2017 Federal Register, 82 FR 42245; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 82 Issue 172 (Thursday, September 7, 2017)

[Federal Register Volume 82, Number 172 (Thursday, September 7, 2017)]
[Rules and Regulations]
[Pages 42245-42260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19001]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2016-0099 and FWS-R2-ES-2016-0100; 4500030113]
RIN 1018-BA74

Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Guadalupe Fescue; Designation of Critical Habitat for
Guadalupe Fescue

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status and designate critical habitat under the
Endangered Species Act of 1973, as amended (Act), for Festuca ligulata
(Guadalupe fescue), a plant species from the Chihuahuan Desert of west
Texas and Mexico. The effect of this regulation will be to add this
species to the List of Endangered and Threatened Plants and designate
approximately 7,815 acres (3,163 hectares) of critical habitat in
Brewster County, Texas located entirely within Big Bend National Park.

DATES: This rule becomes effective October 10, 2017.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0099 and FWS-R2-ES-
2016-0100. Comments and materials we received, as well as supporting
documentation we used in preparing this rule, are available for public
inspection at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-
0099 and FWS-R2-ES-2016-0100. Comments, materials, and documentation
that we considered in this rulemaking will be available by appointment,
during normal business hours at: U.S. Fish and Wildlife Service, Austin
Ecological Services Field Office, 10711 Burnet Rd., Suite 200, Austin,
TX 78758; telephone 512-490-0057; or facsimile 512-490-0974.

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Rd., Suite 200, Austin, TX 78758; telephone 512-490-0057;
or facsimile 512-490-0974. Persons who use a telecommunications device
for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Previous Federal Action

On September 9, 2016, we, the U.S. Fish and Wildlife Service
(Service), published in the Federal Register a proposed rule to list
Festuca ligulata (Guadalupe fescue), a plant species from the
Chihuahuan Desert of west Texas and Mexico, as an endangered species
under the Endangered Species Act of

[[Page 42246]]

1973, as amended (Act) (16 U.S.C. 1531 et seq.). The proposed listing
rule contains a detailed description of previous Federal actions
concerning this species (81 FR 62450).
On September 9, 2016, we also published a proposed rule to
designate critical habitat for Guadalupe fescue on approximately 7,815
acres (3,163 hectares) in Brewster County, Texas, located entirely in
Big Bend National Park (81 FR 62455) and requested public comments. The
comment period closed on November 8, 2016. We also contacted
appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule and draft economic analysis during the comment
period. We opened another 30-day comment period on June 13, 2017.
The effect of this rulemaking action is to add Guadalupe fescue to
the List of Endangered and Threatened Plants in title 50 of the Code of
Federal Regulations at 50 CFR 17.12(h) and thereby extend the Act's
protections to the species and finalize the designation of
approximately 7,815 acres (3,163 hectares) of critical habitat in Big
Bend National Park.

Summary of Comments and Recommendations

We received a total of six public comments that did not include any
new information not already considered in our analysis. During either
comment period, we received no comment letters directly addressing the
proposed critical habitat designation or any requests for a public
hearing.

Peer Review

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from four knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from two of the
peer reviewers who provided comments on the proposed listing rule and
the Species Status Assessment. However, they did not provide comments
on the proposed designation of critical habitat for Guadalupe fescue.

Summary of Changes From Proposed Rules

We made no substantive changes from the proposed rules of September
9, 2016 to list or designate critical habitat for Guadalupe fescue in
this final rule.

Background

Staff of the Austin Ecological Services Field Office developed the
Species Status Assessment (SSA) Report for Guadalupe fescue, which is
an evaluation of the best available scientific and commercial data on
the status of the species, including the past, present, and future
threats to this species and the effect of conservation measures. The
SSA Report and other materials related to this final rule are available
online at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0099
and FWS-R2-ES-2016-0100.
The SSA Report (Service 2016) is based on a thorough review of the
natural history, habitats, ecology, populations, and range of Guadalupe
fescue. The SSA Report analyzes individual, population, and species
requirements; factors affecting the species' survival; and current
conditions to assess the species' current and future viability in terms
of resiliency, redundancy, and representation. We define viability as
the ability of a species to maintain populations over a defined period
of time.
Resiliency refers to the population size necessary to endure
stochastic environmental variation (Shaffer and Stein 2000, pp. 308-
310). Resilient populations are better able to recover from losses
caused by random variation, such as fluctuations in recruitment
(demographic stochasticity), variations in rainfall (environmental
stochasticity), or changes in the frequency of wildfires.
Redundancy refers to the number and geographic distribution of
populations or sites necessary to endure catastrophic events (Shaffer
and Stein 2000, pp. 308-310). As defined here, catastrophic events are
rare occurrences, usually of finite duration, that cause severe impacts
to one or more populations. Examples of catastrophic events include
tropical storms, floods, prolonged drought, and unusually intense
wildfire. Species that have multiple resilient populations distributed
over a larger landscape are more likely to survive catastrophic events,
since not all populations would be affected.
Representation refers to the genetic diversity, both within and
among populations, necessary to conserve long-term adaptive capability
(Shaffer and Stein 2000, pp. 307-308). Species with greater genetic
diversity are more able to adapt to environmental changes and to
colonize new sites.

Summary of Biological Status and Threats

Guadalupe fescue is a short-lived perennial grass species found
only in a few high mountains of the Chihuahuan Desert, west of the
Pecos River in Texas and in the State of Coahuila, Mexico. These ``sky
island'' habitats are conifer-oak woodlands above 1,800 meters (m)
(5,905 feet (ft)) elevation. Historically, the species has been
reported in only six sites. It was first collected in 1931, in the
Guadalupe Mountains, Culberson County, Texas, and in the Chisos
Mountains, Brewster County, Texas; these sites are now within Guadalupe
Mountains National Park and Big Bend National Park, respectively.
Guadalupe fescue was documented near Fraile, southern Coahuila, in
1941; in the Sierra la Madera, central Coahuila, in 1977; and at two
sites in the Maderas del Carmen Mountains of northern Coahuila in 1973
and 2003. The last three sites are now within protected natural areas
(``areas naturales protegidas'' (ANP)) designated by the Mexican
Federal Government.
In the United States, populations of Guadalupe fescue have
experienced significant declines. Guadalupe fescue was last observed in
the Guadalupe Mountains in 1952; this population is presumed
extirpated. Researchers from the Texas Parks and Wildlife Department
and Big Bend National Park have quantitatively monitored plots within
the Chisos Mountains population over a 24-year period. Our analysis of
these data indicates that the population within the plots (about 25 to
50 percent of the total population) has decreased significantly over
time, from a high of 125 and 127 individuals in 1993 and 1994, to a low
of 47 individuals in 2013 and 2014; by 2016 the monitored population
had increased slightly to 56 individuals. Little information is
available for the known populations in Mexico. Valdes-Reyna (2009, pp.
13, 15) confirmed that one population in the Maderas del Carmen
Mountains is extant. This population had several hundred individuals in
2003 (Big Bend National Park and Service 2008), and is protected within
ANP Maderas del Carmen. The status of the other three Coahuilan
populations remains unknown.
To estimate the amount and distribution of potential Guadalupe
fescue habitat, we mapped conifer-oak forests in the Chihuahuan Desert
at elevations greater than 1,800 m. Because larger habitat areas may be
more suitable for viability, we restricted this model to areas greater
than 200 hectares (ha) (494 acres (ac)). This model reveals that
northern Mexico has 283 areas of potential habitat totaling 537,998 ha
(over 1.3 million ac), compared to 20 such areas totaling 27,881 ha
(68,894 ac) in Texas. Thus, about 95 percent of the

[[Page 42247]]

potential habitat for the species is in Mexico. However, we do not have
information confirming that any of these areas actually contain
Guadalupe fescue.
Monitoring suggests that the Chisos Mountains population has
decreased in size; however, the data indicate that survival rates
within this monitored population have increased. These inverse trends
may be explained by a recruitment rate (establishment of new
individuals) that is too low to sustain the population. We do not know
why the recruitment rate at the Chisos population is low. We have no
information about the species' genetic viability, within-population and
within-species genetic differentiation, chromosome number, or breeding
system. However, because grasses are wind-pollinated, small and widely
scattered populations produce few if any seeds from out-crossing
(pollination by unrelated individuals). Many perennial grasses,
including some Festuca species, are obligate out-crossers. If Guadalupe
fescue is an obligate out-crosser, the sparse Chisos population would
produce few seeds; if it is not an obligate out-crosser, it is probably
highly inbred and may suffer from inbreeding depression. Although the
minimum viable population (MVP) size has not yet been calculated for
Guadalupe fescue, we can estimate its MVP by comparison to species with
similar life histories (i.e., surrogates) for which MVPs have been
calculated, using the guideline adapted from Pavlik (1996, p. 137).
Through this comparison, we estimate that populations of Guadalupe
fescue should have at least 500 to 1,000 individuals for long-term
population viability (Service 2016, pp. 17-18).
One factor potentially negatively affecting the existing population
in the Chisos Mountains is the loss of regular wildfires. Periodic
wildfire and leaf litter reduction may be necessary for long-term
survival of Guadalupe fescue populations, although this theory has not
been investigated. Historically, wildfires occurred in the vicinity of
the Chisos population at least 10 times between 1770 and 1940 (Moir and
Meents 1981, p. 7; Moir 1982, pp. 90-98; Poole 1989, p. 8; Camp et al.
2006, pp. 3-6, 14-23, 59-61). These relatively frequent, low-intensity
fires would have reduced accumulated fuels in the understory, thereby
preventing high-intensity crown fires. However, the last major fire
there was more than 70 years ago, due to fire suppression within the
National Park. The long absence of fire and the resulting accumulation
of fuels also increase the risk of more intense wildfire, which could
result in the loss of the remaining Guadalupe fescue population in the
United States.
Other factors that may affect the continued survival of Guadalupe
fescue include the genetic and demographic consequences of small
population sizes and isolation of its known populations; livestock
grazing; erosion or debris flow caused by trail runoff; competition
from invasive species such as Marrubium vulgare (Horehound) and
Bothriochloa ischaemum (King Ranch bluestem); effects of climate
change, such as higher temperatures and changes in the amount and
seasonal pattern of rainfall; and fungal infection of seeds. Big Bend
National Park, the site of the only known population in the United
States, has minimized the potential threat of trampling from humans and
pack animals by restricting visitors and trail maintenance crews to
established trails and through visitor outreach.
The Service, Big Bend National Park, and Guadalupe Mountains
National Park established candidate conservation agreements for the
Guadalupe fescue in 1998 and 2008. The objectives of these 10-year
agreements include monitoring and surveys, seed and live plant banking,
fire and invasive species management, trail management, staff and
visitor education, establishment of an advisory team of species
experts, and cooperation with Mexican agencies and researchers to
conserve the known populations of Guadalupe fescue and search for new
ones. Research objectives include investigations of fire ecology,
habitat management, genetic structure, reproductive biology, and
reintroduction. Upon listing the species, Big Bend National Park has
committed to meeting the same conservation objectives and actions
(Sirotnak 2016, pers. comm.).
Based on the best available information, we know of only two extant
populations of Guadalupe fescue. The Chisos Mountains population is far
smaller than our estimated MVP level, and despite protection,
appropriate management, and periodic monitoring by the National Park
Service, it declined between 1993 and 2016. The other extant
population, at ANP Maderas del Carmen in northern Coahuila, Mexico, may
have exceeded our estimated MVP level as recently as 2003, and the site
is managed for natural resources conservation. Unfortunately, we
possess very little information about the current status of the species
at Maderas del Carmen and throughout Mexico. Our analysis revealed that
a large amount of potential habitat exists in northern Mexico. Thus, it
is possible that other undiscovered populations of Guadalupe fescue
exist in northern Mexico, and that the overall status of the species is
more secure than we now know. Nonetheless, the Service has to make a
determination based on the best available scientific data, which
currently confirms only one extant population in Mexico.

Summary of Changes From the Proposed Listing Rule

We made no substantive changes from the proposed rule of September
9, 2016 (81 FR 62450), to this final rule.

Summary of Comments and Recommendations

In the proposed rule, we requested that all interested parties
submit written comments on the proposal by November 8, 2016. We also
contacted the National Park Service (Big Bend National Park), Texas
Parks and Wildlife Department, the Texas Comptroller's Office, the
Secretar[iacute]a de Medio Ambiente y Recursos Naturales (SEMARNAT, a
Mexican federal agency), PRONATURA Sur (a Mexican non-governmental non-
profit conservation organization), scientific experts and
organizations, and other interested parties and invited them to comment
on the proposal. We opened another 30-day public comment period June
13, 2017. Newspaper notices inviting general public comment were
published in the Alpine Avalanche. We received no comments from State
or Federal agencies, no substantive public comments, and no requests
for a public hearing.

Peer Reviewer Comments

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from four knowledgeable
individuals with scientific expertise that included familiarity with
Guadalupe fescue and its habitat, biological needs, and threats. We
received responses from two of the peer reviewers.
We reviewed the comments received from the peer reviewers for
substantive issues and new information regarding the listing of
Guadalupe fescue. The peer reviewers generally concurred with our
conclusions and provided additional information, clarifications, and
suggestions to improve the final rule. Peer reviewer comments are
addressed and incorporated into the final rule as appropriate.

Determination

Standard for Review

Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal Lists

[[Page 42248]]

of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1)
of the Act, we may list a species based on (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. Listing actions may be warranted
based on any of the above threat factors, singly or in combination.
The fundamental question before the Service is whether the species
meets the definition of ``endangered species'' or ``threatened
species'' under the Act. To make this determination, we evaluated the
projections of extinction risk, described in terms of the condition of
current and future populations and their distribution (taking into
account the risk factors and their effects on those populations). For
any species, as population condition declines and distribution shrinks,
the species' extinction risk increases and overall viability declines.
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species ``which is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The phrase ``significant
portion of its range'' (SPR) is not defined by the Act, and the court
in Center for Biological Diversity v. Jewel held that aspects of the
Service's ``Policy on Interpretation of the Phrase `Significant Portion
of Its Range' in the ESA's Definitions of `Endangered Species' and
`Threatened Species' '' (SPR Policy) were not valid No. 14-cv-02506-RM
(D. Ariz. Mar. 29, 2017) (Pygmy-Owl Decision). Although the court's
order in that case has not yet gone into effect, if the court denies
the pending motion for reconsideration, the SPR Policy would become
vacated. Therefore, we have examined the plain language of the Act and
court decisions addressing the Service's application of the SPR phrase
in various listing decisions, and for purposes of this rulemaking we
are applying the following interpretation for the phrase ``significant
portion of its range'' and its context in determining whether or not a
species is an endangered species or a threatened species. This
interpretation is consistent with the SPR Policy and the Pygmy-Owl
Decision, and the SPR Policy provides a detailed explanation of the
bases and support for this interpretation. We also set out below
additional explanation for the interpretation we are applying for this
rulemaking, including explaining any aspects of this interpretation
that could be perceived as inconsistent with the SPR Policy or the
Pygmy-Owl Decision.
As described in the SPR Policy, two courts have found that, once
the Service determines that a ``species''--which can include a species,
subspecies, or DPS under ESA Section 3(16)--meets the definition of
``endangered species'' or ``threatened species,'' the species must be
listed in its entirety and the Act's protections applied consistently
to all members of that species (subject to modification of protections
through special rules under sections 4(d) and 10(j) of the Act). See
Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1222 (D. Mont.
2010) (delisting of the Northern Rocky Mountains DPS of gray wolf;
appeal dismissed as moot because of public law vacating the listing,
2012 U.S. App. LEXIS 26769 (9th Cir. Nov. 7, 2012)); WildEarth
Guardians v. Salazar, No. 09-00574-PHX-FJM, 2010 U.S. Dist. LEXIS
105253, 15-16 (D. Ariz. Sept. 30, 2010) (Gunnison's prairie dog) The
issue has not been addressed by a Federal Court of Appeals.
For the purposes of this rule, we interpret the phrase
``significant portion of its range'' in the Act's definitions of
``endangered species'' and ``threatened species'' to provide an
independent basis for listing a species in its entirety; thus there are
two situations (or factual bases) under which a species would qualify
for listing: A species may be in danger of extinction or likely to
become so in the foreseeable future throughout all of its range; or a
species may be in danger of extinction or likely to become so
throughout a significant portion of its range. If a species is in
danger of extinction throughout an SPR, it, the species, is an
``endangered species.'' The same analysis applies to ``threatened
species.'' Therefore, consistent with the district court case law, the
consequence of finding that a species is in danger of extinction or
likely to become so throughout a significant portion of its range is
that the entire species will be listed as an endangered species or
threatened species, respectively, and the Act's protections will be
applied to all individuals of the species wherever found.
In implementing these independent bases for listing a species, we
list any species in its entirety either because it is in danger of
extinction now or likely to become so in the foreseeable future
throughout all of its range or because it is in danger of extinction or
likely to become so in the foreseeable future throughout a significant
portion of its range. With regard to the text of the Act, we note that
Congress placed the ``all'' language before the SPR phrase in the
definitions of ``endangered species'' and ``threatened species.'' This
suggests that Congress intended that an analysis based on consideration
of the entire range should receive primary focus. Thus, the first step
in our assessment of the status of a species is to determine its status
throughout all of its range. Depending on the status throughout all of
its range, we will subsequently examine whether it is necessary to
determine its status throughout a significant portion of its range.

Guadalupe Fescue Determination of Status Throughout All of Its Range

We documented in our SSA Report (Service 2016, entire) that only
two extant populations of Guadalupe fescue are currently known. The
only extant population in the United States, in the Chisos Mountains at
Big Bend National Park, has declined in abundance since 1993, despite
the conservation efforts outlined in the candidate conservation
agreement. Only 56 individuals were observed there in 2016, which is
far less than an estimated MVP size of 500 to 1,000 individuals based
on species with similar life histories. The other extant population, in
the ANP Maderas del Carmen in Coahuila, had several hundred individuals
in 2003, and was confirmed extant in 2009 with no population estimate.
Three other historically known populations in remote areas of Coahuila,
Mexico, have not been observed in at least 39 years, and their statuses
remain unknown.
We find that several factors reduce the viability of Guadalupe
fescue, including: Changes in the wildfire cycle and vegetation
structure of its habitats, trampling from humans and pack animals,
erosion or debris flow caused by trail runoff, and competition from
invasive species such as Marrubium vulgare (Horehound) and Bothriochloa
ischaemum (King Ranch bluestem) (Factor A); grazing by livestock and
feral animals of Guadalupe fescue plants (Factor C); and the genetic
and demographic consequences of small population sizes, isolation of
its known populations, and potential impacts of climate changes, such
as higher temperatures and changes in the amount and seasonal pattern
of rainfall (Factor E). Although trampling, trail runoff, invasive
species, and grazing are likely to be ameliorated by ongoing and future
conservation efforts on Federal lands in the United States, the effects
of small

[[Page 42249]]

population size, geographic isolation, and climate change are all
rangewide threats and expected to continue into the foreseeable future.
Limited information is available regarding the known populations of
Guadalupe fescue in Mexico; however, most of the above factors are
likely to be widespread and ongoing threats throughout the potential
habitats in Mexico (Service 2016).
There are only two known extant populations of Guadalupe fescue,
one each in Texas and in Coahuila, Mexico. We have no recent
observations of three additional populations reported from Mexico, and
their statuses are unknown. A second population reported from the
United States has not been seen in more than 60 years, despite
extensive surveys, and is presumed extirpated. Based on annual
monitoring conducted through 2016, the Chisos Mountains population in
the United States is estimated to have in the range of 100 and 200
individuals, well below the estimated MVP of 500 to 1,000 individuals,
and the monitored population has declined from 127 individuals in 1993
to 47 individuals in 2014; in 2016 the monitored population had
increased slightly to 56 individuals (Service 2016, Appendix B).
Therefore, the Chisos Mountains population is considered to have low
resiliency. The Maderas del Carmen population in Mexico may have held
the estimated MVP as recently as 2003, but the current population
status is unknown, and thus the population is considered to have
limited resilience (Service 2016). With only two known populations,
both with limited resiliency, the species has extremely low redundancy
and representation. However, if there are additional extant populations
in Mexico, we would expect the redundancy and representation of the
species would be greater. Based on the best available information,
therefore, the species' overall risk of extinction is such that we find
it is in danger of extinction throughout its range.

Determination of Status Throughout a Significant Portion of Its Range

Consistent with our interpretation that there are two independent
bases for listing species as described above, after examining the
species' status throughout all of its range, we now examine whether it
is necessary to determine whether it is an ``endangered species'' or
``threatened species'' throughout a significant portion of its range.
We must give operational effect to both the ``throughout all'' of its
range language and the SPR phrase in the definitions of ``endangered
species'' and ``threatened species.'' The Act, however, does not
specify the relationship between the two bases for listing. As
discussed above, to give operational effect to the ``throughout all''
language and that it is referenced first in the definition, we first
consider species' status throughout the entire range.
In order to give operational effect to the SPR language, the
Service should undertake an SPR analysis if the species is neither in
danger of extinction nor likely to become so in the foreseeable future
throughout all of its range, to determine if the species should
nonetheless be listed because of its status in an SPR. However, we have
already concluded that this species is in danger of extinction
throughout all of its range. We reach this conclusion when the species
is experiencing high-magnitude threats across its range or threats are
so high in particular areas that they severely affect the species
across its range. Therefore, the species is in danger of extinction
throughout every portion of its range and an analysis of whether there
is any SPR that may be in danger of extinction or likely to become so
would not result in a different outcome. Thus, we conclude that to give
operational effect to both the ``throughout all'' language and the SPR
phrase, the Service should conduct an SPR analysis if (and only if) a
species does not warrant listing according to the ``throughout all''
language.
Because we have determined that the Guadalupe fescue is in danger
of extinction throughout all of its range, we do not need to undertake
an SPR analysis to determine if there are any significant portions of
the species' range where the species is likely to become in danger of
extinction in the foreseeable future or where it does not meet the
definitions of either ``endangered species'' or ``threatened species.''
Therefore, on the basis of the best available scientific and
commercial information, we are adding Guadalupe fescue to the List of
Endangered and Threatened Plants as an endangered species in accordance
with sections 3(6) and 4(a)(1) of the Act. We find that a threatened
species status is not appropriate for Guadalupe fescue because of the
immediacy of threats facing the species with only two known
populations, at least one of which is declining in abundance.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing, results in public awareness, as
well as conservation by Federal, State, Tribal, and local agencies;
private organizations; and individuals. The Act encourages cooperation
with the States and other countries, and calls for recovery actions to
be carried out for listed species. The protection required by Federal
agencies and the prohibitions against certain activities are discussed,
in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five
factors that control whether a species remains endangered or may be
downlisted to threatened or delisted, and methods for monitoring
recovery progress. Recovery plans also establish a framework for
agencies to coordinate their recovery efforts and provide estimates of
the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our Web site
(http://www.fws.gov/endangered) or from our Austin Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other

[[Page 42250]]

Federal agencies, States, Tribes, nongovernmental organizations,
businesses, and private landowners. Examples of recovery actions
include habitat restoration (e.g., restoration of native vegetation),
research, captive propagation and reintroduction, and outreach and
education. The recovery of many listed species cannot be accomplished
solely on Federal lands because their range may occur primarily or
solely on non-Federal lands. To achieve recovery of these species
requires cooperative conservation efforts on private, State, and Tribal
lands.
Following publication of this final listing rule, funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Texas will
be eligible for Federal funds to implement management actions that
promote the protection or recovery of the Guadalupe fescue. Information
on our grant programs that are available to aid species recovery can be
found at: http://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for the Guadalupe fescue. Additionally, we invite you
to submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) of the Act requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of any endangered or
threatened species or destroy or adversely modify its critical habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency must enter into consultation
with the Service.
Federal agency actions within the species' habitat that may require
consultation as described in the preceding paragraph include the land
management activities by the National Park Service within Big Bend
National Park.
With respect to endangered plants, prohibitions outlined at 50 CFR
17.61 make it illegal for any person subject to the jurisdiction of the
United States to import or export, transport in interstate or foreign
commerce in the course of a commercial activity, sell or offer for sale
in interstate or foreign commerce, or to remove and reduce to
possession any such plant species from areas under Federal
jurisdiction. In addition, for endangered plants, the Act prohibits
malicious damage or destruction of any such species on any area under
Federal jurisdiction, and the removal, cutting, digging up, or damaging
or destroying of any such species on any other area in knowing
violation of any State law or regulation, or in the course of any
violation of a State criminal trespass law. Exceptions to these
prohibitions are outlined in 50 CFR 17.62.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.62. With regard to
endangered plants, the Service may issue a permit authorizing any
activity otherwise prohibited by 50 CFR 17.61 for scientific purposes
or for enhancing the propagation or survival of endangered plants.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Normal agricultural and silvicultural practices conducted on
privately owned lands, including herbicide and pesticide use, which are
carried out in accordance with any existing regulations, permit and
label requirements, and best management practices;
(2) Recreation and management at National Parks that is conducted
in accordance with existing National Park Service regulations and
policies; and
(3) Normal residential landscape activities.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act; this
list is not comprehensive:
(1) Unauthorized damage or collection of Guadalupe fescue from
lands under Federal jurisdiction;
(2) Destruction or degradation of the species' habitat on lands
under Federal jurisdiction, including the intentional introduction of
nonnative organisms that compete with, consume, or harm Guadalupe
fescue;
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Austin
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.

[[Page 42251]]

Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
specific features that support the life-history needs of the species,
including but not limited to, water characteristics, soil type,
geological features, prey, vegetation, symbiotic species, or other
features. A feature may be a single habitat characteristic, or a more
complex combination of habitat characteristics. Features may include
habitat characteristics that support ephemeral or dynamic habitat
conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Information sources may include the species status assessment; any
generalized conservation strategy, criteria, or outline that may have
been developed for the species; the recovery plan for the species;
articles in peer-reviewed journals; conservation plans developed by
States and counties; scientific status surveys and studies; biological
assessments; other unpublished materials; or experts' opinions or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools would continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.

Physical or Biological Features

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by a species at the time of listing to designate as
critical habitat, we consider the physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. For example, physical
features might include gravel of a particular size required for
spawning, alkali soil for seed germination, protective cover for
migration, or susceptibility to flooding or fire that maintains
necessary early-successional habitat characteristics. Biological
features might include prey species, forage grasses, specific kinds or
ages of trees for roosting or nesting, symbiotic fungi, or a particular
level of nonnative species consistent with conservation needs of the
listed species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic needed to
support the life history of the species. In considering whether
features are essential to the conservation of the species, the Service
may consider an appropriate quality, quantity, and spatial and temporal
arrangement of habitat characteristics in the context of the life-
history needs, condition, and status of the species. These
characteristics include but are not limited to space for individual and
population growth and for normal behavior; food, water, air, light,
minerals, or other nutritional or

[[Page 42252]]

physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
We conducted a Species Status Assessment (SSA Report) for Guadalupe
fescue, which is an evaluation of the best available scientific and
commercial data on the status of the species. The SSA Report (Service
2016; available at: http://www.regulations.gov in Docket No. FWS-R2-ES-
2016-0099 and FWS-R2-ES-2016-0100) is based on a thorough review of the
natural history, habitats, ecology, populations, and range of Guadalupe
fescue. The SSA Report provides the scientific information upon which
this critical habitat determination is based (Service 2016).

Space for Individual and Population Growth and for Normal Behavior

The size of suitable habitat areas for Guadalupe fescue is likely
to be important, although we do not know how large an area must be to
support a viable population. However, we do know that many plant
species in the Chihuahuan Desert have migrated to different elevations
and latitudes, or were extirpated, since the end of the late
Wisconsinan glaciation (about 11,000 years ago). Larger habitat areas
provide more opportunities for populations to migrate, as plant
communities and weather patterns change and, therefore, may be more
suitable. Larger habitats are also expected to support larger
populations and greater genetic diversity. We provisionally estimate
that habitats of at least 494 ac (200 ha) are more likely to support
long-term viability of Guadalupe fescue. Therefore, we determine that
relatively large habitat areas that are at least 494 ac (200 ha) are
important to provide the necessary space to support the physical or
biological feature for this species.

Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements

Precipitation is important to Guadalupe fescue, as flowering and
survival rates are positively correlated with rainfall amount and
timing. The amount of rainfall over longer periods, such as the
previous 21 months, appears to have more influence on flowering, which
occurs from August to October, than rainfall during the previous 9
months or the previous February through May (Service 2016, Appendix B).
Population size may be positively correlated with rainfall over
relatively long (33-month) periods. Rainfall (or drought) over shorter
timeframes appears to have less effect on population size.
Precipitation amounts and patterns are weather conditions that support
the physical or biological features for Guadalupe fescue.
All historic and extant populations of Guadalupe fescue occur above
about 1,800 meters (m) (5,905 feet (ft)) in the Chihuahuan Desert of
northern Mexico and Texas, although we do not know the actual elevation
tolerance of this species. Many plant species occur at relatively lower
elevations in mountains where habitats are relatively cool and moist,
such as in narrow ravines, north-facing slopes (in the northern
hemisphere), or windward slopes where there is a pronounced rain shadow
(higher rainfall on prevailing windward slopes). Larger habitat areas
provide more opportunities for populations to migrate, as plant
communities and weather patterns change and, therefore, may be more
suitable. Nevertheless, the 1,800-m elevation contour represents the
best available information regarding the elevation tolerance of this
species.
Habitat areas do not need to be contiguous to be considered
occupied, provided that they are not separated by wide, low-elevation
gaps. This rationale is based on expected long-distance dispersal of
viable seeds of Guadalupe fescue by Carmen white-tailed deer
(Odocoileus virginianus carminis), the most common ungulate in the
Chisos Mountains. The diet of Carmen white-tailed deer consists of up
to 12 percent grasses. Carmen white-tailed deer use habitats with dense
stands of oak and the presence of free-standing water, and the range is
restricted to elevations above 906 to 1,220 m (2,970 to 4,000 ft). The
estimated home range is a radius of 1.1 to 2.4 kilometers (km) (0.7 to
1.5 miles (mi)). Hence, we expect that Carmen white-tailed deer are
able to disperse viable seeds of Guadalupe fescue to potential habitats
that are not separated by gaps that are below about 1,000 m (3,208 ft)
and more than 2.4 km (1.5 mi) wide.
All known populations of Guadalupe fescue occur in rocky or talus
soils of partially shaded sites in the understory of conifer-oak
woodlands within the Chihuahuan Desert. The associated vegetation
consists of relatively open stands of both conifer and oak trees in
varying proportions. Conifer-oak woodlands may occur in areas
classified as pine, conifer, pine-oak, or conifer-oak, and as forest or
woodland, on available vegetation classification maps. The conifer
species typically include one or more of the following: Mexican pinyon
(Pinus cembroides), Arizona pine (P. arizonica), southwestern white
pine (P. strobiformis), alligator juniper (Juniperus deppeana),
drooping juniper (J. flaccida), and Arizona cypress (Cupressus
arizonica). Characteristic oaks include one or more of the following:
Chisos red oak (Quercus gravesii), gray oak (Q. grisea), Lacey oak (Q.
laceyi), and silverleaf oak (Q. hypoleucoides). Other broadleaf trees,
such as bigtooth maple (Acer grandidentatum), may also occur in this
element. Therefore, we consider areas of rocky or talus soils of
partially shaded sites in the understory of conifer-oak woodlands above
elevations of 1,800 m (5,905 ft) within the Chihuahuan Desert to be a
physical or biological feature of Guadalupe fescue.

Habitats That Are Protected From Disturbance or Are Representative of
the Historic Geographical and Ecological Distributions of a Species

The role of fire is very likely important to maintain Guadalupe
fescue habitat for two reasons. First, many grass and forb understory
species are stimulated during the years immediately following wildfire,
but decline during long periods without fire. Second, relatively
frequent forest wildfires tend to be relatively cool because large
amounts of dry fuel, such as dead trees, fallen branches, and leaf
litter, have not accumulated; such fires do not kill large numbers of
trees or radically change the vegetation structure and composition.
Conversely, wildfires that burn where fuels and small dead trees have
accumulated for many years can be very hot, catastrophic events that
not only kill entire stands of trees, but also kill the seeds and
beneficial microorganisms in the soil, such as mycorrhizal fungi. Fire
is probably inevitable in the conifer and conifer-oak forests of the
Chihuahuan Desert. Thus, more frequent, relatively cool fires may be
essential for the long-term sustainability of these forested ecosystems
and of Guadalupe fescue populations.

Summary of Essential Physical or Biological Features

We derive the specific physical or biological features essential
for Guadalupe fescue from studies of this species' habitat, ecology,
and life history, as described above. Additional information can be
found in the final listing rule, published elsewhere in this issue of
the Federal Register, and in the SSA Report (Service 2016). We have
determined that the following physical or biological features are
essential to the conservation of Guadalupe fescue:
(1) Areas within the Chihuahuan Desert:
(a) Above elevations of 1,800 m (5,905 ft), and

[[Page 42253]]

(b) That contain rocky or talus soils.
(2) Associated vegetation characterized by relatively open stands
of both conifer and oak trees in varying proportions. This vegetation
may occur in areas classified as pine, conifer, pine-oak, or conifer-
oak, and as forest or woodland, on available vegetation classification
maps.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats: Changes in wildfire frequency; livestock
grazing; erosion and trampling by visitors hiking off the trails; and
invasive species.
Management activities that could ameliorate these threats and
protect the integrity of the conifer-oak habitat include, but are not
limited to: (1) Conducting prescribed burns under conditions that favor
relatively cool burn temperatures; (2) removing livestock, including
stray and feral livestock, from Guadalupe fescue habitats; (3)
appropriately maintaining trails to reduce the incidence of trampling
and erosion, and informing visitors of the need to remain on trails;
and (4) controlling and removing introduced invasive plants, such as
horehound (Marrubium vulgare) and King Ranch bluestem (Bothriochloa
ischaemum).

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
In accordance with the Act and our implementing regulations at 50 CFR
424.12(b), we review available information pertaining to the habitat
requirements of the species and identify specific areas within the
geographical area occupied by the species at the time of listing and
any specific areas outside the geographical area occupied by the
species to be considered for designation as critical habitat. We are
designating critical habitat in areas within the United States that are
occupied by Guadalupe fescue at the time of listing. Occupied habitat
for Guadalupe fescue is defined as areas with positive survey records
since 2009 (when the Maderas del Carmen population in Mexico was last
documented), and habitat areas around sites with positive survey
records that contain conifer-oak woodlands and that are not separated
by gaps of lower elevation (<1,000 m) terrain and are within the
maximum distance that seed dispersal is expected to occur (about 2.4 km
(1.5 mi)).
Sources of data on Guadalupe fescue occurrences include: The Texas
Natural Diversity Database; herbarium records from the University of
Texas, Missouri Botanical Garden, and University of Arizona; a survey
report by Vald[eacute]s-Reyna (2009); a status survey (Poole 1989); and
monitoring data from Big Bend National Park (Sirotnak 2014). We
obtained information on ecology and habitat requirements from the
candidate conservation agreement (Big Bend National Park and Service
2008), scientific reports (Camp et al. 2006; Moir and Meents 1981;
Zimmerman and Moir 1998), and Rare Plants of Texas (Poole et al. 2007).
Big Bend National Park (2015) provided a recently revised vegetation
classification map of the Park. We used digital elevation models
created by the U.S. Geological Survey. We documented a review and
analysis of these data sources in the SSA Report (Service 2016).

Areas Occupied at the Time of Listing

The critical habitat designation includes the only known extant
population of Guadalupe fescue in the United States, within the Chisos
Mountains of Big Bend National Park, which has retained the physical or
biological features that will allow for the maintenance and expansion
of the existing population (criteria described above). Guadalupe fescue
historically occupied one additional site in the United States in
McKittrick Canyon within Guadalupe Mountains National Park. However, we
are not designating critical habitat there because the species has not
been observed since 1952, and it is unlikely that the area is occupied
at the time of listing (Armstrong 2016; Poole 2016; Sirotnak 2016). The
best available information indicates that Guadalupe fescue is
extirpated from McKittrick Canyon, and the habitat would no longer
support the species due to the abundance of invasive grasses such as
King Ranch bluestem, and, therefore, we do not consider the area within
McKittrick Canyon to be essential for the conservation of the species.
We are designating a single unit of critical habitat consisting of
five subunits totaling 7,815 acres (ac) (3,163 hectares (ha)). Although
currently Guadalupe fescue plants have only been found in Subunit 1, we
consider all subunits to be occupied because they are not separated by
gaps of lower elevation (<1,000 m) terrain greater than 2.4 km (1.5 mi)
wide. The entire unit lies within the Chisos Mountains of Big Bend
National Park (see map in the Regulation Promulgation section, below).
See Table 1, below, for summaries of land ownership and areas. No units
or portions of units are being considered for exclusion or exemption.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for Guadalupe fescue. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the final rule and are not designated as critical habitat.
Therefore, a Federal action involving these lands would not trigger
section 7 consultations with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We are designating critical habitat on lands that we have
determined are occupied at the time of listing and contain sufficient
elements of physical or biological features to support life-history
processes essential to the conservation of the Guadalupe fescue. We are
designating one critical habitat unit within the Chisos Mountains that
contains all of the identified physical or biological features to
support the life-history processes of Guadalupe fescue.
This final critical habitat designation is defined by the map, as
modified by any accompanying regulatory text, presented at the end of
this document in the Regulation Promulgation section. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which the map is based available
to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-
2016-0099 and FWS-R2-ES-2016-0100, on our Internet site (https://www.fws.gov/southwest/es/AustinTexas/ESA_Our_species.html), and at the
field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT, above).

[[Page 42254]]

Critical Habitat Designation

We are designating approximately 7,815 ac (3,163 ha) in one unit
containing five subunits as critical habitat for Guadalupe fescue. The
critical habitat area we describe below constitutes our current best
assessment of areas that meet the definition of critical habitat for
Guadalupe fescue. The area we are designating as critical habitat is
shown in Table 1.

Table 1--Occupancy, Land Ownership, and Size of Guadalupe Fescue Critical Habitat Chisos Mountains Unit and
Subunits
[Amounts do not total due to rounding]
----------------------------------------------------------------------------------------------------------------
Occupied at time of
Subunit listing? Currently occupied? Ownership Size (ha) Size (ac)
----------------------------------------------------------------------------------------------------------------
1................ Yes................ Yes................ National Park 2,648 6,542
Service.
2................ Yes................ Yes................ National Park 391 966
Service.
3................ Yes................ Yes................ National Park 100 248
Service.
4................ Yes................ Yes................ National Park 13 32
Service.
5................ Yes................ Yes................ National Park 10 25
Service.
-------------------------------
Total........ ................... ................... ................... 3,163 7,815
----------------------------------------------------------------------------------------------------------------

Below, we present a brief description of the Chisos Mountains Unit
and reasons why it and the subunits contained within meet the
definition of critical habitat for Guadalupe fescue.

Unit 1: Chisos Mountains

Unit 1 consists of 7,815 ac (3,163 ha) in the Chisos Mountains of
Big Bend National Park. This unit is within the geographical area
occupied by the species at the time of listing and contains all of the
physical or biological features essential to the conservation of
Guadalupe fescue. The habitat within Unit 1 consists of elevations of
1,800 m (5,905 ft) or greater, and the associated vegetation is
classified as pine, pine-oak, juniper-oak, or conifer-oak. The
geographic delineation of the unit resulted in five subunits that are
separated from each other by narrow gaps of lower elevation terrain,
but are otherwise similar with respect to vegetation, geological
substrate, and soils. The physical or biological features in this unit
may require special management considerations or protection to address
threats from changes in wildfire frequency, livestock grazing, erosion
and trampling by visitors hiking off the trail, and invasive species.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
On February 11, 2016, we published a final rule (81 FR 7214) that
sets forth a new definition of destruction or adverse modification.
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for the conservation of a listed species. Such alterations may include,
but are not limited to, those that alter the physical or biological
features essential to the conservation of a species or that preclude or
significantly delay development of such features.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with

[[Page 42255]]

us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that result in a direct or
indirect alteration that appreciably diminishes the value of critical
habitat for the conservation of Guadalupe fescue. Such alterations may
include, but are not limited to, those that alter the physical or
biological features essential to the conservation of this species or
that preclude or significantly delay development of such features. As
discussed above, the role of critical habitat is to support physical or
biological features essential to the conservation of a listed species
and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for Guadalupe fescue. These activities include, but are
not limited to:
(1) Actions that would remove or significantly alter the conifer-
oak woodland vegetation. Such actions could include, but are not
limited to, cutting or killing trees and shrubs to an extent that a
site is no longer suitable to Guadalupe fescue, due to increased levels
of sunlight, exposure to wind, or other factors. Fire suppression has
changed the natural wildfire cycle and may have altered the conifer-oak
woodland habitat to an extent that it is no longer optimal for
Guadalupe fescue due to increased tree and shrub densities. Hence,
pruning or thinning of woody vegetation may benefit Guadalupe fescue if
the tree canopy is too dense; therefore, prescribed pruning or thinning
would not be considered adverse modification. The introduction of
invasive plants could also adversely affect Guadalupe fescue through
increased competition for light, water, and nutrients, or through an
allelopathic effect (the suppression of growth of one plant species by
another due to the release of toxic substances).
(2) Actions that disturb the soil, or lead to increased soil
erosion. Such actions could include, but are not limited to, excavation
of the soil; removal of vegetation and litter; or construction of
roads, trails, or structures that channel runoff and form gullies. The
loss or disturbance of soil could deplete the soil seed bank of
Guadalupe fescue or alter soil depth and composition to a degree that
is no longer suitable for Guadalupe fescue. However, some actions that
affect soil or litter may be prescribed to improve habitat conditions
for Guadalupe fescue, such as prescribed burning, and would, therefore,
not be considered adverse modifications.

Exemptions

Application of Section 4(a)(3) of the Act

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan [INRMP] prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense lands with a completed INRMP within the critical
habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
Guadalupe fescue, the benefits of critical habitat include public
awareness of the presence of Guadalupe fescue and the importance of
habitat protection, and, where a Federal nexus exists, increased
habitat protection for Guadalupe fescue due to protection from adverse
modification or destruction of critical habitat. In practice,
situations with a Federal nexus exist primarily on Federal lands or for
projects undertaken by Federal agencies. Because Guadalupe fescue
critical habitat is located exclusively on National Park Service lands,
a Federal nexus exists for any action.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which
together with our narrative and interpretation of effects we consider
our draft economic analysis (DEA) of the proposed critical habitat
designation and related factors (IeC, 2016, entire). The analysis,
dated April 27, 2016, was made available for public review from
September 9, 2016, through November 8, 2016 (IeC, 2016 entire). The DEA
addressed probable economic impacts of critical habitat designation for
Guadalupe fescue. Following the close of the comment period, we
reviewed and evaluated all information submitted during the comment
period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for the Guadalupe fescue is
summarized below and available in the screening analysis for the
Guadalupe fescue (IeC, 2016, entire), available at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0099 and FWS-R2-ES-
2016-0100.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O.s'

[[Page 42256]]

regulatory analysis requirements, our effects analysis under the Act
may take into consideration impacts to both directly and indirectly
affected entities, where practicable and reasonable. If sufficient data
are available, we assess, to the extent practicable, the probable
impacts to both directly and indirectly affected entities. As part of
our screening analysis, we considered the types of economic activities
that are likely to occur within the areas likely to be affected by the
critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for Guadalupe fescue, first we
identified, in the IEM dated February 23, 2016, probable incremental
economic impacts associated with the following category of activities:
Federal lands management (National Park Service, Big Bend National
Park).
We considered each industry or category individually. Additionally,
we considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. In areas where Guadalupe fescue is
present, the National Park Service will be required to consult with the
Service under section 7 of the Act on activities they fund, permit, or
implement that may affect the species. Additionally, consultations to
avoid the destruction or adverse modification of critical habitat would
be incorporated into the existing consultation process. Therefore,
disproportionate impacts to any geographic area or sector are not
likely as a result of this critical habitat designation.
The critical habitat designation for Guadalupe fescue consists of a
single unit of critical habitat consisting of five subunits currently
occupied by the species. We are not designating any units of unoccupied
habitat. The Chisos Mountains critical habitat unit totals 7,815 ac
(3,163 ha) and is entirely contained within federally owned land at Big
Bend National Park. We have not identified any ongoing or future
actions that would warrant additional recommendations or project
modifications to avoid adversely modifying critical habitat above those
we would recommend for avoiding jeopardy.
Regarding projects that would occur in occupied habitat outside
known population locations, we will recommend that Big Bend National
Park first conduct surveys for Guadalupe fescue within the project
impact area. If the species is found, we would recommend the same
modifications previously described for avoiding jeopardy to the
species. If the species is not found, we will recommend only that Big
Bend National Park follow its established land management procedures.
We anticipate minimal change in behavior at Big Bend National Park
if we designate critical habitat for Guadalupe fescue. The only change
we foresee is conducting surveys in areas of critical habitat based on
our recommendation for surveys. Based on Big Bend National Park's
history of consultation under section 7 of the Act and on the
consultation history of the most comparable species, Zapata bladderpod
(Lesquerella thamnophila), we anticipate that this critical habitat
designation may result in a maximum of two additional consultations per
decade.

Exclusions

Exclusions Based on Economic Impacts

The Service considered the economic impacts of the critical habitat
designation, and the Secretary is not exercising his discretion to
exclude any areas from this designation of critical habitat for the
Guadalupe fescue based on economic impacts.
A copy of the IEM and screening analysis with supporting documents
may be obtained by contacting the Austin Ecological Services Field
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0099 and FWS-R2-ES-
2016-0100.

Exclusions Based on National Security Impacts

Under section 4(b)(2) of the Act, we consider whether there are
lands where a national security impact might exist. In preparing this
final rule, we have determined that the lands within the final
designation of critical habitat for Guadalupe fescue are not owned or
managed by the Department of Defense or Department of Homeland
Security. In addition, the locations of the critical habitat areas are
at high elevations in remote areas of Big Bend National Park and not
close enough to the international border with Mexico to raise any
border maintenance concerns. The closest critical habitat is
approximately 20.1 km (12.5 mi) away from Mexican border. Therefore, we
anticipate no impact on national security. Consequently, the Secretary
is not intending to exercise his discretion to exclude any areas from
the final designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans for Guadalupe fescue, and
the final designation does not include any tribal lands or trust
resources. We anticipate no impact on tribal lands, partnerships, or
HCPs from this critical habitat designation. Accordingly, the Secretary
does not intend to exercise his discretion to exclude any areas from
the final designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed

[[Page 42257]]

this rule in a manner consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and, therefore, are not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried out by the Agency is not likely to adversely modify critical
habitat. Therefore, under section 7, only Federal action agencies are
directly subject to the specific regulatory requirement (avoiding
destruction and adverse modification) imposed by critical habitat
designation. Consequently, it is our position that only Federal action
agencies will be directly regulated by this designation. Moreover,
Federal agencies are not small entities. Therefore, because no small
entities are directly regulated by this rulemaking, the Service
certifies that this final critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the final designation would
result in a significant economic impact on a substantial number of
small entities. For the above reasons and based on currently available
information, we certify that the final critical habitat designation
would not have a significant economic impact on a substantial number of
small business entities. Therefore, a regulatory flexibility analysis
is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that the
designation of this final critical habitat will significantly affect
energy supplies, distribution, or use, because the critical habitat
unit is entirely contained within Big Bend National Park. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because we are

[[Page 42258]]

designating only a single critical habitat unit that is entirely owned
by the National Park Service. Therefore, a Small Government Agency Plan
is not required.

Takings--Executive Order 12630

In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for Guadalupe fescue in a takings
implications assessment. The Act does not authorize the Service to
regulate private actions on private lands or confiscate private
property as a result of critical habitat designation. Designation of
critical habitat does not affect land ownership, or establish any
closures or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed and concludes the
designation of critical habitat for Guadalupe fescue would not pose
significant takings implications for lands within or affected by the
designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies in Texas. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, this final rule does not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The designation may have some benefit to these governments
because the areas that contain the features essential to the
conservation of the species are more clearly defined, and the physical
and biological features of the habitat necessary to the conservation of
the species are specifically identified. This information does not
alter where and what federally sponsored activities may occur. However,
it may assist these local governments in long-range planning (because
these local governments no longer have to wait for case-by-case section
7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, the rule
identifies the elements of physical or biological features essential to
the conservation of the species. The areas of critical habitat are
presented on a map, and this document provides several options for the
interested public to obtain more detailed location information, if
desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This final rule does not contain any new collections of information
that require approval by OMB under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

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

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Because all of the
final critical habitat lies outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we will not prepare a NEPA analysis.

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), Executive Order 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 recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial 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 determined that Guadalupe fescue does not occur on any tribal
lands at the time of listing, and no tribal lands unoccupied by
Guadalupe fescue are essential for the conservation of the species.
Therefore, we are not designating critical habitat for Guadalupe fescue
on tribal lands.

References Cited

A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov in Docket No. FWS-R2-ES-
2016-0099 and FWS-R2-ES-2016-0100 and upon request from the Austin
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

[[Page 42259]]

Authors

The primary authors of this final rule are the staff members of the
Austin Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

Accordingly, we 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 adding an entry for ``Festuca ligulata'' to
the List of Endangered and Threatened Plants in alphabetical order
under FLOWERING PLANTS to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Festuca ligulata............... Guadalupe fescue. Wherever found... E................ 82 FR [Insert Federal
Register page where
the document begins],
September 7, 2017

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.96 by adding an entry for ``Festuca ligulata
(Guadalupe fescue)'' in alphabetical order under Family Poaceae to read
as follows:

Sec. 17.96 Critical habitat--plants.

(a) * * *
Family Poaceae: Festuca ligulata (Guadalupe fescue)
(1) A critical habitat unit, including five subunits, is depicted
for Brewster County, Texas, on the map below.
(2) Within these areas, the physical or biological features
essential to the conservation of Guadalupe fescue consist of:
(i) Areas within the Chihuahuan Desert:
(A) Above elevations of 1,800 m (5,905 ft), and
(B) That contain rocky or talus soils.
(ii) Associated vegetation characterized by relatively open stands
of both conifer and oak trees in varying proportions. This vegetation
may occur in areas classified as pine, conifer, pine-oak, or conifer-
oak, and as forest or woodland, on available vegetation classification
maps.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
October 10, 2017.
(4) Critical habitat map units. We defined the critical habitat
unit using the following Geographic Information System data layers: A
Digital Elevation Model produced by the U.S. Geological Survey; and a
Shapefile of vegetation classifications at Big Bend National Park,
created and provided to us by Park personnel. The map in this entry, as
modified by any accompanying regulatory text, establishes the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which the map is based are available to the public at
the Service's Internet site (https://www.fws.gov/southwest/es/AustinTexas/ESA_Our_species.html), at http://www.regulations.gov at
Docket No. FWS-R2-ES-2016-0099 and FWS-R2-ES-2016-0100, and at the
field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Map of Unit 1, Big Bend National Park, Brewster County, Texas,
follows:
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[[Page 42260]]

[GRAPHIC] [TIFF OMITTED] TR07SE17.000

* * * * *

Dated: August 29, 2017.
James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2017-19001 Filed 9-6-17; 8:45 am]
BILLING CODE C