cacti, to be culturally
significant. Tohono O'odham Nation conservation measures to protect the
acu[ntilde]a cactus include project review prior to ground-disturbing
activity and surveys.
Benefits of Inclusion--Tohono O'odham Nation
Federal agencies, in consultation with the Service, must ensure
that their actions are not likely to jeopardize the continued existence
of any listed

[[Page 55295]]

species or result in the destruction or adverse modification of any
designated critical habitat of such species. The difference in the
outcomes of the jeopardy analysis and the adverse modification analysis
represents the regulatory benefit and costs of critical habitat. The
areas proposed as critical habitat that occur within the Tohono O'odham
Nation are occupied by the acu[ntilde]a cactus and, therefore, if a
Federal action or permitting occurs, there is a catalyst for evaluation
under section 7 of the Act whether or not the area is designated as
critical habitat.
Few regulatory benefits to the acu[ntilde]a cactus would be gained
from a designation of critical habitat on the Tohono O'odham Nation
lands, because the Nation already requires project review prior to any
ground-disturbing activity due to the recognition of the cactus as a
culturally significant plant and because the species is already listed.
Because these conservation measures are already in place, it would be
highly unlikely that any consultation would result in a determination
of adverse modification. In addition, during coordination with the
Tohono O'odham Nation, the Tribe indicated that they are not
considering any project actions in the area where acu[ntilde]a cactus
occur. Therefore, we also do not anticipate that Tribal actions would
be likely to result in adverse impacts to acu[ntilde]a cactus requiring
formal section 7 consultations. For these reasons, the regulatory
benefit of a critical habitat designation on these lands is minimized.
There is the possible benefit that additional funding could be
generated for habitat improvement in an area being designated as
critical habitat. Tribes often seek additional sources of funding in
order to conduct wildlife-related conservation activities. Therefore,
having an area designated as critical habitat could improve the chances
of receiving funding for acu[ntilde]a cactus habitat-related projects.
Another possible benefit of including lands in a critical habitat
designation is that the designation can serve to educate the public
regarding the potential conservation value of an area, and this may
focus conservation efforts on areas of high conservation value for
certain species. However, the Tohono O'odham Nation lands were included
in the proposed designation of critical habitat; the proposal itself
has reached a wide audience and has, thus, provided information to the
broader public, as well as the BIA and the Tribe, about the
conservation value of this area. Since publication of the proposed
critical habitat designation, the Tribe has conducted a survey to
locate acu[ntilde]a cactus within areas proposed as critical habitat.
Therefore, additional educational benefits of an acu[ntilde]a cactus
critical habitat designation on Tohono O'odham Nation lands are
minimized.
Benefits of Exclusion--Tohono O'odham Nation
The proposed critical habitat designation includes approximately
156 ha (385 ac) of Sonoran desert-scrub habitat with the Tohono O'odham
Nation boundaries. Benefits of excluding these Tribal lands from
designated critical habitat include the continuance and strengthening
of our ongoing and effective working relationship with Tohono O'odham
Nation to promote the conservation of listed species, including the
acu[ntilde]a cactus and its habitat. We recognize and endorse the
resource management activities of the Nation with regard to listed
species and have been informed of the development of a draft land
management plan for the Tohono O'odham Nation, which will include
conservation measures for the acu[ntilde]a cactus. We have established
a working relationship with Tohono O'odham Nation through informal and
formal meetings that offered information sharing, technical advice,
assistance, and recommended conservation measures for acu[ntilde]a
cactus and its habitat. We find that conservation benefits (e.g.,
acu[ntilde]a cactus surveys and project review) are being provided to
the acu[ntilde]a cactus and its habitat through our cooperative working
relationship with the Tohono O'odham Nation.
We assign great weight to the benefits of excluding Tribal lands,
which would honor our cooperative partnership with the Tribe. During
our discussions with the Tohono O'odham Nation and through a letter
received during our first public comment period, we were informed that
the designation of critical habitat on Tribal land would be viewed as
an intrusion on their sovereign ability to manage natural resources in
accordance with their own policies, customs, and laws. To this end, we
found that the Tohono O'odham Nation would prefer to work with us on a
government-to-government basis. For these reasons, we believe that our
working relationship with the Tohono O'odham Nation would be better
maintained and more effective if they are excluded from the designation
of critical habitat for the acu[ntilde]a cactus. The benefits of
excluding this area from critical habitat will encourage the continued
cooperation and development of data-sharing and management plans for
this and other listed species. If this area is designated as critical
habitat, we believe it is unlikely that sharing of information related
to the acu[ntilde]a cactus would occur.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Tohono
O'odham Nation
The benefits of including the Tohono O'odham Nation in critical
habitat are small and are limited to educational and regulatory
benefits. However, as discussed above, these educational benefits are
minimized because they have been provided for already through including
lands on the Nation in the proposed critical habitat designation.
Similarly, the regulatory benefits are minimized because all areas
proposed as critical habitat within the Tohono O'odham Nation are
occupied and, thus, already subject to section 7 of the Act regardless
of a critical habitat designation. Therefore, it is highly unlikely
that any consultation would result in a determination of adverse
modification. Alternatively, the benefits of excluding these areas from
critical habitat for the acu[ntilde]a cactus are more significant and
include encouraging the continued partnership with the Tribe as well as
development and implementation of special management measures such as
project review prior to ground-disturbing activity and surveys. These
activities will allow the Tohono O'odham Nation to manage their natural
resources to benefit the acu[ntilde]a cactus without the perception of
Federal government intrusion that would occur if we designated critical
habitat on their land. This philosophy is also consistent with our
published policies on Native American natural resource management. The
exclusion of this area will likely also provide additional benefits to
the species that would not otherwise be available to encourage and
maintain cooperative working relationships. Therefore, we find that the
benefits of excluding Tohono O'odham Nation lands from critical habitat
designation outweigh the benefits of including this area.
Exclusion Will Not Result in Extinction of the Species--Tohono O'odham
Nation
As noted above, the Secretary, under section 4(b)(2) of the Act,
may exclude areas from the critical habitat designation unless it is
determined, ``based on the best scientific and commercial data
available, that the failure to designate such area as critical habitat
will result in the extinction of the species concerned.'' We have
determined that exclusion of the Tohono O'odham Nation from the

[[Page 55296]]

critical habitat designation will not result in the extinction of the
acu[ntilde]a cactus. The Tohono O'odham Nation has committed to
protecting and managing the acu[ntilde]a cactus and is in the process
of creating a natural resources management plan, which will include the
acu[ntilde]a cactus as well as all listed plant and animal species
found on their lands. In summary, the Tohono O'odham Nation has
committed to conservation measures for the acu[ntilde]a cactus on their
land that are at least equal to the conservation value that would be
available through the designation of critical habitat. With the
implementation of these conservation measures and ongoing coordination
with the Tribe with regard to conservation of the acu[ntilde]a cactus,
the exclusion of Tohono O'odham Nation land from proposed critical
habitat will not result in extinction of the species. Accordingly, we
have determined that the Tohono O'odham Nation should be excluded from
acu[ntilde]a cactus critical habitat designation under section 4(b)(2)
of the Act, because the benefits of exclusion outweigh the benefits of
inclusion and will not cause the extinction of the species.
Navajo Nation
We have determined, pursuant to section 4(b)(2) of the Act, that we
will exclude approximately 3,865 ha (9,554 ac) of Navajo Nation land in
proposed Fickeisen plains cactus critical habitat Units 6 (Tiger Wash
Unit), 7 (Little Colorado River Overlook Unit), and Subunit 8b (Gray
Mountain Subunit) from the final designation of critical habitat for
the Fickeisen plains cactus. We are excluding the entire Unit 6 and 7,
along with all portions of Subunit 8b on Navajo Nation lands. As
described in our discretionary exclusion analysis below, we have
reached this determination because the benefits of excluding their
lands from the final critical habitat designation outweigh the benefits
of including their lands in the designation due to our ongoing and
effective working relationship with the Navajo Nation.
The Navajo Nation recognizes the Fickeisen plains cactus as a
species in need of protection and special management on lands they
administer (RCF-014-91) (Navajo Nation 2013, p. 5). Their management
plan would serve as a tool for conserving the cactus and its habitat on
the Navajo Nation. The Navajo Nation Department of Fish and Wildlife
(NNDFW) will review their management plan for effectiveness and make
revisions according to the current status of the cactus under Navajo
and Federal law. Reviews will be conducted every 5 years or when new,
significant information about threats or management becomes available
for the Fickeisen plains cactus.
The Navajo Nation Code, at 17 NNC section 507, recognizes the
importance of endangered species, establishes a penalty for the
disturbance of these species, and charges the Director, NNDFW, with the
responsibility to recommend to the Resources Committee of the Navajo
Nation Council updates to the Navajo Endangered Species List (NESL).
The first record of the Fickeisen plains cactus on the Navajo Nation is
from 1956 (Navajo Nation 2013, p.10). The Navajo Nation listed the
Fickeisen plains cactus as a Group 3 endangered species on the NESL in
1991 (RCF-014-91). A Group 3 species is a species or subspecies whose
prospects of survival or recruitment are likely to be in jeopardy in
the foreseeable future. The cactus was included on the NESL due to its
limited geographic range, specificity of habitat requirements, low
recruitment rate and decline in numbers, and threats from livestock
grazing, ORV use, potential for recreational development within its
habit, and illegal collection. There are 15 known occurrences of the
Fickeisen plains cactus on the Navajo Nation with an estimated total
population of 506 individuals.
The NNDFW has management authority for fish, wildlife, and native
plants with regard to endangered and threatened species protection; and
all temporary and permanent developments must receive clearance from
the NNDFW. The NNDFW reviews a project's potential impact on protected
wildlife or their habitat by using their Natural Heritage Database and
various Tribal and Federal wildlife protection regulations, and
recommends approval, disapproval, or conditional approval to the
Resources and Development Committee. As a species included on the NESL,
the Fickeisen plains cactus is protected from disturbance, and
conservation of the cactus and its habitat will be facilitated
primarily through the Navajo Nation's existing policies for managing
and conserving natural resources.
In 2003, the Resources Committee of the Navajo Nation Council, by
Resolution No. RCMA-34-03, approved the Biological Resources Land Use
Clearance Policies and Procedures, also known as the Navajo Nation
Resource Conservation Plan (RCP). The RCP is a tool used by the Navajo
Nation, local chapters, and developers to guide environmentally
responsible development and to protect resources of high conservation
value, including habitats of listed species. The RCP is based on
comprehensive rare and threatened species data held in a NNDFW NNHP
database and identifies and defines habitats and landscapes on the
Navajo Nation based on their conservation value. The RCP divides the
Navajo Nation into six land status categories based on their biological
sensitivity and uses these categories to manage actions in a way that
minimizes impacts to sensitive species and habitats. The Fickeisen
plains cactus is located in areas designated as Area 5 (biological
preserves), Area 2 (medium sensitivity) and Area 3 (low sensitivity).
Documentation of impacts that a proposed project may have on biological
resources is required for each of these areas. The NNDFW provides
technical assistance to the Nation, chapters, and developers in
following the RCP, and assesses adherence to the RCP during project
review for making recommendations to the Resources and Development
Committee.
Area 5 lands (biological preserves) are landscapes of high wildlife
value and little or no current development or disturbance, or are
particularly important for one or more protected species. Permanent or
temporary development within biological preserves is prohibited unless
it is compatible with the management of those areas as wildlife
habitat. For development in biological preserves, the standard process
for planning and approval of development, as described in the RCP, must
be implemented. The NNDFW is committed to ensuring that any development
that occurs in biological preserves is consistent with ecotourism
principles.
The proposed Tiger Wash Unit, proposed Little Colorado River
Overlook Unit, and portions of the proposed Gray Mountain Subunit occur
on the Navajo Nation. These 3 proposed critical habitat units,
including 9 of the 15 Fickeisen plains cactus populations on the Navajo
Nation, are located within 2 biological preserves. These biological
preserves are the Little Colorado River and Marble Canyon Preserves
(Navajo Nation 2013, p. 17). The RCP thus creates an avenue for the
NNDFW to recommend conservation measures to avoid or minimize impacts
to plants and its habitat. Proposed development projects must
demonstrate that impacts to protected species will be minimal, and the
NNDFW strongly urges relocating projects to less sensitive habitats if
possible.
Although NNDFW makes a strong effort to avoid impacts to habitats
of sensitive species through project evaluation, some necessary

[[Page 55297]]

developments may occur and efforts will be made to reduce, minimize, or
mitigate potential project impacts. When a project could disturb
Fickeisen plains cactus habitat, NNDFW requires the project sponsor to
adhere to protocol surveys and avoidance restrictions. Projects with
the potential to disturb or affect its habitat require a 61-m (200-ft)
avoidance buffer from known plants. The size of the buffer is more or
less dependent on the scope and scale of the proposed project.
The NNDFW recognizes the impact nonnative, invasive species have on
the native vegetation community and to other listed species they manage
on their land. They are uncertain whether exotic annual species
negatively impact the Fickeisen plains cactus and its habitat. The
Navajo Nation will monitor the presence of exotic annual species within
occupied habitat and document any effects exotics may pose, including
effects from a potential fire caused by overabundance of these species.
The NNHP staff will incorporate a plant community survey into their
monitoring efforts to record if there is a relationship between weed
abundance and the status of the cactus population. If studies establish
a causal relationship between abundance of exotics and declines in the
Fickeisen plains cactus, they will implement conservation measures to
control weed abundance. Proposed research with the Navajo Nation and
other partners would examine potential effects of invasive species on
the germination and establishment of the Pediocactus bradyi (Brady
pincushion cactus). The results of the study, if conducted, could be
applicable to the Fickeisen plains cactus since both Pediocactus
species share similar habitats and have similar life-history traits.
The Navajo Nation is working with the BIA and other partners to develop
an Integrated Weed Management Plan for the Navajo Nation.
While livestock grazing is a traditional way of life for the Navajo
people, the Navajo Nation recognizes that management is needed to
address impacts that grazing has on the entire ecosystem, which
supports habitat the Fickeisen plains cactus relies upon for survival.
Efforts are under way by Navajo policy makers and agencies to address
past grazing impacts on the Navajo Nation and to improve grazing
enforcement and protection of Navajo resources and ecosystems. For
example, this year the Navajo Departments of Resource Enforcement and
Agriculture, in the Division of Natural Resources, partnering with
local chapters (municipal subdivisions of the Navajo government), have
been conducting roundups to reduce overgrazing by stray, feral, and
unpermitted livestock. Additionally, the Navajo Nation and BIA have
been conducting public outreach regarding grazing impacts and the
necessity of immediate and proactive steps to be taken to reduce
grazing pressure and restore productivity of Navajo Nation rangelands.
Benefits of Inclusion--Navajo Nation
As discussed above under Application of Section 4(b)(2) of the Act,
Federal agencies, in consultation with the Service, must ensure that
their actions are not likely to jeopardize the continued existence of
any listed species or result in the destruction or adverse modification
of any designated critical habitat of such species. The difference in
the outcomes of the jeopardy analysis and the adverse modification
analysis represents the regulatory benefit and cost of critical habitat
designation.
One important benefit of including lands in a critical habitat
designation is that the designation can serve to educate the public
regarding the potential conservation value of an area, and it may help
focus management efforts on areas of high value for certain species.
Any information about the Fickeisen plains cactus that reaches a wide
audience, including parties engaged in conservation activities, is
valuable. The Navajo Nation is currently working with the Service to
address Fickeisen plains cactus habitat and conservation, participate
in research on the taxon to further our knowledge and recovery
objectives, and exchange management information. Because the Navajo
Nation has developed a Fickeisen Plains Cactus Management Plan, has
been involved with the critical habitat designation process, and is
aware of the value of their lands for conservation of the plant, the
educational benefits of a Fickeisen plains cactus critical habitat
designation on the Navajo Nation are minimized.
There is the possible benefit that additional funding could be
generated for habitat improvement in an area being designated as
critical habitat. Tribes often seek additional sources of funding in
order to conduct wildlife-related conservation activities. Therefore,
having an area designated as critical habitat could improve the chances
of receiving funding for Fickeisen plains cactus habitat-related
projects.
Therefore, because of the implementation of their tribal management
plan, rare initiation of formal section 7 consultations for listed
plants and other listed species, and overall coordination with the
Navajo Nation on the Fickeisen plains cactus, it is anticipated that
there may be some, but limited, benefits from including tribal land in
a Fickeisen plains cactus critical habitat designation. The principal
benefit of any designated critical habitat is that activities in and
affecting such habitat require consultation under section 7 of the Act.
Such consultation would ensure that adequate protection is provided to
avoid destruction or adverse modification of critical habitat. However,
with the Navajo Nation implementing the RCP, which acts already to
conserve Fickeisen plains cactus habitat combined with the rarity of
Federal actions resulting in formal section 7 consultations, the
benefits of a critical habitat designation are minimized.
Benefits of Exclusion--Navajo Nation
The proposed critical habitat designation includes approximately
3,865 ha (9,554 ac) of habitat within the Navajo Nation boundaries.
Benefits of excluding these Tribal lands from designated critical
habitat include the continuance and strengthening of our ongoing and
effective working relationship with Navajo Nation to promote the
conservation of listed species, including the Fickeisen plains cactus
and its habitat. We recognize and endorse the resource management
activities of the Tribe with regard to listed species and have
collaborated with the Tribe in the development of a Fickeisen plains
cactus management plan. We have established a working relationship with
the Navajo Nation through informal and formal meetings that offered
information sharing, technical advice, assistance, and recommended
conservation measures for the Fickeisen plains cactus and its habitat.
We find that conservation benefits are being provided to the Fickeisen
plains cactus and its habitat through our cooperative working
relationship with the Navajo Nation.
As evidence of this partnership, during the development of the
Fickeisen plains cactus critical habitat proposal, we met informally
and communicated with staff of the NNDFW and NNHP to discuss how the
Navajo Nation might be affected by the regulations associated with
Fickeisen plains cactus management, recovery, and the designation of
critical habitat. As such, we established a relationship specific to
Fickeisen plains cactus listing. As part of our relationship, we
provided technical assistance to them in their development of a
Fickeisen plains cactus management plan, which documented measures they
have been

[[Page 55298]]

implementing for the conservation of this species and its habitat on
their lands. This plan is in our supporting record for this decision.
Consistent with long-standing tribal sovereignty concepts and past
consultations with tribes, the Navajo Nation expressed that they have
an inherent right to sovereignty and self-determination over their own
lands and natural resources. Additionally, their lands are connected to
their cultural and religious beliefs, and as a result they have a
strong commitment and reverence toward its stewardship and
conservation. They recognize that promoting healthy ecosystems and
protecting the Fickeisen plains cactus and its habitat are common goals
they share with the Service.
As described above, the Navajo Nation has a project-by-project
review process in place that allows evaluation and implementation of
conservation measures to minimize, or eliminate adverse impacts to the
Fickeisen plains cactus and its habitat. The NNHP conduct surveys for
the Fickeisen plains cactus and maintains a database on the quality of
its habitat throughout Navajo Nation lands that includes the status and
occurrence of the cactus. Having this information available creates
effective conservation through any project review process. The
implementation of their RCP has been coordinated and approved through
appropriate Tribal processes. Overall, the commitment toward management
of the Fickeisen plains cactus habitat likely accomplishes greater
conservation than would be available through the implementation of a
designation of critical habitat on a project-by-project basis.
We have an established and effective working relationship with the
Navajo Nation spanning several decades. This relationship has resulted
in the implementation or facilitation of actions and plans that have
benefited the conservation of numerous candidate and listed species on
the Navajo Nation, including preparation of a recovery plan and status
reviews for the Service, section 6 funding for inventory and
monitoring, conservation projects, cooperative enforcement efforts,
ongoing sharing of information, permitting Service personnel to conduct
recovery activates on the Navajo Nation, and cooperation in section 7
consultations.
We assign great weight to the benefits of excluding Navajo Nation
lands, which would honor our cooperative partnership with this Tribe.
The Navajo Nation submitted comments in the second comment period
stating that in weighing critical habitat exclusions the Service should
consider the working relationship we have with tribes and the potential
damage to the relationship if the Service intrudes on the sovereign
authority of Tribal natural resource programs and Tribal plans for
managing species. Furthermore, the Navajo Nation stated that Tribal
trust lands are not public lands and are not subjected to the same
Federal regulations or cultural context as those on public lands.
Therefore, designation of critical habitat on their land may undermine
internal efforts by the Navajo Nation to address impacts to the
Fickeisen plains cactus through comprehensive reform (NNDFW 2012, pp.
4-5).
Evidence of this partnership is the Fickeisen Plains Cactus
Management Plan, and the Navajo Nation has developed management plans
to include conservation efforts for other listed species and their
habitats. We believe that the Navajo Nation is willing to continue
working cooperatively with us and others to benefit other listed
species, but only if they view the relationship as mutually beneficial.
Consequently, the development of future voluntary management actions
for other listed species may be compromised if the Navajo Tribal lands
are designated as critical habitat for the Fickeisen plains cactus.
Thus, we place great weight on the benefits of excluding these lands
due to this partnership in light of the future conservation efforts
that would benefit Fickeisen plains cactus and other listed species.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Navajo Nation
The benefits of including the Navajo Nation in the critical habitat
designation are the incremental benefits gained through the regulatory
requirement to consult under section 7 and consideration of the need to
avoid adverse modification of critical habitat, agency and educational
awareness, potential additional grant funding, and the implementation
of other laws and regulations. However, as discussed in detail above,
we believe these benefits are minimized because they are provided for
through other mechanisms, such as: (1) The advancement of our Federal
Indian Trust obligations; (2) the conservation benefits to the
Fickeisen plains cactus and its habitat from implementation of the
Navajo Nation Fickeisen plains cactus management plan; and (3) the
maintenance of effective collaboration and cooperation to promote the
conservation of the cactus and its habitat.
If there is a Federal nexus for a project on the Navajo Nation, the
action agency would be required to consult under section 7 of the Act
to ensure the actions they fund, authorize, or carry out would not
jeopardize the continued existence of the listed species. For critical
habitat, projects undergoing section 7 consultation would need to
evaluate effects to the primary constituent elements within the
critical habitat unit, but there is no prohibition for take for plants,
only recommended conservation measures. This consultation requirement
appears to be comparable to requirements the Navajo Nation already has
for project review, development of biological evaluations, and
mitigation or avoidance to minimize negative effects to NESL-listed
species, including plants. Navajo Nation policies offer additional or
stricter protection over those defined in the Act such as a penalty for
take of listed plants and a general avoidance distance of 61 m (200
ft).
Not all projects occurring on the Navajo Nation would have a
Federal nexus. For those projects proposed by the Tribe or a non-
Federal entity, for which section 7 would not apply, Tribal policies
would be in effect. Overlaying the requirements for section 7 of the
Act on top of the requirements in the RCP would not provide additional
benefits to conserve the Fickeisen plains cactus. Therefore, the
regulatory and conservation benefits of a critical habitat designation
on these lands are minimized.
The benefits of excluding these areas from critical habitat
designation are more significant and include recognition and fostering
of the partnership with the Navajo Nation, which is evidenced by the
continued implementation of Tribal management and conservation measures
such as monitoring, survey, habitat management and protection, and
development of in-situ (on-site) conservation activities that are
planned for future recovery of the taxon. Through these measures the
Navajo Nation will continue to manage their natural resources to
benefit habitat along canyon rims of the Colorado and Little Colorado
Rivers for the Fickeisen plains cactus, without the perception of
Federal Government intrusion. This philosophy is also consistent with
our published policies on Native American natural resource management.
The exclusion of these areas will likely also provide additional
benefits to the Fickeisen plains cactus that would not otherwise be
available without the Service's maintaining a cooperative working
relationship with the Tribe. In conclusion, we find that the benefits
of excluding Tribal land on the Navajo Nation in Arizona from critical
habitat

[[Page 55299]]

designation for the Fickeisen plains cactus outweigh the benefits of
including those areas.
Exclusion Will Not Result in Extinction of the Species--Navajo Nation
As noted above, the Secretary, under section 4(b)(2) of the Act,
may exclude areas from the critical habitat designation unless it is
determined, ``based on the best scientific and commercial data
available, that the failure to designate such area as critical habitat
will result in the extinction of the species concerned.'' We have
determined that exclusion of the Navajo Nation from the critical
habitat designation will not result in the extinction of the Fickeisen
plains cactus. Federal activities on these areas that may affect the
Fickeisen plains cactus will still require consultation under section 7
of the Act. 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 listed species.
Therefore, even without critical habitat designation on the Navajo
Nation lands, activities that occur on these lands cannot jeopardize
the continued existence of the Fickeisen plains cactus. Even so, our
record demonstrates that formal section 7 consultations rarely occur on
tribal lands, which is likely a result of existing conservation
planning. Second, the Navajo Nation has committed to protecting and
managing its habitat according to their management plan and natural
resource management objectives. We believe this commitment, in
conjunction with listing of the plant on the NESL, accomplishes greater
conservation than would be available through the designation of
critical habitat. With the implementation of their RCP and their
protection of the Fickeisen plains cactus, we have concluded that this
exclusion from critical habitat will not result in the extinction of
the cactus. Accordingly, we have determined that the Navajo Nation
should be excluded under subsection 4(b)(2) of the Act, because the
benefits of excluding these lands from critical habitat for the
Fickeisen plains cactus outweigh the benefits of inclusion, and the
exclusion of these lands from the designation will not result in the
extinction of the taxon.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866, while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the Agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7 only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be directly regulated by this designation. There
is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities are directly
regulated by this rulemaking, the Service certifies that, if
promulgated, the final critical habitat designation will not have a
significant economic impact on a substantial number of small entities.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. The Office of Management and Budget indicates that
this statement is required only when a rulemaking is both significant
under E.O. 12866 and exceeds one or more of the nine threshold levels
outlined in their guidance on implementation of E.O.

[[Page 55300]]

13211. The critical habitat designation for Fickeisen plains cactus is
not a significant rulemaking under E.O. 12866. Critical habitat
designation for the Fickeisen plains cactus is anticipated to affect
uranium mining. Impacts to uranium mining, however, are limited to the
administrative costs of one formal consultation for the EZ Mine,
totaling less than $900 in costs for the managing company, Energy Fuels
Inc., over the 20-year period of analysis. The magnitude of these
consultation costs is not anticipated to reduce fuel production or
energy production, or increase the cost of energy production or
distribution in the United States in excess of one percent. Thus, none
of the nine threshold levels outlined by the Office of Management and
Budget's guidance for implementing this Executive Order is exceeded.
Therefore, we do not expect the designation of this final critical
habitat to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments. The lands being designated for
critical habitat are predominantly owned by the BLM, Bureau of
Reclamation, U.S. Military, USFS, National Park Service, State of
Arizona, and Tohono O'odham and Navajo Nations. None of these
government entities fit the definition of ``small governmental
jurisdiction.'' Therefore, a Small Government Agency Plan is not
required.

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the acu[ntilde]a cactus and Fickeisen plains cactus in a
takings implications assessment. The Act does not authorize the Service
to regulate private actions on private lands or confiscate private
property as a result of critical habitat designation. Designation of
critical habitat does not affect land ownership, or establish any
closures, or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed and concludes that this
designation of critical habitat for the acu[ntilde]a cactus and
Fickeisen plains cactus does not pose significant takings implications
for lands within or affected by the designation.

Federalism--Executive Order 13132

In accordance with Executive Order 13132 (Federalism), this final
rule does not have significant Federalism effects. A Federalism summary
impact statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this final critical habitat
designation with appropriate State resource agencies in Arizona. The
designation of critical habitat in areas currently occupied by the
acu[ntilde]a cactus or the Fickeisen plains cactus may impose nominal
additional regulatory restrictions to those currently in place and,
therefore, may have little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments because the areas that contain the physical or
biological features essential to the conservation of the species are
more clearly defined, and the elements of the features of the habitat
necessary to the conservation of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid

[[Page 55301]]

destruction or adverse modification of critical habitat rests squarely
on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have designated critical
habitat in accordance with the provisions of the Act. This final rule
uses standard property descriptions and identifies the elements of
physical or biological features essential to the conservation of the
acu[ntilde]a cactus and Fickeisen plains cactus within the designated
areas to assist the public in understanding the habitat needs of the
species.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on state or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

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

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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.
We included some Tohono O'odham Nation lands in Pima County,
Arizona, in the proposed designation of acu[ntilde]a cactus critical
habitat and Navajo Nation lands in Coconino County, Arizona, in the
proposed designation of Fickeisen plains cactus critical habitat. Less
than one percent of all known acu[ntilde]a cacti occur on Tohono
O'odham Nation lands; 15 percent of all known Fickeisen plains cactus
occur on Navajo Nation lands. Using the criteria found in the Criteria
Used To Identify Critical Habitat section, we determined that all of
the areas proposed for designation on tribal lands were essential to
the conservation of the acu[ntilde]a cactus and Fickeisen plains
cactus. We sought government-to-government consultation with the Tohono
O'odham and the Navajo Nations throughout the proposal and development
of this final designation of acu[ntilde]a cactus and Fickeisen plains
cactus critical habitat, and we spoke to tribal representatives at
meetings about the designation. We communicated with tribes through
letters, electronic messages, and telephone calls about our exclusion
process under section 4(b)(2) of the Act, and we provided information
to develop management plans, technical assistance and review of
management plans, and critical habitat designation information and
schedule updates. We considered these tribal areas for exclusion from
final critical habitat designation to the extent consistent with the
requirements of section 4(b)(2) of the Act, and subsequently, excluded
all tribal lands from this final designation.

References Cited

A complete list of references cited in this final rulemaking is
available on the Internet at https://www.regulations.gov and upon
request from the Arizona Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Authors

The primary authors of this package are the staff members of the
Arizona Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

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

PART 17--[AMENDED]

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), the List of Endangered and Threatened Plants,
by revising the entries for ``Echinomastus erectocentrus var.
acunensis'' and ``Pediocactus peeblesianus var. fickeiseniae'' under
FLOWERING PLANTS, to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

[[Page 55302]]

----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Echinomastus erectocentrus var. Acu[ntilde]a Wherever found.... E 78 FR 60607; 10/1/2013
acunensis. cactus. 50 CFR 17.96(a)\CH\

* * * * * * *
Pediocactus peeblesianus var. Fickeisen plains Wherever found.... E 78 FR 60607; 10/1/2013
fickeiseniae. cactus. 50 CFR 17.96(a)\CH\

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

0
3. Amend Sec. 17.96(a) by adding entries for ``Echinomastus
erectocentrus var. acunensis (acu[ntilde]a cactus)'' and ``Pediocactus
peeblesianus var. fickeiseniae (Fickeisen plains cactus),'' in
alphabetical order under the family Cactaceae, to read as follows:

Sec. 17.96 Critical habitat--plants.

(a) Flowering plants.
* * * * *
Family Cactaceae: Echinomastus erectocentrus var. acunensis
(acu[ntilde]a cactus)
(1) Critical habitat units are depicted for Maricopa, Pima, and
Pinal Counties, Arizona, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
acu[ntilde]a cactus consist of:
(i) Native vegetation within the Paloverde-Cacti-Mixed-Scrub Series
of the Arizona Upland Subdivision of the Sonoran Desert-scrub at
elevations between 365 to 1,150 m (1,198 to 3,773 ft). This vegetation
must contain predominantly native plant species that:
(A) Provide protection to the acu[ntilde]a cactus (Examples of such
plants are creosote bush, ironwood, and palo verde.);
(B) Provide for pollinator habitat with a radius of 900 m (2,953
ft) around each individual reproducing acu[ntilde]a cactus;
(C) Allow for seed dispersal through the presence of bare soils
immediately adjacent to and within 10 m (33 ft) of individual
acu[ntilde]a cactus.
(ii) Soils overlying rhyolite, andesite, tuff, granite,
granodiorite, diorite, or Cornelia quartz monzonite bedrock that are in
valley bottoms, on small knolls, or on ridgetops, and are generally on
slopes of less than 30 percent.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
September 19, 2016.
(4) Critical habitat map units. Digital data layers defining map
units were created using geology, topography, elevation, vegetation
community, mean annual precipitation from the 1971 to 2000 period of
record, and acu[ntilde]a cactus herbarium and site visit records from
1952 to the present; these were mapped using Universal Transverse
Mercator coordinates. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's internet
site (https://www.fws.gov/southwest/es/arizona/), https://www.regulations.gov at Docket No. FWS-R2-ES-2013-0025, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:

[[Page 55303]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.000

BILLING CODE 4333-15-P
(6) Unit 1: Organ Pipe Cactus National Monument, Pima County, AZ.
Map of Unit 1 follows:

[[Page 55304]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.001

(7) Unit 2: Ajo Unit, Pima County, AZ. Map of Unit 2 follows:

[[Page 55305]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.002

(8) Unit 3: Sauceda Mountains Unit, Maricopa and Pima Counties, AZ.
Map of Unit 3 is provided at paragraph (7) of this entry.
(9) Unit 4: Sand Tank Mountains Unit, Maricopa County, AZ. Map of
Unit 4 follows:

[[Page 55306]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.003

(10) Unit 5: Mineral Mountain Unit, Pinal County, AZ. Map of Units
5 and 6 follows:

[[Page 55307]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.004

(11) Unit 6: Box O Wash Unit, Pinal County, AZ. Map of Unit 6 is
provided at paragraph (10) of this entry.
* * * * *
Family Cactaceae: Pediocactus peeblesianus var. fickeiseniae
(Fickeisen plains cactus)
(1) Critical habitat units are depicted for Mohave and Coconino
Counties, Arizona, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Fickeisen plains cactus consist of:
(i) Soils derived from limestone that are found on mesas, plateaus,
terraces, the toe of gentle sloping hills with up to 20 percent slope,
margins of canyon rims, and desert washes. These soils have the
following features:
(A) They occur on the Colorado Plateau in Coconino and Mohave
Counties of northern Arizona and are within the appropriate series
found in occupied areas;
(B) They are derived from alluvium, colluvium, or eolian deposits
of limestone from the Harrisburg member of the Kaibab Formation and
limestone, siltstone, and sandstone of the Toroweap and Moenkopi
Formations;

[[Page 55308]]

(C) They are nonsaline to slightly saline, gravelly, shallow to
moderately deep, and well-drained with little signs of soil movement.
Soil texture consists of gravelly loam, fine sandy loam, gravelly sandy
loam, very gravelly sandy loam, clay loam, and cobbly loam.
(ii) Native vegetation within the Plains and Great Basin grassland
and Great Basin desertscrub vegetation communities from 1,310 to 1,813
m (4,200 to 5,950 ft) in elevation that has a natural, generally intact
surface and subsurface that preserves the bedrock substrate and is
supportive of microbiotic soil crusts where they are naturally found.
(iii) Native vegetation that provides for habitat of identified
pollinators within the effective pollinator distance of 1,000 m (3,280
ft) around each individual Fickeisen plains cactus.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
September 19, 2016.
(4) Critical habitat map units. Data layers defining map units were
created using a base of U.S. Geological Survey 7.5' quadrangle maps.
Critical habitat units were then mapped using Universal Transverse
Mercator zone 11, North American Datum 1983 coordinates.
(5) Note: Index map follows:

[[Page 55309]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.005

(6) Unit 1: Hurricane Cliffs Unit, Mohave County, AZ. Map of Unit 1
follows:

[[Page 55310]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.006

(7) Unit 2: Sunshine Ridge Unit, Mohave County, AZ. Map of Units 2
and 3 follows:

[[Page 55311]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.007

(8) Unit 3: Clayhole Valley Unit, Mohave County, AZ. Map of Unit 3
is provided at paragraph (7) of this entry.
(9) Unit 4: South Canyon Unit, Coconino County, AZ. Map of Unit 4
follows:

[[Page 55312]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.008

(10) Unit 5: House Rock Valley Unit, Coconino County, AZ. Map of
Unit 5 is provided at paragraph (9) of this entry.
(11) Unit 6: Gray Mountain Unit, Coconino County, AZ. Map of Unit 6
follows:

[[Page 55313]]

[GRAPHIC] [TIFF OMITTED] TR18AU16.009

* * * * *

Dated: July 22, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-19159 Filed 8-17-16; 8:45 am]
BILLING CODE 4333-15-C

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