Federal Register / Vol. 73, No. 216 / Thursday, November 6, 2008 / Proposed Rules 66003

ACTION: Proposed rule. Public Law 107–198, see 44 U.S.C. Federal List of Threatened and 3506(c)(4). Endangered , under the SUMMARY: The Commission requests Provisions of the Regulatory Endangered Species Act of 1973, as comments on a channel substitution Flexibility Act of 1980 do not apply to amended (Act). We find that the petition proposed by Pappas Telecasting of this proceeding. Members of the public presents substantial information Central Nebraska, L.P. (‘‘Pappas’’), the should note that from the time a Notice indicating that delisting of C. vinaceum permittee of KWNB–DT, DTV channel of Proposed Rule Making is issued until may be warranted. Therefore, with the 18, Hayes Center, Nebraska. Pappas the matter is no longer subject to publication of this notice, we are requests the substitution of DTV Commission consideration or court initiating a 12-month status review in channel 6 for channel 18 at Hayes review, all ex parte contacts are response to this petition under section Center. prohibited in Commission proceedings, 4(b)(3)(B) of the Act to determine if DATES: Comments must be filed on or such as this one, which involve channel delisting the species is warranted. To before December 8, 2008, and reply allotments. See 47 CFR 1.1204(b) for ensure that the review is comments on or before December 22, rules governing permissible ex parte comprehensive, we are soliciting data 2008. contacts. and other information regarding C. For information regarding proper vinaceum. ADDRESSES: Federal Communications filing procedures for comments, see 47 DATES: To allow us adequate time to Commission, Office of the Secretary, CFR 1.415 and 1.420. 445 12th Street, SW., Washington, DC conduct a status review, we request that 20554. In addition to filing comments List of Subjects in 47 CFR Part 73 information be submitted on or before with the FCC, interested parties should Television, Television broadcasting. December 22, 2008. ADDRESSES: serve counsel for petitioner as follows: For the reasons discussed in the You may submit Kathleen Victory, Esq., Fletcher, Heald preamble, the Federal Communications information by one of the following & Hildreth, PLC, 1300 North 17th Street, Commission proposes to amend 47 CFR methods: • Federal eRulemaking Portal: http:// 11th Floor, Arlington, VA 22209. part 73 as follows: www.regulations.gov. Follow the FOR FURTHER INFORMATION CONTACT: instructions for submitting comments. Joyce L. Bernstein, PART 73—RADIO BROADCAST • SERVICES U.S. mail or hand-delivery: Public [email protected], Media Bureau, Comments Processing, Attn: [FWS–R2– (202) 418–1600. 1. The authority citation for part 73 ES–2008–0114; Division of Policy and SUPPLEMENTARY INFORMATION: This is a continues to read as follows: Directives Management; U.S. Fish and synopsis of the Commission’s Notice of Authority: 47 U.S.C. 154, 303, 334, 336. Wildlife Service; 4401 N. Fairfax Drive, Proposed Rule Making, MB Docket No. Suite 222; Arlington, VA 22203. 08–193, adopted September 12, 2008, § 73.622 [Amended] We will not accept e-mail or faxes. We and released September 19, 2008. The 2. Section 73.622(i), the DTV Table of will post all information received on: full text of this document is available for Allotments under Nebraska, is amended http://www.regulations.gov. This public inspection and copying during by adding channel 6 and removing generally means that we will post any normal business hours in the FCC’s channel 18 at Hayes Center. personal information you provide us Reference Information Center at Portals Federal Communications Commission. (see the Information Solicited section below for more details). II, CY–A257, 445 12th Street, SW., Clay C. Pendarvis, Washington, DC 20554. This document FOR FURTHER INFORMATION CONTACT: Associate Chief, Video Division, Media will also be available via ECFS (http:// Bureau. Wally ‘‘J’’ Murphy, Field Supervisor, www.fcc.gov/cgb/ecfs/). (Documents U.S. Fish and Wildlife Service, New [FR Doc. E8–26507 Filed 11–5–08; 8:45 am] will be available electronically in ASCII, Mexico Ecological Services Office, 2105 Word 97, and/or Adobe Acrobat.) This BILLING CODE 6712–01–P Osuna Road, NE, Albuquerque, New document may be purchased from the Mexico 87113; telephone 505–346– Commission’s duplicating contractor, 2525; facsimile 505–346–2542. If you Best Copy and Printing, Inc., 445 12th DEPARTMENT OF THE INTERIOR use a telecommunications device for the Street, SW., Room CY–B402, Fish and Wildlife Service deaf (TDD), call the Federal Information Washington, DC 20554, telephone 1– Relay Service (FIRS) at 800–877–8339. 800–478–3160 or via e-mail http:// 50 CFR Part 17 SUPPLEMENTARY INFORMATION: www.BCPIWEB.com. To request this document in accessible formats [FWS R2 ES 2008 0114; 92220–1113–0000; Information Solicited (computer diskettes, large print, audio C5] When we make a finding that recording, and Braille), send an e-mail substantial information exists to to [email protected] or call the Endangered and Threatened Wildlife indicate that listing or delisting a Commission’s Consumer and and Plants; 90-Day Finding on a species may be warranted, we are Governmental Affairs Bureau at (202) Petition To Delist vinaceum required to promptly commence a 418–0530 (voice), (202) 418–0432 (Sacramento Mountains ) review of the status of the species. To (TTY). This document does not contain AGENCY: Fish and Wildlife Service, ensure that the status review is proposed information collection Interior. complete and based on the best requirements subject to the Paperwork ACTION: Notice of 90-day petition available scientific and commercial Reduction Act of 1995, Public Law 104– finding and initiation of a status review. information, we are soliciting any 13. In addition, therefore, it does not additional information on the status of contain any proposed information SUMMARY: We, the U.S. Fish and from the public, collection burden ‘‘for small business Wildlife Service (Service), announce a other concerned governmental agencies, concerns with fewer than 25 90-day finding on a petition to remove Native American Tribes, the scientific employees,’’ pursuant to the Small the threatened Cirsium vinaceum community, industry or environmental Business Paperwork Relief Act of 2002, (Sacramento Mountains thistle) from the entities, or any other interested parties.

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We are seeking information on historical finding. To the maximum extent deposits are the most common habitat of and current distribution, biology and practicable, we are to make this finding the species. ecology, ongoing conservation measures within 90 days of our receipt of the Cirsium vinaceum presently occurs on for the species or its habitat, and threats petition, and publish our notice of this both the eastern and western slopes of to the species or its habitat. We also finding promptly in the Federal the Sacramento Mountains in south- request information regarding the Register. central New Mexico. The species is adequacy of existing regulatory Our 90-day finding under section found primarily on National Forest mechanisms. 4(b)(3)(A) of the Act and § 424.14(b) of Service lands of the Lincoln National Please note that comments merely our regulations is limited to a Forest in Otero County, New Mexico stating support or opposition to the determination of whether the (Service 1993, p. 3). A few occupied actions under consideration without information in the petition meets the sites lie on the extreme southern end of providing supporting information, ‘‘substantial information’’ threshold. the Mescalero Apache Indian although noted, will not be considered ‘‘Substantial information’’ is defined in Reservation and a few private land in making a determination, as section 50 CFR 424.14(b) as ‘‘that amount of inholdings within the Lincoln National 4(b)(1)(A) of the Act directs that information that would lead a Forest (Service 1993, p. 3). Within this determinations as to whether any reasonable person to believe that the known range, C. vinaceum grows in the species is a threatened or endangered measure proposed in the petition may mixed-conifer zone, between 7,500 and species shall be made ‘‘solely on the be warranted.’’ If we find that 9,500 ft (2,300 and 2,900 m), in basis of the best scientific and substantial information was presented, limestone substrate. commercial data available.’’ At the we are required to promptly commence Cirsium vinaceum was listed as a conclusion of the status review, we will a status review of the species. threatened species on June 16, 1987, issue the 12-month finding on the We evaluated the information based on threats from water petition, as provided in section provided by the petitioner in development, trampling and ground 4(b)(3)(B) of the Act (16 U.S.C. 1531 et accordance with 50 CFR 424.14(b). Our disturbance by livestock, recreation, seq.). process for making this 90-day finding logging, and the invasion of exotic You may submit your information under section 4(b)(3)(A) of the Act and plants (52 FR 22933). At the time of concerning this finding by one of the 50 CFR 424.14(b) of our regulations is listing, it was known from 20 localities methods listed in the ADDRESSES limited to a determination of whether consisting of a total of 10,000 to 15,000 section. We will not consider the information in the petition meets the sexually reproducing plants (52 FR submissions sent by e-mail or fax or to ‘‘substantial scientific and commercial 22933). This number of plants was an address not listed in the ADDRESSES information’’ threshold (as mentioned greater than the 2,000 to 3,000 sexually section. above). reproducing plants known at the time If you submit information via the species was proposed for listing in Species Information http://www.regulations.gov, your entire 1984 (49 FR 20735). A recovery plan for submission—including any personal Cirsium vinaceum is a stout , 3.3 C. vinaceum was finalized on identifying information—will be posted to 5.9 feet (ft) (1 to 1.8 meters (m)) tall. September 27, 1993 (Service 1993, pp. on the Web site. If your submission is Cirsium vinaceum stems are brown- 1–23). Critical habitat has not been made via a hardcopy that includes purple and highly branched. The basal designated for this species. personal identifying information, you leaves are green, 12 to 20 inches (in) (30 Review of the Petition may request at the top of your document to 50 centimeters (cm)) long, and up to that we withhold this information from 8 in (20 cm) wide, with ragged edges. On August 13, 2007, we received a public review. However, we cannot Cirsium vinaceum is a short-lived petition from the Board of County guarantee that we will be able to do so. perennial. It lives as a rosette (a circular Commissioners of Otero County, New We will post all hardcopy submissions arrangement of leaves close to the Mexico, to delist Cirsium vinaceum. The on http://www.regulations.gov. ground) for one or more years, and petitioner cites the following documents Information and materials we receive, eventually a stem bolts upward pertaining to C. vinaceum: A 1984 as well as supporting documentation we producing flower and seed. Flowering, proposal to determine C. vinaceum to be used in preparing this finding, will be the vehicle for sexual reproduction, a threatened species and to determine available for public inspection on occurs only once, from July through critical habitat (49 FR 20735, May 16, http://www.regulations.gov, or by September, when pink-purple flower 1984); the June 16, 1987 final rule to appointment, during normal business heads form at the tips of stems. At any determine C. vinaceum to be a hours, at the U.S. Fish and Wildlife given time, flowering adults comprise threatened species (52 FR 22933); the Service, New Mexico Ecological approximately 10 percent of the total 1993 Sacramento Mountains Thistle Services Office (see FOR FURTHER number of plants (USFS 2003). Seed (Cirsium vinaceum) Recovery Plan; the INFORMATION CONTACT). production usually occurs from cross- 2004 original petition to delist the pollination by native bees, flies, Sacramento Mountains thistle submitted Background butterflies, and hummingbirds, although by Otero County Commissioner Doug Section 4(b)(3)(A) of the Act (16 pollination from another plant is not Moore; the 2004 Final Environmental U.S.C. 1531 et seq.) requires that we always required for reproduction. Adult Impact Statement—Sacramento, Dry make a finding on whether a petition to C. vinaceum plants die after flowering. Canyon, and Davis Grazing Allotments list, delist, or reclassify a species Cirsium vinaceum is an obligate (Forest Service 2004); the 2005 presents substantial scientific or wetland species that requires saturated Programmatic Biological and commercial information indicating that soils with surface or sub-surface water Conference Opinion: the Continued the petitioned action may be warranted. flow. Waters at these sites are rich in Implementation of the Land and Such findings are based on information calcium carbonate from limestone Resource Management Plans (LRMP) for contained in the petition, supporting sources that often precipitates out to the Eleven National Forests and information submitted with the petition, create large areas of travertine (calcium National Grasslands of the and information otherwise available in carbonate) deposits, which occasionally Southwestern Region (LRMP Biological our files at the time we make the become large bluffs or hills. Travertine Opinion) (USFWS 2005); the 2006 90-

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day finding on a petition to delist the the original listing of 1987 and believes withdrawal from springs, reservoir Sacramento Mountains thistle (Cirsium that they have been minimized. The construction), trampling by vinaceum) and initiation of a 5-year petitioner states that delisting is recreationists, road construction, status review (71 FR 70479, December 5, warranted based on the sufficient logging, and competition with exotic 2006); the USDA Natural Resources recovery of the species and the assertion plants as threats to the species’ habitat Conservation Service web report, ‘‘New that the initial listing was done in error. and range. Cirsium vinaceum also has Mexico County Level Distribution for In making this 90-day finding, we been impacted by off-road vehicles, Cirsium vinaceum’’ (web-checked by evaluated whether information on the motorcycles, road maintenance, and petitioner February, 2007); and a U.S. changes in the status and threats to other activities (Service 1993, pp. 4–6; Forest Service (Forest Service) Draft Cirsium vinaceum, as presented in the Forest Service 2004, pp. 625–629). Map of Known Locations of Sacramento petition, and clarified by information Range and Population Mountains Thistle (Cirsium vinaceum), readily available in our files at the time Sacramento Ranger District, Lincoln of the petition review, is substantial, The petitioner states that the number National Forest (undated). The thereby indicating that the petitioned of localities and abundance of Cirsium petitioner clearly identifies the petition action may be warranted. Our vinaceum have increased since it was as a petition and includes the requisite evaluation of this information is listed. As discussed above, the information for the petitioner, as presented below. petitioner notes that the known distribution of C. vinaceum has grown required in 50 CFR 424.14(a). Threats Analysis The petitioner summarizes the natural from 20 localities at the time of listing history of Cirsium vinaceum, describes Section 4 of the Act and its in 1987 to 86 discovered localities by the range and population status from implementing regulations (50 CFR part 2003. As noted in the Species 1984 to 2003, and outlines the 424) set forth the procedures for listing Information section above, we now regulatory history.The petitioner species, reclassifying species, or know that flowering adults comprise emphasizes that C. vinaceum numbers removing species from listed status. We approximately 10 percent of the total have increased dramatically since the evaluate whether that species may be number of plants (USFS 2003). This original listing and believes that the endangered or threatened because of means that the 350,000 to 400,000 recovery objectives have been satisfied. one or more of the five factors described individuals reported in 2003 by the Comparisons of occupied localities and in section 4(a)(1) of the Act. We must petitioner equate to approximately population numbers are drawn from the consider these same five factors in 35,000 to 40,000 flowering plants. 1984 petition to list C. vinaceum (49 FR delisting a species. We may delist a Therefore, the estimated number of 20735, May 16, 1984), the June 16, 1987 species only if the best scientific and flowering plants increased from 10,000 final rule to list C. vinaceum as commercial data available indicate that to 15,000 in 1987 to 35,000 to 40,000 by threatened (52 FR 22933), the 1993 the species no longer meets the 2003. recovery plan for C. vinaceum, and the definition of threatened or endangered Our records indicate that the numbers 2006 90-day finding on a petition to under the Act. Delisting may be of Cirsium vinaceum localities and delist C. vinaceum (71 FR 70479, warranted as a result of: (1) Extinction, individuals presented in the petition December 5, 2006). These documents (2) recovery, and/or (3) a determination through 2003 are accurate. Much of the give the locality and population that the original data used for increase in individual plants is numbers as: 14 localities with 2,000 to classification of the species as attributable to more intensive survey 3,000 total individuals in 1984; 20 endangered or threatened were in error. efforts since 1984 which also resulted in localities with a total of 10,000 to 15,000 Under section 4 of the Act, we may the discovery of several new areas of reproductive individuals in 1987; 62 list a species, subspecies, or Distinct occupied habitat. There is no doubt that localities with 49,000 total plants in Population Segment of vertebrate taxa the numbers of documented C. 1993; and 86 localities with an on the basis of any of the following five vinaceum have grown between the years estimated 350,000 to 400,000 total C. factors: (A) Present or threatened of 1984 and 2003, the most recent data vinaceum plants in 2003. Population destruction, modification, or presented in the petition. data after 2003 are not included in the curtailment of habitat or range; (B) A method to estimate the total petition. The petitioner also discusses overutilization for commercial, number of plants (flowering individuals possibilities of the range of C. vinaceum recreational, scientific, or educational plus rosette individuals that have not extending northward into Lincoln purposes; (C) disease or predation; (D) flowered yet) was devised, based on a County as suggested by a National inadequacy of existing regulatory 1989 count of all rosettes in 4 Circium Resources Conservation Service web site mechanisms; or (E) other natural or vinaceum localities, which found that general map that highlights Lincoln manmade factors affecting its continued the number of rosettes (non- County as well as Otero County for the existence. We also apply these same reproductive for that year, but distribution of C. vinaceum (http:// factors in determining whether the potentially reproductive the following plants.usda.gov/java/county?state_ threats have been sufficiently reduced year) was approximately 10 times the name=New%20Mexico& or eliminated to justify delisting. This number of reproductive plants in the statefips=35&symbol=CIVI4, from 2007), 90-day finding is not a status assessment field (Thompson 1991). Using this and southward, based on a large known and does not constitute a status review method, the total number of individual population located toward the southern under the Act. plants has been calculated by tip of the Sacramento Ranger District of multiplying the number of flowering the Lincoln National Forest. A. Present or Threatened Destruction, plants by 10 to obtain the number of The petitioner claims that threats to Modification, or Curtailment of the both non-reproductive rosettes and Cirsium vinaceum have been ‘‘either Species’ Habitat or Range reproductive individuals. This would completely eliminated or sufficiently The June 16, 1987, listing rule (52 FR amount to an increase from 100,000 to reduced so that the long-term survival of 22933) and subsequent recovery plan 150,000 total individuals in 1987 to C. vinaceum is ensured.’’ Each of the (Service 1993, pp. 4–6) list habitat 350,000 to 400,000 total individuals in five listing factors is addressed by the destruction or alteration by domestic 2003 (Service 2005, p. 712). In terms of petitioner, who analyzes threats given in livestock, water development (e.g., range size, one (Fresnal Canyon) of the

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new thistle locations occurs outside the in C. vinaceum at Bluff Springs once the Information in our files indicates that 155-square-mile area that was proposed area was fenced (52 FR 22933). Our the petitioner’s claim that the number of but never finally designated as critical current understanding of livestock populations and range of Cirsium habitat in the 1984 listing proposal (May impacts involves the susceptibility of vinaceum are greater as of the date 16, 1984, 49 FR 20735). Thus, the the species to trampling of vulnerable when the petition was written than overall distribution of the species has seedlings, rosettes, and flowering stalks, what was known in 1987 is reliable and increased (Service 2005, p. 698; Sivinski as well as damaging of travertine and accurate. A delisting criterion in the 2007, p. 1). We agree with the petitioner soft substrates in occupied and potential recovery plan involves the permanent that the numbers of localities and habitat (Thomson 1991, pp. 44–52; protection of at least 75 percent of the individuals, and the range of the species Service 2004, pp. 62–63). Cirsium known occupied habitat (Service 1993, appears to have increased. vinaceum can recover within a few p. 9). Using the most current data presented by the petitioner, the Livestock Grazing weeks after heavy grazing is reduced or eliminated, and can continue to persist achievement of 75 percent permanent The petitioner claims that the threat with light grazing if only the foliage and protection for the known C. vinaceum of livestock grazing activities has been not the central stem is grazed (Forest occupied habitat area, number of adequately reduced as a result of Service 2003, pp. 53, 59; Service 2005, localities, or number of plants would herding practices, exclosures (fences to p. 697). But livestock consumption of mean that 58 of an estimated 77 acres exclude livestock), and livestock flowering stalks and the leaves of of occupied habitat, 64 of 86 occupied inaccessibility due to rough terrain. In rosettes can cause the loss of the entire localities, or 262,500 to 300,000 of addition, the petitioner asserts that the reproductive output of the plant (Forest 350,000 to 400,000 plants would have to use of exclosures, herding efforts, and Service 2003, pp. 53, 59; Service 2005, be permanently protected. Although the natural inaccessibility collectively have p. 697). Thus, in areas that are grazed, information presented by the petitioner satisfied one of the major actions of the C. vinaceum experiences direct impacts does not indicate that protection of 75 recovery plan, which was to ‘‘develop from livestock trampling and percent of known occupied habitat has habitat management plans to alleviate consumption, as well as indirect been achieved, it does indicate that the threats to the species and ensure impacts from ground disturbance, amount of habitat in protected status permanent protection of at least 75 substrate destruction, and rechannelling has increased and that the extent of the percent of the known occupied habitats of water flow (Forest Service 2003, pp. threat of disruption or modification of according to steps outlined in the 43–56; Service 2005, p. 697). habitat may be reduced. plans.’’ To support this conclusion, the Information in our files indicates that Water Accessibility petitioner cites the 1993 recovery plan, fencing around C. vinaceum individuals The petitioner maintains that threats which mentions that grazing permittees to prevent livestock access has of habitat destruction from water have exerted more effort toward produced an increase in plants in those development have been reduced herding, and that many seep and spring localities. Currently, exclosures cover adequately by the Forest Service’s habitats are excluded from frequent approximately 290 acres (ac) (120 special-use water permit process, new livestock use by the steepness of hectares (ha)), protecting about half of State legislation, and the travertine ledges (Service 1993). The the occupied habitat from the negative implementation of conservation actions petitioner further cites the recovery plan impacts associated with livestock use in the form of habitat improvement and concludes that grazing impacts to (Service 2005, p. 698). We agree with projects recommended in the recovery the remaining habitats have been the petitioners that exclosures have plan. sufficiently mitigated as a result of protected individual plants and habitat The petitioner reports that New exclosure fences constructed around from livestock access and destruction. Mexico adopted in-stream flow almost half of all occupied Cirsium Habitat Protection legislation in 2005. From our records, vinaceum sites recorded for 2003. the State of New Mexico enacted in- According to the petition, which cites The petitioner states that the objective stream flow legislation in 2005 and then the Forest Service’s 2003 Biological of the recovery plan to protect 75 amended it in 2007. This legislation Assessment for the Sacramento Grazing percent of known occupied habitat has establishes a water reserve based on Allotment Management Plan (Forest been met through the success of water donation, purchase, or lease from Service 2003), exclosures have protecting Cirsium vinaceum from willing sellers to benefit species that are increased C. vinaceum numbers for grazing through building exclosure rare, sensitive, or have small those fenced populations. The petitioner fences. A portion of this protection also populations (N.M. Stat. Ann. § 72–14– states that the recovered status of the is afforded by topography, making 3.3). Use of the water is limited to species will be maintained by the terrain inaccessible to cattle, notes the aquatic or obligate riparian species installation of additional exclosure petitioner. According to the petitioner, within a river reach or ground water fences in the future, as noted in a final the recovery criterion has been basin (N.M. Stat. Ann. § 72–14–3.3). The environmental impact statement exceeded based on a comparison of new State statute does provide a covering the Sacramento grazing known population areas and C. mechanism to protect lower drainage allotment (Forest Service 2004a). vinaceum numbers between 1987 and habitats of Cirsium vinaceum from At the time of listing, the presence of 2003. Numbers of an estimated 10,000 drying if a strategic water reserve is livestock was recognized as being to 15,000 plants from 20 known created, although the legislation does detrimental to Cirsium vinaceum due to localities in 1987 are contrasted with not prevent the diversion of water from trampling and ground disturbance (52 data from 2003 for 350,000 to 400,000 isolated montane wetlands or headwater FR 22933, June 16, 1987). Evidence of plants. The petitioner links this increase springs, where C. vinaceum also occurs, damage by livestock was based on the to the fencing of approximately 290 ac and does not directly establish a notable decrease in numbers of (120 ha) of C. vinaceum habitat and ‘‘strategic water reserve’’ for the thistle, individuals in Lucas Canyon when concludes that the area fenced must (N.M. Stat. Ann § 72–14–3.3). exposed to excessive grazing prior to have protected at least 75 percent of the Nevertheless, the statute’s goals of listing, and on the substantial increase known occupied habitats. providing water to obligate riparian

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listed species, by creating a ‘‘strategic As an obligate wetland plant, Cirsium Road Construction, Logging, and water reserve’’, and avoiding the listing vinaceum continues to depend on water Recreation of additional species might be applied availability for its survival. Although The petitioner cites information in the to benefit C. vinaceum (N.M. Stat. Ann the dam and reservoir projects recovery plan (Service 1993) to assert § 72–14–3.3). mentioned in the listing notice were not that road construction, logging The petitioner states that through the implemented, information from our files operations, and recreational activities issuance of special-use permits, the indicates that C. vinaceum currently is do not threaten the Cirsium vinaceum or Forest Service can control the location subjected to water loss from natural its habitat at this time. Specifically, the of a water diversion point in relation to drought conditions; other factors that petitioner claims that the Forest Cirsium vinaceum locations near can cause a spring to go dry (e.g., Service’s policy of maintaining a 200-ft springs. According to the petitioner, the rerouting of underground channels); or (61-m) buffer region around populations recovery plan recommends water human impacts, such as spring protects C. vinaceum during road diversion for spring development only development or loss of water flow to an construction, logging operations, and at locations downstream of suitable occupied site through diversion by trail planning (Service 1993). The habitat in order to provide necessary roads or trails (Service 1993, pp. 4–5; petition also references a ‘‘no entry area water to the species and prevent habitat Service 2004, p. 35). Currently, the condition on a recent timber sale’’ (52 disturbance (Service 1993). Citing the region has been under drought FR 22933, June 16, 1987), in response to LRMP Biological Opinion (Service conditions since 1999. The length and minimizing logging threats to C. 2005), the petitioner claims that the severity of the drought, and therefore its vinaceum. The petitioner provides a Forest Service can specify the location ultimate impact on C. vinaceum, are not quote from the previous 90-day finding of water intake points in special use known (Piechota et. al. 2004, pp. 303– highlighting the Service’s permits to protect C. vinaceum from 305). It is likely that the seasonal acknowledgement that logging ‘‘does habitat degradation. distribution of yearly precipitation also not currently threaten the thistle’’ (71 The petitioner believes that water plays a role in water availability for C. FR 70479, December 5, 2006). In conservation to benefit Cirsium vinaceum. Spring desiccation at addressing recreation, the petitioner vinaceum has been implemented by the occupied sites has led to a reduction in refers to the recovery plan’s mention of Forest Service. Citing the LRMP the number of individual plants, and in a fence that was constructed by the Biological Opinion (Service 2005), the some cases, caused a loss of all plants Forest Service prior to 1993 around petitioner describes a riparian at previously occupied sites (Forest Bluff Springs and its fragile travertine improvement project in 2001–02 that Service 2003, pp. 35–36). It is unclear substrate to re-route foot trails (Service supplied former occupied habitat with how the springs in the Sacramento 1993). The Biological Assessment for additional water by allowing drainage Mountains would respond to a the Sacramento Grazing Allotment under roads in Water Canyon and the combination of extended drought and (Forest Service 2003) also is referenced Rio Penasco. The petitioner maintains an increase in the level of water by the petitioner to support the that this project increased water withdrawals (e.g., diversions, effectiveness of the Bluff Springs availability to plants, promoted groundwater pumping). exclosure by noting that C. vinaceum establishment and abundance of the numbers have increased since the fence species, and helped to conserve C. In summary, the new State legislation was constructed. vinaceum. provides a mechanism to protect lower At the time of listing, there was At the time of listing, the Service was drainage habitats of Cirsium vinaceum concern that ground disturbance from concerned about the impacts of water from drying if a strategic water reserve road construction and logging could development or associated habitat is created (N.M. Stat. Ann § 72–14–3.3). impact Cirsium vinaceum habitats if deterioration to Cirsium vinaceum Moreover, the statute’s goals of planning for logging operations did not individuals. The listing notice providing water to obligate riparian consider the species (52 FR 22933). In mentioned that an unauthorized 1,900 ft species by creating a ‘‘strategic water addition, Bluff Springs, an area (579 m) long pipeline and cement spring reserve’’ might be applied to benefit C. containing C. vinaceum, was also box had been constructed at a C. vinaceum (N.M. Stat. Ann § 72–14–3.3). vulnerable to overuse by recreationists vinaceum site, which negatively Our records indicate that in the State of (52 FR 22933, June 16, 1987). The listing impacted nearby plants (52 FR 22933, New Mexico, the land owner reserves rule affirms that ‘‘overuse for recreation June 16, 1987). These structures the right to determine the point of water or any human-caused deterioration of impeded water flow to the plant and diversion (United States v. New Mexico, the area around the springs could harm provided evidence of the sensitivity of 438 U.S. 696 (1978)). For populations the species’’ (52 FR 22933). At present, C. vinaceum to diminishment of its located on the Lincoln National Forest, our information indicates that the Forest water supply. Just prior to the time of the Forest Service has the ability to Service applies a minimum 200-ft (61- listing, the Bureau of Reclamation had designate the intake point for water m) protective buffer around C. vinaceum conducted studies of three potential diversion during the special use occurrences during forest management dam and reservoir sites to be used for permitting process in a manner that activities (Service 2002, p. 3; Service industrial and domestic water supply in protects C. vinaceum from desiccation. 2004, pp. 4–13). The exclosure the region (52 FR 22933). Developing Information from our files supports the constructed around Bluff Springs has any of these water sites was believed to petitioner’s claim that the Water Canyon served to dissuade human use and pose a significant threat to C. vinaceum. and the Rio Penasco road improvement divert foot traffic from sensitive To emphasize the species’ requirement project conserved water and C. substrates at Bluff Springs, with a of wetland habitat, the Service vinaceum by retaining water and slowly responding increase in C. identified the adoption of in-stream diverting it toward suitable habitat vinaceum numbers at that site as of flow legislation and acquisition of water (Service 2005). This retention and influx 2007 (Forest Service 2003, p. 59; 2007 rights as the first delisting criterion for of water into suitable habitat enabled C. database). Maintenance of the buffers C. vinaceum in the recovery plan vinaceum reoccupation of these sites and exclosures appears to be assisting in (Service 1993, p. 9). (Service 2005). the recovery of C. vinaceum.

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B. Overutilization for Commercial, June 16, 1987) (see additional importing, exporting, transporting, Recreational, Scientific, or Educational discussion in Factor A above). However, selling, receiving, acquiring, or Purposes by the time of the recovery plan’s purchasing C. vinaceum unlawful The petitioner provides minimal publication date, research verified that within or outside of State, National, and information addressing this factor, livestock consumption of C. vinaceum international boundaries (16 U.S.C. reiterating that this factor has not been caused a reduction in plant rosette size 3372; Service 1993, p. 6). At the State an issue for Cirsium vinaceum. The and reproductive output (Service 1993, level, the petitioner asserts that C. original listing did not cite this factor as p. 5). Some thistle localities are vinaceum receives protection from the protected from livestock access by use New Mexico State Endangered Plant significant and a review of information of exclosure fencing. Species Act. The New Mexico State in our files does not suggest that Information in our files indicates that Endangered Plant Species Act prohibits overutilization for commercial, a complex relationship exists among the take, damage, or sale of listed plants, recreational, scientific or educational Cirsium vinaceum, precipitation, and and requires permits for scientific study purposes currently threatens C. livestock herbivory; however, overall, (N.M. Stat. Ann. § 19.21.2). The recent vinaceum. We agree that this issue may plants in grazed areas do more poorly in-stream flow legislation is mentioned not be applicable to the species at this than C. vinaceum plants protected from by the petitioner as another protective time. livestock access (Forest Service 2003, regulation for the species in terms of C. Disease or Predation pp. 44–51). Still, our data affirm an water provisioning (N.M. Stat. Ann increase in C. vinaceum abundance, Disease is mentioned as being an § 72–14–3.3). Finally, the petitioner detected during the early and mid 1990s insignificant threat to Cirsium vinaceum believes that the post-delisting for the Forest Service’s herbivory report. in the conclusion of the petition. No monitoring plan will protect the species because any indication of becoming information is provided by the D. Existing Regulatory Mechanisms extinct would trigger the emergency petitioner regarding the effects of The petitioner provides listing process of the Act that would re- disease on the species. At the time of documentation of protective regulations list C. vinaceum (16 U.S.C. 1533(g)). listing, there were no known diseases to in the form of Forest Service At the time of listing, only the Federal C. vinaceum, and disease was not regulations, the Lacey Act, New Mexico regulations at 36 CFR 261.9 prohibiting mentioned in the listing petition. State law, and a potential post-delisting take of plants from National Forests Currently, we have no information in monitoring process to claim that were in existence (52 FR 22933, June 16, our files suggesting that disease may be existing regulations are sufficient to 1987). The other regulations had not a significant threat to the species. conserve Cirsium vinaceum if it been enacted. Currently, under the Act, The petitioner states that wildlife and becomes delisted. Several regulations damage, destruction, removal, livestock predation or consumption of under Forest Service jurisdiction are possession, transport, or sale of Cirsium Cirsium vinaceum is not a known threat. discussed by the petitioner. A Federal vinaceum is prohibited on Federal lands The 2004 Biological Assessment for the regulation protects threatened and (16 U.S.C. 1531 et seq.). On State lands, Southwestern Region is referenced as endangered species against take in the Act serves to prohibit moving, support for the assertion that wildlife National Forests, which prohibits the digging up, cutting, damaging, predation is negligible and cattle are the damage or removal of plants, including destroying, transporting, or selling C. primary grazers of C. vinaceum (Forest C. vinaceum (36 CFR 261.9). The Forest vinaceum, including instances where Service 2004). The petition cites the Service’s issuance of special-use permits trespassing is involved (16 U.S.C. 1531 recovery plan to support its conclusion to designate points of water diversion in et seq.). Permits may be authorized that threats from grazing have been the Lincoln National Forest is addressed under specific instances to engage in alleviated by exclosures, inaccessible as a means to protect C. vinaceum from otherwise lawful activities with C. topography, and herding practices spring development. Based on the vinaceum. (Service 1993). Based on a Forest recovery plan, the petitioner mentions Information in our files, along with Service herbivory (plant consumption) that a permit is required to collect information from the petition, supports monitoring report, the petitioner claims plants in C. vinaceum localities (Service the existence of the mentioned that livestock consumption of the plants 1993). The petitioner presents two other regulatory mechanisms for Cirsium is no longer a substantial threat because species that have received protection vinaceum as a listed species. As a livestock herbivory during 1992 led to from the Sensitive Species program delisted species, C. vinaceum increases in C. vinaceum vigor and (McKittrick pennyroyal (Hedeoma individuals would continue to be population growth in 1993 (Forest apiculatum) and Tumamoc globeberry protected by the Lacey Act, if involved Service 1994). The petitioner further (Tumamoca macdougalii)), and claims in collection, transport, or commerce, as reports that there was no evidence of that this program provides an additional well as the New Mexico State negative effects to C. vinaceum from regulatory mechanism for C. vinaceum Endangered Plant Species Act, if the livestock grazing during the years of protection (58 FR 49244; 58 FR 33562). plant retains its state status as 1995, 1998, and 2001 (Forest Service The petitioner believes that the 200-ft endangered; however, these laws do not 2004). The petitioner suggests that ‘‘a (61-m) buffer around roads, trails, and protect C. vinaceum habitat. If delisted, certain amount of herbivory may timber operations described in the C. vinaceum could benefit from promote C. vinaceum reproduction by recovery plan (Service 1993), along with regulatory protection as a Forest Service causing seeds to shed and by dispersing the standards and guidelines given in sensitive species. We affirm that C. the seeds’’ (p. 27 of the petition) and the LRMP Biological Opinion (Service vinaceum would be carefully monitored concludes that herbivory by livestock is 2005), offer direction for actions in the for at least 5 years after delisting to not a significant threat to C. vinaceum. Lincoln National Forest, which further ensure that the species would not be at At the time of listing, herbivory by protect C. vinaceum. risk of extinction during that time. If livestock was not mentioned as a threat, The petitioner also claims that the delisted, the post-delisting monitoring but trampling of Cirsium vinaceum and Lacey Act provides adequate protection plan would likely include thresholds ground disturbance by livestock were to Cirsium vinaceum. According to the indicating when a status review was understood to be threats (52 FR 22933, petition, the Lacey Act makes warranted.

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E. Other Factors Affecting the Species Gardner and Thompson 2008, p. 1), additional regulatory mechanisms may Citing information from the recovery although future interactions among the now exist that could limit damage to plan and the LRMP Biological Opinion musk thistle, weevil, and C. vinaceum individuals and the development of (Service 2005), the petitioner discusses remain unclear. water in riparian areas. a lack of evidence indicating that exotic Finding It is important to note that the ‘‘substantial information’’ standard for a teasel (Dipsacus sylvestris) and musk We have reviewed the delisting 90-day finding is in contrast to the Act’s thistle ( nutans) are posing petition and the supporting documents, ‘‘best scientific and commercial data’’ threats to C. vinaceum via competition. as well as other information in our files. standard that applies to a 12-month The petitioner acknowledges the We find that the delisting petition and finding as to whether a petitioned action ‘‘potential for C. vinaceum to become other information in our files present is warranted. A 90-day finding is not a excluded from some of its drier habitats substantial information that threats to status assessment of the species and by the invasive teasel,’’ which the Cirsium vinaceum may have been does not constitute a status review petitioner quotes from the recovery plan reduced and that delisting C. vinaceum under the Act. Our final determination (Service 1993). However, the petitioner may be warranted, and we are initiating as to whether a petitioned action is also claims that evidence concerning a status review. Our process for making competitive impacts to C. vinaceum this 90-day finding under section warranted is not made until we have from interactions with bull thistle 4(b)(3)(A) of the Act is limited to a completed a thorough status review of (), Canada thistle determination of whether the the species, which is conducted (Cirsium arvense), and poison hemlock information in the petition presents following a substantial 90-day finding. (Conium maculatum) has not been ‘‘substantial scientific and commercial Because the Act’s standards for 90-day presented. Thus, the petitioner information,’’ which is interpreted in and 12-month findings are different, as concludes that competition from our regulations as ‘‘that amount of described above, a substantial 90-day invasive plants is not an immediate information that would lead a finding does not necessarily mean that threat to C. vinaceum. reasonable person to believe that the the 12-month finding will be warranted. At the time of listing, competition measure proposed in the petition may References Cited with introduced teasel and musk thistle be warranted’’ (50 CFR 424.14(b)). had reduced or eliminated populations The petitioner provides a detailed A complete list of all references cited of Cirsium vinaceum at sites where it petition that reviews much of the in this notice is available upon request had formerly grown or where habitat knowledge of Cirsium vinaceum, from the New Mexico Ecological was still suitable but where invasive including the natural history, range, and Services Field Office (see FOR FURTHER plant species were present (52 FR threats. The documents referenced INFORMATION CONTACT). 22933, June 16, 1987). Information in provide substantial information Author our files indicates that exotic teasel and indicating that C. vinaceum is more musk thistle occurrences are being widely distributed throughout several The primary authors of this rule are monitored and are found at canyon drainages in the Sacramento the New Mexico Ecological Services approximately one-third of the C. Mountains area than recorded at the Field Office staff (see FOR FURTHER vinaceum localities (2007 database). At time of listing. The 2003 population INFORMATION CONTACT). this time we have no information data of C. vinaceum, the most recent suggesting that competition among C. survey data analyzed by the petitioner, Authority vinaceum and exotic plants is a indicates that the number of individuals The authority for this action is the significant threat. Similarly, we have no has increased since the time of listing in Endangered Species Act of 1973, as information establishing bull thistle, 1987. Additionally, substantial amended (16 U.S.C. 1531 et seq.). Canada thistle, and poison hemlock as documentation of the reduction of immediate threats to C. vinaceum. threats from potential water Dated: October 28, 2008. Information in our files suggests the development, road construction, logging Kenneth Stansell, musk thistle may be serving as a vector operations, and recreational activities is Acting Director, Fish and Wildlife Service. for conicus, the exotic seed presented. The petitioner also provides [FR Doc. E8–26275 Filed 11–5–08; 8:45 am] head weevil (Sivinski 2007, pp. 6, 13; substantial information indicating that BILLING CODE 4310–55–P

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