Endangered and Threatened Wildlife and Plants; Final Rule To Determine the Plant Pediocactus winkleri (Winkler Cactus) To Be a Threatened Species

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC09

Endangered and Threatened Wildlife and Plants; Final Rule To

Determine the Plant Pediocactus winkleri (Winkler Cactus) To Be a

Threatened Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines the plant

species Pediocactus winkleri (Winkler cactus), to be a threatened

species. P. winkleri is endemic to lower elevations of the Colorado

Plateau in south-central Utah. Four populations of P. winkleri are

known. These populations total about 20,000 plants that grow on widely

separated parcels of habitat between 1 (2.4 acres (ac)) and 20 (48 ac)

hectares (ha) in size. This species is threatened by collection and by

habitat disturbances due to mining, recreation, and livestock. This

determination, that P. winkleri is a threatened species, implements

protection under the Endangered Species Act of 1973, as amended.

DATES: This rule is effective September 21, 1998.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the U.S. Fish and

Wildlife Service, Lincoln Plaza, Suite 404, 145 East 1300 South, Salt

Lake City, Utah 84115.

FOR FURTHER INFORMATION CONTACT: John L. England at the above address

(telephone 801/524-5001).

SUPPLEMENTARY INFORMATION:

Background

Pediocactus winkleri was discovered in the early 1960's and

described in scientific literature by Heil (1979). The plant genus

Pediocactus contains eight species, seven of these are rare endemics of

the Colorado Plateau region of Utah, Colorado, New Mexico, and Arizona

(Heil et al. 1981).

Pediocactus winkleri is a small globose (globular) cactus with

stems 2.5 to 6.5 centimeters (cm) (1 to 2.5 inches (in)) tall and up to

5 cm (2 in) in diameter. It has clusters of 9 to 11 small radial spines

with dense fine woolly hairs at their base; erect central spines are

lacking. The flowers of P. winkleri are urn shaped, 1.8 to 2.5 cm (0.7

to 1 in) long and 1.8 to 3.8 cm (0.7 to 1.5 in) in diameter, and have a

peach-to-pink color. The fruit is barrel shaped, 0.7 to 1.0 cm (.3 to

.4 in) high and 0.8 to 1.1 cm (.31 to .43 in) wide, dehiscing (process

of opening) by a vertical slit along the ovary wall. The seeds are

shiny black, 3 millimeters (mm) (.12 in) long and 2 mm (.08 in) wide

(Heil 1979, Heil et al. 1981; Welsh et al. 1993).

Based on the most recent surveys, the Service has determined that

Pediocactus winkleri occurs in four populations that total about 20,000

plants (Kass 1997; Fish and Wildlife Service 1994, 1997; D. Clark,

Torrey, Utah, personal communication 1998). The October 6, 1993,

proposed rule to list P. winkleri as endangered (58 FR 52059) stated

that P. winkleri occurred in 6 populations of about 3,500 plants. The

abundance estimate of 3,500 plants given in the proposed rule was

obtained from Heil (1984). Surveys through 1998, however, have

documented about 5,800 individual P. winkleri plants (Fish and Wildlife

Service 1997, Kass 1997, D. Clark, per. comm. 1998). Recent surveys in

1994 (Fish and Wildlife Service 1994), 1996 (T. Clark, Capitol Reef

National Park, pers. comm. 1996), 1997 (Fish and Wildlife Service 1997,

Kass 1997), and 1998 (D. Clark, per. comm. 1998) indicate that the

species total population could reasonably be estimated to be as many as

20,000 plants based on the amount of available habitat. Each of the

four populations contain a number of widely separated sites from 1 ha

(2.4 ac) to 20 ha (48 ac) in size. Since the proposed rule was

published, a survey conducted by the Bureau of Land Management (BLM)

discovered an additional population near the town of Ferron in

southwest Emery County, Utah (Fish and Wildlife Service 1994). The

Service and BLM conducted additional surveys of the species' entire

potential habitat on silty soils derived from the Dakota, Mancos, and

Morrison geologic formations. Additional sites were discovered within

existing population areas (Fish and Wildlife Service 1997; D. Clark

1998, pers. comm.). The Park Service also reports larger numbers of the

cactus within Capitol Reef National Park (K. Heil, pers. comm. 1993;

Tom Clark, Capitol Reef National Park, pers. comm. 1996, 1997; D.

Clark, pers. comm 1998). The BLM reports larger numbers of the species

from the Last Chance Desert population (Wayne Luddington, Bureau of

Land Management, Price, Utah, pers. comm. 1997; Fish and Wildlife

Service 1997). Service biologists visited these sites and subsequently

reviewed the status of all extant populations of P. winkleri (Fish and

Wildlife Service

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1994, 1997). The Service consolidated the five P. winkleri populations

in Wayne County, Utah (Heil 1984 and Neese 1987) into two populations,

Notom and Hartnet, (Fish and Wildlife Service 1994) in an effort to be

consistent with the two, more recently discovered populations, Last

Chance and Ferron, in Emery County.

Individual Pediocactus winkleri plants are usually situated on the

tops and sides of rocky hills or benches in Atriplex (saltbush)

dominated desert shrub communities (Heil 1984). The species grows in

alkaline silty loam or clay loam soils derived primarily from the

Dakota formation, the Brushy Basin member of the Morrison formation,

and the Emery sandstone member of the Mancos formation (Heil 1984,

Neese 1987, Fish and Wildlife Service 1997).

Three of the four populations of Pediocactus winkleri form a narrow

arc extending from near Notom in central Wayne County to the vicinity

of Last Chance Creek in southwestern Emery County, Utah. The fourth is

a disjunct population occurring near Ferron, Utah, in western Emery

County. Most of these populations occur in widely scattered patches in

a range about 58 kilometers (km) (36 miles (mi)) long and about 0.5 km

(0.3 mi) wide. About two thirds of the population occurs on lands

managed by the BLM east and north of the Capitol Reef National Park

boundary. The remainder of the plants are found within the Park.

The range of Pediocactus winkleri converges upon populations of the

listed endangered cactus P. despainii (San Rafael cactus). P. despainii

and P. winkleri are described as separate species in all taxonomic

treatments involving those species in regional floras (Welsh et al.

1993) and in monographs of the genus (Heil et al. 1981; K. Heil, San

Juan College, Farmington, New Mexico, pers. comm. 1994, 1998). Recent

cytotaxonomic research demonstrates that typical P. winkleri from the

Notom population is genetically different from typical P. despainii

from the San Rafael Swell (M. Porter, Rancho Santa Ana Botanic Garden,

Claremont, California, pers. comm. 1998). However, the two species are

phylogenetically related, and it has been suggested (Kass 1990) that

they be treated as varieties (i.e. subspecies) of P. winkleri, the

first of the two species to be described (Heil 1979; Welsh & Goodrich

1980). Occasional plants within the northern portion of the Last Chance

population bear characteristics intermediate between P. winkleri and P.

despainii. The two species are, however, morphologically distinct and

geographically separated. The Service recognizes P. winkleri as a

species distinct from P. despainii. If these species are later

recognized as subspecies, their designations as threatened and

endangered species will remain valid because section 3(15) of the Act

allows for the listing of subspecies.

Previous Federal Action

Federal actions relating to this species began when the Secretary

of the Smithsonian Institution prepared a report on those plants

considered to be endangered, threatened, or extinct. This report (House

Document No. 94-51) was then presented to Congress on January 9, 1975.

On July 1, 1975, the Service published a notice in the Federal Register

(40 FR 27823) formally accepting the report as a petition under section

4(c)(2) of the Act (petition acceptance is now governed by section

4(b)(3) of the Act), and acknowledging its intention to review the

status of those plants. Pediocactus winkleri was not included in the

1975 notice but was included as a new candidate species in the Federal

Register notice of December 15, 1980 (45 FR 82480). The 1980 notice

included P. winkleri as a Category 1 species. Category 1 species were

those taxa for which the Service had on file substantial information on

the biological vulnerability and threats to support proposing them as

endangered or threatened species.

Section 4(b)(3)(B) of the 1982 amendments to the Act required the

Secretary of the Interior to make a finding within 1 year of receiving

a listing petition as to whether the listing is warranted, warranted

but precluded by other pending proposals of higher priority, or not

warranted. In this case a ``warranted but precluded'' finding was made.

This category requires a finding each year thereafter until the

petitioned taxa are either proposed for listing or a final ``not

warranted'' finding is made.

Section 2(b)(1) of the 1982 amendments further required that all

petitions pending as of October 13, 1982, be treated as having been

newly submitted on that date. To facilitate making the necessary annual

``warranted but precluded'' findings on several plant taxa, the Service

made an administrative decision to treat all the plant candidates in

Category 1 and Category 2 at that time as if their listings had been

petitioned on October 13, 1982. This included species such as

Pediocactus winkleri which was included as a candidate in the 1980

Notice of Review but was never the subject of a petition. As a result

of the administrative decision to treat these species as petitioned, P.

winkleri was included in the annual warranted but precluded findings,

first published on October 13, 1983.

In the November 28, 1983, supplemental notice (48 FR 53640), the

Service changed the status of Pediocactus winkleri from Category 1 to

Category 2 as a result of a careful review of the status information.

Category 2 species were taxa for which the Service had information

indicating the appropriateness of a proposal to list the taxa as

endangered or threatened but for which more substantial data were

needed on biological vulnerability and threats. The Service

discontinued use of a category system in the February 28, 1996, Federal

Register notice (61 FR 7596).

On September 27, 1985, the Service published a Notice of Review (50

FR 39526) replacing the 1980 notice and its 1983 supplement. This

Notice of Review included Pediocactus winkleri as a Category 1 species,

a change resulting from a status survey for P. winkleri (Heil 1984),

which documented the vulnerability and threats to this species. The

Service published Notices of Review on February 21, 1990 (55 FR 6184)

and September 27, 1993 (58 FR 51144), which retained P. winkleri as a

Category 1 species. The Service's proposal to list P. winkleri as

endangered on October 6, 1993 (58 FR 52059), constituted the warranted

12-month petition finding for this species. During the public comment

period on the 1993 proposal, the Service received substantive comments

on information contained in the proposal regarding the threats to and

population numbers of P. winkleri. Since that time, the Service has

made efforts through additional surveys to obtain the best available

scientific information in making the decision to list P. winkleri. The

Service believes this final rule is an accurate assessment of the

population numbers and threats faced by this species. In order to

obtain and incorporate any new scientific information into this final

determination for P. winkleri, and due to new information on the

species range and abundance obtained by the Service since the comment

period closed on December 6, 1993 (58 FR 52059), the Service reopened

the public comment period for 30 days on June 22, 1998 (63 FR 33901).

The Service published Listing Priority Guidance for Fiscal Years

1998 and 1999 on May 8, 1998 (63 FR 25502). The guidance clarifies the

order in which the Service will process rulemakings giving highest

priority (Tier 1) to processing emergency rules to add species to the

Lists of Endangered and Threatened

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Wildlife and Plants (Lists); second priority (Tier 2) to processing

final determinations on proposals to add species to the Lists,

processing new proposals to add species to the Lists, processing

administrative findings on petitions (to add species to the Lists,

delist species, or reclassify listed species), and processing a limited

number of proposed or final rules to delist or reclassify species; and

third priority (Tier 3) to processing proposed or final rules

designating critical habitat. Processing of this proposed rule is a

Tier 2 action.

Summary of Comments and Recommendations

In the October 6, 1993, proposed rule and associated notifications,

and the June 22, 1998, notice, all interested parties were requested to

submit factual reports or information that might contribute to the

development of a final rule. Appropriate Federal and State agencies,

county governments, scientific organizations, and other interested

parties were contacted and were requested to comment. Newspaper notices

requesting public comments were published in The Salt Lake Tribune and

the Deseret News on November 4, 1993, and the Emery County Progress on

November 2, 1993.

In accordance with the Services' peer review policy published on

July 1, 1994 (59 FR 34270), the Service solicited the expert opinions

of three botanists regarding information contained in the proposed rule

and new information obtained following the proposal on the species

status. The three reviewers chosen are associated with colleges and

universities and are considered experts on the species. All three

reviewers responded and concurred with the Service's assessment of the

threats facing this species.

During the comment period the Service received a total of twelve

comment letters which are addressed in the following summary. Pertinent

information received during the comment period has been incorporated

into this final rule.

Issue 1: Botanical surveys by Neese (1987), Heil (1987), and Kass

(1990), while in or near the habitat of Pediocactus winkleri, had

objectives other than a specific inventory for P. winkleri. The

population of P. winkleri may be greater than 3,500 as stated in the

proposed rule, which was apparently based on the Heil (1984) status

report for P. winkleri. The Heil status report does not document how

the species population of 3,500 was arrived at. Additional inventory is

needed to establish a more accurate species population number.

Service Response: From the close of the initial 1993 comment period

on December 6, 1993, several additional surveys and studies were

conducted (Fish and Wildlife Service 1994; 1997; Kass 1997; D. Clark,

pers. comm. 1998). As described above in the ``Background'' section,

these surveys documented a larger population than was known in 1993 and

give a better understanding of the natural and human caused impacts to

the species. Surveys through 1998 have documented actual numbers of

Pediocactus winkleri plants at about 5,800 (Fish and Wildlife Service

1997, Kass 1997, D. Clark, per. comm. 1998). Based on these most recent

surveys, the Service concurs with estimates by the BLM that P. winkleri

occurs in four populations with a total number of approximately 20,000

plants, which results from acceptable extrapolation of direct survey

counts (Kass 1997; Fish and Wildlife Service 1994, 1997; D. Clark,

pers. comm. 1998).

Issue 2: The Service should resolve the taxonomic relationship

between Pediocactus despainii and P. winkleri before final listing.

Distinguishing between the two species in wild populations is

difficult.

Service Response: Pediocactus despainii and P. winkleri are

currently considered separate species in all taxonomic treatments

involving those species in regional floras (Welsh et al. 1993) and in

monographic treatments of the genus (Heil et al. 1981; K. Heil, pers.

comm. 1994, 1998). However, the two species are phylogenetically

related, and it has been suggested (Kass 1990) that they be treated as

varieties of P. winkleri, the first of the two species to be described

(Heil 1979; Welsh & Goodrich 1980). Plant taxonomists working

specifically on this genus have no information, at this time, which

would warrant an alternative taxonomic treatment (Welsh et al. 1993; K.

Heil, pers. comm. 1994, 1998; M. Porter, pers. comm. 1994, 1998).

The two species are morphologically distinct and geographically

separated as discussed above in the above ``Background'' section.

Pediocactus winkleri has uniformly smaller seeds than P. despainii. P.

winkleri areoles (the basal structure at the tip of stem tubercles

which forms the base from which the spines arise) are wooly with dense

villous hairs. P. despainii areoles are naked except for its spines.

These facts strongly suggest the current taxonomic classification is

accurate (K. Heil, pers. comm. 1993). Recent cytotaxonomic research

indicates that the P. winkleri and P. despainii are taxonomically

distinct (M. Porter, pers. comm. 1998).

Issue 3: Recreational off-road vehicle (ORV) use is not affecting

all populations of Pediocactus winkleri. The heaviest ORV use in the

Notom area occurs outside the species' occupied habitat. The Hartnet

site is located within Capitol Reef National Park where no ORV use is

occurring. P. winkerli's characteristic of shrinking underground during

its vegetative stage naturally protects the species and it is only

vulnerable during its spring flowering period. The BLM has restricted

ORV use in the Price Resource Area within P. winkleri habitat.

Service Response: ORV's are affecting all of the species'

populations to some degree, with the exception of the Last Chance

population where no ORV use occurs. Locally heavy use occurs with

observed adverse impacts in the Ferron population. Although ORV use

does not occur in that portion of the Harnet population contained

within Capitol Reef National Park, the remainder of this population

occurs on BLM land and is subject to ORV use. Occupied Pediocactus

winkleri habitat within the BLM portion of the Hartnet population

experiences frequent ORV spillover from the adjacent Dry Wash area

where heavy ORV use occurs. The Service agrees that the heaviest ORV

use occurs outside of occupied habitat in the Notom area, however, this

population also experiences frequent ORV spillover use (K. Heil, pers.

comm. 1993; Fish and Wildlife Service 1994, 1997; Wayne Luddington,

Bureau of Land Management, Price, Utah, pers. comm. 1996, 1997). The

BLM ORV restrictions in the Price Resource Area are for and within

populations of P. despainii, a listed endangered species, not P.

winkleri. Regarding the characterisic of the species to shrink

underground see discussion under Factor A.

Issue 4: Livestock trampling is a minimal and decreasing threat to

Pediocactus winkleri. The BLM has reduced livestock grazing levels in

all P. winkleri habitat, in some cases to less than 20% of previous

levels.

Service Response: The Service is aware of adverse impacts to this

cactus from livestock trampling. Recent survey and habitat monitoring

information show that livestock trampling continues to kill Pediocactus

winkleri plants (K. Heil, pers. comm. 1993; Fish and Wildlife Service

1994, 1997). This species is poorly adapted to the impacts of large,

sharp-hoofed ungulates, and plants are easily dislodged and killed by

domestic livestock herds moving through its habitat. This trampling

impact is most damaging during periods

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when the soil surface is wet. These conditions occur most commonly

during mild winter and early spring days when livestock grazing is most

intense in the species' desert range habitat. Most of the reduction in

livestock grazing within Capitol Reef National Park occurred in the

southern portions of the Park outside the species' range. However, the

Service acknowledges that this threat is decreasing and is, at present

and by itself, a low level chronic threat, not a high level acute

threat.

Issue 5: Mining and mining claim assessment work for gypsum and

uranium is a minimal and decreasing threat to Pediocactus winkleri.

Known occurrences of gypsum in the vicinity of P. winkleri populations

occur in the Carmel Formation which is not habitat for the species.

Development of known occurrences of uranium have only a slight

potential to affect the species. Current low prices for uranium ore are

expected to decrease interest in prospecting and mining claim

assessment work within the range of the species. Changes in regulations

affecting mining claim assessment activities are expected to decrease

surface disturbance associated with mining claim assessment work.

Service Response: The Service has noted the above comment and has

revised the final rule appropriately. The recent development of a mine

for high quality, cosmetic grade bentonite clay is adversely affecting

the species in the Last Chance Desert (Fish and Wildlife Service 1994,

1997). Mining claims cover the entire Last Chance Desert population of

Pediocactus winkleri. Oil and gas activity is directly affecting the

Ferron population. A portion of this population was lost to a gas well.

A portion of the Hartnet population is in an oil and gas lease area.

Issue 6: A commenter questioned whether or not the Notom

Pediocactus winkleri population has experienced an 80 percent loss of

its individuals to collectors. Another commenter questioned a statement

in the June 22, 1998, notice reopening the comment period that the FWS

estimation of the population size at Notom has declined from about

2,000 individuals in 1984 to an estimated 700 individuals in 1997.

Service Response: In the 1993 proposal, the Service estimated that

about 80 percent of the plants in the Notom area were taken by plant

collectors over the last 10 years. The Service has revised this final

rule to indicate that only the portion of the Notom population in the

area of the monitoring transect has undergone a significant reduction

in numbers of plants primarily from collection. In 1984 the Service

established a monitoring transect in the Notom population of

Pediocactus winkleri in an easily accessible area that cactus

collectors frequent (Fish and Wildlife Service 1994, 1997). The Service

has periodically monitored this transect, usually at 2-year intervals.

The P. winkleri population along this transect declined from 53 plants

in 1984 to zero plants in 1997. Overall the population in the immediate

vicinity of the monitoring transect declined from 387 individuals in

1994 to 221 in 1997 (Fish and Wildlife Service 1997). The Service feels

that this loss of plants is primarily attributed to collection,

however, other factors including the characteristic of this species to

remain underground during dry years may have contributed to a higher

estimate of plant loss then has really occurred. The spring 1998 survey

estimated the entire Notom population at about 4,000 individuals.

The Service, during its 1997 survey of the Notom population,

discovered 27 shovel marks within the occupied habitat of this species.

These marks were at the locations of plants last observed in 1994 and

missing in 1997, and are obviously the remains of an effort to exploit

this horticulturally desirable species. Most field collected cacti,

however, are collected using smaller garden trowels, and consequently

excavation scars are usually not noticeable after a few months.

Issue 7: The BLM has the ability to manage for the conservation of

candidate species on lands under their jurisdiction and can control

collection of the species.

Service Response: Collection of desirable small rare cacti is a

difficult action to detect and to control. The recognition and

protection offered a listed species under the Act focuses resources for

its preservation and recovery, and reinforces the actions of the BLM

and other Federal agencies through sections 7 and 9 of the Act for

conservation of the species. The listing of species under the Act

focuses the management actions of all Federal agencies to provide

active conservation and protection for listed species and provides

opportunities for States to assist in plant conservation under Section

6 of the Act.

Issue 8: People living in an area where endangered species are

proposed for listing should be informed in time to be able to comment

and to hold public hearings.

Service Response: One commenter requested a 2- to 3-year comment

period and also requested that a public hearing should be held. This

was the only request for a public hearing and the request was not

received during the specified open comment period.

As stated previously, immediately after publication of the proposed

rule on October 6, 1993, the Service contacted all known interested

parties (i.e., Federal and State agencies, county governments,

scientific organizations, and others), and comments were solicited from

them. In addition, newspaper notices requesting public comments were

published (between November 2 and 4, 1993) in three newspapers that

cover the potentially affected area. Thus, the Service believes that

adequate time was given to receive requests for public hearings.

The Service specified that public hearing requests must be received

by November 23, 1993, and no such request was received by that date.

However, at the request of Emery County, a representative of the

Service met with county officials to explain the Service's rationale

for proposing to list the species, and to receive the County's

comments. The Emery County commissioners were concerned that the

listing of Pediocactus winkleri would interfere with the economic

activities of grazing and mining within their County. These concerns

were also expressed in writing. The Service recognizes that potential

restrictions in land use to protect this cactus could limit some future

mining development plans and livestock grazing activities on Federal

lands within the species' range. P. winkleri has a limited distribution

and therefore widespread restrictions on these activities on public

lands in Emery and Wayne counties is not anticipated. The Service

reopened the public comment period again on June 22, 1998. The second

comment period closed on July 22, 1998. The Service received four

comments during the reopened comment period and has incorporated new

information provided during the comment period in this finding.

Issue 9: The BLM believes that threats to the species have not been

adequately quantified, have lessened since the proposed rule was

published, and that species' protection under a conservation agreement

would be more appropriate than listing.

Service Response: Threats to the species continue unabated since

the proposed rule was published in October 1993. Evidence of take was

documented not only at a specific transect which has been monitored

since 1984, but also from site visits where photographs of cattle

trampling, collecting, and ORV loss were documented. These losses are

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not natural losses which could be expected to occur but losses which

could be prevented through stricter regulation and enforcement

activities.

The Service commends the BLM for initiating the ``Pediocactus

winkleri and Pediocactus despainii Conservation Agreement and

Strategy'' and for its anticipated future implementation. The proposed

agreement contains strategies which, if implemented over time, would

assist in the recovery of both species of cactus. However, the

agreement is in draft form and is not signed. As such, the Service is

not able to consider the effectiveness of this agreement in reducing or

eliminating the threats to this species in the future as part of the

decision to list.

Copies of the listing proposal were provided to three professional

botanists with research experience with rare flora including

Pediocactus winkleri. The supplemental population information provided

by BLM was also forwarded for their review. The three reviewers

continue to support listing due to continued threats to the species.

The Service does not believe that the larger numbers of Pediocactus

winkleri found in BLM's most recent data is a function of reduced

threat, but instead is a function of the increased effort put forth to

find individual plants. Most surveys up until this year were conducted

by one or two individuals with limited resources. More recent BLM

surveys were conducted by four or more individuals over a period of

several weeks.

Even though the increased surveys resulted in increased numbers of

Pediocactus winkleri, the threats to the species have not diminished to

the point that the species does not need protection under the Act. The

Service therefore believes listing as threatened is justified as

described in the following sections.

Summary of Factors Affecting the Species

After a thorough review of all available information, the Service

has determined that Pediocactus winkleri should be listed as a

threatened species. Procedures found in section 4(a)(1) of the Act and

regulations implementing the listing provisions of the Act (50 CFR part

424) were followed. A species may be determined to be an endangered or

threatened species due to one or more of the five factors described in

Section 4(a)(1). These factors and their application to P. winkleri are

as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. The small, restricted populations

of Pediocactus winkleri make the species highly vulnerable to human-

caused habitat disturbances. ORV activity, mineral development, road

and utility corridor development, and livestock trampling have

adversely affected this species (Heil 1984, 1987; Heil, pers. comm.

1993; Neese 1987; Fish and Wildlife Service 1994, 1997). This species

is especially vulnerable during the spring flowering period when

seasonally moist soils make it susceptible to damage and mortality from

surface disturbance of its habitat. The species is easily dislodged by

domestic livestock and ORV's during periods when the soil is wet. ORV

use and livestock grazing are most intense during the mild spring

season when the species is most vulnerable to habitat disturbance.

During periods of drought, these cacti do not protrude above ground

level, thus rendering them less susceptible to livestock trampling and

damage by ORV activity. However, the species forms flower buds in the

autumn that persist over winter (Heil et al. 1981). These flowering

buds at the ground surface level are very vulnerable to surface

disturbance.

A considerable portion of the habitat of this species, as well as

individual plants, are being damaged by ORV activity (Heil 1984, Neese

1987; Fish and Wildlife Service 1994, 1997). At the northern and

southern limits of the species' range, occupied Pediocactus winkleri

habitat, located on sparsely vegetated slopes in readily accessible

areas, is adjacent to heavily used ORV recreational areas, and is being

impacted by ORV activity. Except for habitat within Capitol Reef

National Park and the Last Chance population on BLM lands, the

remaining habitat of P. winkleri is experiencing similar but lesser

impacts from ORV activity (Fish and Wildlife Service 1997). Hard-tired

ORVs such as motorcycles and four wheel drive trucks and other highway

vehicles are most damaging to the species. These hard-tired vehicles

can cause damage and mortality even when the plant is dormant.

Increased erosion as a consequence of ORV's damaging the natural desert

pavement and cryptogamic crust potentially increases the species'

exposure to losses from extreme weather events which occur in the area.

Livestock trampling has affected every population of this cactus

including those in Capitol Reef National Park (the Park is not closed

to livestock grazing). According to the BLM, livestock use in areas of

Pediocactus winkleri habitat has decreased in recent years, but the

impacts of trampling to some populations continue (Heil, pers. comm.

1993; Fish and Wildlife Service 1994, 1997). The Service believes

grazing and trampling impacts are, for the most part, more chronic than

acute and rarely impact more than one percent of the population each

year. Individuals lost due to livestock trampling probably could be

replaced by natural recruitment from the populations' seed bank.

However, cumulative impacts from collecting, localized ORV destruction,

and natural losses from disease and parasitism are at sufficient levels

in some portion of the species' range (i.e. Notom and Ferron

populations) that population viability is impaired.

The habitat of Pediocactus winkleri contains bentonite clay, oil

and gas and some uranium ore deposits. The development of these mineral

and petroleum deposits and surface disturbance by annual assessment

work has directly affected the species. Currently, oil and gas field

development activities are impacting the Ferron population. This

activity has destroyed individual plants and occupied habitat. Over

eighty percent of the area occupied by the Ferron population is leased

for oil and gas (Fish and Wildlife Service 1997). In addition,

bentonite clay mining has impacted the Last Chance population by

destroying individual plants and occupied habitat (W. Luddington, pers.

comm. 1994, 1996, and 1997). Much of the Last Chance population is in

areas with registered mining claims (Fish and Wildlife Service 1997).

The transfer of mining claim patents from the Public domain to private

ownership is not affected by the Act. Unauthorized utility and road

development within the species' Notom population caused individual

plant mortality and habitat degradation in 1995 and remains a potential

threat to the species (Fish and Wildlife Service 1997).

B. Over-utilization for commercial, recreational, scientific, or

educational purposes. Pediocactus winkleri is an attractive small

cactus, especially when it is in flower. Although difficult to

cultivate in most horticultural settings, this rare plant is highly

desired in cactus collections and gardens and has been sought by both

hobby and commercial cactus collectors (Hochstatter 1990, Heil 1984,

Heil, pers. comm. 1993, 1998). The fact that this species is difficult

to maintain in garden settings stimulates a continual demand for

replacement plants as cultivated garden and greenhouse plants die.

Cactus collectors are active in the Colorado Plateau, going from the

habitat of one species of Pediocactus to the next to collect a complete

set of the genus

[[Page 44592]]

(Heil, pers. comm. 1994; Fish and Wildlife Service 1994, 1997). A

portion of the Notom population of P. winkleri has been severely

reduced primarily from losses to plant collectors (Heil 1984 and U.S.

Fish and Wildlife Service 1997) (Also discussed under Issue 6). In

addition to the Notom population, the Hartnet and Ferron populations

are highly vulnerable to specimen collecting due to their ease of

access and their being known to cactus collectors (Heil 1984, and Fish

and Wildlife Service 1994, 1997).

C. Disease or predation. Because of its small size and the

shortness of its spines, this species of cactus is less protected from

animals than other, more spiny species. The effects of livestock

grazing on desert vegetation may produce indirect impacts on

Pediocactus winkleri populations. The desert range of P. winkleri had

very sparse use by large, wild ungulates prior to the introduction of

domestic livestock. Livestock grazing has caused changes in the

floristic composition of the species' desert ecosystem with the

introduction of weeds. These introduced weeds have the potential to

outcompete over the long term, and to eventually reduce or displace

native species, including P. winkleri. The effects of livestock

trampling are discussed in Factor ``A'' above. This species is also

susceptible to natural infestations of beetle larvae which will kill an

individual within two years of initial infestation (Fish and Wildlife

Service 1994).

D. The inadequacy of existing regulatory mechanisms. There are no

Federal or State laws or regulations directly protecting Pediocactus

winkleri or its habitat. The National Park Service (NPS) restricts, and

in most cases forbids, the collection of plants and plant materials

from National Parks. The BLM Manual 6840 (Special Status Species

Management) states that ``The BLM shall carry out management,

consistent with multiple use, for the conservation of candidate species

and their habitats and shall ensure that actions authorized, funded, or

carried out do not contribute to the need to list any of these species

as Threatened or Endangered.'' The BLM has the authority to control the

removal of vegetative materials from Federal lands under its management

and presently requires a permit to collect plant species. Current BLM

policy is to require a permit to collect any cactus from the habitat

area of P. winkleri. However, this species has populations that are

scattered over remote country, thus making protection from unauthorized

collecting difficult, even in Capitol Reef National Park. The Utah

Forest Products Act requires proof of ownership to harvest or transport

native vegetation from State, private, and Federal wildlands in Utah.

Listing of P. winkleri would also provide for greater statutory

protection and a more stringent penalty for take. Therefore, a greater

deterrent for taking the species would be established.

The species is listed in Appendix I of The Convention of

International Trade in Endangered Species of Wild Fauna and Flora

(CITES). CITES import and export permits are generally required for

international trade in Appendix I species, and permits are not allowed

for commercial shipments. The small size of these species makes them

easy to hide and therefore hard to detect in international commerce.

E. Other natural or manmade factors affecting its continued

existence. Pediocactus winkleri is restricted to a limited geographic

area with scattered, isolated occurrences and relatively low population

numbers per occurrence, which render this cactus vulnerable to human

disturbances. These additional stresses to the plant may exacerbate

natural disturbances to populations of this species.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by this species in determining to make this rule

final. As described under the Act, a species should be found to be

endangered if the species is in danger of becoming extinct throughout

all or a significant portion of its range. The term threatened is

defined as likely to become endangered within the foreseeable future

throughout all or a significant portion of its range. In the proposed

rule, Pediocactus winkleri was proposed to be listed as an endangered

species. With the new information collected on this species since the

proposed rule the Service has found that the population numbers are

larger than previously estimated. Based on a reevaluation of the

population numbers and threats, the preferred action is to list P.

winkleri as threatened. Collection has been documented in a portion of

the Notom population to significantly lower its numbers and is

considered a primary threat to the Hartnet and Ferron population.

Surface disturbances are impacting the ecosystem in which the species

occurs and may increase in the future, especially from recreational ORV

use. However, in an effort to eliminate soil compaction and plant

destruction, the draft BLM Conservation Agreement and Strategy will

restrict ORV use to existing roads and trails through the preparation

of a managment plan. Because of new information indicating a relatively

larger population of P. winkleri, and the expected implementation of a

Conservation Agreement and Strategy aimed at reducing and eliminating

threats to P. winkleri, threatened status is a more accurate assessment

of the current condition of this species. For the reasons given below,

it is not prudent to designate critical habitat at this time.

Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as: (i)

the specific areas within the geographical area occupied by a species,

at the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

considerations or protection; and (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' means the use of all methods and

procedures that are necessary to bring the species to the point at

which the measures provided pursuant to the Act are no longer

necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12(a)) require that, to the maximum extent

prudent and determinable, the Secretary designate critical habitat

concurrently with determining a species to be endangered or threatened.

The Service finds that designation of critical habitat is not prudent

for this species at this time. Service regulations (50 CFR

424.12(a)(1)) state that designation of critical habitat is not prudent

when one or both of the following situations exist: (i) The species is

threatened by taking or other human activity, and identification of

critical habitat can be expected to increase the degree of such threat

to the species, or (ii) such designation of critical habitat would not

be beneficial to the species.

As noted under Factor B in the ``Summary of Factors Affecting the

Species'', Pediocactus winkleri is threatened by collection, an

activity difficult to prevent. The listing of species as endangered or

threatened publicizes their rarity and may make them more susceptible

to collection. The publication of precise maps and descriptions of

critical habitat would make P. winkleri more vulnerable to collection.

Precise maps could also threaten more remote areas of P.

[[Page 44593]]

winkleri habitat, currently not subject to collection, by providing

specific location information to cactus collectors. The Service feels

that publication of precise maps for this species along with this final

listing rule would put this species at greater risk of collection by

cactus enthusiasts given the well documented history of previous

collections.

Critical habitat designation, by definition, directly affects only

Federal agency actions. P. winkleri occurs entirely on lands under

Federal (BLM and NPS) management. Federal actions that might affect

this species and its habitat include activities such as mining,

grazing, and ORV use. Such activities would be subject to review under

section 7(a)(2) of the Act, whether or not critical habitat was

designated. Section 7(a)(2) requires Federal agencies to ensure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of a listed species or to destroy or

adversely modify its critical habitat. Federal actions satisfying the

standard for adverse modification are nearly always found to also

jeopardize the species concerned, and the existence of critical habitat

designation does not materially affect the outcome of consultation. The

Service recognizes that there may be some benefit in designating

critical habitat for highly endangered species whose survival and

recovery depend upon expansion of range and numbers into currently

unoccupied habitat. However, this is not the case for P. winkleri which

is being listed as threatened and does not require unoccupied habitat

for its survival or recovery. Habitat protection for P. winkleri can be

accomplished through the section 7 jeopardy standard and there would be

no benefit from designating critical habitat for this species.

Both the BLM and NPS are actively involved in the management and

monitoring of Pediocactus winkleri and are aware of the threats facing

this species. BLM has drafted a Conservation Agreement, with the

assistance of the NPS and other partners, aimed at reducing and

eliminating identified threats to P. winkleri. Designation of critical

habitat would not increase the commitment or management efforts of the

BLM or NPS. The Service believes that protection of P. winkleri will be

better addressed through the recovery process and through section

7(a)(2) of the Act, as amended.

The Service finds that the designation of critical habitat is not

prudent because of the increase of threat from collection which far

outweighs any benefit that might be gained from identifying areas in

need of special protection. The Service feels that recovery of the

species will be accomplished more effectively with the current

coordination process that the Service has established with the BLM and

NPS.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing results in public awareness and

conservation actions by Federal, State, and local agencies, private

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the States and requires that recovery

actions be carried out for all listed species. The protection required

of Federal agencies and the prohibitions against certain activities

involving listed plants are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(2) requires Federal agencies to insure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of the species or to destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into formal consultation with the Service.

Pediocactus winkleri occurs on Federal lands managed by the BLM and

the NPS. Both of these Federal agencies are responsible for insuring

that all activities and actions on lands that they manage are not

likely to jeopardize the continued existence of P. winkleri.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all threatened

plants. All trade prohibitions of section 9(a)(2) of the Act,

implemented by 50 CFR 17.61 apply. These prohibitions, in part, make it

illegal for any person subject to the jurisdiction of the United States

to import or export, transport in interstate or foreign commerce in the

course of a commercial activity, sell or offer for sale this species in

interstate or foreign commerce, or to remove and reduce to possession

the species from areas under Federal jurisdiction. In addition, for

plants listed as endangered, the Act prohibits the malicious damage or

destruction on areas under Federal jurisdiction and the removal,

cutting, digging up, or damaging or destroying of such plants in

knowing violation of any State law or regulation, including State

criminal trespass law. Section 4(d) allows for the provision of such

protection to threatened species through regulation. This protection

may apply to this species in the future if regulations are promulgated.

Seeds from cultivated specimens of threatened plants are exempt from

these prohibitions provided that a statement of ``cultivated origin''

appears on their containers. Certain exceptions to the prohibitions

apply to agents of the Service and State conservation agencies.

The Act and 50 CFR 17.72 also provide for the issuance of permits

to carry out otherwise prohibited activities involving threatened

plants under certain circumstances. Such permits are available for

scientific purposes and to enhance the propagation or survival of the

species. For threatened plants, permits also are available for

botanical or horticultural exhibition, educational purposes, or special

purposes consistent with the purposes of the Act. It is anticipated

that permits will be sought for cultivated specimens, which are

currently available through domestic and international nurseries.

Requests for copies of the regulations regarding listed species and

inquiries about prohibitions and permits may be addressed to the

Regional Director, U.S. Fish and Wildlife Service, P.O. Box 25486,

Denver Federal Center, Denver, Colorado 80225; telephone number 303-

236-7398; facsimile number 303-236-0027. Information collections

associated with these permits are approved under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of

Management and Budget clearance number 1018-6649. For additional

information concerning these permits and associated requirements, see

50 CFR 17.72.

On July 29, 1983, Pediocactus winkleri was included in Appendix I

of CITES. Appendix I species generally require both an export and

import permit before international shipment of this species can occur.

Such shipment is strictly regulated by CITES party nations to prevent

effects that may be detrimental to the species' survival. Generally,

the import or export of an Appendix I species cannot be allowed if it

is for primarily commercial purposes. If plants are certified as

artificially propagated, however, international

[[Page 44594]]

shipment requires only export documents under CITES, and commercial

shipments may be allowed.

It is the policy of the Service, published in the Federal Register

on July 1, 1994 (59 FR 34272), to identify to the maximum extent

practicable at the time a species is listed those activities that would

or would not constitute a violation of section 9 of the Act. The intent

of this policy is to increase public awareness of the effect of this

listing on proposed and ongoing activities within the species' range.

The Service believes the following actions would not be likely to

result in a violation of section 9:

(1) Activities authorized, funded, or carried out by Federal

agencies (e.g., grazing, ORV activity, mining) when such activity is

conducted in accordance with any reasonable and prudent measures given

by the Service in a consultation conducted under section 7 of the Act;

(2) Casual, dispersed human activities on foot (e.g., sight seeing,

photography, hiking).

The Service believes that the following activities would likely

result in a violation of section 9:

(1) Unauthorized collection and knowingly damaging Pediocactus

winkleri plants;

(2) Interstate or foreign commerce and import/export without

previously obtaining an appropriate permit. Permits to conduct

activities are available for purposes of scientific research and

enhancement of propagation or survival of the species.

(3) Use of herbicides or pesticides in violation of label

restrictions.

Other activities not identified above will be reviewed on a case-

by-case basis to determine if a violation of section 9 of the Act may

be likely to result from such activity. The Service does not consider

these lists to be exhaustive and provides them as information to the

public.

Anyone interested in determining whether a particular activity

would constitute a prohibited act under section 9(a)(2) should contact

the Service's Field Supervisor in Salt Lake City (see ADDRESSES

section).

National Environmental Policy Act

The Service has determined that Environmental Assessments and

Environmental Impact Statements, as defined under the authority of the

National Environmental Policy Act of 1969, need not be prepared in

connection with regulations adopted pursuant to section 4(a) of the

Act. A notice outlining the Service's reasons for this determination

was published in the Federal Register on October 25, 1983 (49 FR

49244).

Paperwork Reduction Act

This rule does not contain any new collections of information other

than those already approved under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and assigned Office of Management and Budget

clearance number 1018-0094. An agency may not conduct or sponsor, and a

person is not required to respond to a collection of information,

unless it displays a currently valid control number. For additional

information concerning permit and associated requirements for

threatened species, see 50 CFR 17.32.

References Cited

A complete list of all references cited herein is available upon

request from the Salt Lake City, Utah, Field Office (see ADDRESSES

section).

Authors

The primary author of this document is John L. England, botanist

(see ADDRESSES above).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

PART 17--[AMENDED]

Accordingly, the Service amends part 17, Subchapter B of Chapter I,

title 50 of the Code of Federal Regulations, as set forth below:

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend Sec. 17.12(h) by adding the following, in alphabetical

order under FLOWERING PLANTS, to the List of Endangered and Threatened

Plants to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species

-------------------------------------------------------- Historic range Family Status When listed Critical Special

Scientific name Common name habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

Flowering Plants

* * * * * * *

Pediocactus winkleri............. Winkler cactus...... U.S.A. (UT)........ Cactaceae.......... T 641 NA NA

* * * * * * *

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[[Page 44595]]

Dated: August 13, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98-22448 Filed 8-19-98; 8:45 am]

BILLING CODE 4310-55-P