[Federal Register Volume 81, Number 175 (Friday, September 9, 2016)]
[Proposed Rules]
[Pages 62455-62469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21587]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2016-0100; 4500030113]
RIN 1018-BA75


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

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 
designate critical habitat for Festuca ligulata (Guadalupe fescue) 
under the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 7,815 acres (3,163 hectares) in Brewster County, Texas, 
located entirely in Big Bend National Park, fall within the boundaries 
of the proposed critical habitat designation. If we finalize this rule 
as proposed, it would extend the Act's protections to this species' 
critical habitat. We also announce the availability of a draft economic 
analysis (DEA) of the proposed designation of critical habitat for 
Guadalupe fescue.

DATES: We will accept comments on the proposed rule or DEA that are 
received or postmarked on or before November 8, 2016. Comments 
submitted electronically using the Federal eRulemaking Portal (see 
ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the 
closing date. We must receive requests for public hearings, in writing, 
at the address shown in FOR FURTHER INFORMATION CONTACT by October 24, 
2016.

ADDRESSES: You may submit comments on the proposed rule or DEA by one 
of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Keyword box, enter Docket No. FWS-R2-ES-
2016-0100, which is the docket number for this rulemaking. Then click 
on the Search button. On the resulting page, in the Search panel on the 
left side of the screen, under the Document Type heading, click on the 
Proposed Rules link to locate this document. You may submit a comment 
by clicking on ``Comment Now!''

[[Page 62456]]

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2016-0100, U.S. Fish and Wildlife 
Service, MS: BPHC, 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 http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Document availability: The DEA is available at https://www.fws.gov/southwest/es/AustinTexas/ESA_Our_species.html, at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0100, and at the 
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this proposed 
critical habitat designation and are available: at https://www.fws.gov/southwest/es/AustinTexas/ESA_Our_species.html, at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0100, and at the 
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT). Any additional tools or supporting information that we may 
develop for this critical habitat designation will also be available at 
the Fish and Wildlife Service Web site and Field Office set out above, 
and may also be included in the preamble and/or at http://www.regulations.gov.

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

SUPPLEMENTARY INFORMATION: 

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 concerned government agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of Guadalupe fescue habitat;
    (b) What areas occupied at the time of listing, and that contain 
features essential to the conservation of the species, should be 
included in the designation and why;
    (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;
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why; and
    (e) Current habitat information within McKittrick Canyon in 
Guadalupe Mountains National Park and whether any potential habitat 
areas there may be essential to the conservation of the Guadalupe 
fescue.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on Guadalupe fescue and proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (6) Information on the extent to which the description of economic 
impacts in the DEA is a reasonable estimate of the likely economic 
impacts.
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the associated documents of the 
DEA, and how the consequences of such reactions, if likely to occur, 
would relate to the conservation and regulatory benefits of the 
proposed critical habitat designation.
    (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.
    (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.
    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.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. You may request 
at the top of your document that we withhold personal information such 
as your street address, phone number, or email address from public 
review; however, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Austin Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    All previous Federal actions are described in the proposal to list 
Guadalupe fescue as an endangered species under the Act, published 
elsewhere in this issue of the Federal Register.

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

[[Page 62457]]

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

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be

[[Page 62458]]

expected to increase the degree of threat to the species, or
    (2) Such designation of critical habitat would not be beneficial to 
the species. In determining whether a designation would not be 
beneficial, the factors the Service may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    As stated in the proposed listing rule published elsewhere in this 
issue of the Federal Register, there is currently no imminent threat of 
take attributed to collection or vandalism for Guadalupe fescue, and 
identification and mapping of critical habitat is not expected to 
initiate any such threat. In the absence of finding that the 
designation of critical habitat would increase threats to a species, we 
determine if such designation of critical habitat would not be 
beneficial to the species. In our proposed listing rule, we determined 
that the present or threatened destruction, modification, or 
curtailment of a species' habitat or range is a threat to Guadalupe 
fescue. Therefore, because we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and would be beneficial, we find that designation of critical 
habitat is prudent for Guadalupe fescue.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for Guadalupe 
fescue is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for Guadalupe fescue.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, we consider the physical or biological features that 
are essential to the conservation of the species and which may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    We conducted a Species Status Assessment (SSA Report) for Guadalupe 
fescue, which is an evaluation of the best available scientific and 
commercial data on the status of the species. The SSA Report (Service 
2016; available at: https://www.fws.gov/southwest/es/AustinTexas/ESA_Our_species.html) is based on a thorough review of the natural 
history, habitats, ecology, populations, and range of Guadalupe fescue. 
The SSA Report provides the scientific information upon which this 
proposed critical habitat determination is based (Service 2016).

Space for Individual and Population Growth and for Normal Behavior

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

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

    Precipitation is important to Guadalupe fescue, as flowering and 
survival rates are positively correlated with rainfall amount and 
timing. The amount of rainfall over longer periods, such as the 
previous 21 months, appears to have more influence on flowering, which 
occurs from August to October, than rainfall during the previous 9 
months or the previous February through May (Service 2016, Appendix B). 
Population size may be positively correlated with rainfall over 
relatively long (33-month) periods. Rainfall (or drought) over shorter 
time frames appears to have less effect on population size. 
Precipitation amounts and patterns are weather conditions that support 
the physical or biological features for Guadalupe fescue.
    All historic and extant populations of Guadalupe fescue occur above 
about 1,800 meters (m) (5,905 feet (ft)) in the Chihuahuan Desert of 
northern Mexico and Texas, although we do not know the actual elevation 
tolerance of this species. Many plant species occur at relatively lower 
elevations in mountains where habitats are relatively cool and moist, 
such as in narrow ravines, north-facing slopes (in the northern 
hemisphere), or windward slopes where there is a pronounced rain shadow 
(higher rainfall on prevailing windward slopes). Larger habitat areas 
provide more opportunities for populations to migrate, as plant 
communities and weather patterns change, and therefore may be more 
suitable. Nevertheless, the 1,800-m elevation contour represents the 
best available information regarding the elevation tolerance of this 
species.
    Habitat areas do not need to be contiguous to be considered 
occupied, provided that they are not separated by wide, low-elevation 
gaps. This rational is based on expected long-distance dispersal of 
viable seeds of Guadalupe fescue by Carmen white-tailed deer 
(Odocoileus virginianus carminis), the most common ungulate in the 
Chisos Mountains. The diet of Carmen white-tailed deer consists of up 
to 12 percent grasses. Carmen white-tailed deer use habitats with dense 
stands of oak and the presence of free-standing water, and the range is 
restricted to elevations above 906 to 1,220 m (2,970 to 4,000 ft). The 
estimated home range is a radius of 1.1 to 2.4 kilometers (km) (0.7 to 
1.5 miles (mi)). Hence, we expect that Carmen white-tailed deer are 
able to

[[Page 62459]]

disperse viable seeds of Guadalupe fescue to potential habitats that 
are not separated by gaps that are below about 1,000 m (3,208 ft) and 
more than 2.4 km (1.5 mi) wide.
    All known populations of Guadalupe fescue occur in rocky or talus 
soils of partially shaded sites in the understory of conifer-oak 
woodlands within the Chihuahuan Desert. The associated vegetation 
consists of relatively open stands of both conifer and oak trees in 
varying proportions. Conifer-oak woodlands may occur in areas 
classified as pine, conifer, pine-oak, or conifer-oak, and as forest or 
woodland, on available vegetation classification maps. The conifer 
species typically include one or more of the following: Mexican pinyon 
(Pinus cembroides), Arizona pine (P. arizonica), southwestern white 
pine (P. strobiformis), alligator juniper (Juniperus deppeana), 
drooping juniper (J. flaccida), and Arizona cypress (Cupressus 
arizonica). Characteristic oaks include one or more of the following: 
Chisos red oak (Quercus gravesii), gray oak (Q. grisea), Lacey oak (Q. 
laceyi), and silverleaf oak (Q. hypoleucoides). Other broadleaf trees, 
such as bigtooth maple (Acer grandidentatum), may also occur in this 
element. Therefore, we consider areas of rocky or talus soils of 
partially shaded sites in the understory of conifer-oak woodlands above 
elevations of 1,800 m (5,905 ft) within the Chihuahuan Desert to be a 
physical or biological feature of Guadalupe fescue.

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

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

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential 
for Guadalupe fescue from studies of this species' habitat, ecology, 
and life history, as described above. Additional information can be 
found in the proposed listing rule, published elsewhere in this issue 
of the Federal Register, and in the SSA Report (Service 2016). We have 
determined that the following physical or biological features are 
essential to the conservation of Guadalupe fescue:
    (1) Areas within the Chihuahuan Desert:
    (a) Above elevations of 1,800 m (5,905 ft), and
    (b) That contain rocky or talus soils.
    (2) Associated vegetation characterized by relatively open stands 
of both conifer and oak trees in varying proportions. This may occur in 
areas classified as pine, conifer, pine-oak, or conifer-oak, and as 
forest or woodland, on available vegetation classification maps.

Special Management Considerations or Protection

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

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
In accordance with the Act and our implementing regulations at 50 CFR 
424.12(b), we review available information pertaining to the habitat 
requirements of the species and identify specific areas within the 
geographical area occupied by the species at the time of listing and 
any specific areas outside the geographical area occupied by the 
species to be considered for designation as critical habitat. We are 
proposing to designate critical habitat in areas within the United 
States that are occupied by Guadalupe fescue at the time of proposed 
listing in 2016. Occupied habitat for Guadalupe fescue is defined as 
areas with positive survey records since 2009 (when the Maderas del 
Carmen population in Mexico was last documented), and habitat areas 
around sites with positive survey records that contain conifer-oak 
woodlands and that are not separated by gaps of lower-elevation (<1,000 
m) terrain and are within the maximum distance that seed dispersal is 
expected to occur (about 2.4 km (1.5 mi)).
    Habitat areas do not need to be contiguous to be considered 
occupied, provided that they are not separated by wide, low-elevation 
gaps. This rational is based on expected long-distance dispersal of 
viable seeds of Guadalupe fescue by Carmen white-tailed deer, the most 
common ungulate in the Chisos Mountains. The diet of Carmen white-
tailed deer consists of up to 12 percent grasses. Carmen white-tailed 
deer use habitats with dense stands of oak and the presence of free-
standing water, and the range is restricted to elevations above 906 to 
1,220 m (2,970 to 4,000 ft). The estimated home range is a radius of 
1.1 to 2.4 km (0.7 to 1.5 mi). Hence, we expect that Carmen white-
tailed deer are able to disperse viable seeds of Guadalupe fescue to 
potential habitats that are not separated by gaps that are below about 
1,000 m (3,208 ft) and not more than 2.4 km (1.5 mi) wide.
    Sources of data on Guadalupe fescue occurrences include: The Texas 
Natural Diversity Database; herbarium records from the University of 
Texas, Missouri Botanical Garden, and University of Arizona; a survey 
report by Vald[eacute]s-Reyna (2009); a status survey (Poole 1989); and 
monitoring data from Big Bend National Park (Sirotnak 2014). We 
obtained information on ecology and habitat requirements from the 
candidate

[[Page 62460]]

conservation agreement (Big Bend National Park and Service 2008), 
scientific reports (Camp et al. 2006; Moir and Meents 1981; Zimmerman 
and Moir 1998), and Rare Plants of Texas (Poole et al. 2007). Big Bend 
National Park (2015) provided a recently revised vegetation 
classification map of the Park. We used Digital Elevation Models 
created by the U.S. Geological Service. We documented a review and 
analysis of these data sources in the SSA Report (Service 2016).

Areas Occupied at the Time of Listing

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

Proposed Critical Habitat Designation

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

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

    Below, we present a brief description of the Chisos Mountains Unit 
(including all subunits) and reasons why it meets the definition of 
critical habitat for Guadalupe fescue.

Unit 1: Chisos Mountains

    Unit 1 consists of 7,815 ac (3,163 ha) in the Chisos Mountains of 
Big Bend National Park. This unit is within the geographical area 
occupied by the species at the time of listing and contains all of the 
physical or biological features essential to the conservation of 
Guadalupe fescue. The habitat within Unit 1 consists of elevations of 
1,800 m (5,905 ft) or greater, and the associated vegetation is 
classified as pine, pine-oak, juniper-oak, or conifer-oak. The 
geographic delineation of the unit

[[Page 62461]]

resulted in five subunits that are separated from each other by narrow 
gaps of lower-elevation terrain, but are otherwise similar with respect 
to vegetation, geological substrate, and soils. The physical or 
biological features in this unit may require special management 
considerations or protection to address threats from changes in 
wildfire frequency, livestock grazing, erosion and trampling by 
visitors hiking off the trail, and invasive species.

Effects of Critical Habitat Designation

Section 7 Consultation

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

Application of the ``Adverse Modification'' Standard

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

[[Page 62462]]

actions could include, but are not limited to, excavation of the soil; 
removal of vegetation and litter; or construction of roads, trails, or 
structures that channel runoff and form gullies. The loss or 
disturbance of soil could deplete the soil seed bank of Guadalupe 
fescue or alter soil depth and composition to a degree that is no 
longer suitable for Guadalupe fescue. However, some actions that affect 
soil or litter may be prescribed to improve habitat conditions for 
Guadalupe fescue, such as prescribed burning, and would, therefore, not 
be considered adverse modifications.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation.'' There are no 
Department of Defense lands with a completed INRMP within the 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 critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
Guadalupe fescue, the benefits of critical habitat include public 
awareness of the presence of Guadalupe fescue and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
habitat protection for Guadalupe fescue due to protection from adverse 
modification or destruction of critical habitat. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects undertaken by Federal agencies. Because Guadalupe fescue 
critical habitat is located exclusively on National Park Service lands, 
a Federal nexus exists for any action.
    We have not considered any areas for exclusion from critical 
habitat. However, the final decision on whether to exclude any areas 
will be based on the best scientific data available at the time of the 
final designation, including information obtained during the comment 
period and information about the economic impact of designation. 
Accordingly, we have prepared a draft economic analysis (DEA) 
concerning the proposed critical habitat designation, which is 
available for review and comment (see ADDRESSES, above).

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 socioeconomic burden imposed 
on landowners, 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). The baseline, 
therefore, 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 section 4(b)(2) exclusion analysis.
    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 Guadalupe fescue (IEc 2016, 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 the geographic areas in which the 
critical habitat designation is unlikely to result in probable 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes probable economic impacts where land and water use may 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. The screening analysis 
filters out particular areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. 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 screening analysis also assesses whether units are 
unoccupied by the species and may require additional management or 
conservation efforts as a result of the critical habitat designation 
for the

[[Page 62463]]

species which may incur incremental economic impacts. This screening 
analysis, combined with the information contained in our IEM, is what 
we consider our DEA of the proposed critical habitat designation for 
Guadalupe fescue and is summarized in the narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O.s' regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess, to the extent practicable, 
the probable impacts to both directly and indirectly affected entities. 
As part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely to be 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for Guadalupe fescue, first we 
identified, in the IEM dated February 23, 2016, probable incremental 
economic impacts associated with the following categories of 
activities: Federal lands management (National Park Service, Big Bend 
National Park).
    We considered each industry or category individually. Additionally, 
we considered whether their activities have any Federal involvement. 
Critical habitat designation generally will not affect activities that 
do not have any Federal involvement; under the Act, designation of 
critical habitat only affects activities conducted, funded, permitted, 
or authorized by Federal agencies. In areas where Guadalupe fescue is 
present, Federal agencies will be required to consult with the Service 
under section 7 of the Act on activities they fund, permit, or 
implement that may affect the species, should the species be listed as 
an endangered species. If we finalize the proposed listing and critical 
habitat designation, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process. Therefore, disproportionate impacts to 
any geographic area or sector are not likely as a result of this 
critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that will 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 Guadalupe 
fescue's critical habitat. Because the designation of critical habitat 
for Guadalupe fescue was 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 will 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 result in sufficient harm or harassment to constitute 
jeopardy to Guadalupe fescue would also likely adversely affect the 
essential physical or biological features of critical habitat. 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 Guadalupe fescue 
consists of a single unit composed of five subunits, all of which are 
currently occupied by the species. We are not proposing to designate 
any units of unoccupied habitat. The proposed Chisos Mountains critical 
habitat unit totals 7,815 ac (3,163 ha) and is entirely contained 
within federally owned land at Big Bend National Park. We have not 
identified any ongoing or future actions that would warrant additional 
recommendations or project modifications to avoid adversely modifying 
critical habitat above those we would recommend for avoiding jeopardy.
    Regarding projects that would occur in occupied habitat outside 
known population locations, we will recommend that Big Bend National 
Park first conduct surveys for Guadalupe fescue within the project 
impact area. If the species is found, we would recommend the same 
modifications previously described for avoiding jeopardy to the 
species. If the species is not found, we will recommend only that Big 
Bend National Park follow its established land management procedures.
    We anticipate minimal change in behavior at Big Bend National Park 
if we designate critical habitat for Guadalupe fescue. The only change 
we foresee is conducting surveys in areas of critical habitat based on 
our recommendation for surveys. Based on Big Bend National Park's 
history of consultation under section 7 of the Act and on the 
consultation history of the most comparable species, Zapata bladderpod 
(Lesquerella thamnophila), we anticipate that this critical habitat 
designation may result in a maximum of two additional consultations per 
decade.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule. We may 
revise the proposed rule or supporting documents to incorporate or 
address information we receive during the public comment period. In 
particular, 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.

Exclusions

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. In our DEA, we did not identify any ongoing or future actions 
that would warrant additional recommendations or project modifications 
to avoid adversely modifying critical habitat above those we would 
recommend for avoiding jeopardy to the species, and we anticipate 
minimal change in behavior at Big Bend National Park due to the 
designation of critical habitat for Guadalupe fescue (IEc 2016).
    At this time, we are not proposing any exclusions based on economic 
impacts from the proposed designation of critical habitat for Guadalupe 
fescue. During the development of a final designation, we will consider 
any additional economic impact information received through the public 
comment period, and as such areas may be excluded from the final 
critical habitat designation under section 4(b)(2) of the Act and our 
implementing regulations at 50 CFR 424.19.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands where a national security impact might exist. In preparing this 
proposal, we have

[[Page 62464]]

determined that the lands within the proposed designation of critical 
habitat for Guadalupe fescue are not owned or managed by the Department 
of Defense or Department of Homeland Security. In addition, the 
locations of the proposed critical habitat areas are at high elevations 
in remote areas of Big Bend National Park and not close enough to the 
international border with Mexico to raise any border maintenance 
concerns. Therefore, we anticipate no impact on national security. 
Consequently, the Secretary is not intending to exercise her discretion 
to exclude any areas from the final designation based on impacts on 
national security.

Exclusions Based on Other Relevant Impacts

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

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data and analyses. We have invited these peer reviewers to comment 
during this public comment period.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, the final decision may differ from 
this proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received by the date 
specified above in DATES. Such requests must be sent to the address 
shown in FOR FURTHER INFORMATION CONTACT. We will schedule public 
hearings on this proposal, if any are requested, and announce the 
dates, times, and places of those hearings, as well as how to obtain 
reasonable accommodations, in the Federal Register and local newspapers 
at least 15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

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

[[Page 62465]]

directly regulated by this rulemaking, the Service certifies that, if 
made final, 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 when undertaking 
certain actions. In our economic analysis, we did not find that the 
designation of this proposed critical habitat will significantly affect 
energy supplies, distribution, or use, because the proposed critical 
habitat unit is entirely contained within Big Bend National Park. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required. However, we will further 
evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment as warranted.

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

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

Takings--Executive Order 12630

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

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this 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 request information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies in Texas. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, this proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the national government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The designation may have some benefit to these governments 
because the areas that contain the features essential to the 
conservation of the species are more clearly defined, and the physical 
and biological features of the habitat necessary to the conservation of 
the species are specifically identified. This information does not 
alter where and what federally sponsored activities may occur. However, 
it may assist these local governments in long-range planning (because 
these local governments no

[[Page 62466]]

longer have to wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

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

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

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

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

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations With Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined that Guadalupe fescue does not occur on any tribal 
lands at the time of listing, and no tribal lands unoccupied by 
Guadalupe fescue are essential for the conservation of the species. 
Therefore, we are not proposing to designate critical habitat for 
Guadalupe fescue on tribal lands. In addition, no tribes have expressed 
interest in either the species or the areas proposed as critical 
habitat, and no further tribal coordination will be conducted unless 
requested during the public comment period for this proposed rule.

Clarity of the Rule

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

References Cited

    A complete list of references cited in this rulemaking is available 
in the SSA Report (Service 2016) on the Internet at http://www.regulations.gov and upon request from the Austin Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rulemaking are the staff 
members of the Austin Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

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


Sec.  17.96  Critical habitat--plants.

* * * * *
    (a) Flowering plants.
* * * * *
    Family Poaceae: Festuca ligulata (Guadalupe fescue)
    (1) Critical habitat units are depicted for Brewster County, Texas, 
on the map below.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Guadalupe fescue consist of:
    (i) Areas within the Chihuahuan Desert:
    (A) Above elevations of 1,800 m (5,905 ft), and
    (B) That contain rocky or talus soils.

[[Page 62467]]

    (ii) Associated vegetation characterized by relatively open stands 
of both conifer and oak trees in varying proportions. This may occur in 
areas classified as pine, conifer, pine-oak, or conifer-oak, and as 
forest or woodland, on available vegetation classification maps.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. We defined the critical habitat 
unit using the following Geographic Information System data layers: A 
Digital Elevation Model produced by U.S. Geological Survey; and a 
Shapefile of vegetation classifications at Big Bend National Park, 
created and provided to us by Park personnel. The map in this entry, as 
modified by any accompanying regulatory text, establishes the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which the map is based are available to the public at 
the Service's Internet site (https://www.fws.gov/southwest/es/AustinTexas/ESA_Our_species.html), at http://www.regulations.gov at 
Docket No. FWS-R2-ES-2016-0100, and at the field office responsible for 
this designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Map of Unit 1, Big Bend National Park, Brewster County, Texas, 
follows:
BILLING CODE 4333-15-P

[[Page 62468]]

[GRAPHIC] [TIFF OMITTED] TP09SE16.000


[[Page 62469]]


* * * * *

    Dated: August 22, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2016-21587 Filed 9-8-16; 8:45 am]
 BILLING CODE 4333-15-C