Endangered and Threatened Wildlife and Plants; Endangered Species Status for Bushy Whitlow-Wort and Designation of Critical Habitat, 19526-19546 [2024-05700]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 89, Number 54 (Tuesday, March 19, 2024)]
[Proposed Rules]
[Pages 19526-19546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05700]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2023-0102; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BF72


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Bushy Whitlow-Wort and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the bushy whitlow-wort (Paronychia congesta), a perennial 
herbaceous plant species from northwestern Jim Hogg County in south 
Texas, as an endangered species under the Endangered Species Act of 
1973, as amended (Act). This determination also serves as our 12-month 
finding on a petition to list the bushy whitlow-wort. After a review of 
the best available scientific and commercial information, we find that 
listing the species is warranted. We also propose to designate critical 
habitat for the bushy whitlow-wort under the Act. In total, 
approximately 41.96 acres (16.98 hectares) in Jim Hogg County, Texas, 
fall within the boundaries of the proposed critical habitat 
designation. We announce the availability of a draft economic analysis 
(DEA) of the proposed designation of critical habitat for bushy 
whitlow-wort. If we finalize this rule as proposed, it would extend the 
Act's protections to the species and its designated critical habitat.

DATES: We will accept comments received or postmarked on or before May 
20, 2024. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by May 3, 2024.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2023-0102, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule

[[Page 19527]]

box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2023-0102, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R2-ES-2023-0102. For the proposed 
critical habitat designation, the coordinates or plot points or both 
from which the maps are generated are included in the decision file for 
this critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R2-ES-2023-0102.

FOR FURTHER INFORMATION CONTACT: Chuck Ardizzone, Field Supervisor, 
Texas Coastal Ecological Services Field Office, 17629 El Camino Real, 
Suite 211, Houston, TX 77058; telephone 281-286-8282. Individuals in 
the United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States. 
In compliance with the Providing Accountability Through Transparency 
Act of 2023, please see Docket No. FWS-R2-ES-2023-0102 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et 
seq.), a species warrants listing if it meets the definition of an 
endangered species (in danger of extinction throughout all or a 
significant portion of its range) or a threatened species (likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range). If we determine that a 
species warrants listing, we must list the species promptly and 
designate the species' critical habitat to the maximum extent prudent 
and determinable. We have determined that the bushy whitlow-wort meets 
the Act's definition of an endangered species; therefore, we are 
proposing to list it as such and proposing a designation of its 
critical habitat. Both listing a species as an endangered or threatened 
species and making a critical habitat designation can be completed only 
by issuing a rule through the Administrative Procedure Act rulemaking 
process (5 U.S.C. 551 et seq.).
    What this document does. We propose to list the bushy whitlow-wort 
as an endangered species under the Act, and we propose the designation 
of critical habitat for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the bushy whitlow-wort is 
endangered due to threats from wind energy development (Factor A) and 
the demographic and genetic consequences of low population redundancy 
and small population sizes (Factor E).
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary), to the maximum extent prudent and determinable, to 
designate critical habitat concurrent with listing. Section 3(5)(A) of 
the Act defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for nutrition, reproduction, or pollination;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional populations of this species;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Threats and conservation actions affecting the species, 
including:
    (a) Factors that may be affecting the continued existence of the 
species, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors;
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species; and
    (c) Existing regulations or conservation actions that may be 
addressing threats to this species.
    (3) Additional information concerning the historical and current 
status of this species.
    (4) Specific information on:
    (a) The amount and distribution of bushy whitlow-wort habitat;
    (b) Any additional areas that should be included in the critical 
habitat designation because they (i) are occupied at the time of 
listing and contain the physical or biological features that are 
essential to the conservation of the species and that may require 
special management considerations or protection, or (ii) are unoccupied 
at the time of listing and are essential for the conservation of the 
species;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) Whether occupied areas are adequate for the conservation of the

[[Page 19528]]

species. We seek this information to help us evaluate the potential to 
include areas not occupied at the time of listing in the critical 
habitat designation. Please provide specific information regarding 
whether or not unoccupied areas would, with reasonable certainty, 
contribute to the conservation of the species and contain at least one 
physical or biological feature essential to the conservation of the 
species. We also seek comments or information regarding whether areas 
not occupied at the time of listing qualify as habitat for the species.
    (5) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (6) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (7) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts and any additional information 
regarding probable economic impacts that we should consider.
    (8) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. If you think we should exclude any 
additional areas, please provide information supporting a benefit of 
exclusion.
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a threatened species must be made solely on the basis of 
the best scientific and commercial data available, and section 4(b)(2) 
of the Act directs that the Secretary shall designate critical habitat 
on the basis of the best scientific data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determinations may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any information that may become available after this proposal. Based 
on the new information we receive (and, if relevant, any comments on 
that new information), we may conclude that the species is threatened 
instead of endangered, or we may conclude that the species does not 
warrant listing as either an endangered species or a threatened 
species. For critical habitat, our final designation may not include 
all areas proposed, may include some additional areas that meet the 
definition of critical habitat, or may exclude some areas if we find 
the benefits of exclusion outweigh the benefits of inclusion and 
exclusion will not result in the extinction of the species. In our 
final rule, we will clearly explain our rationale and the basis for our 
final decisions, including why we made changes, if any, that differ 
from this proposal.

Public Hearing

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

Previous Federal Actions

    We recognized the bushy whitlow-wort as a candidate for listing 
under the Act in 1975 (40 FR 27824; July 1, 1975) and 1985 (50 FR 
39526; September 27, 1985). The species was removed from the candidate 
list twice, in 1980 (45 FR 82480; December 15, 1980) and 2006 (71 FR 
53756; September 12, 2006), due to insufficient information about its 
biological vulnerability and threats.
    In 2007, we received a petition to list 475 species, including 
bushy whitlow-wort, in the southwestern United States as endangered or 
threatened under the Act. In 2009, in response to this petition, we 
published a 90-day finding that the petitioned action may be warranted 
(74 FR 66866; December 16, 2009). Therefore, we initiated review of the 
status of the species to determine if the petitioned action is 
warranted.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the bushy whitlow-wort. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the bushy whitlow-wort SSA 
report. We sent the SSA report to eight independent peer reviewers and 
received no responses. We did, however, receive one review from Texas 
Parks and Wildlife Department, which provided information on wind 
turbines near bushy whitlow-wort populations. This information prompted 
us to reevaluate the immediacy of the threat of wind development, as 
further discussed below.

[[Page 19529]]

I. Proposed Listing Determination

Background

    The SSA report (USFWS 2023, pp. 1-7) presents a thorough review of 
the taxonomy, life history, and ecology of bushy whitlow-wort 
(Paronychia congesta).
    Bushy whitlow-wort is a perennial herbaceous plant in the carnation 
family (Caryophyllaceae) that has only been found in a very small area 
of northwestern Jim Hogg County in south Texas. The Texas Parks and 
Wildlife Department's (TPWD's) Natural Diversity Database (TXNDD) 
maintains geographic and population data of bushy whitlow-wort and 
other plant and animal species of conservation concern in Texas. These 
data are organized by standard geographical units for populations and 
habitats called ``element occurrences'' (EOs). Only two small EOs of 
bushy whitlow-wort have been found, and they are referred to as E.O. 1 
and E.O. 2. The two EOs cover a total area of 41.96 acres (ac) (16.98 
hectares (ha)) and are only 1.3 miles (mi) (2.1 kilometers (km)) apart; 
when the disturbed areas of the Farm to Market (FM) 649 right-of-way 
(ROW), unpaved ranch roads, and cleared pipeline ROWs are removed, the 
occupied area is 41.96 acres (16.98 hectares). There are only 12 
documented observations of the two EOs from 1963 through 2020. The 
maximum numbers of individuals observed at the two EOs are about 2,000 
individuals at E.O. 1 in 1987, and 1,904 individuals at E.O. 2 in 1994 
(TXNDD 2017, unpaginated). At other times, surveyors recorded from 0 to 
633 individuals (TXNDD 2017, unpaginated). This variation may have been 
due, in part, to the withering of the diminutive plant's stems during 
drought, making them undetectable; at most, the tufted mounds of 
foliage stand less than 10 inches (in) (25 centimeters (cm)) tall.
    The few recorded observations of bushy whitlow-wort have yielded 
some, but limited, information about its life history. The species 
flowers from spring to late summer, in response to rainfall, and 
produces tiny, one-seeded fruits. We know nothing about the 
pollinators, pollination biology, seed dispersal, seed dormancy, seed 
germination, rates of recruitment, mortality, demographic trends, 
reproductive age, or lifespan of bushy whitlow-wort. However, the woody 
rootstocks reveal that the species is clearly perennial, and possibly 
long-lived. Therefore, it is possible that, if bushy whitlow-wort does 
have low or sporadic recruitment, this may be compensated by long 
average lifespans.
    The two documented populations of bushy whitlow-wort occupy nearly 
barren, exposed, sloping outcrops of calcareous rock and/or indurated 
caliche along the boundary of the Goliad and Catahoula geological 
formations. ``Caliche'' is a word of Spanish origin that generally 
refers to soils or minerals of whitish appearance. However, the term 
has a specific geological meaning, referring to soil strata of calcium 
carbonate that precipitated as water evaporated from the soil. In 
contrast, limestone consists of calcium carbonate deposits that formed 
in ocean sediments. Caliche strata often form in arid regions; those of 
the Goliad formation formed in an arc parallel to the present Gulf of 
Mexico (Baskin and Hulbert 2008, pp. 93, 96-97).
    This geological transition zone from the Goliad to Catahoula 
formations is known locally as the Bordas Escarpment. In the vicinity 
of the bushy whitlow-wort populations, elevations drop about 151 feet 
(ft) (46 meters (m)) from northeast to southwest; these slopes occur 
along the uppermost reaches of the Arroyo Vele[ntilde]o watershed, a 
seasonal watercourse that flows into the Rio Grande at Zapata, Texas. 
The Goliad formation contains deposits of clay, sandstone, marl, 
caliche, limestone, and conglomerate. The older Catahoula formation 
contains deposits of clay, mudstone, volcanic tuff (i.e. rock formed 
from volcanic ash), volcanic conglomerate, sandstone, and sand, with 
some gypsum and calcareous concretions. In some places, outcrops of 
Goliad caliche overlie deep beds of Catahoula tuff. These tuff deposits 
are often calichified (Galloway et al. 1977, p. 37). Bushy whitlow-wort 
is likely to be a geo-endemic species that is restricted to exposed 
outcrops of Goliad formation caliche or calcareous rock; alternatively, 
it may be even more highly restricted to exposed calcareous tuff that 
occurs in specific places along the Goliad-Catahoula boundary. The 
species is likely to be a geo-endemic that is uniquely adapted to the 
soil or geological features that occur there.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (84 FR 44753; August 27, 2019). Our analysis for 
this decision applied the regulations that are currently in effect, 
which include the 2019 revisions. However, we proposed further 
revisions to these regulations on June 22, 2023 (88 FR 40764). In case 
those revisions are finalized before we make a final status 
determination for this species, we have also undertaken an analysis of 
whether the decision would be different if we were to apply those 
proposed revisions. We concluded that the decision would have been the 
same if we had applied the proposed 2023 regulations. The analyses 
under both the regulations currently in effect and the regulations 
after incorporating the June 22, 2023, proposed revisions are included 
in our decision file.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.

[[Page 19530]]

    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess bushy whitlow-wort's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time which we then used to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2023-0102 on https://www.regulations.gov and at https://ecos.fws.gov/ecp/species/6441.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.

Species Needs

    Our knowledge of the requirements of bushy whitlow-wort individuals 
is limited because the species has been observed on very few occasions 
and in only two places. We know nothing about the breeding system, 
pollinators, pollination biology, seed dispersal, seed dormancy, seed 
germination, rates of recruitment, mortality, demographic trends, 
reproductive age, or lifespan. Although we have no data on the 
reproductive age or average lifespans of individuals, the woody 
rootstocks are evidence that individuals are perennial and possibly 
long-lived.
    Individuals flower as early as April or as late as August in 
response to rainfall; the timing and amount of rainfall are likely to 
be important. Although we have no data to quantify these requirements, 
the average annual precipitation in the area where bushy whitlow-wort 
occurs is 23.8 in (60.4 cm), with the greatest amounts from May to July 
and September to October (NCDC 2020, entire). The average daily maximum 
temperature exceeds 95 degrees Fahrenheit ([deg]F) (35 degrees Celsius 
([deg]C)) from June through August, and the average frost-free period 
is from February 8 to December 11 (307 days) (Texas Almanac 2020, p. 
2).
    Bushy whitlow-wort is adapted to the hot, semi-arid, subtropical 
climate of the Tamaulipan shrublands of south Texas, where the dominant 
vegetation consists of dense, spiny shrubs reaching 4 to 6 ft (1.2 to 
1.8 m) in height. However, within this shrubland ecosystem, the species 
has only been found in nearly barren rocky outcrops, along slopes of 
the Bordas Escarpment. These outcrops consist of calcified volcanic 
tuff formed

[[Page 19531]]

along the exposed contact of the Goliad and Catahoula geological 
formations. The sites are mostly barren because it is difficult for 
roots to penetrate the calcified tuff, and the nearly white rocks 
reflect and intensify sunlight. Since the species has not been found 
elsewhere, it appears to require this type of substrate. Since not 
found elsewhere, the species may be more specifically restricted to 
outcrops of exposed calichified volcanic tuff in discrete locations 
along the boundary of the Goliad and Catahoula geological formations. 
The occupied sites occur in areas classified as Zapata soils and 
Cuevitas-Randado association; these soil types, or soils with very 
similar descriptions, occur in at least six other south Texas counties.
    We developed a potential habitat model based on the distribution of 
the geological, soil, and slope features because the bushy whitlow-wort 
is likely a geo-endemic that is uniquely adapted to such features. The 
model is based on only two population sites, and is a hypothesis based 
on the very limited available data on the species' habitat and 
distribution. This model indicates that a range of thousands to tens of 
thousands of hectares of potential habitat exist in south Texas; the 
largest clusters of potential habitat are in Webb, Jim Hogg, Zapata, 
and Starr Counties. Based on available botanical surveys, we estimate 
that less than 1 percent of this potential habitat has been surveyed by 
botanists qualified to identify the species. Nevertheless, extensive 
plant surveys have been conducted where caliche outcrops occur on 
tracts of the Lower Rio Grande Valley National Wildlife Refuge in 
southern Starr and southwestern Hidalgo Counties, and bushy whitlow-
wort has never been reported there.
    Accordingly, while the model indicates a large potential range, the 
fact that the species has been found in very limited portions of this 
range, even when surveyed, indicates that the potential range is 
smaller than the model would suggest. A reason for such limitation may 
be that the calcification of volcanic tuff deposits is a phenomenon 
that occurs sporadically along the boundary of the Goliad and Catahoula 
formations, and if we assume that bushy whitlow-wort is more 
specifically restricted to outcrops of calcareous tuff, its potential 
habitats would be only a small portion of the estimated potential 
habitat. This model could be improved if this species had been 
documented at more sites or by using additional geographic layers that 
explain the species' distribution. However, we are not aware of a data 
layer that specifically delineates areas of exposed calcareous tuff or 
any other geographic data layers that explain the distribution of bushy 
whitlow-wort. While this potential habitat model helps us determine 
where the species may be found and helps guide future surveys, the best 
available information indicates that the species is unlikely to occur 
throughout the areas predicted by the model.
    In order to characterize the viability of bushy whitlow-wort, we 
evaluated population needs for resiliency, redundancy, and 
representation. For habitat and demographic factors influencing 
resiliency, we assessed the habitat condition, the number of mature 
individuals, and the demographic trends of the populations.
    For habitat condition, we consider high-quality habitats to be 
those that have undisturbed soil and geologic profiles and intact 
native vegetation. Prior soil or geological disturbance and less than 
20 percent invasive plant cover characterize populations with moderate 
habitat quality, while recent or extensive soil or geological 
disturbance and greater than 20 percent invasive plant cover is 
considered characteristic of populations with low-quality habitat.
    A bushy whitlow-wort population with high resiliency would be large 
enough to have a high probability of surviving a prescribed period of 
time. The minimum viable population (MVP) is defined as a population 
that would have greater than 90 percent probability of persistence over 
100 years (Mace and Lande 1991, p. 151). Using a method for estimating 
plant MVPs (Pavlik 1996, p. 137) that incorporates our knowledge of 
various life-history factors, we estimate that the MVP for bushy 
whitlow-wort is approximately 1,300 reproductively mature individuals 
(USFWS 2023, p. 20). Based on this information, we estimate that a high 
condition population would have more than 1,300 individuals, a moderate 
condition population would range from 650 to 1,300 individuals, and a 
low condition population would have fewer than 650 individuals.
    Stable or increasing demographic trends over time are indicative of 
populations in good condition. This means that recruitment of new 
individuals is at least as great as mortality. Population resiliency 
also relies on sufficient numbers of individuals that are not too 
closely related or too widely dispersed for effective pollination, 
outcrossing, and seed production. Thus, high condition populations have 
greater net recruitment than net mortality over a 10-year period, while 
low resiliency populations have lower net recruitment than net 
mortality. If such demographic trends are unknown, we considered this 
to be indicative of moderate condition.
    Determination of population sizes and numbers requires a method for 
delineating populations. However, we currently have no data to estimate 
the extent of gene flow for bushy whitlow-wort through pollination and 
seed dispersal. We adopted a provisional minimum separation distance of 
0.6 mi (1.0 km) to delineate populations of bushy whitlow-wort, based 
on standards applied by TXNDD and NatureServe when the limits of gene 
flow are unknown (NatureServe 2002, p. 26).
    Redundancy indicates the number of populations and their 
distribution over the species' range. Species that have more 
populations distributed over a broader geographic range have a greater 
chance of surviving catastrophic events. Greater redundancy increases 
the probability that at least some populations will survive 
catastrophic events, such as extended drought. These populations should 
be distributed over the species' known range. For bushy whitlow-wort, 
we know of only two populations located 1.3 mi (2.1 km) apart.
    Representation refers to the breadth of genetic diversity and 
environmental adaptation necessary to conserve long-term adaptive 
capability. Populations must have enough genetic diversity to be able 
to adapt and survive when threatened by new pathogens, competitors, or 
changing environmental conditions. Furthermore, inbreeding increases 
within populations that lack genetic diversity; if the species is 
susceptible to inbreeding depression, this would lead to a loss of 
individual fitness, reduced reproductive output, higher mortality, and 
population decline. If the breeding system requires outcrossing, seed 
production and recruitment would decline within populations that lack 
genetic diversity. We do not know of any differentiation in 
representation in the two bushy whitlow-wort populations.

Threats

    The development of new oil and gas wells and infrastructure is a 
source of threats to the known populations of bushy whitlow-wort that 
is of low immediacy, but potentially high severity and large extent. 
Wind energy development is a severe source of threats throughout the 
species' range. These sources of threats can cause long-term impacts to 
the natural landscape, including the loss of native vegetative cover 
and soil compaction, and may include contamination of sites with

[[Page 19532]]

petroleum or chemical wastes used in drilling operations. In addition, 
the proliferation of roads supporting this development accelerates the 
spread of invasive plants, such as buffelgrass (Pennisetum ciliare). 
These threats, their sources, and their effects to bushy whitlow-wort 
are summarized below.
    We also considered other threats to the species. Urban and 
residential development and cattle grazing are not significant sources 
of threats to the species. Climate changes will likely affect bushy 
whitlow-wort in complex ways, but we cannot currently project the net 
effect of positive and negative interactions.

Loss of Native Vegetative Cover and Soil Compaction

    The development of new oil and gas wells, wind turbine sites, and 
associated access roads, pipelines, and power lines requires the 
complete removal of existing vegetation and the restructuring of the 
soil profile with bulldozers, road graders, and steam rollers. Even 
after well sites are abandoned, the compaction caused by the operation 
of heavy machinery and tractor-trailers impedes plant growth for many 
years. Plants do not establish or grow well in compacted soils because 
their roots cannot penetrate far into compacted material. Soil 
compaction also impedes the infiltration of water into the soil, 
leading to increased runoff and the formation of gully erosion, which 
may remove soil and uproot vegetation well beyond the original 
construction sites.
Invasive Species
    Nonnative, invasive grass species displace native plants by 
competing for water, nutrients, and light, and their dense root systems 
prevent germination of native plant seeds (Texas Invasives 2019, 
unpaginated). Buffelgrass is a perennial bunchgrass introduced from 
Africa in 1946 that has been widely planted in south Texas for 
livestock forage. It is now one of the most abundant introduced grasses 
in south Texas. Buffelgrass rapidly colonizes disturbed soils, such as 
along roadways, and the wind-borne seeds allow it to spread further 
into intact habitats; it often creates homogeneous monocultures by out-
competing native plants for essential resources (Best 2009, p. 310; 
Lyons et al. 2013, p. 8), and it produces phytotoxins in the soil that 
inhibit the growth of neighboring native plants (Vo 2013, unpaginated).
    Both EO 1 and EO 2 are close to FM 649 and are vulnerable to 
buffelgrass colonization. EO 2 is bisected by highway FM 649, which 
converted about 1.6 ha (4.0 ac) of habitat to pavement and graded 
right-of-way. In 2014, no bushy whitlow-wort individuals were observed 
during a survey of the public ROW of FM 649 where it transects EO 2 
(Strong and Williamson 2015, p. 126; TXNDD 2017, unpaginated). However, 
this ROW had recently been graded and was partially colonized by 
buffelgrass. Bushy whitlow-wort may have been eradicated from the ROW 
by disturbance and buffelgrass competition.
Oil and Gas Development
    Bushy whitlow-wort habitat occurs within areas of extensive oil and 
gas exploration and extraction. An area of intensive energy development 
in northern Zapata County is about 13 mi (21 km) west of the bushy 
whitlow-wort populations. Occupied and potential bushy whitlow-wort 
habitats are also about 18.6-31.0 mi (30-50 km) southeast of the Eagle 
Ford shale area of oil and natural gas production. Large reserves of 
oil and natural gas remain in the Eagle Ford shale, and fluctuation in 
petroleum markets may lead to new well production there, and perhaps 
also in the vicinity of bushy whitlow-wort habitats. We cannot project 
the likelihood of if or when this will occur. Petroleum and gas 
development in the Eagle Ford shale is not likely to have a direct 
effect on bushy whitlow-wort habitats, since they are physically 
separated, but renewed development of petroleum reserves that may 
underlie these habitats could cause their destruction and degradation. 
Oil and gas well development includes road building and ROW 
maintenance, and it increases the risk of contamination of these 
habitats. As a result, there are long-term impacts to the natural 
landscape, including the loss of native vegetative cover and soil 
compaction, as well as the potential contamination of sites with 
petroleum or chemical wastes used in drilling operations. In addition, 
the proliferation of roads supporting this development accelerates the 
spread of invasive plants, such as buffelgrass.
Contaminants
    Petroleum or chemical wastes used in drilling operations can 
contaminate sites either through direct impacts to existing plants, or 
indirectly through soil contamination. Soil contamination may lead to 
absorption of toxic materials, which may result in death of individual 
plants or may impact a plant's uptake of nutrients that are necessary 
for its growth and overall health.
Wind Energy Development
    The occupied and potential habitats of bushy whitlow-wort are 
closely aligned with areas of the highest average wind speed in South 
Texas; consequently, they have high potential for wind energy 
development. Wind power generation continues to grow in south Texas, 
including major new proposed wind farms in Jim Hogg and Zapata Counties 
(Contreras 2019, entire; Bordas Renewable Energy 2020, unpaginated; 
Corso 2020, entire). Wind farm development entails land clearing for 
arrays of wind turbines, access roads, and power lines. Since 2015, 
more than 1,000 wind turbines (Hoen et al. 2018, entire) have been 
constructed in the seven-county area of south Texas where we identified 
potential habitat, and new construction continues at a very rapid pace. 
Twenty-one turbines are located from 0.5 to 2.6 mi (0.8 to 4.2 km) from 
the known EOs of bushy whitlow-wort, and about 20 new turbines have 
been proposed, but not yet permitted, within this immediate area. In 
other regions of the United States, only about 19 percent of proposed 
wind projects are completed (DOE 2021, p. 3); nevertheless, Texas has 
installed more wind capacity than any other U.S. State in recent years 
(DOE 2022, p. 6), and the Electric Reliability Council of Texas, Inc. 
(ERCOT) projects total wind generation capacity additions ranging from 
13,700 megawatts (MW) to 27,100 MW, the equivalent of 4,500 to 9,000 
turbines, over the next 15 years in their long-term system assessment 
(ERCOT 2022, p. 7). The development of new wind farms and the 
concomitant land disturbance is an immediate threat to the known 
populations of bushy whitlow-wort, and a single development project 
could easily destroy a large portion of the species' known resources.
Grazing and Other Agricultural Uses
    The two known occupied habitats of bushy whitlow-wort have been 
used for livestock grazing for many years. Given that cattle are not 
attracted to the barren rock outcrops where the species occurs, the 
impact of trampling should be negligible, and we conclude that cattle 
grazing is not a significant threat to the species' survival. The very 
shallow soils of occupied populations are underlaid by indurated 
caliche along steep slopes and are not suitable for row crops or other 
agricultural uses. Thus, we do not anticipate habitat losses due to a 
change in agricultural use.

[[Page 19533]]

Urban Development
    One of the two EOs was bisected by highway FM 649 in 1954; we 
estimate that the highway construction and ROW destroyed about 4.03 ac 
(1.63 ha) of habitat. We are not aware of planned highway construction 
that would affect the occupied habitats. Due to the low population 
density in rural Jim Hogg County and the distance to population 
centers, currently there are no projected habitat losses to urban and 
residential development.
Climate Changes
    To evaluate how the climate of bushy whitlow-wort habitats may 
change, we used the National Climate Change Viewer (U.S. Geological 
Survey 2020, unpaginated) to compare past and projected future climate 
parameters of annual mean maximum temperature, annual mean 
precipitation, and annual evaporative deficit for Jim Hogg County, 
Texas. The magnitude of projected changes varies widely, depending on 
which scenario of future greenhouse gas emissions is used.
    We do not know how these projected climate changes, forecast by the 
range of models and emissions scenarios, will affect the interactions 
of bushy whitlow-wort with its habitat and associated plant and animal 
community. Higher temperatures and increasing evaporative deficit could 
reduce the species' growth, reproduction, and survival. Alternatively, 
these changes could increase the areas of nearly barren, exposed 
outcrops, thus increasing the amount of available habitat. Warmer 
winters might extend the growing season to the species' benefit. 
Climate changes might affect bushy whitlow-wort differently from 
species it competes with, such as the introduced, invasive buffelgrass. 
Thus, although it is likely that the projected climate changes will 
affect the viability of bushy whitlow-wort, we cannot confidently 
project what the net result of beneficial and detrimental effects will 
be.

Current Conditions

    To assess resiliency, we considered habitat quality, the number of 
mature individuals, and the demographic trends of the two populations. 
Habitats have been moderately disturbed in the past by gravel roads and 
petroleum infrastructure (EO 1) and a highway ROW (EO 2) but are 
otherwise intact. Additionally, habitats have been minimally disturbed 
by invasive plant cover due to their isolated location and rocky 
nature. Given this level of disturbance and minimal invasive plant 
cover, we consider current habitat to be in the moderate-quality 
condition category.
    Surveyors estimated about 2,000 individuals at EO 1 in 1987 and 
extrapolated 1,904 individuals at EO 2 in 1994. The only recent census, 
in 2014, detected 633 individuals in a very small portion of one EO, 
representing less than 5 percent of the total area of the EOs. Although 
we do not know the current size of either population, since the 
habitats are relatively intact, the best available information 
indicates that both exceed the MVP level of 1,300 individuals, 
resulting in a high-condition category for this demographic factor 
(USFWS 2023, p. 31).
    We have no information on demographic trends. However, given 
continued presumed presence of the bushy whitlow-wort at the two EOs, 
we assumed that net recruitment is approximately equal to net mortality 
resulting in a moderate-condition category for this demographic factor 
(USFWS 2023, p. 31). Combining the current conditions of these habitat 
and demographic factors (i.e. moderate condition for habitat quality, 
high condition for number of mature individuals, and moderate condition 
for demographic trends) we conclude that bushy whitlow-wort has two 
moderately resilient populations.
    Bushy whitlow-wort has low redundancy with only two known 
moderately resilient populations located 1.3 mi (2.1 km) apart. The 
degree of representation remains unknown, and we do not know of any 
differentiation in representation in the two populations. Additionally, 
small, isolated populations are more vulnerable to catastrophic losses 
caused by random fluctuations in recruitment (demographic 
stochasticity) or variations in rainfall or other environmental factors 
(environmental stochasticity) (USFWS 2016, p. 20). Small, 
reproductively isolated populations are susceptible to the loss of 
genetic diversity, to genetic drift, and to inbreeding (Barrett and 
Kohn 1991, pp. 3-30). There may not have been any recent gene flow 
between the two known populations of bushy whitlow-wort, and they may 
already suffer from genetic bottlenecks, genetic drift, inbreeding, and 
loss of allelic diversity (USFWS 2023, p. 25).

Future Scenarios

    As part of the SSA, we also developed three future scenarios to 
capture the range of uncertainties regarding future threats and the 
projected responses by bushy whitlow-wort. Our scenarios assumed energy 
development and climate change would have either limited or no impacts 
on the species or extensive adverse impacts in the future. Because we 
determined that the current condition of the bushy whitlow-wort is 
consistent with an endangered species (see Determination of Bushy 
Whitlow-Wort's Status, below), we are not presenting the results of the 
future scenarios in this proposed rule. Please refer to the SSA report 
(USFWS 2023, pp. 32-35) for the full analysis of future scenarios.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Determination of Bushy Whitlow-Wort's Status

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

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we found that there are only two known EOs of bushy whitlow-
wort with a combined occupied area of

[[Page 19534]]

41.96 ac (16.98 ha) (the area we consider occupied does not include the 
FM 649 ROW, the beds of unpaved ranch roads, or cleared pipeline ROWs). 
With only two moderately resilient populations and the small area of 
occurrence, the species is extremely vulnerable to both natural and 
anthropogenic impacts. Since the two EOs are only 1.3 mi (2.1 km) 
apart, this vulnerability is exacerbated by their close proximity.
    Bushy whitlow-wort currently has low population redundancy, as only 
two EOs of bushy whitlow-wort have been documented. The demographic and 
genetic consequences of small population sizes (Factor E) put the 
species at a higher risk of extinction due to the threats described 
above. A single event, such as prolonged drought, or a single 
development project could easily destroy a large portion of the 
species' known remaining resources. The close proximity of the two EOs 
increases this vulnerability.
    In particular, the occupied habitats of bushy whitlow-wort are 
closely aligned with areas of high potential for wind energy 
development (Factor A), and major proposed wind farms in Jim Hogg and 
Zapata Counties will entail land clearing for arrays of wind turbines, 
access roads, and power lines, thereby reducing available habitat for 
bushy whitlow-wort. The development of new wind farms and the 
concomitant clearing of habitat is an immediate, severe threat to the 
known populations of bushy whitlow-wort and potential habitat 
throughout the species' range. We used the best scientific and 
commercial data available to analyze the bushy whitlow-wort's current 
conditions. Based on this information we have concluded that the 
species is in danger of extinction throughout all of its range due to 
the severity, extent, and immediacy of threats currently impacting the 
species. We find that a threatened species status is not appropriate 
because bushy whitlow-wort has an extremely limited geographic range, 
the species' populations are very small, those populations are 
currently at risk of losing habitat from ongoing wind energy 
development. The threats to the species are currently ongoing and 
occurring across the entire range of the species. Due to the limited 
number of populations and the immediate threats to those populations, 
the species is in danger of extinction currently. Thus, after assessing 
the best available information, we determine that the bushy whitlow-
wort is in danger of extinction throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. We have determined that the bushy whitlow-wort is in 
danger of extinction throughout all of its range and accordingly did 
not undertake an analysis of any significant portion of its range. 
Because the bushy whitlow-wort warrants listing as endangered 
throughout all of its range, our determination does not conflict with 
the decision in Center for Biological Diversity v. Everson, 435 F. 
Supp. 3d 69 (D.D.C. 2020), which vacated the provision of the Final 
Policy on Interpretation of the Phrase ``Significant Portion of Its 
Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (79 FR 37578; July 1, 2014) 
providing that if the Service determines that a species is threatened 
throughout all of its range, the Service will not analyze whether the 
species is endangered in a significant portion of its range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the bushy whitlow-wort meets the Act's 
definition of an endangered species. Therefore, we propose to list the 
bushy whitlow-wort as an endangered species in accordance with sections 
3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
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, 
including the Service, 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. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. 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.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), 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. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Texas Coastal 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 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.

[[Page 19535]]

    If this species is listed, 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 would be eligible 
for Federal funds to implement management actions that promote the 
protection or recovery of the bushy whitlow-wort. Information on our 
grant programs that are available to aid species recovery can be found 
at: https://www.fws.gov/service/financial-assistance.
    Although the bushy whitlow-wort is only proposed for listing under 
the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. 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 of the Act is titled Interagency Cooperation and mandates 
all Federal action agencies to use their existing authorities to 
further the conservation purposes of the Act and to ensure that their 
actions are not likely to jeopardize the continued existence of listed 
species or adversely modify critical habitat. Regulations implementing 
section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    In contrast, section 7(a)(4) of the Act requires Federal agencies 
to confer with the Service on any action which is likely to jeopardize 
the continued existence of any species proposed to be listed under the 
Act or result in the destruction or adverse modification of critical 
habitat proposed to be designated for such species. Although the 
conference procedures are required only when an action is likely to 
result in jeopardy or adverse modification, action agencies may 
voluntarily confer with the Service on actions that may affect species 
proposed for listing or critical habitat proposed to be designated. In 
the event that the subject species is listed, or the relevant critical 
habitat is designated, a conference opinion may be adopted as a 
biological opinion and serve as compliance with section 7(a)(2) of the 
Act.
    Examples of discretionary actions for the bushy whitlow-wort that 
may be subject to conference and consultation procedures under section 
7 are land management or other landscape-altering activities on Federal 
lands administered by the Texas Department of Transportation (TxDOT), 
including maintenance of the ROW of Highway FM 649 or other highway 
maintenance activities, within the vicinity of the known bushy whitlow-
wort populations, as well as actions on State, Tribal, local, or 
private lands within the vicinity of the known bushy whitlow-wort 
populations 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, authorized, or carried out by a Federal agency--do not require 
section 7 consultation. Federal agencies should coordinate with the 
local Service Field Office (see FOR FURTHER INFORMATION CONTACT) with 
any specific questions on section 7 consultation and conference 
requirements.

II. 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.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal action agency 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 also 
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. Rather, designation 
requires that, where a landowner requests Federal agency funding or 
authorization for an action that may affect an area designated as 
critical habitat, the Federal agency consult with the Service under 
section 7(a)(2) of the Act. If the action may affect the listed species 
itself (such as for occupied critical habitat), the Federal agency 
would have already been required to consult with the Service

[[Page 19536]]

even absent the designation because of the requirement to ensure that 
the action is not likely to jeopardize the continued existence of the 
species. Even if the Service were to conclude after consultation that 
the proposed activity is likely to result in destruction or adverse 
modification of the critical habitat, the Federal action agency and the 
landowner are not required to abandon the proposed activity, or to 
restore or recover the species; instead, they must 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 data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    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.
    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 from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include 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) the prohibitions found in section 9 of the Act. 
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 will 
continue to contribute to recovery of the 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 those planning efforts calls for a 
different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, 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. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, 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. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
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 absence of 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 essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we 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 physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.

Surface Geology

    The two documented populations of bushy whitlow-wort occupy exposed 
slopes of calcareous rock and/or indurated caliche along the boundary 
of the Goliad geological formation and the Catahoula and Frio Clay 
(undivided) geological formation (Turner 1983, p. 5;

[[Page 19537]]

Damude and Poole 1990, pp. 9, 10, 12; Poole et al. 2007, p. 333).

Soils

    Soils in the vicinity of the known bushy whitlow-wort populations 
are classified as Zapata soils (Soil Conservation Service 1974, p. 17; 
Natural Resources Conservation Service (NRCS) 2020, unpaginated). The 
representative Zapata soil profile consists of grayish-brown fine sandy 
loam at and near the surface (0 to 2 in (0 to 5 cm) deep); brown sandy 
clay loam below that (2 to 8 in (5 to 20 cm) deep); and indurated, 
laminar, pinkish-white caliche below that (more than 8 in (20 cm) 
deep). The occupied sites are also very near or overlay areas of 
Cuevitas-Randado Association soils. A representative profile has brown 
and reddish-brown fine sandy loam near the surface (from 1 to 9 in (2.5 
to 23 cm) deep), and indurated, laminar, white caliche below that (more 
than 9 in (23 cm) deep). Clearly, Zapata and Cuevitas-Randado 
Association soils are very similar. Although the immediate area of 
occupied sites has very little soil, such areas of exposed rock are 
included within these soil map unit polygons.

Plant Community

    The plant community associated with bushy whitlow-wort is an open 
shrubland with the tallest plants reaching 4 to 6 ft (1.2 to 1.8 m) in 
height (Damude and Poole 1990, pp. 12, 13). Within this shrubland 
community, bushy whitlow-wort occurs primarily in nearly barren 
openings on exposed limestone, caliche, or calcareous tuff, where the 
nearly white rocks reflect and intensify sunlight.
    Nonnative, invasive grass species displace native plants by 
competing for water, nutrients, and light, and their dense root systems 
prevent germination of native plant seeds (Texas Invasives 2019, 
unpaginated). Buffelgrass is widely planted in south Texas for 
livestock forage and frequently displaces native grasses and herbaceous 
plants (Best 2009, pp. 310-311).

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of bushy whitlow-wort from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (USFWS 2023, entire; 
available on https://www.regulations.gov under Docket No. FWS-R2-ES-
2023-0102). We have determined that the following physical or 
biological features are essential to the conservation of bushy whitlow-
wort:
    (1) Exposed outcrops of calcified tuff,
    (2) Undisturbed or minimally disturbed soil horizons, and
    (3) Openings within shrubland communities that do not contain or 
have low levels of buffelgrass.

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 which 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: Nonnative, invasive grass; ROW construction and 
maintenance from energy development; and road and utility construction. 
Habitats have been moderately disturbed in the past by gravel roads, 
petroleum infrastructure, and a highway ROW, but they are otherwise 
intact. Management activities that could ameliorate these threats 
include, but are not limited to: Nonnative, invasive grass control; 
protection from activities that disturb the soil; and propagation and 
reintroduction of plants in restorable areas. These management 
activities would protect the physical or biological features for the 
species by reducing soil disturbance, limiting the impacts of 
competition with buffelgrass, and potentially increasing population 
sizes.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific 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 not currently proposing to 
designate any areas outside the geographical area occupied by the 
species because we have not identified any unoccupied areas that meet 
the Act's definition of critical habitat. Bushy whitlow-wort needs 
additional populations to reduce the likelihood of extinction, but 
there are no public lands in the area and we have limited access to 
privately owned lands and little information regarding lands that would 
be good candidates for introductions in the species' range. Therefore, 
we are not able to identify additional locations that contain at least 
one of the physical or biological features essential to the 
conservation of the species and that may have a reasonable certainty of 
contributing to conservation at this time.
    In summary, for areas within the geographical area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the E.O. boundaries established by the TXNDD; however, 
we did not include areas of disturbed soils (the ROW of FM 649, 
roadbeds of unpaved ranch roads, and cleared pipeline ROWs) that no 
longer contain the physical and biological features and that, due to 
repeated disturbance, are unlikely to be restored in the future.
    When determining proposed 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 bushy whitlow-wort. 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 proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation 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 propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain one or more of the physical or biological 
features that are essential to support the life-history processes of 
the species.
    Units are proposed for designation based on one or more of the 
physical or biological features being present to support bushy whitlow-
wort's life-history processes. Both proposed units contain all of the 
identified physical or biological features and support multiple life-
history processes.
    The proposed critical habitat designation is defined by the map, as 
modified by any accompanying regulatory text, presented at the end of

[[Page 19538]]

this document under Proposed Regulation Promulgation. 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 each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-
2023-0102.

Proposed Critical Habitat Designation

    We are proposing two units as critical habitat for bushy whitlow-
wort. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for bushy whitlow-wort. The two areas we propose as critical 
habitat are TXNDD EOs in Jim Hogg County. The table below shows the 
proposed critical habitat units and the approximate area of each unit. 
All units are occupied.

                         Table of Proposed Critical Habitat Units for Bushy Whitlow-Wort
                   [Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                                 Size of unit in acres
        Critical habitat unit           Land ownership by type         (hectares)               Occupied?
----------------------------------------------------------------------------------------------------------------
1. EO 1..............................  Private................            35.38 (14.32)  Yes.
2. EO 2..............................  Private................              6.57 (2.66)  Yes.
                                                               -------------------------
    Total............................  .......................            41.96 (16.98)  .......................
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of the two proposed units, and 
reasons why they meet the definition of critical habitat for bushy 
whitlow-wort, below.

Unit 1: E.O. 1

    Unit 1 consists of 35.38 ac (14.32 ha) in a geographic cluster of 
three polygons on private land within the boundaries of E.O. 1 in 
northwest Jim Hogg County. In this proposed unit, we do not include the 
FM 649 ROW or unvegetated roadbeds that are frequently driven on or are 
maintained by road grading, as these areas no longer contain the 
essential physical and biological features and they are unlikely to be 
restored in the future. Unit 1 was delineated through observation of 
recent orthographically corrected aerial photographs (USDA-FPAC-BC-APFO 
Aerial Photography Field Office 2018, unpaginated). The unit is 
occupied by the species and contains all of the physical or biological 
features essential to the conservation of bushy whitlow-wort. Areas 
adjacent to this unit contain a public ROW that is affected by 
invasive, nonnative buffelgrass. Therefore, special management may be 
required to reduce invasion of nonnative species.

Unit 2: E.O. 2

    Unit 2 consists of 6.57 ac (2.66 ha) in a geographic cluster of 10 
polygons on private land within the boundaries of E.O. 2 in northwest 
Jim Hogg County. In this proposed unit, we do not include unvegetated 
roadbeds that are frequently driven on or are maintained by road 
grading, as these areas no longer contain the essential physical and 
biological features and they are unlikely to be restored in the future. 
Unit 2 was delineated through observation of recent orthographically 
corrected aerial photographs (USDA-FPAC-BC-APFO Aerial Photography 
Field Office 2018, unpaginated). The unit is occupied by the species 
and contains all of the physical or biological features essential to 
the conservation of bushy whitlow-wort. This unit has been moderately 
disturbed in the past by gravel roads and petroleum infrastructure. 
Therefore, special management may be required to reduce invasion of 
nonnative 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 authorize, fund, 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. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    Compliance with the requirements of section 7(a)(2) of the Act is 
documented 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 formal 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 Service 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 set forth requirements for Federal 
agencies to reinitiate consultation if any of the following four 
conditions occur: (1) the amount or extent of taking specified in the 
incidental take statement is exceeded; (2) new information reveals 
effects of the action that may affect

[[Page 19539]]

listed species or critical habitat in a manner or to an extent not 
previously considered; (3) the identified action is subsequently 
modified in a manner that causes an effect to the listed species or 
critical habitat that was not considered in the biological opinion or 
written concurrence; or (4) a new species is listed or critical habitat 
designated that may be affected by the identified action. The 
reinitiation requirement applies only to actions that remain subject to 
some discretionary Federal involvement or control. As provided in 50 
CFR 402.16, the requirement to reinitiate consultations for new species 
listings or critical habitat designation does not apply to certain 
agency actions (e.g., land management plans issued by the Bureau of 
Land Management) in certain circumstances.

Destruction or Adverse Modification of Critical Habitat

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat for the 
conservation of the listed species. 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 violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that we may, during a consultation under section 7(a)(2) 
of the Act, consider likely to destroy or adversely modify critical 
habitat include, but are not limited to, actions that would degrade or 
destroy native plant communities. Such activities could include, but 
are not limited to, the construction of: roadways; wind, oil, and gas 
production sites; powerlines; pipelines; or other infrastructure 
developments. These activities could disturb the soil or could 
introduce or increase buffelgrass and other invasive grasses in the 
vicinity of bushy whitlow-wort individuals.

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 (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (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. No DoD lands with a completed INRMP are within the 
proposed 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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled, ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, 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. In our final rules, we explain any decision to exclude 
areas, as well as all decisions not to exclude, to make clear the 
rational basis for our decision. We describe below the process that we 
use for taking into consideration each category of impacts and any 
initial analyses of the relevant impacts.

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. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, land managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    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.

[[Page 19540]]

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. Section 3(f) of E.O. 
12866, as amended by E.O. 14094, identifies four criteria when a 
regulation is considered a ``significant regulatory action,'' and 
requires additional analysis, review, and approval if met. The 
criterion relevant here is whether the designation of critical habitat 
may have an economic effect of $200 million or more in any given year 
(section 3(f)(1)). Therefore, our consideration of economic impacts 
uses a screening analysis to assess whether a designation of critical 
habitat for bushy whitlow-wort is likely to exceed the economically 
significant threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the bushy whitlow-wort (Industrial Economics, Inc. 
(IEc) 2023, entire.). We began by conducting a screening analysis of 
the proposed designation of critical habitat in order to focus our 
analysis on the key factors that are likely to result in incremental 
economic impacts. The purpose of the screening analysis is to filter 
out particular geographical areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes any probable incremental economic impacts where land and 
water use may already be subject to conservation plans, land management 
plans, best management practices, or regulations that protect the 
habitat area as a result of the Federal listing status of the species.
    Ultimately, the screening analysis allows us to focus our analysis 
on evaluating the specific areas or sectors that may incur probable 
incremental economic impacts as a result of the designation. The 
presence of the listed species in occupied areas of critical habitat 
means that any destruction or adverse modification of those areas is 
also likely to jeopardize the continued existence of the species. 
Therefore, designating occupied areas as critical habitat typically 
causes little if any incremental impacts above and beyond the impacts 
of listing the species. As a result, we generally focus the screening 
analysis on areas of unoccupied critical habitat (unoccupied units or 
unoccupied areas within occupied units). Overall, the screening 
analysis assesses whether designation of critical habitat is likely to 
result in any additional management or conservation efforts that may 
incur incremental economic impacts. This screening analysis combined 
with the information contained in our IEM constitute what we consider 
to be our draft economic analysis (DEA) of the proposed critical 
habitat designation for the bushy whitlow-wort; our DEA is summarized 
in the narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
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 the bushy whitlow-wort, first we 
identified, in the IEM dated August 2, 2022, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Highway construction or maintenance; and (2) wind 
energy development. We considered each industry or category 
individually. Additionally, we considered whether the 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. If we 
list the species, in areas where the bushy whitlow-wort is present, 
Federal agencies would be required to consult with the Service under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the species. If we list the species, and at that time 
also finalize this proposed critical habitat designation, Federal 
agencies would be required to consider the effects of their actions on 
the designated habitat, and if the Federal action may affect critical 
habitat, our consultations would include an evaluation of measures to 
avoid the destruction or adverse modification of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the bushy 
whitlow-wort's critical habitat. Because the designation of critical 
habitat for bushy whitlow-wort is being proposed concurrently with the 
listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which would result solely from the designation 
of critical habitat. However, the following specific circumstances in 
this case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would likely adversely affect the essential physical or 
biological features of occupied critical habitat are also likely to 
adversely affect the species itself. The IEM outlines our rationale 
concerning this limited distinction between baseline conservation 
efforts and incremental impacts of the designation of critical habitat 
for this species. This evaluation of the incremental effects has been 
used as the basis to evaluate the probable incremental economic impacts 
of this proposed designation of critical habitat.
    The proposed critical habitat designation for the bushy whitlow-
wort includes two units totaling 41.96 ac (16.98 ha). Both units are 
considered occupied by the bushy whitlow-wort and contain the physical 
and biological features essential to the conservation of the species. 
We are not proposing to designate any units of unoccupied habitat. Both 
units of the proposed designation are entirely on private land. In 
these areas, any actions that may affect the species or its habitat 
would also affect designated critical habitat, and it is unlikely that 
any additional conservation efforts would be recommended to address the 
adverse modification standard over and above those recommended as 
necessary to avoid jeopardizing the continued existence of the bushy 
whitlow-wort. Therefore, the potential effects of the critical habitat 
designation are expected to be limited to administrative costs.
    While this additional analysis will require time and resources by 
both the Federal action agency and the Service, it is believed that, in 
most circumstances, these costs would predominantly be administrative 
in nature and would not be significant. Total incremental costs of 
critical habitat designation for the bushy whitlow-wort are anticipated 
to be less than $1,900 per year for the next 10 years. In total, fewer 
than one informal consultation and fewer than one technical assistance 
effort are

[[Page 19541]]

anticipated to occur annually across both proposed critical habitat 
units. The designation of critical habitat is not expected to trigger 
additional requirements under State or local regulations, and 
incremental perception-related impacts appear unlikely. Thus, the 
annual administrative burden is unlikely to reach $200 million.
    We are soliciting data and comments from the public on the DEA 
discussed above. During the development of a final designation, we will 
consider the information presented in the DEA and any additional 
information on economic impacts we receive during the public comment 
period to determine whether any specific areas should be excluded from 
the final critical habitat designation under the authority of section 
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and 
the 2016 Policy. We may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under the Act's section 4(a)(3)(B)(i), then 
national-security or homeland-security concerns are not a factor in the 
process of determining what areas meet the definition of ``critical 
habitat.'' However, the Service must still consider impacts on national 
security, including homeland security, on those lands or areas not 
covered by section 4(a)(3)(B)(i) because section 4(b)(2) requires the 
Service to consider those impacts whenever it designates critical 
habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or 
another Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
information, including a reasonably specific justification of an 
incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for bushy whitlow-
wort are not owned or managed by the DoD or DHS, and, therefore, we 
anticipate no impact on national security or homeland security.

Consideration of 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 discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area--such as HCPs, safe harbor agreements, or candidate 
conservation agreements with assurances--or whether there are non-
permitted conservation agreements and partnerships that may be impaired 
by designation of, or exclusion from, critical habitat. In addition, we 
look at whether Tribal conservation plans or partnerships, Tribal 
resources, or government-to-government relationships of the United 
States with Tribal entities may be affected by the designation. We also 
consider any State, local, social, or other impacts that might occur 
because of the designation.

Summary of Exclusions Considered under Section 4(b)(2) of the Act

    In preparing this proposal, we have determined that no HCPs or 
other management plans for bushy whitlow-wort currently exist, and the 
proposed designation does not include any Tribal lands or trust 
resources or any lands for which designation would have any economic or 
national-security impacts. Therefore, we anticipate no impact on Tribal 
lands, partnerships, or HCPs from this proposed critical habitat 
designation and thus, as described above, we are not considering 
excluding any particular areas on the basis of the presence of 
conservation agreements or impacts to trust resources.
    However, if through the public comment period we receive 
information that we determine indicates that there are potential 
economic, national security, or other relevant impacts from designating 
particular areas as critical habitat, then as part of developing the 
final designation of critical habitat, we will evaluate that 
information and may conduct a discretionary exclusion analysis to 
determine whether to exclude those areas under the authority of section 
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. 
If we receive a request for exclusion of a particular area and after 
evaluation of supporting information we do not exclude, we will fully 
describe our decision in the final rule for this action.

Required Determinations

Clarity of the Rule

    We are required by E.O.s 12866 and 12988 and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To

[[Page 19542]]

better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Regulatory Planning and Review (Executive Orders 12866, 13563, and 
14094)

    Executive Order (E.O.) 12866, as reaffirmed by E.O. 13563 and E.O. 
14094, provides that the Office of Information and Regulatory Affairs 
(OIRA) in the Office of Management and Budget (OMB) will review all 
significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. 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 this proposed 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 whether 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.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies 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 destroy or 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 would be directly 
regulated if we adopt the proposed critical habitat designation. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed 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, if made final, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial 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 to the extent 
permitted by law when undertaking actions identified as significant 
energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a 
``significant energy action'' as an action that (i) is a significant 
regulatory action under E.O. 12866 or any successor order (including, 
most recently, E.O. 14094 (88 FR 21879; April 11, 2023)); and (ii) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This rule is not a significant 
regulatory action under E.O. 12866 or E.O. 14094. Therefore, this 
action is not a significant energy action, and there is no requirement 
to prepare a statement of energy effects for this action.

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 finding:
    (1) This proposed 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

[[Page 19543]]

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 are not likely to 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 it will not produce a Federal 
mandate of $100 million or greater (adjusted annually for inflation) in 
any year, that is, it is not a ``significant regulatory action'' under 
the Unfunded Mandates Reform Act. The designation of critical habitat 
imposes no obligations on State or local governments and, as such, 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 bushy whitlow-wort 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 for the 
proposed designation of critical habitat for bushy whitlow-wort, and it 
concludes that, if adopted, this designation of critical habitat does 
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 proposed 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 proposed critical habitat designation 
with, appropriate State resource agencies. 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, the proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the Federal government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed 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 or biological features of the habitat necessary for 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 State and local 
governments in long-range planning because they 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 E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule would not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. To assist the public in 
understanding the habitat needs of the species, this proposed rule 
identifies the physical or biological features essential to the 
conservation of the species. The proposed areas of critical habitat are 
presented on a map, and the proposed rule 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 rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are 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.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This

[[Page 19544]]

includes listing, delisting, and reclassification rules, as well as 
critical habitat designations. In a line of cases starting with Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld 
this position.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination 
with Indian Tribal Governments), and the Department of the Interior's 
manual at 512 DM 2, we readily acknowledge our responsibility to 
communicate meaningfully with federally recognized Tribes on a 
government-to-government basis. In accordance with Secretary's Order 
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We have determined that no Tribal lands fall within the 
boundaries of the proposed critical habitat designation for the bushy 
whitlow-wort, so no Tribal lands would be affected by the proposed 
designation.

References Cited

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

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Texas 
Coastal Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec.  17.12, amend the table in paragraph (h) by adding an entry 
for ``Paronychia congesta'' 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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Paronychia congesta.............  Bushy whitlow-wort  Wherever found....  E              [Federal Register
                                                                                          citation when
                                                                                          published as a final
                                                                                          rule];
                                                                                         50 CFR 17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec.  17.96, amend paragraph (a) by adding an entry for ``Family 
Caryophyllaceae: Paronychia congesta (bushy whitlow-wort)'' after the 
entry for ``Family Caryophyllaceae: Arenaria ursina (Bear Valley 
sandwort)'' to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Caryophyllaceae: Paronychia congesta (bushy whitlow-wort)
    (1) Critical habitat units are depicted for Jim Hogg County, Texas, 
on the map in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of bushy whitlow-wort consist of the 
following components:
    (i) Exposed outcrops of calcified tuff;
    (ii) Undisturbed or minimally disturbed soil horizons; and
    (iii) Openings within shrubland communities that do not contain or 
have low levels of buffelgrass (Pennisetum ciliare).
    (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 
the effective date of the final rule.
    (4) Data layers defining map units were created on a base of U.S. 
Geological Survey digital ortho-photo quarter-quadrangles, and critical 
habitat units were then mapped using Universal Transverse Mercator 
(UTM) Zone 15N coordinates. 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 https://www.regulations.gov at Docket No. FWS-R2-ES-2023-0102, 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) Unit 1: E.O. 1; Jim Hogg County, Texas.
    (i) Unit 1 consists of 35.38 ac (14.32 ha) in a geographic cluster 
of three polygons in northwest Jim Hogg County and is composed of lands 
in private ownership.
    (ii) Map of Units 1 and 2 follows:

Figure 1 to Family Caryophyllaceae: Paronychia congesta (bushy whitlow-
wort) paragraph (5)(ii)
BILLING CODE 4333-15-P

[[Page 19545]]

[GRAPHIC] [TIFF OMITTED] TP19MR24.000


[[Page 19546]]


    (6) Unit 2: E.O. 2; Jim Hogg County, Texas.
    (i) Unit 2 consists of 6.57 ac (2.66 ha) in a geographic cluster of 
10 polygons in northwest Jim Hogg County and is composed of lands in 
private ownership.
    (ii) Map of Unit 2 is provided at paragraph (5)(ii) of this entry.
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-05700 Filed 3-18-24; 8:45 am]
BILLING CODE 4333-15-C