Feded Register / Vol. 44, No. 209 / Friday+ October 26, 1979 / Rules and Regulations 61927

the basis of comments and data received by the Smithsonian Institution and the Service in response to House Document No. 94-51 and the above mentioned Federal Register publication. Echinocactus horizunthalonius var. nicholii was included in both the July 1, 1975, notice of review and the June 16. 1976, proposal. A public hearing on the June 16,1976 proposal was held on July 22, 1976, in El Segundo, California. A second public hearing was held on July 11. 1979, in Phoenix, Arizona for five Arizona cacti proposed as Endangered, including Echinocactus horizonthalonius var. nicholii. In the June 24.1977. Federal Register, the Service published a final rulemaking (42 FR 32373-32361, codified at 50 CFR) detailing the regulations to protect Endangered and Threatened plant low densities and is limited to a specific species. The rules establish prohibitions soil type. The total number of and a permit procedure to grant individuals has been estimated to be exceptions to the prohibitions under 50 CFR Part 17 less than 500. Echinocactus certain circumstances. horizontholonius var. nicholii is a blue- The Department has determined that Determination That Echinocactus green to yellowish-green cactus with a this rule does not meet the criteria for horizonthalonius var. nicholii Is an single columnar stem that reaches 1% significance in the Department Endangered Species feet in height and 8 inches in diameter. Regulations implementing Executive Order 12044 (43 CFR Part 14) or require AGENCY: Fish and Wildlife Service, This cactus has pink flowers and fruits Interior. which are covered with woolly white the preparation of a regulatory analysis. hairs. This cactus’ continued existence ACTION: Final rule. Summary of Comments and is threatened and this rule will extend to Recommendations SUMMARY: The Service determines that it the protection provided by the ESA of Echirrocactus horizonthalonius var. 1973 as amended. The following Hundreds of comments on the general nichniii (Nichols Turks head cactus). a paragraphs summarize the actions proposal of June 16.1976 were received native plant of Arizona, is an leading up to this final rule and the from individuals. conservation Endangered species. Habitat destruction factors which cause this species to be organizations. botanical groups, and through mining, off-road vehicles, and Endangered. business and professional organizations. increasing urba.n development threatens The Secretary of the Smithsonian Few of these comments were specific in the continued existence of this species. Institution. in response to Section 12 of nature in that they did not address Removal of plants by collectors has the Endangered Species Act, presented individual plant species. Most comments caused a depletion of natural his report on plant species to Congress addressed the program or the concept of. popula!ions. This action will extend to on January 9.1975. This report, Endangered and Threatened plants and this plant the protection provided by the designated as House Document No. 94- their protection and regulation. These Endangered Species Act 1973, as 51. contained lists of over 3.100 U.S. comments are summarized in the April amended. vascular plant taxa considered to be 26, 1978, Federal Register publication endangered. threatened, or extinct. On which also determined 13 plant species DATE: This rulemaking becomes to be Endangered or Threatened species effective on November Z&1979. July 1.1975. the Director published a notice in the Federal Register (40 FR (43 FR 17909-17916). Some of these FOR FURTHER INFORMATION CONTACT: 27823-27924) of his acceptance of the comments addressed the general $1~. John L. Spinks. Jr., Chief--Office of report of the Smithsonian Institution as problems of cacti conservation. Endangered Species, Fish and Wildlife a petition to list these species under Additionally many comments on the Ser\.ice. U.S. Department of the Interior, Section 4(c)(2) of the Act, and of his cactus trade were received in response Washington, DC. 20240, 703/235-2771. intention thereby to review the status of to the June 7.1976. proposed rule (41 FR SUPPLEMENTARY INFORMATION: the plant taxa named within as well as 22915) on prohibitions and permit provisions for plants under Section Background any habitat which might be determined to be critical. S(a)(Z) and lO(a] of the Act.‘These Echinocactus horizonthalonius var. On June 16.1976, the Service comments are summarized in the June nicholii (Nichols Turks head cactus] published a proposed rulemaking in the 24.1977. Federal Register final rule (43 occurs in two adjacent Arizona Federal Register (41 FR 24523-24572) to FR 17909-17916) on plant prohibitions counties. This cactus’ entire range only determine approximately 1,700 vascular and permit provisions. One comment occupies approximately 20 square plant species to be Endangered species dealing specifically with Echinocactos kilometers of the Sonoran Desert. pursuant to Section 4 of the Act. This list horizonfhalonius var. nicholii was 12’ithin this range the cactus occurs in of 1.700 plant taxa was assembled on received from the Arizona Department

. 61926 Federal Register / Vol. 44, No. 209 / Friday, October 26, 1979 / Rules and Regulations of Transportation concerning the species two adjacent counties of Arizona and is (5) Other natural or manmade factors distribution. This comment noted that currently threatened by several factors affecting its continued existence. W. Hubert Earle’s book, Cacti ofthe including copper .mining operations, Although the existence of several Southwest. listed the range of this urban development, and off-road vehicle dispersed populations tends to alleviate species as Texas, New Mexico, and use. The area where the species occurs the threat to the taxon should severe Mexico, as well as Arizona. Since this has not been extensively mined as yet, depletion occur in one area, the variety was not described until 196% although several small mines and restriction of the plants to a localized many earlier floras included the Arizona numerous test pits are already present. and specialized habitat and the rather plants under Echinocactus Some of the test pits are within the low total population level are factors horizonthalonius and thus included all range of the cactus. This species’ habitat which tend to intensify the seriousness these states and Mexico under its is also adjacent to an urban area and of any adverse effects occurring within distribution. At least one publication some habitat destruction has occurred any of the species’ range. also included a statement that perhaps near a sanitary landfill. A dirt bike path Effect of the Rulemaking the disjunct Arizona plants had been also runs through a portion of the transplanted there from the more species’ habitat near the city. This Section 7(a) of the Act as amended in southern part of the species range. species occurs on lands administered by 1978 provides: However, more recent biological the Bureau of Land Management, the The Secretary shall review other programs evidence indicates that this statement Papago Indian Reservation, and on a administered bv him and utilize such was erroneous. The Governor of small piece of private land. programs in fur”therance of the purposes of Arizona was also notified of the (2) Overutilization for conmiercial, this Act. All other Federal agencies shall. in proposed action, but he submitted no sporting, scientific. or educational consultation with and with the assistance of comments specifically dealing with purposes. Although the commercial use the Secretary, utilize their authorities in var. of this cactus is low, the impact from furtherance of the purposes of this Act by Echinocactus horizonthalonius carrying out programs for the conservation of nicholii. collectors is an important cause in the endangered species and threatened species On July 11,1979 the Service held a decline of this plant and has been listed pursuant to section 4 of this Act. Each second public hearing in Phoenix, recognized since 1950. The plants are Federal agency shall, in consultation with Arizona and again solicited comments frequently used for landscaping and with the assistance of the Secretary, on five Arizona cacti. During this period purposes in the city near where it insure that any action authorized, funded or the Bureau of Reclamation voiced occurs. carried out by such agency (hereinafter in concern that there was a lack of data to (3) Disease or predation (including this section referred to as an ‘agency action’) does not jeopardize the continued existence support the listing of these five cacti and grazing]. Some plants are occasionally of any endangered species or threatened a lack of detailed information on their found to be uprooted, probably by species or result in the destruction or adverse Critical Habitats. However, extensive peccaries. There is no evidence of recent modification of habitat of such species which data supporting the listing of these taxa grazing within the distribution of the is determined by the Secretary, after is available from either the Service’s plant on lands administered by the consultation as appropriate with the affected regional office in Albuquerque, N.M. or Bureau of Land Management. However, States. to be critical. unless such agency has the Washington, D.C. Office of if intensive grazing does occur it would been granted an exemption for such action by Endangered Species. It has been be harmful to the species, especially the Committee pursuant to subsection (h) of determined that designating Critical young plants. section 7 of the Endangered Species Act Habitat is imprudent due to the (4) The inadequancy of existing Amendments of 1978. increased pressure this would cause due regulatory mechanism. This plant is Provisions for Interagency to over-collecting. Conservationists, protected under Arizona law, A.R.S. Cooperation are codified at 50 CFR Part botanists, the Bureau of Land Chapter 7. Section 3-901, specifically 402. These regulations are intended to Management, and the Arizona prohibiting the collection of all members assist Federal agencies in complying Commission of Agriculture and of the Cactaceae (Cactus family), except with Section 7(a) of the Act. This Horticulture all indicated their under permit. This species occurs on rulemaking requires Federal agencies to concurrence with and/or their strong lands owned by the Bureau of Land satisfy these statutory and regulatory support for the proposal to determine Management and the Papago Indian obligations with respect to this species. Echinocactus horizonthalonius var. Reservation. Bureau of Land Endangered species regulations in nichofii to be an Endangered species. Management regulations prohibit the Title 50 of the Code of Federal removal, destruction, and disturbance of Regulations set forth a series of general Conclusion vegetative resources unless such prohibitions and exceptions which apply After a thorough review and activities are specifically allowed or to all Endangered species. The consideration of ~11 the information authorized (43 CFR 6010.2). Indian regulations which pertain to Endangered available, the Director has determined Reservations have the power through plant species, are found at 0 3 17.61- that Echinocactus horizonthalonius var. tribal resolutions to restrict the taking of 17.63 (42 FR 32378-32381). nicholii (Nichols Turks head cactus: plants from their lands as well. Section 9(a)(Z) of the Act. as synonyms: Echinocactus All native cacti are on Aooendix II of implemented by 8 17.61 would apply to horizonthalanius Lemaire) is in danger the Convention on International Trade activities related to this plant. With of becoming extinct throughout all or a in Endangered Species of Wild Fauna respect to any species of plant lisfed as significant portion of its range due to and Flora. However this Convention endangered, it is, in general, illegal for one or more of the factors described in regulates export of this plant, but does any person subject to the jurisdiction of Section 4(a) of the Act. not regulate internal trade in the cactus, the United States to import or export These factors and their aoolication to or habitat destruction. Except as noted such species: deliver. receive, carry. Echinocactus horizonthalok!us var. in the preceding paragraph no other transport or ship such species in nicholii are as follows: Federal protective laws currently apply interstate or foreign commerce by any (I] Present or threatened destruction, to this species. The Endangered Species meahs and in the course of a modification or curtailment of its Act will now offer additional protection commercial activity; or sell or offer such habitat or range. This species occurs in for the taxon. species for sale in interstate or foreign Federal Register / Vol. 44, No. 209 / Friday, October 26, 1979 / Rules and Regulations 61929

commerce. Certain exceptions apply to following provision to subsection 4(a)(l) final rulemaking to determine this . agents of the Service and State of the Endangered Species Act of 1973: species to be endangered under the conservation agencies. At the time any such regulation (to authority contained in the Endangered Section 10 of the Act and regulations determine a species to be an Endangered or Species Act of 1973. as amended (16 published in the Federal Register of June Threatened species) is proposed, the U.S.C. 8 1531-15431. 24,1977 (42 FR 32373-32381.56 CFR Part Secretary shall by regulation. to the The primary author of this rule is Ms. 17). also provide for the issuance of maximum extent prudent. specify any habitat E. La Verne Smith, Office of Endangered permits under certain circumstances to of such species which is then considered to Species. U.S. Fish and Wildlife Service, carry out otherwise prohibited activities be critical habitat. Washington. DC. 20240. (703-235-1975). involving Endangered plants. Echinocactus horizonthalonius var. Status information for this species was nicholii is threatened by taking (see compiled by Dr. A. M. Phillips. III. Dr. B. Effect Internationally discussion under Factors 2 and 4 in the G. Phillips, Mr. L. T, Green, Ms. J. In addition to the protection provided conclusion section of this rule) and such Mazzoni. and Ms. Elaine Peterson by the Act. all native cacti are on taking of plants is not prohibited by the (Museum of Northern Arizona. Flagstaff, Appendix II of the Convention on Endangered Species Act of 1973. Arizona). International Trade in Endangered Publication of critical habitat maps would make this species more Species of Wild Fauna and Flora which Regulation Promulgation requires a permit for export of the taxon. vulnerable and therefore it would not be The Service will review whether it prudent to determine critical habitat. Accordingly, 3 17.12 of Part 17 of should be considered under the Federal agencies will be notified of the Chapter I of Title 56 of the U.S. Code of Convention on Nature Protection and locations of these plants for protection Federal Regulations is amended as Wildlife Preservation in the Western purposes, BLM. the principal Federal follows: Hemisphere or other appropriate agency involved, is aware of the 1. Section 17.12 is amended by adding, international agreements. location of this plant. in alphabetical order by family, genus, The Service now proceeds with this species, the following plant: National Environmental Policy Act 5 17.12 Endangered and threatened plants. An Environmental Assessment has been prepared and is on file in the Service’s Washington Office of Endangered Species. The assessment is the basis for a decision that this determination is not a major Federal action which significantly affects the - quality of the human environment within the meaning of Section 102(2)(C) of the National Environmental Policy Act of 1969. Dated: October 22. 1979. Robeli s. Cook, Critical Habitat Acting Director, Fish and Wildllife Scviw. The Endangered Species Act Amendments of 1976 added the

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