`[Federal Register Volume 89, Number 238 (Wednesday, December 11, 2024)]
[Proposed Rules]
[Pages 99809-99826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28351]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2024-0005; FXES1113090FEDR-245-FF09E22000]
RIN 1018-BG68


Endangered and Threatened Wildlife and Plants; Reclassification 
of the Rough Popcornflower From Endangered to Threatened With a Section 
4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
reclassify the rough popcornflower (Plagiobothrys hirtus) from 
endangered to threatened (downlist) under the Endangered Species Act of 
1973, as amended (Act). The proposed downlisting is based on our 
evaluation of the best available scientific and commercial information, 
which indicates that the species' status has improved such that it is 
not currently in danger of extinction throughout all or a significant 
portion of its range, but that it is still likely to become so within 
the foreseeable future. We also propose protective regulations under 
the authority of section 4(d) of the Act that are necessary and 
advisable to provide for the conservation of the rough popcornflower.

DATES: We will accept comments received or postmarked on or before 
February 10, 2025. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by January 27, 2025.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R1-ES-2024-0005, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R1-ES-2024-0005, U.S. Fish and

[[Page 99810]]

Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 
22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: This proposed rule and 
supporting documents, including the 5-year reviews, the Recovery Plan, 
and the species status assessment (SSA) report are available at https://www.regulations.gov at Docket No. FWS-R1-ES-2024-0005.

FOR FURTHER INFORMATION CONTACT: Kessina Lee, State Supervisor, U.S. 
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 
98th Avenue, Suite 100, Portland, OR 97266; telephone: (503) 231-6179. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States. Please see Docket No. FWS-R1-ES-2024-0005 on https://regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
reclassification from endangered to threatened if it no longer meets 
the definition of an endangered species (in danger of extinction 
throughout all or a significant portion of its range). The rough 
popcornflower is listed as endangered, and we are proposing to 
reclassify (downlist) the rough popcornflower as threatened. We have 
determined the rough popcornflower does not meet the Act's definition 
of an endangered species, but it does meet the Act's definition of a 
threatened species (likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range). Reclassifying a species as a threatened species can be 
completed only by issuing a rule through the Administrative Procedure 
Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This rule proposes to downlist the rough 
popcornflower from endangered to threatened, with a rule issued under 
section 4(d) of the Act (a ``4(d) rule''), based on the species' 
current status, which has been improved through implementation of 
conservation actions.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered species or a threatened species because of any 
of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. We may reclassify a species if the 
best available commercial and scientific data indicate the species no 
longer meets the applicable definition in the Act. Based on the status 
review, the current threats analysis, and evaluation of conservation 
measures discussed in this proposed rule, we conclude that the rough 
popcornflower no longer meets the Act's definition of an endangered 
species and should be reclassified to a threatened species. The species 
is no longer in danger of extinction throughout all or a significant 
portion of its range, but it is likely to become so within the 
foreseeable future.
    We have determined that rough popcornflower is a threatened species 
due to the following threats: destruction or alteration of habitat by 
development and hydrological changes, competition from native and 
nonnative plant species, and impacts due to climate change.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) Reasons we should or should not downlist the rough 
popcornflower as a threatened species.
    (2) New information on the historical and current status, range, 
distribution, and population size of the species.
    (3) New information on the known and potential threats to the 
species, including habitat loss, habitat modification, competition, or 
climate change.
    (4) New information regarding the life history, ecology, and 
habitat use of the species.
    (5) Current or planned activities within the geographic range of 
the species that may have adverse or beneficial impacts on the species.
    (6) Information to assist with applying or issuing protective 
regulations under section 4(d) of the Act that may be necessary and 
advisable to provide for the conservation of the rough popcornflower.
    (a) In particular, information concerning the extent to which we 
should include any of the section 9 prohibitions in the 4(d) rule; or
    (b) whether we should consider any additional or different 
exceptions from the prohibitions in the 4(d) rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made solely on the basis of the best 
scientific and commercial data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period, as 
well as any information that may become available after this proposal. 
Based on the new information we receive (and if relevant, any comments 
on that new

[[Page 99811]]

information), we may conclude that the species should remain listed as 
endangered instead of being reclassified as threatened, or we may 
conclude that the species no longer warrants listing as either an 
endangered species or a threatened species. In addition, we may change 
the parameters of the prohibitions or the exceptions to those 
prohibitions in the protective regulations under section 4(d) of the 
Act if we conclude it is appropriate in light of comments and new 
information received. For example, we may expand the prohibitions if we 
conclude that the protective regulation as a whole, including those 
additional prohibitions, is necessary and advisable to provide for the 
conservation of the species. Conversely, we may establish additional or 
different exceptions to the prohibitions in the final rule if we 
conclude that the activities would facilitate or are compatible with 
the conservation and recovery of the species. In our final rule, we 
will clearly explain our rationale and the basis for our final 
decision, including why we made changes, if any, that differ from this 
proposal.

Public Hearing

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

Previous Federal Actions

    Section 12 of the Act directed the Secretary of the Smithsonian 
Institution to prepare a report on plants considered to be endangered, 
threatened, or extinct in the United States. This report, designated as 
House Document No. 94-51, was presented to Congress on January 9, 1975. 
On July 1, 1975, we published a notice in the Federal Register (40 FR 
27823) of our acceptance of the report as a petition within the context 
of section 4(c)(2) (now section 4(b)(3)) of the Act and our intention 
to review the status of the plant species named in the report.
    On June 16, 1976, we published a proposed rule in the Federal 
Register (41 FR 24523) to designate approximately 1,700 vascular plant 
species, including rough popcornflower, as endangered pursuant to 
section 4 of the Act. In 1978, amendments to the Act required that all 
proposals over 2 years old be withdrawn. On December 10, 1979, we 
published a notice in the Federal Register (44 FR 70796) of the 
withdrawal of that portion of the June 16, 1976, proposal that had not 
been made final, along with four other proposals that had expired.
    On December 15, 1980, we published an updated notice of review for 
plants in the Federal Register (45 FR 82480) that included rough 
popcornflower as a category 1 candidate species. On November 28, 1983, 
we published a supplement to the December 15, 1980, notice of review in 
the Federal Register (48 FR 53640) in which we changed the status of 
rough popcornflower to a category 2 candidate species, and this species 
remained a category 2 candidate species until 1996. On January 20, 
1984, we published a notice in the Federal Register (49 FR 2485) that 
the petitioned listing of this species was warranted but precluded by 
other pending listing actions. On February 28, 1996, we published a 
notice of review in the Federal Register (61 FR 7596) that discontinued 
the designation of category 2 species as candidates. In that notice of 
review, we retained rough popcornflower as a candidate species.
    On November 20, 1997, we published a proposed rule in the Federal 
Register (62 FR 61953) to list this species as an endangered species 
under the Act, and on January 22, 1998, we announced a public hearing 
on, and reopened and extended the comment period for, that proposal (63 
FR 3301). On January 25, 2000, we published a final rule in the Federal 
Register (65 FR 3866) to list the rough popcornflower as an endangered 
species without designating critical habitat.
    On January 28, 2003, we published in the Federal Register (68 FR 
4228) a notice of availability of the draft recovery plan for the rough 
popcornflower (hereafter ``recovery plan''). We published the notice of 
availability for the final recovery plan on September 25, 2003 (68 FR 
55410). On October 25, 2019, we published a notice of availability of a 
draft amendment updating the recovery criteria in the recovery plan (84 
FR 57468), and that recovery plan amendment was signed on December 20, 
2019.
    On April 29, 2008, we published in the Federal Register (73 FR 
23264) a notice of initiation of a 5-year review for rough 
popcornflower. A 5-year review was completed on August 11, 2010, 
recommending no change in the plant's endangered status. On February 
12, 2016, we again published in the Federal Register (81 FR 7571) a 
notice of initiation of a 5-year review for rough popcornflower. In the 
most recent 5-year status review completed on April 14, 2021, we 
determined the species no longer met the Act's definition of an 
endangered species and should be reclassified to a threatened species. 
The 2021 5-year status review is available at https://www.regulations.gov under Docket No. FWS-R1-ES-2024-0005 and at https://ecosphere-documents-production-public.s3.amazonaws.com/sams/public_docs/species_nonpublish/949.pdf.
    For additional details on previous Federal actions, see https://ecos.fws.gov/ecp/species/2500 for the species profile for this plant.

Peer Review

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

Summary of Peer Reviewer Comments

    As discussed above in Peer Review, we received comments from two 
peer reviewers on the draft SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer reviewers generally concurred with our methods and provided 
additional information,

[[Page 99812]]

clarifications, and editorial suggestions. Two specific comments were 
to include a description of the role of natural disturbances in the 
species' habitat and to offer an explanation of the downlisting 
criteria as they relate to a minimum population size. We clarified 
these aspects in the SSA report. Otherwise, no substantive changes to 
our analysis and conclusions within the SSA report were deemed 
necessary, and peer reviewer comments are addressed in version 1.0 of 
the SSA report (USFWS 2021, entire).

Proposed Reclassification Determination

Background

    Rough popcornflower (Plagiobothrys hirtus) is an herbaceous plant 
in the borage or ``forget-me-not'' family (Boraginaceae) and is endemic 
to the Umpqua River basin in Douglas County, Oregon. Rough 
popcornflower is closely associated with emergent wetlands within 
seasonally wet meadows or prairie and relatively level, open habitats 
formed from poor draining clay-loam soils, concentrated in the 
Sutherlin Creek sub-watershed in Oregon (see figure 1, below).
[GRAPHIC] [TIFF OMITTED] TP11DE24.023


[[Page 99813]]



Figure 1. Distribution of rough popcornflower in Douglas County, 
Oregon.

    Rough popcornflower can be either an annual or a short-lived 
perennial. Individual rough popcornflower plants are between 2.75 
inches (in) (7 centimeters (cm)) and 23.6 in (60 cm) tall, with narrow, 
bright-green leaves. Their trumpet-shaped, non-fragrant flowers consist 
of five fused petals, and are mostly white with yellow centers. Rough 
popcornflower plants, whether annual or perennial, reach sexual 
maturity and produce fruits in their first year. The plants generally 
germinate in the fall, bloom in late spring and early summer, produce 
seed beginning in late June, and then senesce between July and 
November. The species is capable of either self-fertilization or cross-
fertilization; however, generalist insect pollination appears to be the 
predominant vector enabling rough popcornflower reproduction (Amsberry 
and Meinke 2001, pp. 12-13). A thorough review of the taxonomy, life 
history, and ecology of the rough popcornflower is presented in the SSA 
report, version 1.0 (USFWS 2021, entire).

Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include 
objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the Lists of Endangered and 
Threatened Wildlife and Plants.
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A decision to revise the status of a species, or to 
delist a species, is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer an endangered species or a threatened species, regardless 
of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently and that the 
species is robust enough that it no longer meets the definition of an 
endangered species or a threatened species. In other cases, we may 
discover new recovery opportunities after having finalized the recovery 
plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all of the guidance 
provided in a recovery plan.
    We completed a final recovery plan for the rough popcornflower in 
2003 (USFWS 2003, entire) and amended the plan in 2019 (USFWS 2019, 
entire). The objective of the original recovery plan for rough 
popcornflower was to reduce the threats and increase population 
viability to the point that the species could be downlisted to 
threatened status (USFWS 2003, p. 21). The original recovery plan 
assigned each known natural population to one of three recovery units 
(Calapooya Creek, Sutherlin Creek, and Yoncalla Creek). The recovery 
units each corresponded to a drainage basin within the Lower North 
Umpqua system and represented groups of populations which share 
phenotypic similarities and are potentially genetically similar to one 
another. The original recovery plan also established recovery criteria 
for downlisting (USFWS 2003, pp. 21-22). At that time, the information 
available was insufficient to identify recovery criteria for delisting. 
The 2019 recovery plan amendment evaluated the adequacy of existing 
recovery criteria, amended downlisting criteria, added delisting 
criteria, and presented rationale supporting the recovery plan 
modification (USFWS 2019, entire).
    Below are the downlisting criteria for the rough popcornflower as 
amended in 2019 (USFWS 2019, pp. 4-6), and the progress made to date 
toward achieving each criterion.

Criterion 1 for Downlisting

    Criterion 1 states that at least 9 reserves, containing a minimum 
of 5,000 plants each, are protected and managed to assure their long-
term survival. A reserve refers to one or more patches of rough 
popcornflower located within 0.6 miles (mi) (1 kilometer (km)) of each 
other that are protected from development and managed for the continued 
existence of the species (USFWS 2019, p. 3). The minimum population 
size of 5,000 individuals per reserve is intended to provide sufficient 
resiliency to withstand stochastic events (Culotta 1995, pp. 31-32; 
Traill et al. 2007, p. 164). The number of reserves is intended to 
provide sufficient redundancy such that rough popcornflower is not at 
risk of extinction due to catastrophic events. The maximum distance 
between patches within a reserve provides connectivity for pollinator-
mediated gene flow across the population (USFWS 2019, p. 4).
    At the time of listing, our knowledge of rough popcornflower 
abundance and distribution was limited to roughly 7,000 known plants in 
8 populations (USFWS 2021 p. 9). Since then, many conservation partners 
have made significant contributions to rough popcornflower recovery 
efforts. For example, the Oregon Department of Agriculture has 
collected seed, sown seed for use by multiple partners, augmented 
existing populations, conducted monitoring, and provided technical 
expertise. Other conservation partners, such as the Douglas County Soil 
and Water Conservation District, City of Sutherlin, and Bureau of Land 
Management, have entered into formal agreements to perform habitat 
restoration followed by seeding on a number of properties. Recent 
surveys (USFWS 2021, appendix 3; USFWS 2022, entire; USFWS 2023a, 
entire) documented a total of 12 rough popcornflower reserves. Eleven 
of those reserves are protected and managed while one reserve (a 
privately owned parcel containing over 700,000 plants) is currently 
adequately managed but is not protected (see table 1, below). Ten of 
the 12 reserves meet the minimum population size of 5,000 individuals 
per reserve to fully satisfy criterion 1. This number of plants and the 
distribution of populations is expected to enable rough popcornflower 
to withstand both stochastic and catastrophic events, and to maintain 
the capacity to adapt to future environmental changes. As such, we 
conclude that this downlisting criterion has been met and exceeded.

[[Page 99814]]

Criterion 2 for Downlisting

    Criterion 2 states a minimum of 5,382 square feet (ft\2\) (500 
square meters (m\2\)) is occupied by the rough popcornflower within 
each of the 9 reserves meeting criterion 1. The intent of this 
criterion is to have multiple populations large enough to maintain 
sufficient resiliency to withstand stochastic events.
    Seven of the 10 reserves that meet criterion 1 contain at least 
5,382 ft\2\ (500 m\2\) of occupied habitat to meet the description of 
criterion 2. Two other populations (Deady and Southside Swale) also 
meet or exceed the area coverage parameter but do not satisfy the 
criterion as they are either not considered to be a protected 
population or do not meet the minimum number of plants to be considered 
a reserve (see table 1, below). Although this criterion is not fully 
met as identified in the recovery plan, there are nine populations that 
meet or exceed the area coverage parameter. We conclude that the intent 
of this criterion has been met because having 9 populations with 5,382 
ft\2\ (500 m\2\) occupied by rough popcornflower distributed across the 
species' range is expected to enable rough popcornflower to withstand 
both stochastic and catastrophic events, and to maintain the capacity 
to adapt to future environmental changes.

Criterion 3 for Downlisting

    Criterion 3 states that a minimum of nine reserves, each meeting 
criteria 1 and 2, are distributed across the recovery units, with a 
minimum of five reserves in the Sutherlin Creek recovery unit and at 
least one reserve each in the Yoncalla Creek and Calapooya Creek 
recovery units. The remaining two reserves may be located within any of 
the natural recovery units, or elsewhere within the watersheds 
containing the recovery units. The intent of this criterion is to 
provide sufficient redundancy of populations across the species' range 
to allow the species to withstand catastrophic events.
    Of the seven reserves meeting criteria 1 and 2, four are in the 
Sutherlin Creek recovery unit, one is in the Yoncalla Creek recovery 
unit, and two are in the Umpqua Management Area, which includes 
introduced populations of rough popcornflower in the Bureau of Land 
Management (BLM)'s North Bank Habitat Management Area.
    Criterion 3 has not been fully met because the number of reserves 
fully meeting both criteria 1 and 2 is not met. However, the 
distribution of 11 populations that exceed 5,000 plants (10 protected) 
across all recovery units and the Umpqua Management Area, and 9 
populations that exceed 5,382 ft\2\ (500 m\2\) occupied by rough 
popcornflower, demonstrate that relatively large populations are 
spatially distributed across the species' range such that rough 
popcornflower is expected to withstand both stochastic and catastrophic 
events, and to maintain the capacity to adapt to future environmental 
changes, lead us to conclude that the intent of this downlisting 
criterion has been met.

Criterion 4 for Downlisting

    Criterion 4 states that over a 5-year period, with a minimum of 3 
individual years of monitoring, demographic data indicate at least 
seven of the nine reserves referenced in criterion 1 have average 
population numbers that are stable or increasing, without decreasing 
trends lasting more than 2 years. Stable or increasing populations are 
an indicator of resiliency. While some inter-annual variability is 
expected due to demographic and environmental stochasticity, this 
criterion is intended to provide sufficient confidence that large, 
sustained declines will not occur. Population monitoring, which entails 
taking a full plant census, takes place in late spring or early summer 
either annually or biannually. We monitor populations on private, city, 
or county land when authorized to do so. Alternatively, we provide 
funding through the Cooperative Endangered Species Conservation Fund to 
the Oregon Department of Agriculture to monitor populations. 
Conservation partners including the Bureau of Land Management, Oregon 
Department of Transportation, and The Nature Conservancy monitor 
populations on their lands biennially.
    Five of the 10 rough popcornflower reserves that meet criterion 1 
also currently meet this criterion (see table 1, below). Although the 
remaining five reserves meeting criterion 1 have not been monitored 
with sufficient frequency to satisfy all of the requirements of this 
criterion, they have maintained relatively stable population numbers 
between monitoring events from 2011 to 2023 (USFWS 2021 pp. 13-16; 
USFWS 2022, entire; USFWS 2023a, entire). Having all 10 of the reserve 
populations exhibiting stable or increasing numbers across the range of 
the species demonstrates that rough popcornflower has sufficient 
resiliency to respond to inter-annual environmental variability and is 
unlikely to experience sustained declines across its range. As such, we 
conclude that the intent of this downlisting criterion has been met.

                       Table 1--Rough Popcornflower Downlisting Criteria and Status by Recovery Units/Area, Douglas County, Oregon
                                                                [[check] = criterion met]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Downlisting criteria
                                                   -----------------------------------------------------------------------------------------------------
                                                                            #1                                #2               #3               #4
                                                   -----------------------------------------------------------------------------------------------------
           Population              Recovery unit                                                                                         3 survey yrs. w/
                                                     Plants >5,000      Managed or     Patches within   Area >500 m\2\    DC #1 and #2   in last 5 yrs.;
                                                     (# of plants)      protected           1 km        (size in m\2\)      met \4\          no 2-yr
                                                                                                                                             decrease
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Horsepasture 2..............  Sutherland Creek.         [check]          [check]          [check]          [check]          [check]   ...............
                                                         (700,000)                                           (10,700)
2. TNC \1\ Oerding/ODOT \2\ Del  Sutherland Creek.         [check]          [check]          [check]          [check]          [check]          [check]
 Rio.                                                     (29,681)                                              (800)
3. ODOT \2\ Wilbur Mitigation    Sutherland Creek.         [check]          [check]          [check]          [check]          [check]   ...............
 site.                                                    (42,511)                                            (1,810)
4. Hawthorne...................  Sutherland Creek.           (250)   ...............         [check]            (150)   ...............  ...............
5. Orenco Ponds................  Sutherland Creek.         [check]          [check]          [check]          [check]          [check]          [check]
                                                          (14,380)                                            (1,500)
6. Red Rock....................  Sutherland Creek.         [check]          [check]          [check]            (372)   ...............         [check]
                                                           (5,092)
7. Southside Swale.............  Sutherland Creek.           (525)          [check]          [check]          [check]   ...............         [check]
                                                                                                                (550)
8. Deady.......................  Sutherland Creek.         [check]   ...............         [check]          [check]   ...............  ...............
                                                           (6,000)                                              (500)

[[Page 99815]]

 
9. Sutherland East.............  Sutherland Creek.         (1,000)   ...............         [check]              (6)   ...............  ...............
10. Ford's Pond................  Callapooya Creek.         [check]          [check]          [check]            (450)   ...............         [check]
                                                           (5,082)
11. Stearns Lane...............  Callapooya Creek.             (0)   ...............         [check]              (0)   ...............  ...............
12. Nonpareil..................  Callapooya Creek.             (0)   ...............         [check]              (0)   ...............  ...............
13. Goat Ranch.................  Callapooya Creek.            (75)   ...............         [check]              (5)   ...............  ...............
14. ODOT \2\ Yoncalla South....  Yoncalla Creek...         [check]          [check]          [check]            (350)   ...............  ...............
                                                           (5,800)
15. ODOT \2\ Yoncalla 2........  Yoncalla Creek...         [check]          [check]          [check]          [check]          [check]   ...............
                                                           (5,595)                                              (800)
16. Soggy Bottoms Patch........  Umpqua Mgmt. Area         (3,363)          [check]          [check]            (108)   ...............  ...............
                                  \3\.
17. Middle Barn/Soggy Bottoms    Umpqua Mgmt. Area         [check]          [check]          [check]          [check]          [check]          [check]
 Sister.                          \3\.                    (11,222)                                            (1,000)
18. Westgate...................  Umpqua Mgmt. Area         [check]          [check]          [check]          [check]          [check]   ...............
                                  \3\.                     (6,000)                                              (600)
                                                   -----------------------------------------------------------------------------------------------------
    Total......................  .................  836,576 plants   ...............  ...............     19,701 m\2\   ...............  ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ TNC means The Nature Conservancy.
\2\ ODOT means the Oregon Department of Transportation.
\3\ The Umpqua Management Area is not an official recovery unit. This area is an additional recovery management area that includes introduced
  populations of rough popcornflower in the Bureau of Land Management (BLM)'s North Bank Habitat Management Area.
\4\ Downlisting Criterion 3 states that a minimum of nine reserves, each meeting the requirements in Downlisting Criteria 1 and 2, are distributed with
  at least one reserve each in the Calapooya Creek and Yoncalla Creek recovery units, and a minimum of five reserves in the Sutherlin Creek recovery
  unit.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for threatened and 
endangered species.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects. We consider these same five 
factors in downlisting a species from endangered to threatened.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species--such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis which is 
further described in the 2009 Memorandum Opinion on the foreseeable 
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf). 
The foreseeable future extends as far into the future as the U.S. Fish 
and Wildlife Service and

[[Page 99816]]

National Marine Fisheries Service (hereafter, the Services) can make 
reasonably reliable predictions about the threats to the species and 
the species' responses to those threats. We need not identify the 
foreseeable future in terms of a specific period of time. We will 
describe the foreseeable future on a case-by-case basis, using the best 
available data and taking into account considerations such as the 
species' life-history characteristics, threat-projection timeframes, 
and environmental variability. In other words, the foreseeable future 
is the period of time over which we can make reasonably reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction, in light of the conservation purposes of the Act.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be reclassified as a threatened species 
under the Act. However, it does provide the scientific basis that 
informs our regulatory decisions, which involve the further application 
of standards within the Act and its implementing regulations and 
policies.
    To assess the rough popcornflower's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated individual species' life-history 
needs. The next stage involved an assessment of the historical and 
current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report (USFWS 2021, entire) can be found 
on https://www.regulations.gov under Docket No. FWS-R1-ES-2024-0005.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. In addition, the SSA report 
(USFWS 2021, entire) documents our comprehensive biological status 
review for the species, including an assessment of the potential 
threats to the species.
    The following is a summary of this status review and the best 
available information gathered since that time that have informed this 
decision.

Ecological Needs

    Rough popcornflower typically occupies seasonally wet meadows or 
prairie, seasonally-ponding mudflats, and Oregon ash (Fraxinus 
latifolia) swale openings dominated by native wetland-associated plants 
in valley lowlands where the ground is moist well into the summer 
season. Rough popcornflower requires early seral habitat and is not 
associated with dense tree or shrub canopies. Periodic disturbance 
(e.g., flooding, fire, mowing, or grazing) is necessary to control 
nonnative and native plant competitors and maintain the early seral and 
open habitat conditions in which rough popcornflower populations 
thrive. Several insects are known to pollinate rough popcornflower: 
honey bees (Apis spp.); bumble bees (Bombus spp.); halictid and 
megachilid bees; Hemiptera (true bugs); bombyliid, syrphid, and 
tachinid flies; and red-shouldered ctenucha moths (Ctenucha 
rubroscapus). These insects require diverse native vegetation and 
minimal pesticide exposure.
    Resilient rough popcornflower populations need enough individuals 
to withstand stochastic events and disturbances. The minimum viable 
population size for rough popcornflower has not been identified. 
However, the recovery plan characterizes 500 plants as an effective 
population size and expanded that effective population size by a factor 
of 10 to determine a minimum population size estimate of 5,000 plants. 
This number represents the population size resilient to most 
disturbances and capable of resisting inbreeding depression (USFWS 
2003, p. 17; USFWS 2019, p. 4). Though some current populations may 
have fewer than 5,000 plants, taking into consideration other factors 
such as habitat quantity, habitat quality, connectivity, management, 
protection, reproduction, they may still be considered to have high 
resiliency (USFWS 2021, p. 31).
    For rough popcornflower to be considered viable as a species, it 
must be able to withstand catastrophic events and adapt to 
environmental changes. This can be achieved with enough resilient 
populations distributed across the species' geographic range, 
representing the range of ecological settings in which the species is 
known to exist. The minimum number of populations required for rough 
popcornflower has not been determined. However, distribution and 
abundance goals laid out in the recovery plan (USFWS 2003, pp. 21-22; 
USFWS 2019, pp. 4-8) and described above under Recovery Criteria 
provide a benchmark for evaluating the species' condition.

Factors Influencing the Species

    When we listed rough popcornflower as endangered (65 FR 3866; 
January 25, 2000), the primary threats included habitat alteration by 
wetland filling and development, livestock grazing (or herbivory), and 
competition from native and nonnative species. Small, isolated 
populations were identified as making the species more vulnerable to 
these threats. Overcollection for scientific or horticultural purposes, 
vandalism, the inadequacy of regulatory mechanisms, road maintenance, 
fire, and flooding were also identified as potential threats (65 FR 
3866 at 3870-3872; January 25, 2000), but the available information 
does not indicate that these factors pose a threat to the species 
(USFWS 2003, p. 13; USFWS 2023b, entire). Climate change was recognized 
as an additional threat in 2010 (USFWS 2010, p. 28).

[[Page 99817]]

Habitat Loss and Fragmentation
    In the final listing rule (65 FR 3866 at 3869; January 25, 2000), 
we described how rough popcornflower populations had become fragmented 
due to draining and filling of wetlands from properties being 
developed. At the time of listing, only five populations of rough 
popcornflower were protected from detrimental land-use activities. 
Currently, 11 of the 18 known populations are under Federal, State, 
municipal, or land trust protections; one is not protected but is on 
adequately managed land. Education efforts have increased recognition 
of rough popcornflower habitat, as well as avoidance, minimization, or 
mitigation of development impacts. Because 11 of the 18 known 
populations are now protected, the threat posed by detrimental land use 
activities has been significantly reduced since the time of listing. 
However, because formal commitments for the long-term beneficial 
management of rough popcornflower have not been secured for 7 
populations (approximately 84 percent of the total number of 
individuals rangewide) this threat may increase in the future.
Small Population Size
    In the final listing rule (65 FR 3866 at 3869-3870; January 25, 
2000), we described the distribution of the rough popcornflower as 17 
small patches of 1 to 3,000 plants (8 populations with approximately 
7,000 plants total) that were threatened by natural (i.e., flood) and/
or anthropogenic (e.g., herbicide treatment) events. At that time, the 
species' small population size was considered a threat because a single 
natural or human-caused event could have the potential to extirpate 
rough popcornflower patches.
    Since that time, rough popcornflower occurrences have expanded to 
18 populations and more than 800,000 plants (see table 1, above). 
Twelve of the 18 current individual populations have 3,000 or more 
plants, 11 of which have more than 5,000 plants. Although small 
populations occur that remain vulnerable to extirpation, individual 
populations are broadly distributed and the likelihood of a large-scale 
event affecting them collectively is unlikely. During years with below 
average precipitation, drought, or fires, seed set could fall short of 
what is needed to maintain population stability. However, with a large 
amount of seed produced by plants, it is likely that any periodic 
depletion of seed bank will be short-term and the seed bank will be 
replenished (USFWS 2021, p. 7). One population thought to be extirpated 
for several years was documented flowering after 3 years of species 
absence (Amsberry and Meinke 2008, p. 14).
    At the time of listing, data also indicated that small, isolated 
populations may not be able to sustain adequate genetic variation, and 
that a lack of connectivity between isolated patches and populations 
would limit pollinator-mediated gene flow. Our current analysis of 
connectivity for the 18 rough popcornflower populations ranked 11 
populations as having high connectivity (within 950 meters (m) (3,117 
feet (ft)) or less) and 3 populations as having medium connectivity 
(between 950 and 1,500 m (3,117 and 4,921 ft)) (USFWS 2021, p. 35), 
indicating that rough popcornflower populations are less isolated than 
at the time of listing. Overall, while the connectivity of small 
populations is still of some concern, the species is much less 
vulnerable to the effects of small population size and genetic 
isolation than when it was listed in 2000.
Herbivory
    Herbivory by Columbian white-tailed deer (Odocoileus virginianus 
leucurus), black-tailed deer (Odocoileus hemionus columbianus), 
rodents, and livestock has been documented and was identified as a 
threat to rough popcornflower (65 FR 3866 at 3871; January 25, 2000). 
Although high densities of white-tailed and black-tailed deer overlap 
with the distribution of rough popcornflower, the best available 
information does not indicate that deer herbivory is adversely 
impacting rough popcornflower populations (USFWS 2021, p. 23).
    Grazing by livestock may or may not be consistent with rough 
popcornflower conservation. Grazing of rough popcornflower during its 
growing period can be detrimental to the species. However, grazing can 
help control native and nonnative plant competitors and provide a 
measure of disturbance that maintains the preferable early seral and 
open habitat conditions for rough popcornflower. Four rough 
popcornflower populations with more than 5,000 plants are on privately-
owned grazing lands; the largest single population (more than 700,000 
plants) is on a private horse ranch where grazing is managed in a 
manner compatible with the long-term survival of rough popcornflower 
(USFWS 2021, p. 16). Depending on how grazing is managed, it can 
adversely impact or benefit individual populations of rough 
popcornflower. With 12 of the 18 populations considered protected or on 
adequately managed land, livestock herbivory is not currently 
considered a threat to the species overall. However, because formal 
commitments for long-term management of livestock grazing for the 
benefit of rough popcornflower have not been secured for some 
populations (including the largest population of over 700,000 plants), 
this threat may increase in the future.
Native and Nonnative Plant Encroachment
    Native and nonnative plants, including pennyroyal (Mentha 
pulegium), teasel (Dipsacus spp.), creeping thistle (Cirsium arvense), 
and reed canary grass (Phalaris arundinacea), are a primary threat to 
the establishment and maintenance of rough popcornflower due to their 
encroachment of habitat and elimination of bare ground, which 
popcornflower seeds require to germinate. Pennyroyal is present at many 
rough popcornflower sites, and teasel and creeping thistle control 
require constant conservation efforts at the North Bank Habitat 
Management Area (NBHMA), Yoncalla South and TNC Popcorn Swale Preserve 
populations.
    Rough popcornflower is conservation reliant, and when natural 
disturbance events are lacking, active management (e.g., manual 
weeding, herbicide application, mowing, and strategic grazing) is 
necessary to control competing vegetation and maintain early seral 
habitats to help maintain many of the rough popcornflower populations 
into the future (USFWS 2010, p. 27). Invasive plants appear to be less 
of a concern on private lands due to livestock grazing (USFWS 2020, 
p.2). Strategic grazing by livestock, in terms of seasonal grazing 
periods and intensity, when closely monitored, can benefit rough 
popcornflower populations by reducing plant competition and creating 
open ground that facilitates seed germination and enables population 
expansion (USFWS 2021, p. 24).
    While competition with native and nonnative plants remains an 
ongoing threat to rough popcornflower, this threat can be successfully 
managed through continued investments in the adaptive management 
practices that have resulted in flourishing populations across the 
species' range (USFWS 2021, appendices 3 and 4).
Fire
    At the time of listing, fire was considered a natural event key to 
the formation and maintenance of rough popcornflower habitat (65 FR 
3866 at

[[Page 99818]]

3867; January 25, 2000). In late September 2003, an accidental fire 
burned across the North Bank/Soggy Bottoms rough popcornflower 
population at moderate intensity. The year following the burn, staff 
noted that individual rough popcornflower plants were much larger and 
robust, and the population had increased. The population dropped 
significantly during the following 5 years, although that was 
considered likely due to changed site hydrology. While the effects of 
fire in rough popcornflower habitat restoration are still unknown 
(USFWS 2010, p. 27), data collected after the 2003 fire suggest that 
low- to moderate-intensity fire can have at least short-term beneficial 
effects to the species.
Climate Change
    The likely impacts of climate change on rough popcornflower's 
ecological processes are closely connected to the availability of 
water. Due to their shallow and ephemeral nature, wet swales in 
southwestern Oregon are particularly sensitive to increases in 
evaporation or reductions in rainfall. Strong climate variability is 
likely to persist in the Pacific Northwest, owing in part to the annual 
and decadal climate variability associated with the Pacific Ocean (May 
et al. 2018, p. 1039). Models project periods of prolonged drought 
interspersed with years featuring heavy rainfall driven by powerful 
atmospheric rivers and strong El Ni[ntilde]o winters (May et al. 2018, 
p. 1039). Even modest temperature increases could result in more water 
runoff in winter and less in spring and summer, more winter flooding, 
and drier summer soils, thereby altering the seasonality and duration 
of wetland hydration (Field et al. 2017, p. 18). Reduced soil moisture 
due to evaporation and transpiration may exacerbate drought effects 
(Field et al. 2017, p. 18). Drought-mediated decreases in water depth 
and inundation periods could increase the frequency at which wetlands 
dry before rough popcornflower has completed its flowering and fruiting 
stages. However, Southern Oregon, along with other areas in the western 
United States, has been experiencing a prolonged drought for several 
years (Fleishman 2023, p. 52) and rough popcornflower continued to 
demonstrate stable or increasing population trends. Climate change 
could also cause temperatures to exceed those suitable for growth of 
the species (USFWS 2010, p. 28).
    The impact of climate change on rough popcornflower will likely 
vary depending on site-specific conditions and annual precipitation 
variation. Rough popcornflower individuals are naturally adaptive to 
fall and winter inundation and depend on soil moisture until their seed 
has matured. An earlier warming trend may result in a limited seed set 
because the soil will dry out quicker and may benefit nonnative plants. 
Habitat management using herbicides and prescribed burning would likely 
increase with an increase in nonnative plants. However, if climate 
change in Oregon results in wetter winters and springs as predicted 
(Fleishman 2023, pp. 11-12), then the additional precipitation may 
lengthen seed set and favor popcornflower survival over competitors 
unable to adapt to saturated soils.

Current Condition

Resiliency
    Resiliency, the ability of populations to withstand stochastic 
events, is commonly determined as a function of metrics such as 
population size, growth rate, or habitat quality and quantity. We 
evaluated the current resiliency of rough popcornflower populations 
based on the population size, habitat quantity, connectivity, habitat 
quality, management frequency, reproductive success, and the degree of 
protection afforded to each population (see tables 2 through 8, below). 
Populations with over 5,000 mature plants were determined to be in high 
condition based on the downlisting criteria outlined in the species' 
recovery plan. Populations of over 1,000 plants were considered to be 
in medium condition, and those with under 200 plants were considered to 
be in low condition. We then assigned numerical values to each of those 
condition category rankings in order to categorize the current overall 
resiliency of each rough popcornflower population (see table 9, below). 
A complete description of our analytical approach to current condition 
is available in the SSA report (USFWS 2021, pp. 34-37).

  Table 2--Population Size Rankings of Rough Popcornflower Populations
               From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
                                          Number of        Number of
    Population size (# of plants)      populations in    populations in
                                            2021              2023
------------------------------------------------------------------------
High (>=5,000).......................              13                 11
Medium (1,000-4,999).................               2                  2
Low (1-999)..........................               3                  5
------------------------------------------------------------------------


  Table 3--Habitat Quantity Rankings of Rough Popcornflower Populations
               From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
                                          Number of        Number of
      Habitat quantity (amount)        populations in    populations in
                                            2021              2023
------------------------------------------------------------------------
High (>5,382 ft\2\/1640 m\2\)........               7                  9
Medium (820-5,382 ft\2\/250-1640                    3                  3
 m\2\)...............................
Low (<820 ft\2\/250 m\2\)............               8                  6
------------------------------------------------------------------------


[[Page 99819]]


 Table 4--Connectivity rankings of Rough Popcornflower Populations From
                  the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
                                       Number of
  Connectivity (proximity to next   populations in        Number of
           population) *                 2021        populations in 2023
------------------------------------------------------------------------
High (<3,117 ft/950 m)............              11  No change reported.
Medium (3,120-4921 ft/950-2000 m).               3  No change reported.
Low (>6,562 ft/2000 m)............               4  No change reported.
------------------------------------------------------------------------
* Scores are not strictly distance-based if populations are separated by
  barriers such as development, roads, or expanses of unsuitable
  habitat.


  Table 5--Habitat Quality Rankings of Rough Popcornflower Populations
               From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
                                       Number of
   Habitat quality (presence of     populations in        Number of
         invasive species)               2021        populations in 2023
------------------------------------------------------------------------
High (no invasive species)........               5  No change reported.
Medium (1-2 invasive species).....               8  No change reported.
Low (dominated by invasive                       5  No change reported.
 species).
------------------------------------------------------------------------


      Table 6--Management Frequency Rankings of Rough Popcornflower
         Populations From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
                                       Number of
  Management frequency (interval)   populations in        Number of
                                         2021        populations in 2023
------------------------------------------------------------------------
High (continuous, annual, or                    10  No change reported.
 biennial).
Medium (3-5 years)................               5  No change reported.
Low (5 years).....................               3  No change reported.
------------------------------------------------------------------------


      Table 7--Reproductive Success Rankings of Rough Popcornflower
         Populations From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
                                       Number of
  Reproductive success (measures)   populations in        Number of
                                         2021        populations in 2023
------------------------------------------------------------------------
High (>5,000 plants and 100                     15  No change reported.
 percent seed production).
Medium (3,000-5,000 plants, 75-99                1  No change reported.
 percent seed production).
Low (<3,000 plants, 0-74 percent                 2  No change reported.
 seed production).
------------------------------------------------------------------------


  Table 8--Protected Status Rankings of Rough Popcornflower Populations
               From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
                                       Number of
         Protected status           populations in        Number of
                                         2021        populations in 2023
------------------------------------------------------------------------
Yes...............................              12  No change reported.
No................................               6  No change reported.
------------------------------------------------------------------------


 Table 9--Overall Resiliency Rankings of Rough Popcornflower Populations
               From the SSA Report and Subsequent Surveys
------------------------------------------------------------------------
                                          Number of        Number of
          Overall resiliency           populations in    populations in
                                            2021              2023
------------------------------------------------------------------------
High.................................              11                 10
Moderate.............................               3                  3
Low..................................               4                  5
------------------------------------------------------------------------

    As shown above in table 9, at the time of the SSA report in 2021, 
11 (61 percent) of the 18 rough popcornflower populations scored high 
for resiliency, 3 (17 percent) scored moderate, and 4 (22 percent) 
scored low. Changes in condition category rankings as a result of 
additional surveys conducted from 2021-2023 (USFWS 2022, entire;

[[Page 99820]]

USFWS 2023a, entire) resulted in overall resiliency rankings of 10 (55 
percent) high, 3 (17 percent) moderate, and 5 (28 percent) low. These 
results demonstrate relatively high resiliency across the range of the 
rough popcornflower.
Redundancy
    Redundancy is a species' ability to withstand catastrophic events 
and is a function of the number and resilience of populations, as well 
as their distribution and connectivity. At the time of listing, there 
were eight known rough popcornflower populations. Currently, there are 
18 known populations. Some of this increase is due to newly discovered 
populations; however, since the time of listing, habitat restoration, 
reintroductions, and habitat protection have collectively improved the 
status of the species. Of the 18 known populations, 10 populations 
score high for overall resiliency and are distributed across the range 
of the species, with 6 in the Sutherlin Creek recovery unit, 2 in the 
Yoncalla Creek recovery unit, and 2 in the Umpqua Management Area. The 
eight populations with moderate or low resiliency contribute to the 
species' redundancy to a lesser degree and are distributed across the 
Calapooya Creek and Sutherlin Creek recovery units and the Umpqua 
Management Area. The distribution of 10 populations with high 
resiliency across two of the three recovery units and the management 
area demonstrates good redundancy for the species.
Representation
    Representation refers to the ability of a species to adapt to 
change, and is assessed using geographic, genetic, ecological, and 
niche diversity data. Ecological diversity and genetic variation based 
on habitat differences, differences in annual and biennial life 
histories, and differences in growth forms may be inferred from the 
rough popcornflower's distribution across different sub-watersheds. 
Multiple populations with high resiliency throughout the species' 
range, along with populations of lesser resiliency, facilitate the 
preservation of the genetic diversity present within each recovery 
unit. Although populations with fewer than 5,000 plants may have lower 
genetic variation, rough popcornflower's wide variety of possible 
pollinators (Amsberry and Meinke 2001, pp. 12-13) assists in gene 
transfer and could boost the genetic variation of these populations.
    Natural and reintroduced rough popcornflower populations are 
currently distributed in multiple sub-watersheds across the species' 
historical range, and plants demonstrate diversity within and between 
populations, including different growth forms and flowering times. 
Additionally, rough popcornflower seeds do not all germinate every 
year, and a portion of the seed bank likely remains in the ground. The 
presence of a long-term seed bank allows rough popcornflower to persist 
through periods of adverse environmental conditions. In combination, 
these factors indicate that the species has the capacity to adapt to a 
variety of environmental conditions and has good representation.

Future Condition

    To assess the future viability of rough popcornflower, we 
considered the factors that will influence the species within the 
foreseeable future. We define the foreseeable future as 30 years, as we 
consider this a reasonable timeframe to make reliable predictions about 
the threats to this species and its response to those threats due to 
this plant's reproductive strategy as an annual or short-lived 
perennial. Our viability assessment is characterized in terms of the 
resiliency, redundancy, and representation of the species as projected 
under various plausible future conditions (Shaffer and Stein 2000 pp. 
306-310; Wolf et al. 2015, entire; Smith et al. 2018, pp. 304, 306-
307). We projected the viability of rough popcornflower from 2020 to 
2050 under three plausible future scenarios based on potential trends 
with conservation partners, climate patterns, and population 
demographics. Scenario A represented improvements over current 
conditions. Scenario B represented the most likely conditions if 
current trends continue. Scenario C represented conditions that are 
worse than current conditions.
    Scenario A assumes continued conservation support for the rough 
popcornflower, including from private landowners throughout the 
species' range, as well as additional funding for outplanting and 
invasive vegetation control. Scenario B is the most likely scenario for 
the rough popcornflower based on current agency commitments, 
outplanting successes, the current ability to place conservation 
agreements, and species' population demographic trends. We discuss 
Scenario B further below. Scenario C assumes diminished habitat 
conditions and management actions (e.g., mowing, manual or chemical 
control of non-native herbaceous plants, prescribed burning), falling 
short of what is needed, resulting in the reduction of the species' 
resiliency, redundancy, and representation over the next 30 years. For 
further details on all three scenarios, see the SSA report (USFWS 2021, 
pp. 41-47).
    We determined that rough popcornflower is expected to continue to 
be influenced by the factors that have historically influenced and are 
currently influencing the species, at rates most closely associated 
with Scenario B. Scenario B represents the most likely conditions if 
current trends continue (USFWS 2021, pp. 44-45).
    In Scenario B, we made several assumptions about ongoing 
conservation support within the foreseeable future. Several 
conservation partners (government agencies, nonprofit conservation 
organizations, academic institutions, and private landowners) have made 
significant contributions to recovery efforts for rough popcornflower. 
We assume that these partners will continue to collaborate and 
contribute conservation resources to rough popcornflower and its 
habitat based on current regulations and agency commitments, 
outplanting successes, and our ability to obtain conservation 
agreements. Continued outreach efforts are likely to support awareness 
of the species among private landowners and the public and to generate 
support for conservation. We also assume that development projects will 
continue to be evaluated and modified by the Service, the Oregon 
Department of State Lands, and the Oregon Department of Agriculture, to 
minimize or mitigate impacts to rough popcornflower and its habitats.
    Under a continually increasing greenhouse gas emission scenario, 
Oregon's annual average temperature is projected to increase by 5 
degrees Fahrenheit ([deg]F) (2.8 degrees Celsius ([deg]C)) by the 2050s 
(Fleishman 2023, p. 11). In this scenario, the amount of annual 
precipitation is projected to be highly uncertain. Summers are expected 
to warm more than the annual average and are likely to become drier. 
Extreme heat and precipitation events are expected to become more 
frequent (Dalton et al. 2017, p. 8). The effects of climate change on 
rough popcornflower populations are expected to be relatively moderate. 
Most rough popcornflower plants are expected to adjust to warmer 
temperatures by dispersing to moister habitats (via ungulates, other 
mammals, or birds), flowering earlier, and shortening their flowering 
period (USFWS 2021, p. 42). Climate change may limit rough 
popcornflower's growing season and habitat as well as moisture 
availability, though the species would continue to maintain viability 
within the three recovery units and the

[[Page 99821]]

introduced populations at the Umpqua Management Area (USFWS 2021, p. 
45). We acknowledge that some populations may fare better than others 
under future conditions.
    For species resiliency in Scenario B, we expect there will be a 
total of 20 rough popcornflower populations. At least 10 of those 
populations are anticipated to be in protected areas (reserves), 
contain populations that meet or exceed 5,000 plants, and exhibit 
stable or increasing population counts in 7 out of 10 years (see table 
10, below).
    In terms of redundancy, protected rough popcornflower populations 
are expected to continue to be distributed in all three recovery units. 
With a total of 20 populations distributed across the species' range, 
we conclude that the rough popcornflower will be able to withstand 
catastrophic events.

 Table 10--Future Viability of Rough Popcornflower Under the Most Likely
                       Scenario, Future Scenario B
------------------------------------------------------------------------
      Viability elements                   Expected condition
------------------------------------------------------------------------
Population Resilience........  Protected populations (>= 10) meet or
                                exceed criterion of >= 5,000 individual
                                stems and show stable or positive
                                demographic trends. The total population
                                number is 20. Stable or increasing
                                population counts occur 7 out of 10
                                years.
Species Redundancy...........  Redundancy is provided by having 20
                                populations present across the range to
                                withstand catastrophic events.
Species Representation.......  20 populations, distributed across the
                                range of the species, would provide
                                genetic and ecological diversity for the
                                species. No evidence of inbreeding
                                depression.
Overall Viability............  Moderate: The species is able to adapt to
                                climate change, and species receives
                                adequate monitoring to inform management
                                needs. Species requires continued
                                management.
------------------------------------------------------------------------

    For species representation, rough popcornflower populations are 
expected to be well distributed across all three recovery units and the 
Umpqua Management Area. We expect genetic diversity to be maintained in 
the foreseeable future because there has been no evidence of inbreeding 
depression or genetic drift detected in any of the populations 
(Amsberry and Meinke 2017, p. 2).
    Collectively, our analysis of the resiliency, redundancy, and 
representation under this scenario indicates that the viability of the 
rough popcornflower is not likely to be significantly reduced over the 
next 30 years.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative-effects analysis.

Conservation Efforts and Regulatory Mechanisms

    Rough popcornflower is a conservation-reliant species, meaning that 
the species will require continued conservation efforts to survive due 
to continuous encroachment from natural seral succession (USFWS 2010, 
p. 30). Since listing the species in 2000, we have coordinated with 
local, State, and Federal stakeholders on conservation actions for the 
species, some of which we supported with funding.
    Mowing in rough popcornflower habitat to control competing native 
and nonnative plant species, and subsequent outplanting of rough 
popcornflower, has occurred regularly at several sites. Other 
conservation actions include fencing to protect populations from 
anthropogenic disturbance; population introductions and augmentations; 
and stakeholder workshops in which species needs, recovery targets, and 
habitat conservation were discussed to raise landowner awareness. 
Agencies and property owners who have made commitments to protect or 
manage rough popcornflower and its habitat are the City of Sutherlin, 
Oregon; Douglas Soil and Water Conservation District, Oregon; Oregon 
Department of Agriculture (ODA), Native Plant Conservation Program; the 
BLM; the Native Plant Society of Oregon, Umpqua Valley Chapter; and The 
Nature Conservancy.
    In the 2007 City of Sutherlin Conservation Agreement and 
Conservation Plan (ODA 2007, entire), the cooperators (the Service, the 
City of Sutherlin, ODA, the Umpqua Valley Chapter of the Native Plant 
Society of Oregon, the Sutherlin Stampede Association, and the 
Sutherlin Blackberry Festival, Inc.) agreed to the following measures:
     Prohibit activities that would disturb or destroy existing 
populations of rough popcornflower, or their habitat, on land owned or 
managed by the City of Sutherlin;
     Contract or coordinate appropriately timed surveys for new 
populations of rough popcornflower on city-owned or -managed land prior 
to initiating ground-disturbing projects;
     Contact the ODA Native Plant Conservation Program if a new 
population of rough popcornflower is found during a pre-project survey; 
cooperate with the ODA Native Plant Conservation Program to develop 
conservation-based alternatives to proposed projects that would impact 
rough popcornflower populations or their habitat; and
     Cooperate with the ODA Native Plant Conservation Program 
to implement a management plan promoting the conservation of the 
populations of rough popcornflower at the Red Rock Park (formerly 
Timber Days Grounds).
    Signatories of the agreement include the Service, the City of 
Sutherlin, ODA, the Umpqua Valley Chapter of the Native Plant Society 
of Oregon, the Sutherlin Stampede Association, and the Sutherlin 
Blackberry Festival, Inc. Since 2007, implementation of this agreement 
has provided fencing to protect rough popcornflower populations, 
reduced competitive and invasive species, and increased population 
numbers. This agreement was updated in 2023. In the updated agreement, 
entitled ``Conservation Agreement for Rough Popcornflower,'' the City 
of Sutherlin agreed to continue to protect the plant and to extend the 
protection to Ford's Pond, a property acquired after the original 
signing in 2007. The 2023 agreement also allows introduction of the 
species at Ford's Pond (USFWS 2023c, p. 8).
    The biological opinion on the North Bank Habitat Management Area 
issued by the Service in 2001 evaluated the effects of proposed 
management actions

[[Page 99822]]

and conservation measures conducted by the BLM for three rough 
popcornflower populations occurring in the management area (USFWS 2001, 
p. 15). Proposed management actions included manual and mechanical 
removal of competitive vegetation and the use of integrated pest 
management techniques to control noxious weeds. Proposed conservation 
measures included retaining existing populations and introducing 
additional populations into suitable habitat. To date, the BLM has 
consistently implemented these management actions and conservation 
measures, and the BLM is expected to continue to maintain and enhance 
habitat for this species into the future.
    The Oregon Department of Transportation (ODOT) has established the 
Special Management Areas program to protect State-listed and federally 
listed endangered and threatened plant species identified on ODOT 
rights-of-way (ODOT 2017, p. 4). Special Management Areas are marked 
with signs that instruct ODOT maintenance crews on allowable 
activities. ODOT entered a statewide habitat conservation plan (HCP) 
with the Service in 2017 (USFWS 2017, entire). Under the HCP, the 
Special Management Areas identify the known populations of rare plants 
along ODOT rights-of-way that they have agreed to avoid impacting. In 
most cases, only periodic maintenance is necessary in Special 
Management Areas, and site-specific restrictions have been developed to 
protect listed species.
    All federally listed plants in Oregon are also protected by State 
law under the Oregon Endangered Species Act, and their protection and 
conservation are administered by the ODA. The Oregon Endangered Species 
Act protects many other plant species in addition to those protected 
under the Federal Endangered Species Act. All State and municipal 
agencies, including City of Sutherlin, Douglas County, Douglas Soil and 
Water Conservation Service, and ODOT, must consult with ODA when a 
proposed action on land owned or leased by the State, or for which the 
State holds a recorded easement, has the potential to appreciably 
reduce the likelihood of the survival or recovery of any listed plant 
species.
    While we do not have a specific agreement in place with The Nature 
Conservancy that guarantees a commitment to future management, they 
have actively managed the rough popcornflower habitat at their property 
(the Popcornswale preserve) since 1995, by monitoring populations, 
controlling nonnative and invasive species, managing habitat by 
reducing tree cover, mowing, and augmenting the population with 
seeding. The Nature Conservancy has continued to manage the 
Popcornswale preserve multiple times a year since 1995, and is expected 
to continue these efforts.
    These and other conservation efforts have increased the number of 
protected sites and vastly improved the number of plants in the overall 
population (from 7,000 to over 800,000). Currently, 11 of the 18 known 
populations throughout the species' range are under Federal, State, 
municipal, or land trust protections offering indefinite protection 
from habitat conversion to other uses. The remaining 7 populations 
(approximately 84 percent of the total number of individuals) do not 
have formal commitments for the long-term beneficial management of 
rough popcornflower but are benefitting from voluntary management 
practices employed by land management agencies and private landowners.

Determination of Rough Popcornflower's Status

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

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that the primary threats to rough popcornflower, since 
the time of listing, have been the destruction and/or alteration of 
habitat by development and hydrological changes (e.g., wetland fills, 
draining, construction), competition from native and nonnative plant 
species, impacts due to climate change (e.g., winter flooding, drier 
summer soils, and decreased fruit production), and lack of (or 
noncompliance with) regulatory mechanisms. The best available 
information does not indicate that overcollection (Factor B) or 
herbivory (Factor C) are threats to the viability of the rough 
popcornflower. Our current analysis also indicates that the habitat 
threats (Factor A) and threats from the inadequacy of regulatory 
mechanisms (Factor D) have decreased since the time of listing, while 
climate change (Factor E) related threats have increased.
    Habitat-related threats (destruction and/or alteration of habitat 
and competition from native and nonnative plant species), identified as 
drivers of rough popcornflower's status, are still present on the 
landscape; however, their magnitude and scope have decreased from 
historical levels and have been offset by a variety of management and 
conservation measures by many conservation partners since the rough 
popcornflower was listed as an endangered species (see 65 FR 3866; 
January 25, 2000), and these conservation actions continue today (USFWS 
2021, p. 25 and appendix 3). Improvements in habitat management 
practices and extensive habitat restoration have been implemented, 
which have improved population resiliency and redundancy at several 
sites. Increased public awareness of the species has resulted in 
increased stewardship across lands with rough popcornflower populations 
and improved regulatory compliance. Greater understanding and 
compliance along with improvements in habitat management practices and 
extensive habitat restoration have helped ameliorate threats to the 
species, resulting in population increases and greater distribution. A 
majority of the rough popcornflower population sites (12 of 18) are 
protected by public ownership or managed to benefit the species; with 
these site protections and increased public knowledge of the species, 
compliance with regulatory mechanisms has increased significantly.
    At the time of listing, rough popcornflower was known to exist in 
only 8 populations totaling 7,000 plants. There are currently 18 known 
populations totaling more than 800,000 plants. Although a majority 
(700,000) of the plants are within a single population, there are 17 
other populations comprising more than 100,000 rough popcornflower 
plants distributed across the range of the species. Although the plants 
and populations are not distributed precisely as identified in recovery 
plan downlisting criteria (USFWS 2019, pp. 4-6), the population size 
(both the

[[Page 99823]]

number of plants and the physical area covered) in two of the three 
recovery units and the additional recovery management area exceed the 
target population size by unit/area, and six of the populations have 
stable and/or increasing trends. Our viability analysis determined that 
the species currently has high resiliency, good redundancy, and 
sufficient representation (USFWS 2021, pp. 32-41). Thus, after 
assessing the best available information, we conclude that the rough 
popcornflower is not in danger of extinction throughout all of its 
range.
    We therefore proceed with determining whether the rough 
popcornflower is likely to become endangered within the foreseeable 
future throughout all of its range.
    The best available information indicates that, at the species 
level, the most influential factors affecting rough popcornflower into 
the future are habitat-related threats (destruction and/or alteration 
of habitat and competition from native and nonnative plant species) 
(Factor A) and climate change (Factor E), which will likely cause more 
winter flooding, drier summer soils, and decreased fruit production. In 
our analysis of future viability (USFWS 2021, pp. 41-47), under 
Scenarios A and B, we project the species' resiliency, redundancy, and 
representation to be stable or increasing within the next 30 years. 
While a continuation of current conservation efforts as modeled under 
Scenario B is most likely, 7 of the 18 known populations (approximately 
84 percent of the total number of plants) do not have formal 
commitments for long-term beneficial management of rough popcornflower 
and continued beneficial management is not assured.
    Additionally, under Scenario C, we project the species' resiliency, 
redundancy, and representation to diminish within the next 30 years. 
Although this scenario is considered the least likely to occur, 
diminished habitat conditions along with reduced management actions and 
agency commitments are plausible and would likely to lead to long-term 
demographic declines, reductions in the number of populations, and 
reduced genetic diversity.
    Thus, after assessing the best available information, we conclude 
that rough popcornflower is not currently in danger of extinction but 
is likely to become in danger of extinction within the foreseeable 
future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. The court in Center for Biological Diversity v. Everson, 
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of 
the Final Policy on Interpretation of the Phrase ``Significant Portion 
of Its Range'' in the Endangered Species Act's Definitions of 
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final 
Policy''; 79 FR 37578, July 1, 2014) that provided that if the Service 
determines that a species is threatened throughout all of its range, 
the Service will not analyze whether the species is endangered in a 
significant portion of its range.
    Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species is in danger of extinction 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for rough popcornflower, we choose to address 
the status question first--we consider information pertaining to the 
geographic distribution of both the species and the threats that the 
species faces to identify portions of the range where the species may 
be endangered.
    We evaluated the range of the rough popcornflower to determine if 
the species is in danger of extinction in any portion of its range. The 
range of a species can theoretically be divided into portions in an 
infinite number of ways. We focused our analysis on portions of the 
species' range that may meet the definition of an endangered species. 
For rough popcornflower, we considered whether the threats or their 
effects on the species are greater in any biologically meaningful 
portion of the species' range than in other portions such that the 
species is in danger of extinction now in that portion. As discussed 
above, we divided the range of the rough popcornflower in several ways 
(e.g., populations, recovery units) for the purposes of our viability 
analyses. We divide the range into three recovery units (Sutherlin 
Creek, Yoncalla Creek, and Callapooya Creek) that correspond to 
drainage basins within the Lower North Umpqua system, and represent 
groups of populations which share phenotypic similarities and are 
potentially genetically similar to one another. This scale is 
appropriate for considering whether the species may be in danger of 
extinction in any portion of the range.
    We examined the following threats: habitat loss and fragmentation, 
small population size, native and invasive plant encroachment, fire, 
and climate change, including cumulative effects. We considered the 
effects of these threats on the rough popcornflower within each of the 
three recovery units.
    As discussed above, through recovery efforts from multiple 
stakeholders, the rough popcornflower has increased to over 883,154 
plants in 18 populations. In each recovery unit there are at least two 
populations that meet or exceed the resiliency criterion size of 5,000 
individuals exceeding a patch size of 5,382 ft\2\ (500 m\2\), 
indicating they have a high probability of persistence over the next 30 
years.
    The rough popcornflower has a current distribution that is 
analogous to its historical range in all three recovery units (USFWS 
2021, p. 39). Near-term threats are similar for all populations 
distributed throughout the recovery units. The rough popcornflower is a 
conservation reliant species, and in each recovery unit populations 
receive some form of habitat management in the form of mowing, grazing, 
prescribed burning, or invasive plant control to address the near-term 
threats (USFWS 2021, p. 38).
    Given the distribution of resilient populations across recovery 
units, the uniformity of the near-term threats to the species within 
each unit and ongoing conservation measures addressing those threats, 
there is no one recovery unit that has a different status from its 
range-wide status. In summary, we found no portion of the rough 
popcornflower's range where threats are impacting individuals 
differently from how they are affecting the species elsewhere in its 
range, or where the biological condition of the species differs from 
its condition elsewhere in its range such that the status of the 
species in that portion does not differ from any other portion of the 
species' range.

[[Page 99824]]

    Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction in a 
significant portion of its range, and we determine that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This does not conflict with the courts' 
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. 
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, 
in reaching this conclusion, we did not apply the aspects of the Final 
Policy, including the definition of ``significant'' that those court 
decisions held were invalid.

Determination of Status

    Based on the best scientific and commercial data available, we 
determine that the rough popcornflower meets the Act's definition of a 
threatened species. Therefore, we propose to downlist the rough 
popcornflower as a threatened species in accordance with sections 3(20) 
and 4(a)(1) of the Act.

Protective Regulations Under Section 4(d) of the Act

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. Conservation is defined in the Act to 
mean the use of all methods and procedures which are necessary to bring 
any endangered species or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary. 
Additionally, the second sentence of section 4(d) of the Act states 
that the Secretary may by regulation prohibit with respect to any 
threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
With these two sentences in section 4(d), Congress delegated broad 
authority to the Secretary to determine what protections would be 
necessary and advisable to provide for the conservation of threatened 
species, and even broader authority to put in place any of the section 
9 prohibitions, for a given species.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do 
not address all of the threats a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this species' proposed protective regulations 
under section 4(d) of the Act are one of many tools that we would use 
to promote the conservation of the rough popcornflower. The proposed 
protective regulations would apply only if and when we make final the 
reclassification of the rough popcornflower as a threatened species. 
Nothing in 4(d) rules change in any way the recovery planning 
provisions of section 4(f) of the Act, the consultation requirements 
under section 7 of the Act, or the ability of the Service to enter into 
partnerships for the management and protection of the rough 
popcornflower.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    Examples of discretionary actions for the rough popcornflower that 
may be subject to consultation procedures under section 7 are 
management of Federal lands administered by the BLM, as well as actions 
that require a Federal permit (such as a permit from the U.S. Army 
Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 
1251 et seq.)) or actions funded by Federal agencies such as the 
Federal Highway Administration, Federal Aviation Administration, or the 
Federal Emergency Management Agency. Federal actions not affecting 
listed species or critical habitat--and actions on State, Tribal, 
local, or private lands that are not federally funded, authorized, or 
carried out by a Federal agency--do not require section 7 consultation. 
Federal agencies should coordinate with the local Service Field Office 
(see FOR FURTHER INFORMATION CONTACT) with any specific questions on 
section 7 consultation and conference requirements.
    These requirements are the same for a threatened species regardless 
of what is included in its 4(d) rule. Section 7 consultation is 
required for Federal actions that ``may affect'' a listed species 
regardless of whether take caused by the activity is prohibited or 
excepted by a 4(d) rule (under application of a ``blanket rule'' (for 
more information, see 89 FR 23919, April 5, 2024) or a species-specific 
4(d) rule). A 4(d) rule does not change the process and criteria for 
informal or formal consultations and does not alter the analytical 
process used for biological opinions or concurrence letters. For 
example, as with an endangered species, if a Federal agency determines 
that an action is ``not likely to adversely affect'' a threatened 
species, it will require the Service's written concurrence (50 CFR 
402.13(c)). Similarly, if a Federal agency determines that an action is 
``likely to adversely affect'' a threatened species, it will require 
formal consultation and the formulation of a biological opinion (50 CFR 
402.14(a)). Because consultation obligations and processes are 
unaffected by 4(d) rules, we may consider developing tools to 
streamline future intra-Service and inter-Agency consultations for 
actions that result in forms of take that are not prohibited by the 
4(d) rule (but that still require consultation). These tools may 
include consultation guidance, online consultation processes via the 
Service's digital project planning tool (Information for Planning and 
Consultation; https://ipac.ecosphere.fws.gov/), template language for 
biological opinions, or programmatic consultations.

[[Page 99825]]

    Exercising the Secretary's authority under section 4(d) of the Act, 
we are applying the protections for the rough popcornflower through our 
regulations at 50 CFR 17.71(a). In our April 5, 2024, final rule 
revising those regulations (89 FR 23919, at 23922-23923), we found that 
applying those regulations as a whole satisfies the requirement in 
section 4(d) of the Act to issue regulations deemed necessary and 
advisable to provide for the conservation of threatened species. We 
have not identified any ways in which a protective regulation for this 
threatened species would need to differ from the regulations at 50 CFR 
17.71(a) in order to contain the protections that are necessary and 
advisable to provide for the conservation of the rough popcornflower. 
Therefore, the regulations at 50 CFR 17.71(a) apply. This means that 
except as provided in a permit issued pursuant to 50 CFR 17.72, all of 
the provisions of 50 CFR 17.61 for endangered plants, except Sec.  
17.61(c)(2) through (4), apply to the rough popcornflower, and the 
provisions of 50 CFR 17.71(b) concerning exceptions for certain 
entities also apply to the species.

Required Determinations

Clarity of the Rule

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

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

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination 
with Indian Tribal Governments), and the Department of the Interior's 
manual at 512 DM 2, we readily acknowledge our responsibility to 
communicate meaningfully with federally recognized Tribes on a 
government-to-government basis. In accordance with Secretary's Order 
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We will continue to work with Tribal entities during the 
development of a final downlisting determination for the rough 
popcornflower.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Oregon 
Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the U.S. Fish and Wildlife Service proposes to amend 
part 17, subchapter B of chapter I, title 50 of the Code of Federal 
Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.12(h) by revising the entry for ``Plagiobothrys 
hirtus'' under FLOWERING PLANTS on the List of Endangered and 
Threatened Plants to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 99826]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
           Scientific name                  Common name              Where listed               Status           Listing citations and applicable rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Flowering Plants
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Plagiobothrys hirtus................  Rough popcornflower....  Wherever found.........  T.....................  [Federal Register citation when
                                                                                                                 published as a final rule];
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


Gary Frazer,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-28351 Filed 12-10-24; 8:45 am]
BILLING CODE 4333-15-P`