Endangered and Threatened Wildlife and Plants; Endangered Species Status for Guadalupe Fescue; Designation of Critical Habitat for Guadalupe Fescue, 42245-42260 [2017-19001]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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 https://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 https://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 https://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

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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

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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

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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 
(https://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

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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: https://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: https://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 https://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 https://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 https://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 https://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 https://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:
 BILLING CODE P

[[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