Endangered and Threatened Wildlife and Plants; Endangered Species Status for Swale Paintbrush, 37490-37504 [2023-12132]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 110 (Thursday, June 8, 2023)]
[Proposed Rules]
[Pages 37490-37504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12132]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2022-0173; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF79


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Swale Paintbrush

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the swale paintbrush (Castilleja ornata), a flowering plant 
species from New Mexico within the United States and the states of 
Chihuahua and Durango in Mexico, as an endangered species under the 
Endangered Species Act of 1973, as amended (Act). This determination 
also serves as our 12-month finding on a petition to list the swale 
paintbrush. After a review of the best available scientific and 
commercial information, we find that listing the species is warranted. 
If we finalize this rule as proposed, it would add this species to the 
List of Endangered and Threatened Plants and extend the Act's 
protections to the species. We find that designating critical habitat 
for the swale paintbrush is not prudent at this time.

DATES: We will accept comments received or postmarked on or before 
August 7, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by July 24, 2023.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2022-0173, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2022-0173, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).

FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna Road NE, Albuquerque, NM 87113; telephone 505-346-
2525. Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become an endangered species in the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
swale paintbrush meets the definition of an endangered species; 
therefore, we are proposing to list it as such. Listing a species as an 
endangered or threatened species can be completed only by issuing a 
rule through the Administrative Procedure Act rulemaking process (5 
U.S.C. 551 et seq.).
    What this document does. We propose to list the swale paintbrush as 
an endangered species under the Act.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that habitat loss and 
fragmentation, hydrological alteration, altered fire regimes, effects 
from intensive grazing pressure, exotic plant invasion, climate change 
impacts (i.e., drought and increased cool season temperatures), and 
cumulative effects of multiple stressors are threats to the swale 
paintbrush to the degree that listing it as an endangered species under 
the Act is warranted. Additionally, future collection risk may have 
compounding impacts on the species' viability.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary), to the maximum extent prudent and determinable, to 
designate critical habitat concurrent with listing. We have determined 
that designating critical habitat for swale paintbrush is not prudent 
due to the threat of collection and that increased collection risk 
outweighs the benefits that would be afforded to the species from the 
designation of critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for pollination, reproduction, and dispersal;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional populations of this species;
    (d) Historical and current population levels, and current and 
projected trends;
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both; and
    (f) Information on the species' biology, habitat, or status of 
populations at historical locations or within suitable habitats in 
Mexico.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any

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threats (or lack thereof) to this species and existing regulations that 
may be addressing those threats.
    (4) Additional information concerning the historical and current 
status of this species.
    (5) Information regarding our determination that designating 
critical habitat for the swale paintbrush is not prudent.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a threatened species must be made solely on the basis of 
the best scientific and commercial data available, and section 4(b)(2) 
of the Act directs that the Secretary shall designate critical habitat 
on the basis of the best scientific data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments and information we receive during the 
comment period as well as any information that may become available 
after this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species is 
threatened instead of endangered, or we may conclude that the species 
does not warrant listing as either an endangered species or a 
threatened species. For critical habitat, we may consider proposing 
areas of critical habitat if, after considering new information and 
public comments, we determine that designating critical habitat is 
prudent and determinable. In our final rule, we will clearly explain 
our rationale and the basis for our final decision, including why we 
made changes, if any, that differ from this proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    On June 18, 2007, Forest Guardians (now WildEarth Guardians) 
petitioned the Service to list 475 species in the southwestern United 
States, including the swale paintbrush, as an endangered or a 
threatened species under the Act. On December 16, 2009, the Service 
published in the Federal Register (74 FR 66866) a partial 90-day 
petition finding that the petition provided substantial information 
indicating that the swale paintbrush may warrant listing under the Act 
based on loss and degradation of suitable habitat (Factor A). This 
document constitutes the 12-month finding on the petition to list the 
swale paintbrush under the Act.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the swale paintbrush (Service 2023, entire). The SSA team was composed 
of Service biologists, in consultation with other species experts. The 
SSA report represents a compilation of the best scientific and 
commercial data available concerning the status of the species, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained within the swale paintbrush SSA 
report. The Service sent the SSA report to four independent peer 
reviewers and received two responses. Results of this structured peer 
review process can be found at https://www.regulations.gov. In 
preparing this proposed rule, we incorporated the results of these 
reviews, as appropriate, into the SSA report, which is the foundation 
for this proposed rule.

Summary of Peer Review Comments

    As discussed in Peer Review above, we received comments from two 
peer reviewers on the draft SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the information contained within the SSA report. 
The peer reviewers generally concurred with our methods and conclusions 
presented within the draft SSA report. They provided some additional 
information, clarifications in terminology, further discussions and 
interpretations of herbarium records, and feedback on stressors. We 
incorporated the majority of the substantive comments into the swale 
paintbrush SSA report, and thus this proposed rule. We outline the 
substantive comments that we did not incorporate, or fully incorporate, 
into the SSA report below.
    (1) Comment: Both reviewers suggested alternative locations for the 
georeferenced location of some herbarium records based upon their 
knowledge and interpretation of the collection notes for the specimen 
in question, other specimens collected by the same collector, and 
specimens collected by other collectors that were known to be 
collecting on the same trip.
    Response: We incorporated the new information for the records in 
question into the SSA report, where appropriate. Where alternate 
collection site locations were proposed, we considered both our 
originally georeferenced location and the alternate site as potential 
collection locations for the record. Most of the alternate locations 
were located within our 10-kilometer (6.2-mile) buffer zone, with the 
exception of the Palmer 320 site, which was located 20.1 kilometers 
(12.5 miles) south-southwest of the originally georeferenced locality. 
Since the buffer zone analyses were designed to approximate the 
disturbance patterns for a larger geographic area and consider the 
positional uncertainty in our georeferenced locations, we did not re-

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run the disturbance analyses on the alternate collection sites. We 
assumed that the percent, intensity, and trends in disturbance would be 
roughly equivalent for all sites within the larger buffered area. 
However, we added additional discussion to our disturbance analysis 
narrative and overall summaries, where appropriate, to include 
information about disturbance in the near vicinity of the alternate 
collection locations.
    We also received information about one previously unknown herbarium 
record within the Animas Valley of New Mexico, the Cowan Ranch site. 
Both peer reviewers alerted us to the omission of this site, and we 
added the Cowan Ranch record to our assessments throughout the SSA 
report. The Cowan Ranch site is also considered within this proposed 
rule.
    (2) Comment: One reviewer questioned the inclusion versus exclusion 
of some of the herbarium specimens as swale paintbrush records. 
Specifically, they questioned our treatment of Castilleja palmeri and 
C. pediaca as synonyms of C. ornata (swale paintbrush). They noted that 
two primary online reference databases for plants (i.e., the Missouri 
Botanical Garden's Tropicos database and the Royal Botanic Gardens, 
Kew's Plants of the World database) do not recognize C. palmeri and C. 
pediaca as synonyms of C. ornata; however, they acknowledged that the 
researchers who annotated the type specimens considered these species 
synonyms. Thus, they requested that we include additional records that 
were labeled as C. palmeri and C. pediaca in herbarium records as swale 
paintbrush within our analyses and add some clarifying language in our 
consideration of taxonomy.
    Response: We consulted with an expert in Castilleja systematics to 
verify the accuracy of all of the swale paintbrush records that we 
considered in our analyses as well as the additional records mentioned 
by the reviewer. After our discussions and consideration of the 
information provided through peer review, we added two of the suggested 
records as swale paintbrush and kept one record, Palmer 376, as 
``likely not swale paintbrush'' within our SSA report. We did not 
include the Palmer 376 record because the species identity of the C. 
palmeri type collection remains an open question. This specimen is 
likely not swale paintbrush (C. ornata) given that the specimen and 
typical swale paintbrush specimens have differences in morphology and 
the collection is much farther south than known swale paintbrush 
collections. Further, this C. palmeri record was described in the same 
paper as some swale paintbrush specimens, and the author considered 
them to be separate species (Eastwood 1909, pp. 570-571). Thus, it was 
recommended to treat ambiguous C. palmeri specimens as likely not swale 
paintbrush until further specimens could be studied (Egger 2022a, pers. 
comm.; Egger 2022b, pers. comm.).
    (3) Comment: One reviewer suggested that we consider soil 
formations and the geological history of the species' range within our 
assessments of swale paintbrush. They suggested that swale paintbrush 
occurrence may be associated with pluvial Pleistocene lakes, such as 
the Cloverdale Lake in the Animas Valley and the Bavicora Lake in 
Chihuahua, or alluvial filled canyon bottoms.
    Response: Although there is potential for up to four of the 
historical collection sites being associated with some of the 
historical pluvial or alluvial geologic features, this observation does 
not appear to be diagnostic for the species across its range. Given the 
large uncertainty in the georeferenced locations for the historical 
sites, especially those within Mexico, any associations based on those 
locations may be spurious. Thus, we did not include these pluvial and 
alluvial features as a potentially diagnostic character for swale 
paintbrush occupancy. However, we updated and clarified our soil type 
associations discussion to include the soil types observed at alternate 
sites.
    (4) Comment: One reviewer questioned whether we could speak 
strongly to aspects of the swale paintbrush's ecology given a lack of 
research on the topic. Specifically, they questioned whether we could 
state if the species relies on seasonal inundation, fire, and grazing 
as well as the timing of those impacts.
    Response: We acknowledge that there is inherent uncertainty within 
our SSA report with regard to the swale paintbrush ecology given the 
scarcity of information on this species. The bulk of published studies 
pertain to the species' taxonomy rather than the species' ecology. Most 
observations for the species occurred from limited observations of 
swale paintbrush at a single site over the last 30 years. Thus, we used 
information from other species within the genus Castilleja, information 
from other herbaceous plants within Madrean desert ecosystems, and 
observations of swale paintbrush habitat over the last decade to inform 
our assessments. For species that have limited data, such as swale 
paintbrush, data from a surrogate species are informative for assessing 
that status of the species and/or threats to the species' habitat; 
however, we acknowledge our uncertainties related to our assessment and 
use of surrogate information throughout the SSA report, particularly in 
chapter 6 (Service 2023, entire).
    The full list of peer reviewer comments and the SSA report (Service 
2023, entire), which incorporates the feedback from peer and partner 
reviews, are available for public review at https://www.regulations.gov 
under Docket No. FWS-R2-ES-2022-0173.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
swale paintbrush (Castilleja ornata) is presented in the SSA report 
(Service 2023, entire). The swale paintbrush (also known as the glowing 
Indian paintbrush and the ornate paintbrush) is an annual species of 
flowering plant in the family Orobanchaceae. There is no taxonomic 
uncertainty surrounding the validity of swale paintbrush as a species 
(Egger 2002 pp. 193, 195; Integrated Taxonomic Information System 
(ITIS) 2022, unpaginated); thus, we recognize swale paintbrush as a 
valid species and, therefore, a listable entity under the Act.
    The swale paintbrush is native to the grassland ecosystems of 
Hidalgo County, New Mexico, in the United States and to the eastern 
Sierra Madre Occidental in Chihuahua and Durango in Mexico (McIntosh 
1994, pp. 329-330). The species has been historically documented from 
13 sites: 2 sites within Hidalgo County, New Mexico; 10 sites in 
Chihuahua, Mexico; and 1 site in Durango, Mexico. Swale paintbrush was 
first observed from a site in Chihuahua, Mexico, in 1887, but not 
discovered in New Mexico until 1993 (Service 2023, pp. 6-11). The swale 
paintbrush was last observed in Mexico in 1985 and New Mexico in 2021. 
Currently, the species is only known to occur at a single site in the 
Animas Valley of Hidalgo County, New Mexico: the Gray Ranch site. 
Additional surveys within suitable habitat in the vicinity of known 
sites have not yielded additional locations for the species (Roth 2017, 
p. 3; Roth 2020, pp. 5, 7; Service 2023, unpublished data). The current 
status of swale paintbrush at the other historical sites is unknown.
    Given the species' overall rarity, little is known about the 
habitat requirements for swale paintbrush. Across the species' 
historical range, swale paintbrush has been observed in relatively 
level, seasonally wet grassland habitats at elevations ranging

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from approximately 1,500-2,300 meters (m) (4,920-7,550 feet (ft)) 
(Service 2023, pp. 6-20). Species within the genus Castilleja are root 
hemiparasites, meaning that plant vigor depends on exploitation of host 
plants for carbon, nitrogen, and other nutrients (Heckard 1962, p. 29). 
Castilleja plants begin to establish connections with host plant roots 
(via structures called haustoria) as seedlings (Heckard 1962, p. 28). 
For swale paintbrush, alkali sacaton (Sporobolus airoides) and blue 
grama (Bouteloua gracilis) are thought to be the primary host plants 
within the Animas Valley populations.
    Swale paintbrush individuals have one or a few erect stems that 
stand 20-50 centimeters (cm) (7.9-19.7 inches (in)) in height. Plants 
have oblong leaves with strongly wavy leaf margins and floral bracts 
are typically off-white to very pale yellow (New Mexico Rare Plant 
Technical Council (NMRPTC) 1999, unpaginated), although reddish phases 
of the plant have been observed within herbarium records. Across the 
range, aspects of the swale paintbrush's life cycle seem timed to 
monsoon season precipitation patterns. Plants germinate between April 
and June, flower between late-May and late-August (coincident with 
monsoonal rainfall), and set seed in late August through October 
(NMRPTC 1999, unpaginated). The longevity of swale paintbrush in the 
seedbank is unknown; however, the longevity of surrogate Castilleja 
species is up to 5 years in storage and 2 years in the wild (Service 
2023, pp. 22-24).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess swale paintbrush viability, we used the three 
conservation biology principles of resiliency, redundancy,

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and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (e.g., wet or dry, warm or cold years), 
redundancy is the ability of the species to withstand catastrophic 
events (e.g., droughts, large pollution events), and representation is 
the ability of the species to adapt to both near-term and long-term 
changes in its physical and biological environment (e.g., climate 
conditions, pathogens). In general, species viability will increase 
with increases in resiliency, redundancy, and representation (Smith et 
al. 2018, p. 306). Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the swale paintbrush SSA report; the full SSA report can be found at 
Docket FWS-R2-ES-2022-0173 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. We note that, by using the 
SSA framework to guide our analysis of the scientific information 
documented in the SSA report, we have not only analyzed individual 
effects on the species, but we have also analyzed their potential 
cumulative effects. We incorporate the cumulative effects into our SSA 
analysis when we characterize the current and future condition of the 
species. To assess the current and future condition of the species, we 
undertake an iterative analysis that encompasses and incorporates the 
threats individually and then accumulates and evaluates the effects of 
all the factors that may be influencing the species, including threats 
and conservation efforts. Because the SSA framework considers not just 
the presence of the factors, but to what degree they collectively 
influence risk to the entire species, our assessment integrates the 
cumulative effects of the factors and replaces a standalone cumulative 
effects analysis. For a full description of our analyses, see the swale 
paintbrush SSA report (Service 2023, entire).

Species Needs

    The individual, population-level, and species-level needs of the 
swale paintbrush are summarized in tables 1 through 3, below. For 
additional information, please see the SSA report (Service 2023, 
chapter 2).

Table 1--The Ecological Requisites for Survival and Reproductive Success
                     of Swale Paintbrush Individuals
------------------------------------------------------------------------
          Life stage               Requirements         Description
------------------------------------------------------------------------
Seeds--germination............  Suitable abiotic    Winter
                                 conditions.        temperatures below 2
                                                    degrees Celsius (36
                                                    degrees Fahrenheit)
                                                    for cold
                                                    stratification.
                                                    Suitable
                                                    warmth, light, and
                                                    soil moisture for
                                                    germination of
                                                    seeds; cool season
                                                    precipitation
                                                    supports germination
                                                    soil moisture.
Seedlings and Vegetative        Suitable biotic     Adequate
 Plants--establishment and       and abiotic        monsoonal rainfall
 growth.                         conditions.        June through August,
                                                    the critical
                                                    rainfall period for
                                                    swale paintbrush,
                                                    for growth and
                                                    establishment.
                                                    Proximity of
                                                    surrounding plants,
                                                    likely alkali
                                                    sacaton (Sporobolus
                                                    airoides) and/or
                                                    blue grama
                                                    (Bouteloua
                                                    gracilis), for
                                                    increased water and
                                                    nutrient uptake via
                                                    parasitic haustoria.
                                                    Lack of
                                                    herbivory throughout
                                                    germination,
                                                    establishment, and
                                                    growth periods.
Flowering Plants--reproduction  Pollination......   Presence of
                                                    suitable pollinators
                                                    during the flowering
                                                    season (June to
                                                    September).
                                                    Lack of
                                                    herbivory through
                                                    flower production
                                                    (June to September)
                                                    and seed set (July
                                                    to October).
------------------------------------------------------------------------


 Table 2--Population-Level Requisites Necessary for a Healthy Population
                           of Swale Paintbrush
------------------------------------------------------------------------
        Resiliency type            Requirements            Detail
------------------------------------------------------------------------
Demographic...................  Population growth   The long-
                                 rate ([lambda]).   term [lambda] needs
                                                    to be high enough to
                                                    rebound from
                                                    periodic population
                                                    crashes, i.e., on
                                                    average [lambda]
                                                    >1.0.
                                Population size     Sufficiently
                                 (N).               large N to withstand
                                                    periodic stochastic
                                                    events and
                                                    population crashes.
                                                    The N
                                                    required may vary
                                                    geographically
                                                    across populations.
Habitat.......................  Precipitation....   Adequate
                                                    quantity and timing
                                                    of cool season
                                                    rainfall to allow
                                                    for germination and
                                                    establishment.
                                                    Adequate
                                                    quantity and timing
                                                    of monsoonal
                                                    rainfall during the
                                                    critical rainfall
                                                    period of swale
                                                    paintbrush (June
                                                    through August) to
                                                    allow for
                                                    germination,
                                                    establishment,
                                                    growth, survival,
                                                    and reproduction.
                                Habitat..........   Presence of
                                                    host species, likely
                                                    alkali sacaton, for
                                                    hemiparasitic
                                                    relationships and
                                                    increased uptake of
                                                    water and nutrients.

[[Page 37495]]

 
                                                    Minimal to
                                                    no nonnative
                                                    vegetation that
                                                    outcompete swale
                                                    paintbrush, its host
                                                    species, or
                                                    pollinator forage
                                                    and host plants for
                                                    soil nutrients,
                                                    light, and water
                                                    resources.
                                                    Absence of
                                                    persistent chemical
                                                    contaminants that
                                                    interfere with swale
                                                    paintbrush's, host
                                                    species', or
                                                    pollinator species'
                                                    physiological
                                                    functionality.
                                                    Limited
                                                    levels of herbivory
                                                    across all life
                                                    stages.
                                                    Natural
                                                    processes, such as
                                                    hydrological cycles
                                                    and periodic
                                                    disturbances, that
                                                    maintain grassland
                                                    integrity (e.g.,
                                                    natural fire return
                                                    intervals of low
                                                    intensity,
                                                    seasonally
                                                    appropriate fires
                                                    that maintain canopy
                                                    gaps, enhance grass
                                                    and forb growth, and
                                                    prevent colonization
                                                    by woody species).
                                Pollination......   Presence of
                                                    suitable
                                                    pollinator(s).
                                                    Sufficient
                                                    soil moisture and
                                                    nutrients for
                                                    production of
                                                    flowers and nectar
                                                    resources.
                                                    An abundance
                                                    and diversity of
                                                    native flowering
                                                    plants within the
                                                    habitat to attract
                                                    pollinators and
                                                    maintain genetic
                                                    connectivity between
                                                    swale paintbrush
                                                    patches.
------------------------------------------------------------------------


  Table 3--Species-Level Ecology of Swale Paintbrush: Requirements for
                           Long-Term Viability
  [Ability to maintain self-sustaining populations over a biologically
                          meaningful timeframe]
------------------------------------------------------------------------
                                  Species-level
             3 Rs                   requisites          Description
------------------------------------------------------------------------
Resiliency....................  Self-sustaining    Self-sustaining
                                 populations        populations are
                                 across the         demographically,
                                 species' range.    genetically, and
                                                    physiologically
                                                    robust; have
                                                    sufficient quantity
                                                    of high-quality
                                                    habitat; and are
                                                    free of, or have
                                                    manageable, threats.
Redundancy....................  Sufficient         Sufficient
                                 distribution of    distribution to
                                 populations to     guard against
                                 spread risk.       catastrophic events
                                                    wiping out portions
                                                    of the species'
                                                    adaptive diversity
                                                    and the species as a
                                                    whole (i.e., to
                                                    reduce covariance
                                                    among populations);
                                                    spread out
                                                    geographically but
                                                    also ecologically
                                                    (different
                                                    ecological
                                                    settings).
Representation................  Maintain adaptive  Populations
                                 diversity of the   maintained across
                                 species.           spatial and
                                                    environmental
                                                    gradients to
                                                    maintain ecological
                                                    and genetic
                                                    diversity.
                                Maintain           Maintain evolutionary
                                 evolutionary       drivers (gene flow,
                                 processes.         natural selection,
                                                    genetic drift) to
                                                    mimic historical
                                                    patterns.
------------------------------------------------------------------------

Risk Factors for the Swale Paintbrush

    The primary factors influencing swale paintbrush viability are 
habitat loss and fragmentation, hydrological alteration, altered fire 
regimes, effects from intensive grazing pressure, exotic plant 
invasion, climate change impacts (i.e., drought and increased cool 
season temperatures), and cumulative effects of multiple stressors. 
Additionally, future collection risk may have compounding impacts on 
the species' viability. The majority of information pertaining to these 
threats are based on the New Mexico portion of the species' range; 
however, based on visual inspections of aerial imagery and the limited 
information we have on the historical sites, we believe these are 
threats to this species rangewide. These stressors and their effects to 
swale paintbrush are summarized below.
Habitat Loss and Fragmentation
    Habitat loss (Factor A) results in mortality of active plants, 
within-site seedbank loss, reduction in available habitat, overall 
decline in occupied area and abundance, increased edge effects, and 
decreased genetic exchange (Oostermeijer 2003, p. 3 and references 
therein). Edge effects include reduced wildlife use and travel (and the 
associated decrease in genetic exchange), reduced infiltration of 
precipitation, altered surface and subsurface hydrology, increased 
human activities, and exotic plant invasion (Forman and Alexander 1998, 
pp. 210, 223; Bhattacharya et al. 2003, p. 37; Raiter et al. 2018, pp. 
445-446; Sawyer et al. 2020, p. 934). The combined effects of habitat 
loss and edge effects can lead to fragmented and small populations that 
have reduced genetic exchange and hence reduced reproductive potential 
and adaptive capacity (Oostermeijer 2003, p. 1 and reference therein). 
Major sources of habitat loss and fragmentation within swale 
paintbrush's range include conversion to agriculture and development 
associated with human habitation and transportation.
Hydrological Alteration
    Swale paintbrush relies on cool season precipitation, monsoon 
precipitation, and a suitable surface/subsurface hydrology to complete 
its life cycle and maintain its seedbank. Thus, this species is 
sensitive to hydrological alterations (Factor A), such as artificial 
drought and emergence season inundation. Artificial drought occurs when 
upslope obstacles to, or diversions of, surface flows starve downslope 
areas that would have otherwise received those flows (Raiter et al. 
2018, pp. 445-446; Roth 2020, p. 5; Nichols and Degginger 2021, 
entire). One report suggests that disturbance altered local hydrology 
in the Gray Ranch area, starving previously occupied patches of 
habitat, and rendering them unsuitable for the species (Roth 2020, p. 
5). Alternately, downslope obstacles to surface flows may permanently 
or seasonally flood upslope areas that would have otherwise shed flows 
to downslope areas. Prolonged inundation causes forb mortality, 
reducing forb cover and increasing graminoid (grass-like) cover and 
height (Insausti et al. 1999, pp. 267, 269-271). If inundation 
interrupts the species' annual lifecycle, existing seedbanks may become

[[Page 37496]]

depleted and/or seedbank replenishment may be thwarted, depending on 
the timing, intensity, and/or duration of flooding (Insausti et al. 
1999, p. 272).
Altered Fire Regime
    Fire intensity, frequency, and seasonality (Factor A) have direct 
and indirect influences on swale paintbrush. Swale paintbrush relies 
heavily on canopy gaps and mineralized soil nutrient inputs for 
establishment and growth. Fire fosters these conditions and also 
reduces the cover of woody vegetation. It stimulates the growth of 
other grasses, including blue grama (which is one of swale paintbrush's 
host plants), and forbs (which support pollinators and, hence, swale 
paintbrush pollination) (Johnson 2000, unpaginated; Anderson 2003, 
unpaginated; Lybbert et al. 2017, p. 1030; Sam 2020, p. 69; Bestelmeyer 
et al. 2021, p. 181).
    Prehistoric fire return intervals in Madrean ecosystems range from 
2.5-10 years. Grasslands, a key ecosystem for swale paintbrush, are 
more likely to convert to shrublands or woodlands when fire return 
intervals exceed 10 years. Fire management regimes and grazing 
intensity (described below) affect fire frequency, and these habitats 
are sensitive to fire suppression and herbivore removal of fine fuels, 
which decrease fire frequency and may lead to increased intensity of 
fires when they do occur (Kaib et al. 1996, pp. 253, 260; Swetnam and 
Baisan 1996, pp. 23, 25; Brown and Archer 1999, pp. 2393-2394; Poulos 
et al. 2013, pp. 3-4, 8; NatureServe 2021, unpaginated). Excessive fire 
frequency, though less likely to occur, may also have detrimental 
impacts on swale paintbrush populations. For example, alkali sacaton's 
post-fire recovery time is 2-4 years, and high fire frequency can lower 
pollinator abundance and diversity (Johnson 2000, unpaginated; Carbone 
et al. 2019, p. 7). In turn, decreased pollinator abundance and 
diversity results in decreased pollination rates of swale paintbrush, 
which then leads to decreased reproduction and seedbank replenishment.
    Uncharacteristic fire seasonality is likely to adversely affect 
swale paintbrush. While a spring fire season is characteristic of the 
Sierra Madre Occidental and adjacent Madrean ecosystems, a summer fire 
season is characteristic of the rest of the desert southwest (Swetnam 
et al. 2001, pp. 5, 8; Poulos et al. 2013, p. 8). Current natural 
ignitions for the historical Gray Ranch area are reported to rarely 
start before the middle of April or after the middle of July (Brown 
1998, p. 250). However, fire prescriptions for the Animas Valley area 
are timed to avoid the breeding seasons of several wildlife species, 
potentially pushing prescription burns into mid-August, swale 
paintbrush's reproductive season (Malpai Borderlands Group (MBG) 2008, 
pp. 63-116). If fire interrupts the species' annual lifecycle, existing 
seedbanks may become depleted and/or seedbank replenishment may be 
thwarted.
Effects of Intensive Grazing
    Swale paintbrush occurs in grasslands that are used for grazing. 
While spring grazing helps to create the canopy gaps that this species 
needs for establishment, excessive grazing pressure that results in 
significant canopy loss increases the potential for evaporation, 
erosion, and nutrient loss (Factor A) (Li et al. 2007, pp. 318, 329-
331). These effects can reduce swale paintbrush productivity both 
directly and indirectly through impacts on the productivity of 
symbiotic and host species (Pimentel and Kounang 1998, pp. 419-421). 
Palatability of species in the genus Castilleja is considered poor for 
horses, poor to fair for cattle, and fair to good for sheep (New Mexico 
State University n.d., unpaginated). However, the swale paintbrush's 
slender stem morphology and erect growth habitat make them vulnerable 
to trampling by livestock when habitats are grazed during the plant's 
growing season. If grazing or trampling interrupt the species' annual 
lifecycle, existing seedbanks may become depleted and/or seedbank 
replenishment may be thwarted, depending on the timing, intensity, and/
or duration of the grazing. Winter-spring grazing is least likely to 
affect swale paintbrush survival and reproduction directly. Excessive 
herbivory during winter-spring could result in shifting the fire season 
further into the growing season, which could have negative impacts on 
seedbank replenishment and viability.
Exotic Plant Invasion
    Exotic plants (Factor A) can become introduced to, and dispersed 
within, grassland habitats by the travel of both humans and animals. 
Invasive exotic plants could reduce the availability of canopy gaps 
and/or outcompete swale paintbrush for available gaps, soil moisture, 
and soil nutrients, potentially both depleting the existing seedbank 
and reducing seedbank replenishment. Co-occurring noxious plant species 
also increase the risks of herbicide exposure. For a list of documented 
introduced species within the Gray Ranch area, see the SSA report 
(Service 2023, pp. 29-30). Introduced species in the vicinity of the 
sites in Mexico are unknown.
Climate Change Impacts
    Climate change (Factor E) has the potential to affect all of the 
following factors: drought (and associated increases in grazing 
pressure), flood, fire, and vulnerability to exotic plant invasion. The 
New Mexico sites are classified as an Apacherian-Chihuahuan Semi-Desert 
Grassland and Steppe ecological system within the EPA level 3 Madrean 
Archipelago ecoregion and the EPA level 4 Madrean Basin Grasslands 
ecoregion. This system is highly vulnerable to future climate changes. 
The remaining historical collection sites in Mexico are in Chihuahuan 
Semi-Desert Grassland and Steppe ecological systems within Sierra Madre 
Occidental ecoregions, which are moderately vulnerable to future 
climate changes. Projections for the Cloverdale HUC 08 watershed 
predict increasing temperatures and less available soil moisture, which 
would be akin to prolonged drought. The elevated temperatures and 
increased aridity projected across swale paintbrush's historical range 
render these systems vulnerable to conversion to shrub-steppe 
(Caracciolo et al. 2016, pp. 2-3; NatureServe 2021, unpaginated). These 
changes are likely to impact swale paintbrush populations at the 
northern- and southern-most extents of this species' range, including 
the verified extant population in New Mexico. Increased growing season 
aridity may stress the germination, establishment, growth, and 
reproduction of swale paintbrush plants, and increased winter 
temperatures may reduce swale paintbrush's capacity to overcome seed 
dormancy before seeds in the soil seedbank become unviable. The 
combined effects of increased soil seedbank loss and reduced seedbank 
replenishment leads to smaller population sizes, and, thus, the species 
would be more susceptible to environmental and demographic 
stochasticity.
Collection Risk
    A future threat to the species is the emerging risk of collection 
(Factor B). Although no illegal collection events of swale paintbrush 
have been documented, other species within the genus Castilleja are 
horticulturally desirable. Many Castilleja species are readily 
available via online companies, and yellow-bracted species, 
aesthetically similar to swale paintbrush, are marketed as rare.

[[Page 37497]]

Currently, due to the species' rarity and limited distribution and 
risks of illegal collection to rare species, swale paintbrush locality 
data below the county level are not publicly available through online 
databases (e.g., SEINet, Natural Heritage New Mexico, New Mexico Rare 
Plants website). If the location of known occupied habitat became 
publicly available, risk of illegal collection could increase. There is 
a history of illegal collection occurring for other species at or 
within the near vicinity of the Gray Ranch site. These collection 
efforts targeted the Sonoran Desert toad (Bufo alvarius; New Mexico 
Department of Game and Fish 2020, pp. 78-79), New Mexico ridge-nosed 
rattlesnake (Crotalus willardi obscurus; Harris Jr. and Simmons 1975, 
p. 6; Malpai Borderlands Group 2008, p. 60), and Mexican hog-nosed 
snake (Heterodon kennerlyi; Medina 2021, pers. comm.). For the New 
Mexico ridge-nosed rattlesnake specifically, collection over the period 
of 1961-1974 may have resulted in the loss of 130 individuals from the 
population (Service 2008, p. 37) and researchers encountered 15 illegal 
collectors from six states during a single season (Harris Jr. and 
Simmons 1975, p. 6). Swale paintbrush is easier to detect and collect 
than these mobile, camouflaged species. Thus, given the desirability of 
paintbrush species for horticultural use, the increased desirability of 
rare species, the inability of this species to evade detection and 
collection, and the history of illegal collection in the vicinity of 
the Gray Ranch, illegal collection is a potential future emerging 
threat for this species, especially if the location of known occupied 
habitat becomes publicly available. Further, given the small known 
extant range and population size of this species, its annual duration 
and reliance on frequent seedbank replenishment, and risks to its 
seedbank from stochastic events and other ongoing threats to the 
species, effects from collection (removal of plants and damage to 
habitat), illegal collection would be deleterious to swale paintbrush.
Cumulative Effects
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report (Service 2023, 
entire), we have analyzed the cumulative effects of identified threats 
and conservation actions on the species. To assess the current and 
future condition of the species, we evaluate the effects of all the 
relevant factors that may be influencing the species, including threats 
and conservation efforts. Because the SSA framework considers not just 
the presence of the factors, but to what degree they collectively 
influence risk to the entire species, our assessment integrates the 
cumulative effects of the factors and replaces a standalone cumulative-
effects analysis.
    In summary, swale paintbrush is likely adapted to withstand 
stochastic stressor events individually and intermittently. However, 
increased intensity, frequency, co-occurrence of, or consecutive 
occurrence of, and synergistic effects between, stochastic stressor 
events increases this species risk. Given swale paintbrush's annual 
duration, reliance on frequent seedbank replenishment, and its low seed 
longevity, as few as two consecutive years of adverse environmental 
conditions or human-caused or natural adverse stochastic events could 
have catastrophic consequences for this species.

Current Condition

    The swale paintbrush was historically documented from 13 sites in 
the United States and Mexico: 2 sites in the Animas Valley of Hidalgo 
County, New Mexico, and 11 sites in the eastern Sierra Madre Occidental 
of Chihuahua and northern Durango in Mexico. Currently, only one site--
the Gray Ranch site--is known to exist within the Animas Valley of 
Hidalgo County, New Mexico, and the species was last observed at this 
site in 2021. The last observations of historical sites were 1993 in 
New Mexico and 1985 in Mexico.
    We assessed the swale paintbrush's current condition using a two-
pronged approach. First, for all known occupied and historically 
collected swale paintbrush sites, we derived the amount and intensity 
of disturbed area and currently protected areas within the vicinity of 
each site using aerial imagery from the period of 2000 to 2020. Then, 
we used these data to estimate the possibility of swale paintbrush 
occupancy within the vicinity of the historical location and assigned 
each site into one of four categories: (1) known extant, (2) possibly 
extant, (3) possibly extirpated, and (4) presumed extirpated. Known 
extant means that the population has been observed within the last 
decade. Possibly extant means that the site is only known from 
herbarium records but has a reasonable potential for rediscovery; 
evidence of habitat loss or degradation is not substantial enough to 
presume complete loss of swale paintbrush habitat since the time of 
collection. Possibly extirpated means that the population is known only 
from herbarium records and has a low potential for rediscovery; 
evidence of habitat loss or degradation is substantial enough that loss 
of the species at the site is possible. Presumed extirpated means that 
the population is only known from herbarium records and has a very low 
potential for rediscovery; evidence of habitat loss or alteration is 
significant enough to presume complete loss of suitable habitat since 
the time of collection.
    Second, we conducted a more detailed assessment of the resiliency 
for the known occupied site at the Gray Ranch in the Animas Valley. 
Briefly, we considered the demographic factors (population abundance, 
occupied area, and count of patches within the last 2 years) and 
habitat factors (surface disturbance, herbicide exposure, fire regime, 
grazing regime, inundation seasonality, growing season canopy cover, 
and precipitation history). We assigned each factor into three 
condition categories; (1) high (factor values that are compatible with 
stable to increasing populations); (2) moderate (factor values that 
contribute to minimal rates of decline), or (3) low (factor values that 
contribute to high rates of decline). Our methodology and evaluations 
of viability are described in more detail in the swale paintbrush SSA 
report (Service 2023, chapter 4).
    Based on our assessment of swale paintbrush's current conditions 
across all sites, one site, the Gray Ranch site, is known extant, four 
sites ranked as possibly extant, six sites ranked as possibly 
extirpated, and two sites ranked as presumed extirpated. Of the four 
possibly extant sites, swale paintbrush plants were last observed at 
the sites in 1899, 1903, 1979, and 1993. Although potentially suitable 
habitat may remain at some of the historical sites, particularly the 
four possibly extant sites, the size and abundance (i.e., resiliency) 
of the historical sites are unknown and we cannot reasonably assume 
anything about the status of the species at these sites. Thus, the 
swale paintbrush has no verifiable redundancy and very limited 
representation throughout its known range.
    Based on our detailed assessment of current condition, swale 
paintbrush has moderate to high resiliency at the Gray Ranch site. The 
most recent survey in September 2021 documented a minimum abundance of 
6,000 plants--higher than our range of provisional minimum viable 
population sizes (1,500-5,000 plants)--distributed across 2 patches and 
28 acres of habitat in the Animas Valley. Generally, the site has 
moderate amounts of surface disturbance that would have limited 
influence on pollinator visitation rates. There has been no recent 
herbicide

[[Page 37498]]

exposure within 300 meters of swale paintbrush patches within the last 
15 years. Grazing during the species' active season within recent years 
has been avoided, and the disturbance regime (fire return intervals, 
inundation seasonality, grazing regime) combined with the recent 
precipitation history, have maintained favorable canopy cover that 
allows for swale paintbrush growth, establishment, and recent seedbank 
replenishment within the core of the population area.
    Although the Gray Ranch site is considered to have moderate to high 
resiliency currently, the small area that the species is known to 
occupy increases its risk of extirpation due to catastrophic events. 
The swale paintbrush is at risk of impacts from cumulative impacts of 
multiple stressors because it is an annual species with a provisional 
seedbank viability of 2 years in the wild and frequent replenishment of 
the seedbank is essential to population persistence. Replenishment of 
the seedbank with viable seeds requires flower production, successful 
pollination, and ovule maturation, all of which are impacted by 
stochastic and catastrophic events such as: habitat loss and 
fragmentation (Factor A), hydrological alteration (Factor A), altered 
fire regimes (Factor A), effects from intensive grazing pressure 
(Factor A), exotic plant invasion (Factor A), climate change impacts 
(i.e., drought and increased cool season temperatures; Factor E), and 
cumulative effects of multiple stressors. Additionally, future 
collection risk (Factor B) may have compounding impacts on the species' 
viability.
    Drought is the primary threat to the species, as increased 
frequency, intensity, and/or duration of drought can lead to decreased 
swale paintbrush survival through direct (e.g., drought stress, 
trampling, or herbivory) and indirect (e.g., increased grazing pressure 
within the habitat, increased fire risk, delayed post-fire recovery) 
mortality. Although grazing and fires help maintain canopy gaps, 
grazing and/or fires during the growing season can result in decreased 
swale paintbrush survival. Currently, grazing during the growing season 
is generally avoided at the Gray Ranch site; however, this site is used 
as a grass-banking pasture and may experience increased grazing 
pressure during times of drought. Grazing during the active season can 
result in trampling and mortality of the species. Growing season fires 
result in swale paintbrush mortality and, depending on the duration and 
intensity of the fire, prolonged recovery times for native vegetation. 
Decreased recovery times leave soils vulnerable to evaporation, 
erosion, nutrient loss, and invasive species establishment, all of 
which lead to decreased swale paintbrush survival.
    Taken altogether, the swale paintbrush has moderate to high 
resiliency within 1 population and unknown resiliency across the other 
12 historical sites. Although our analyses reflect our best assessment 
of the current conditions of disturbance at or in the vicinity of our 
estimates of historical site locations, the status of historically 
collected sites at Cowan Ranch of the Animas Valley and in the eastern 
Sierra Madre Occidental of Mexico is unknown. Rangewide, specimens were 
collected from 1887-2021, with the most recent record from Mexico being 
collected in 1985. Additionally, outside of the known extant New Mexico 
site, there have been no reported estimates of abundance with the 
exception of qualitative reports of ``occasional'' for the distribution 
at the Keil 13388 site and ``few plants'' for Palmer 320 (Palmer 1906, 
unpaginated; Keil 1978, unpaginated; Service 2023, p. 19). Thus, we 
cannot reasonably conclude anything about the health or resiliency of 
any site except for the Gray Ranch site. Accordingly, swale paintbrush 
has limited to no redundancy, depending on the status of the species at 
the historical sites. Even if swale paintbrush remains extant at sites 
outside of Gray Ranch, the majority of sites are isolated and there is 
limited potential for interpopulation rescue in the event of local 
extirpations. Finally, the swale paintbrush has limited representation. 
The Gray Ranch site exists at the northern periphery of the species' 
range and contains only a small portion of the historical genetic and 
ecological diversity of the species.

Future Condition

    As part of the SSA, we also developed future condition scenarios to 
capture the range of uncertainties regarding future threats and the 
projected responses by the swale paintbrush. Our future condition 
assessments considered the projected impacts of increased habitat 
disturbance and climate changes across the swale paintbrush's 
historical range. Specifically, we considered the upper and lower 
bounds of plausible impacts of environmental variables related to 
aridity during the growing and reproductive seasons and seed chilling 
and cold stratification during the cool season. Because we determined 
that the current condition of the swale paintbrush is consistent with 
an endangered species (see Determination of Swale Paintbrush's Status, 
below), we are not presenting the results of the future scenarios in 
this proposed rule. Please refer to the SSA report (Service 2023, 
chapter 5) for the full analysis of future scenarios.

Conservation Efforts and Regulatory Mechanisms

    Below is a brief description of conservation measures and 
regulatory mechanisms currently in place. Please see the SSA report for 
a more detailed description (Service 2023, chapter 3).
    Swale paintbrush is listed as an endangered species by the state of 
New Mexico. In New Mexico, swale paintbrush exists on lands managed for 
livestock production in an ecologically responsible manner by the 
Animas Foundation (Brown 1998, p. 248). The Nature Conservancy (TNC), 
the former landowners of the Gray Ranch site, retains a conservation 
easement prohibiting development on the lands formerly known as the 
Gray Ranch (TNC 2022, unpaginated). While the easement does not ensure 
that range improvements will avoid adverse effects to swale paintbrush, 
it ensures that the covered areas will remain open space.
    The Animas Foundation is a member of the Malpai Borderlands Group, 
a private, nonprofit organization that is dedicated to maintaining or 
increasing rangeland health and the viability of traditional 
livelihoods that maintain rangelands as open space (Malpai Borderlands 
Group 1994, p. 2; Brown 1998, p. 249; Malpai Borderlands Group 2008, 
pp. 1-2). Malpai Borderlands Group activities related to use, 
maintenance, and enhancement of rangelands fall within the scope of a 
habitat conservation plan (HCP) for all privately owned and State-trust 
rangelands in the Malpai Borderlands of Southern Arizona and New 
Mexico. Although the swale paintbrush is not a covered species under 
this plan, the species may benefit from the plan's covered activities 
and associated conservation measures (Service 2023, pp. 35-36, table 3-
1). These covered activities and associated conservation measures have 
the potential to maintain and enhance swale paintbrush habitat by 
restoring fire, minimizing erosion, and controlling invasive and exotic 
plant species. The Animas Foundation's participation in the HCP, beyond 
the grassbanking program, is unknown.
    Finally, we have partnered with the Animas Foundation, the State of 
New Mexico, and Albuquerque Bio Park to conduct and maintain ex situ 
seed collections of swale paintbrush from the Gray Ranch site. 
Currently, 77 maternal lines have been collected and retained in 
offsite storage institutions for

[[Page 37499]]

germination studies, grow out, seed increase, and potential 
reintroduction efforts.

Determination of Swale Paintbrush's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of an endangered 
species or a threatened species because of any of the following 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we found that the swale paintbrush's distribution has declined 
from historical conditions. The swale paintbrush was documented from 13 
sites historically: 2 sites in the Animas Valley of Hidalgo County, New 
Mexico, and 11 sites in the eastern Sierra Madre Occidental of 
Chihuahua and northern Durango in Mexico. Of the 13 historical sites, 
only 1 site--the Gray Ranch site within the Animas Valley of Hidalgo 
County, New Mexico--is currently known to be extant. Swale paintbrush 
plants were last observed at the Gray Ranch site in September of 2021 
with a minimum abundance of 6,000 plants distributed across 28 acres of 
habitat. Of the 12 other historical sites, our analyses found that four 
sites ranked as ``possibly extant,'' six sites ranked as ``possibly 
extirpated,'' and two sites ranked as ``presumed extirpated.'' Although 
potentially suitable habitat may remain at some of the historical 
sites, the size and abundance (i.e., resiliency) of the historical 
sites is unknown, and we do not have information that these sites are 
resilient, stable, or able to contribute to the viability of the 
species.
    Although the Gray Ranch site is considered to have moderate to high 
resiliency currently--based on the most recent abundance exceeding the 
minimum viable population size and habitat conditions of the Animas 
Valley being generally favorable--the small area that the species is 
known to occupy increases its risk of extirpation due to catastrophic 
events. The swale paintbrush is at risk from cumulative impacts of 
multiple stressors because it is an annual species with a provisional 
seedbank viability of 2 years and frequent replenishment of the 
seedbank is essential to population persistence. Replenishing the 
seedbank with viable seeds requires flower production, successful 
pollination, and ovule maturation, all of which are impacted by these 
stochastic and catastrophic events such as habitat loss and 
fragmentation (Factor A), hydrological alteration (Factor A), altered 
fire regimes (Factor A), effects from intensive grazing pressure 
(Factor B), exotic plant invasion (Factor A), climate change impacts 
(i.e., drought and increased cool season temperatures; Factor E), and 
cumulative effects of multiple stressors. Additionally, future 
collection risk (Factor B) may have compounding impacts on the species' 
viability.
    Drought is the primary threat to the species, as increased 
frequency, intensity, and/or duration of drought can lead to decreased 
swale paintbrush survival through direct and indirect mortality. 
Although grazing and fires can help maintain canopy gaps, grazing and/
or fires during the growing season can result in decreased swale 
paintbrush survival. Currently, grazing during the growing season is 
avoided at the Gray Ranch site; however, this site is used as a grass-
banking pasture and may experience increased grazing pressure during 
times of drought. Grazing during the active season can result in 
trampling and mortality of the species. Growing season fires result in 
swale paintbrush mortality and, depending on the duration and intensity 
of the fire, prolonged recovery times for native vegetation. Decreased 
recovery times leave soils vulnerable to evaporation, erosion, nutrient 
loss, and invasive species establishment, all of which lead to 
decreased swale paintbrush survival. Thus, decreased swale paintbrush 
survival results in decreased seedbank replenishment and, by extension, 
decreased seedbank viability, which increases the species' risk of 
extinction.
    Overall, swale paintbrush has limited viability due to its limited 
resiliency, lack of redundancy, and limited representation at the 
species level. The species currently occurs at a single site at the 
northern periphery of its known historical range, and is vulnerable to 
the impacts of catastrophic events. Given its limited distribution, the 
species likely contains only a small portion of its historical genetic 
and ecological diversity, and thus swale paintbrush has limited 
capacity to adapt to long-term environmental changes (representation). 
Even if swale paintbrush is extant at sites outside of the Gray Ranch, 
the majority of these potentially extant historical sites are isolated, 
and thus there is limited potential for interpopulation rescue in the 
event of local extirpations.
    Accordingly, we find that the swale paintbrush is presently in 
danger of extinction throughout all of its range based on small 
population size and the species' risk from a number of contemporary 
threats. The risk of extinction is high due to a small population with 
no known potential for recolonization from nearby sources (no 
redundancy) and the species having limited viability within the 
seedbank. We do not find that a threatened status is warranted for the 
swale paintbrush because the species occupies a small geographic range 
that is currently vulnerable to stressors with the potential for 
catastrophic synergistic consequences. Thus, the species' limited 
resiliency, lack of redundancy, and limited representation currently 
place the species in danger of extinction, and these contemporary 
threats are only projected to increase in frequency, severity, extent, 
and/or duration into the future.
    Thus, after assessing the best available information, we determine 
that swale paintbrush is in danger of extinction throughout all of its 
range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that the swale paintbrush is in danger of 
extinction throughout all of its range and accordingly did not 
undertake an analysis of any significant portion of its range. Because 
the swale paintbrush warrants listing as endangered throughout all of 
its range, our determination does not conflict with the decision in 
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 
2020) (Everson), which vacated the provision of the Final Policy on 
Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered

[[Page 37500]]

Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014) providing that if the Services 
determine that a species is threatened throughout all of its range, the 
Services will not analyze whether the species is endangered in a 
significant portion of its range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the swale paintbrush meets the Act's 
definition of an endangered species. Therefore, we propose to list the 
swale paintbrush as an endangered species in accordance with sections 
3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies, 
including the Service, and the prohibitions against certain activities 
are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of New Mexico would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the swale paintbrush. Information on our 
grant programs that are available to aid species recovery can be found 
at: https://www.fws.gov/service/financial-assistance.
    Although the swale paintbrush is only proposed for listing under 
the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7 of the Act is titled Interagency Cooperation and mandates 
all Federal action agencies to use their existing authorities to 
further the conservation purposes of the Act and to ensure that their 
actions are not likely to jeopardize the continued existence of listed 
species or adversely modify critical habitat. Regulations implementing 
section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    In contrast, section 7(a)(4) of the Act requires Federal agencies 
to confer with the Service on any 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 critical 
habitat proposed to be designated for such species. Although the 
conference procedures are required only when an action is likely to 
result in jeopardy or adverse modification, action agencies may 
voluntarily confer with the Service on actions that may affect species 
proposed for listing or critical habitat proposed to be designated. In 
the event that the subject species is listed or the relevant critical 
habitat is designated, a conference opinion may be adopted as a 
biological opinion and serve as compliance with section 7(a)(2).
    Examples of actions for the swale paintbrush that may be subject to 
conference and consultation procedures under section 7 are land 
management or other landscape-altering activities on Federal lands 
administered by the Bureau of Land Management and the U.S. Forest 
Service as well as actions on

[[Page 37501]]

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, authorized, or carried out 
by a Federal agency--do not require section 7 consultation. Examples of 
Federal agency actions that may require consultation for the swale 
paintbrush could include direct participation in Federal permits or 
funding for habitat maintenance or restoration treatments, emergency 
response activities (such as for fire), range improvement projects, and 
public infrastructure maintenance or development (such as 
transportation infrastructure and border barricades). Given the 
difference in triggers for conferencing and consultation, Federal 
agencies should coordinate with the local Service Field Office (see FOR 
FURTHER INFORMATION CONTACT) with any specific questions.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 
17.61, make it illegal for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another 
to commit or to cause to be committed any of the following with an 
endangered plant: (1) import to or export from, the United States; (2) 
remove and reduce to possession from areas under Federal jurisdiction; 
maliciously damage or destroy on any such area; remove, cut, dig up, or 
damage or destroy on any other area in knowing violation of any law or 
regulation of any State or in the course of any violation of a State 
criminal trespass law; (3) deliver, receive, carry, transport, or ship 
in interstate or foreign commerce, by any means whatsoever and in the 
course of a commercial activity; (4) or sell or offer for sale in 
interstate or foreign commerce. Certain exceptions to these 
prohibitions apply to employees or agents of the Service, other Federal 
land management agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered plants under certain circumstances. Regulations 
governing permits for endangered plants are codified at 50 CFR 17.62. 
With regard to endangered plants, a permit may be issued for scientific 
purposes or for enhancing the propagation or survival of the species. 
The statute also contains certain exemptions from the prohibitions, 
which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, specific activities that will not result 
in violation of section 9 of the Act. To the extent possible, 
activities will be considered likely to result in violation will also 
be identified in as specific a manner as possible. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing.
    As discussed above, certain activities that are prohibited under 
section 9 may be permitted under section 10 of the Act. In addition, to 
the extent currently known, the following activities will not be 
considered likely to result in violation of section 9 of the Act:
    (1) Normal residential landscaping activities on non-Federal lands 
that do not occur within known swale paintbrush habitat;
    (2) Cool season livestock grazing (November to April) that is 
conducted in a manner that does not result in degradation of swale 
paintbrush habitat; and
    (3) Collection occurring under a Federal permit for scientific or 
recovery purposes.
    This list is intended to be illustrative and not exhaustive; 
additional activities that will not be considered likely to result in 
violation of section 9 of the Act may be identified during coordination 
with the local field office, and in some instances (e.g., with new 
information), the Service may conclude that one or more of the 
activities identified here will be considered likely to result in 
violation of section 9.
    To the extent currently known, the following is a list of examples 
of activities that will be considered likely to result in violation of 
section 9 of the Act in addition to what is already clear from the 
descriptions of prohibitions found at 50 CFR 17.61:
    (1) Removing, cutting, digging up, or damaging or destroying swale 
paintbrush in knowing violation of any law or regulation of the State 
of New Mexico or in the course of any violation of a State criminal 
trespass law; and
    (2) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of swale paintbrush in interstate 
or foreign commerce, by any means whatsoever and in the course of a 
commercial activity.
    This list is intended to be illustrative and not exhaustive; 
additional activities that will be considered likely to result in 
violation of section 9 of the Act may be identified during coordination 
with the local field office, and in some instances (e.g., with new or 
site-specific information), the Service may conclude that one of more 
activities identified here will not be considered likely to result in 
violation of section 9. Questions regarding whether specific activities 
would constitute a violation of section 9 of the Act should be directed 
to the New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

II. Critical Habitat

Background

    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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    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

[[Page 37502]]

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 also 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. Rather, designation requires that, 
where a landowner requests Federal agency funding or authorization for 
an action that may affect an area designated as critical habitat, the 
Federal agency consult with the Service under section 7(a)(2) of the 
Act. If the action may affect the listed species itself (such as for 
occupied critical habitat), the Federal agency would have already been 
required to consult with the Service even absent the designation 
because of the requirement to ensure that the action is not likely to 
jeopardize the continued existence of the species. Even if the Service 
were to conclude after consultation that the proposed activity is 
likely to result in destruction or adverse modification of the critical 
habitat, the Federal action agency and the landowner are not required 
to abandon the proposed activity, or to restore or recover the species; 
instead, they must 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).
    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.
    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 from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; 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 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 prohibitions found in section 9 of the Act. 
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 the 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 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall 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 Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (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;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    We find that designating critical habitat for the swale paintbrush 
is not prudent under the criterion set forth at 50 CFR 424.12(a)(1)(i). 
Although no known illegal collection events of swale

[[Page 37503]]

paintbrush have been documented, other species within the genus 
Castilleja are horticulturally desirable. Many Castilleja species are 
readily available via online companies, and yellow-bracted species, 
aesthetically similar to swale paintbrush, are marketed as rare. There 
is a history of illegal collection occurring for other species at or 
within the near vicinity of the Gray Ranch site. These collection 
efforts involved the Sonoran Desert toad (New Mexico Department of Game 
and Fish 2020, pp. 78-79), New Mexico ridge-nosed rattlesnake (Harris 
Jr. and Simmons 1975, p. 6; Malpai Borderlands Group 2008, p. 60), and 
Mexican hog-nosed snake (Medina 2021, pers. comm.). Swale paintbrush is 
easier to detect and collect than these mobile, camouflaged species. 
Additionally, swale paintbrush locality data are not published within 
online databases due to the species' rarity and limited distribution. 
Designation of critical habitat requires the publication of maps and a 
narrative description of specific critical habitat areas in the Federal 
Register. The degree of detail necessary to properly designate critical 
habitat is considerably greater than the general descriptions of 
location provided in this proposal to list the swale paintbrush as an 
endangered species. We find that the publication of maps and 
descriptions outlining the locations would further facilitate 
unauthorized collection by providing currently unavailable precise 
location information. Overall, given the small known extant range and 
population size of this species, its annual duration and reliance on 
frequent seedbank replenishment, and risks to its seedbank from 
stochastic events and other ongoing threats to the species, effects 
from collection (removal of plants and damage to habitat), illegal 
collection would be deleterious to swale paintbrush. As such, we have 
determined that the increased collection risk to the swale paintbrush 
outweighs the benefits that would be afforded to the species from the 
designation of critical habitat. Therefore, in accordance with 50 CFR 
424.12(a)(1), we determine that designation of critical habitat is not 
prudent for the swale paintbrush.

Required Determinations

Clarity of the Rule

    We are required by E.O.s 12866 and 12988 and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

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), E.O. 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 federally recognized Tribes on a 
government-to-government basis. In accordance with Secretary's 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 contacted all Tribal entities with documented cultural 
interests in Hidalgo County, New Mexico--the Hopi Tribe, the White 
Mountain Apache Tribe, the Mescalero Apache Tribe, and the Fort Sill 
Apache Tribe--to provide notice of our status review, solicit 
information, and invite participation in the SSA process. We will 
continue to work with Tribal entities during the development of a final 
listing determination for the swale paintbrush.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov under Docket No. FWS-R2-
ES-2022-0173 and upon request from the New Mexico Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the New 
Mexico Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. In Sec.  17.12, in paragraph (h), amend the List of Endangered and 
Threatened Plants by adding an entry for ``Castilleja ornata'' in 
alphabetical order under FLOWERING PLANTS to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 37504]]



----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
        Scientific name              Common name        Where listed          Status         applicable rules
----------------------------------------------------------------------------------------------------------------
                                                Flowering Plants
 
                                                  * * * * * * *
Castilleja ornata..............  swale paintbrush..  Wherever found....               E   [Federal Register
                                                                                           citation when
                                                                                           published as a final
                                                                                           rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-12132 Filed 6-7-23; 8:45 am]
BILLING CODE 4333-15-P