[Federal Register Volume 88, Number 69 (Tuesday, April 11, 2023)]
[Rules and Regulations]
[Pages 21844-21876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07118]



[[Page 21843]]

Vol. 88

Tuesday,

No. 69

April 11, 2023

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Bracted Twistflower and Designation 
of Critical Habitat; Final Rule

  Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2021-0013; FF09E21000 FXES11110900000 234]
RIN 1018-BE44


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Bracted Twistflower and Designation 
of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the bracted twistflower (Streptanthus 
bracteatus), a plant species from Texas. In addition, we designate 
critical habitat for the bracted twistflower. In total, approximately 
1,596 acres (646 hectares) in Uvalde, Medina, Bexar, and Travis 
Counties, Texas, fall within the boundaries of the critical habitat 
designation. This rule applies the protections of the Act to this 
species and its designated critical habitat. We also finalize a rule 
issued under the authority of section 4(d) of the Act (a ``4(d) rule'') 
that provides measures that are necessary and advisable to provide for 
the conservation of this species.

DATES: This rule is effective May 11, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2021-0013.
    For the critical habitat designation, the coordinates or plot 
points or both from which the maps are generated are included in the 
decision file and are available at https://www.regulations.gov at 
Docket No. FWS-R2-ES-2021-0013. Any additional tools or supporting 
information that we developed for this critical habitat designation 
will also be available on the Service's website, at https://www.regulations.gov, or both.

FOR FURTHER INFORMATION CONTACT: Karen Myers, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office, 
1505 Ferguson Lane, Austin, Texas; telephone 512-927-3500. 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.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, 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 endangered in 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 bracted 
twistflower meets the Act's definition of a threatened species; 
therefore, we are listing it as such and designating critical habitat. 
Both listing a species as an endangered or threatened species and 
designating critical habitat can be completed only by issuing a rule 
through the Administrative Procedure Act rulemaking process.
    What this document does. This rule makes final the listing of the 
bracted twistflower as a threatened species with a 4(d) rule and 
designates critical habitat for the species under the Act. We are 
designating critical habitat for the species in three units totaling 
1,596 acres (646 hectares) in Uvalde, Medina, Bexar, and Travis 
Counties in Texas. This rule adds the bracted twistflower to the List 
of Endangered and Threatened Plants in title 50 of the Code of Federal 
Regulations (CFR) at 50 CFR 17.12(h), adds a 4(d) rule to 50 CFR 17.73, 
and adds critical habitat for this species to 50 CFR 17.96(a).
    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 primary threats to the 
bracted twistflower are loss of habitat due to urban and residential 
development, changes in structure and composition of vegetation and 
wildfire frequency, and herbivory by dense populations of white-tailed 
deer (Odocoileus virginianus) and introduced ungulates.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. 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.

Previous Federal Actions

    Please refer to the proposed listing and critical habitat rule (86 
FR 62668; November 10, 2021) for a detailed description of previous 
Federal actions concerning the bracted twistflower.

Summary of Changes From the Proposed Rule

    Based on review of survey data and comments received from the City 
of Austin, we have revised the critical habitat boundary in Subunit 1d 
to remove the proposed eastern and southern polygons, resulting in a 
reduction of 10.45 acres (ac) (4.23 hectares (ha)) from the proposed 
critical habitat designation. Although there was a historical record of 
bracted twistflower plants within these areas, individuals have not 
been documented since 1989, despite regular surveying. Therefore, the 
Service has determined that these polygons are unoccupied and do not 
meet the definition of occupied critical habitat. Additionally, these 
areas are not essential for the conservation of the species and, 
accordingly, should not be designated as unoccupied critical habitat.
    Based on a public comment, we revised the species status assessment 
(SSA) report to include the harmonic mean for those sites for which we 
have adequate data.

[[Page 21845]]

    Based on new information we received, in this final rule, we 
acknowledge that the Balcones Canyonlands Preserve critical habitat 
units are jointly managed by the Parks and Recreation Department and 
Austin Water's Wildland Conservation Division, and the City of Austin 
now owns Bright Leaf Preserve. Additionally, we will update the SSA 
report to include the new group of bracted twistflower plants that was 
found at Valburn/Bull Creek District Park in 2020 when we receive the 
revised data.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the bracted twistflower (Service 2021, entire). 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 
sought the expert opinions of six appropriate specialists regarding the 
SSA. We received one response. We also sent the SSA report to four 
partners, including scientists with expertise in local plant species, 
for review. We received review from all four partners (Texas Parks and 
Wildlife Department, the City of Austin, the City of San Antonio, and 
Joint Base San Antonio). The peer reviews can be found at https://www.regulations. In preparing the proposed rule, we incorporated the 
results of these reviews, as appropriate, into the SSA report, which 
was the foundation for the proposed rule and this final rule. A summary 
of the peer review comments and our responses can be found in the 
Summary of Comments and Recommendations below.

I. Final Listing Determination

Background

    Bracted twistflower is an annual herbaceous plant in the mustard 
family (Brassicaceae) that occurs only along the southeastern edge of 
the Edwards Plateau of central Texas. There are currently 35 described 
species of Streptanthus. Bracted twistflower can be distinguished from 
most other members of this genus because the leaves borne on the flower 
stalk lack stems and all flower stems have a small, modified leaf, 
called a bract, at their bases.
    Bracted twistflower habitats occur near the boundary between the 
Edwards or Devils River limestone formations and the Glen Rose 
limestone formation. Individual plants commonly occur near or under a 
canopy of Ashe juniper (Juniperus ashei), Texas live oak (Quercus 
fusiformis), Texas mountain laurel (Sophora secundiflora), Texas red 
oak (Quercus buckleyi), or other trees.
    The seeds germinate in response to fall and winter rainfall, 
forming basal rosettes, and the flower stalks emerge the following 
spring bearing showy, lavender-purple flowers. The seed capsules remain 
attached to the stalks during the summer as they mature and dehisce, 
releasing the seeds to be dispersed by gravity. The foliage withers as 
the fruits mature, and the plants die during the heat of summer. This 
species is primarily an outcrossing species; the leafcutter bee 
Megachile comata (family: Megachilidae) is known to be an effective 
pollinator. Because the seeds of bracted twistflower do not disperse 
far, gene flow for this species occurs mainly through pollination.
    Since 1989, populations of the bracted twistflower have been 
documented at 17 naturally occurring element occurrences (EOs) in five 
counties, as well as one experimental trial in Travis County (see table 
1, below). We have adopted the EO standard to maintain consistency with 
the Texas Parks and Wildlife Department's Natural Diversity Database 
(TXNDD) and because the EOs used in the TXNDD are practical 
approximations of populations, based on the best available scientific 
information. Each EO may consist of one to many ``source features,'' 
which are specific locations where one or more individuals have been 
observed one or more times.
    Bracted twistflower is an annual plant, and the numbers of 
individuals that germinate at the source features of each EO vary 
widely from year to year in response to weather patterns or other 
stimuli. Thus, the numbers observed in any single year are not useful 
measures of population size because they do not reveal the numbers of 
live, dormant seeds that persist in the soil seed reserve. The SSA 
report (Service 2021, appendix A) describes the method we used to 
estimate the potential population sizes of EOs, which we define as the 
largest numbers of individuals that have been observed at each source 
feature of each EO. We then used aerial imagery to determine whether 
the habitat of any source features had been destroyed by construction 
of roads, buildings, or other disturbance, and we calculated the 
estimated remaining potential population at each EO. For a complete 
description of the analysis used, see the SSA report (available at 
https://www.regulations.gov at Docket No. FWS-R2-ES-2021-0013). Table 
1, below, lists the total potential populations of each EO and the 
proportions of each that were reported from source features that were 
destroyed, partially destroyed, or are still intact. In summary, within 
the naturally occurring EOs, we determined that habitats and potential 
populations are completely intact at 11 EOs, partially destroyed at 4 
EOs, and completely destroyed at 2 EOs. However, even where habitats 
are intact, populations may decline due to ungulate herbivory, juniper 
competition, or other factors. A thorough review of the taxonomy, life 
history, and ecology of the bracted twistflower is presented in the SSA 
report (Service 2021, entire).

Table 1--Bracted Twistflower Element Occurrences (EOs), Potential Population Sizes (Numbers of Individuals), and
                                       Habitat Statuses of Source Features
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                                       Total          Potential population by habitat status
                                     potential   ------------------------------------------------     Percent
      EO--Site name; owner;        population of                                                     remaining
     representation area \1\        all source        Intact         Destroyed       Partially        intact
                                     features                                        destroyed
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2--Cat Mountain (Far West);                  866             123             112             631            14.2
 Private; NE....................
7--Ullrich Water Treatment Plant             493             493               0               0           100.0
 (Bee Creek Preserve/Balcones
 Canyonlands Preserve (BCP));
 City of Austin; NE.............

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9--Mt. Bonnell/Mt. Bonnell City              919             237             433             249            25.8
 Park/BCP; Private/City of
 Austin; NE.....................
17--Barton Creek Wilderness                1,677           1,677               0               0           100.0
 Park; City of Austin (BCP); NE.
21--Mesa-FM 2222; Private; NE...             330               0              70             260             0.0
26--Bright Leaf State Natural                 10              10               0               0           100.0
 Area (SNA); City of Austin; NE.
32--Rough Hollow Ranch; Private;              40               0              40               0             0.0
 NE.............................
33 \2\--Vireo Preserve                       120  ..............  ..............  ..............  ..............
 (experimental reintroduction);
 City of Austin (BCP); NE.......
35--Valburn Drive/Bull Creek               1,041             343             644              54            32.9
 District Park; Private/City of
 Austin/BCP; NE.................
36--Gus Fruh/Barton Creek                     29              29               0               0           100.0
 Greenbelt; City of Austin/BCP;
 NE.............................
xx \3\--Falls Ranch; Private; NE               6               6               0               0           100.0
8--E Medina Lake; Texas                    2,260             477             481           1,302            21.1
 Department of Transportation,
 Medina County, and private
 rights-of-way; C...............
18--Medina Lake; Private; C.....           1,254           1,254               0               0           100.0
23--Eisenhower City Park/Camp                190             190               0               0           100.0
 Bullis Military Training
 Reservation; City of San
 Antonio/Dept. of Defense; C....
25--Laurel Canyon (Bear Bluff);            2,000           2,000               0               0           100.0
 Private Limited Partnership
 with City of San Antonio
 conservation easement; C.......
31--Rancho Diana (undeveloped                958             958               0               0           100.0
 natural area); City of San
 Antonio; C.....................
10--Garner State Park; Texas                 686             686               0               0           100.0
 Parks and Wildlife Department;
 W..............................
24--Upper Long Canyon; Private;                5               5               0               0           100.0
 W..............................
----------------------------------------------------------------------------------------------------------------
\1\ Described under Species Needs, below. NE = northeast; C = central; W = west.
\2\ This experimental reintroduction is not one of the 17 naturally occurring EOs.
\3\ This newly discovered site does not yet have in EO ID or EO number in the TXNDD.

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).
    The regulations that are in effect and therefore applicable to this 
final rule are 50 CFR part 424, as amended by (a) revisions that we 
issued jointly with the National Marine Fisheries Service in 2019 
regarding both the listing, delisting, and reclassification of 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019); and 
(b) revisions that we issued in 2019 eliminating for species listed as 
threatened species are September 26, 2019, the Service's general 
protective regulations that had automatically applied to threatened 
species the prohibitions that section 9 of the Act applies to 
endangered species (84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We 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

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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 the 
Services 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 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 listed 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. 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-2021-0013 on https://www.regulations.gov.
    To assess the bracted twistflower's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. 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. We use this information to inform our regulatory 
decision.

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. We analyze these factors 
both individually and cumulatively to determine the current condition 
of the species and project the future condition of the species under 
several plausible future scenarios.

Species Needs

Habitat Availability and Protection From Herbivory
    Bracted twistflower habitat occurs on karstic, porous limestones 
near the boundary of the Devils River or Edwards formations and Glen 
Rose formations in central Texas. These juniper-oak woodlands and 
shrublands experience hot, often dry summers and mild winters with 
bimodal (spring and fall) precipitation patterns. Optimal microsites 
for the bracted twistflower have less than 50 percent cover of woody 
plant canopy with the most robust plants growing in full sun (Fowler 
2010, pp. 10-12; Leonard 2010, pp. 30-32; Ramsey 2010, pp. 10-13, 20; 
Leonard and Van Auken 2013, pp. 276-285). However, in areas with dense 
populations of white-tailed deer and other herbivores, few individuals 
survive except where they are protected from herbivory by a cover of 
dense, spiny understory vegetation (McNeal 1989, p. 17; Damude and 
Poole 1990, pp. 29-30; Poole et al. 2007, p. 470; Leonard 2010, p. 63).
Reproduction
    Bracted twistflower is an annual species sustained through its 
reserve of seeds in the soil. Thus, resilient populations must produce 
more viable seeds than they lose through germination, herbivory, and 
loss of viability. Individuals that have begun flowering are vulnerable 
to herbivory by white-tailed deer, squirrels, and other herbivores, 
including introduced ungulates; although robust plants may generate a 
new flower stalk after the first stalk is removed, the loss of 
resources likely reduces reproductive output and decreases resiliency.
    Bracted twistflower reproduces primarily by outcrossing between 
individuals that are not closely related; self-pollination produces 
only small

[[Page 21848]]

amounts of seeds. Fertilization requires that two or more sexually 
compatible individuals are located within the forage range of native 
bee pollinators. The longevity of seed viability has not been 
determined, although at least some seeds remain viable in the soil for 
at least 7 years (Service 2021, p. 12). The known pollinators of 
bracted twistflower are leafcutter bees (Megachile spp.) (Dieringer 
(1991, pp. 341-343), which have an estimated forage range of 600 meters 
(m) to 3 kilometers (km) (0.37 to 1.86 miles (mi)) (Mitchell 1936, pp. 
124-125; Gathmann and Tscharntke 2002, pp. 760-761; Greenleaf et al. 
2007, p. 593; Discover Life 2019); sweat bees (family Halictidae) may 
also be effective pollinators (Service 2021, p. 5), but due to their 
smaller size have correspondingly smaller forage ranges. Sexual 
reproduction also increases genetic diversity, and thus representation, 
which allows populations to be more likely to adapt and survive when 
confronted with new pathogens, competitors, and changing environmental 
conditions. For these reasons, successful reproduction likely requires 
clustering of genetically diverse individuals within habitats that also 
support leafcutter bees, sweat bees, and other native bee species.
    Fall and winter rainfall stimulate bracted twistflower seed 
germination; successive rainfall events that allow soil moisture to 
persist may have greater effect than one or two heavy rains. In 
addition to rain, other factors appear to stimulate germination, such 
as the removal of competing vegetation, and possibly fire during a 
previous season.
Minimum Viable Population Size
    Populations of bracted twistflower must be large enough to have a 
high probability of surviving for a prescribed period of time. For 
example, Mace and Lande (1991, p. 151) propose that species or 
populations be classified as vulnerable when the probability of 
persisting 100 years is less than 90 percent. This metric of population 
resilience is called minimum viable population (MVP). We adapted the 
method published in Pavlik (1996, p. 137) to estimate an MVP for 
bracted twistflower of about 1,800 individuals. This estimate of MVP is 
based only on numbers of mature, flowering individuals because 
juveniles that die before they reproduce do not contribute to the 
effective population size or future genetic diversity.
Risk Factors
    A primary driver of the bracted twistflower's status is habitat 
loss due to urban and residential land development (McNeal 1989, p. 17; 
Damude and Poole 1990, p. 51; Zippin 1997, p. 229; Fowler 2010, p. 2; 
Pepper 2010, p. 5). A number of cities, including Austin, San Marcos, 
New Braunfels, and San Antonio, were established along the Balcones 
Escarpment due to the prevalence of springs. This area, known as the 
Interstate 35 corridor, is one of the fastest-growing urban complexes 
in the United States (TDC 2023, unpaginated). Urban development reduces 
the redundancy and representation of the bracted twistflower and has 
consumed all or most of the habitat at six EOs of the bracted 
twistflower.
    Habitat changes leading to lower sunlight intensity in the existing 
habitat are another threat to the bracted twistflower as growth and 
reproduction of the species, and thus resilience, increases with higher 
light intensity and duration (Fowler 2010, pp. 1-18; Leonard 2010, pp. 
1-86; Ramsey 2010, pp. 1-35; Leonard and Van Auken 2013, pp. 276-285). 
Bracted twistflower habitats have likely experienced a decline in the 
frequency of wildfire, which has allowed Ashe juniper and other woody 
plant cover to increase within most bracted twistflower populations 
(Bray 1904, pp. 14-15, 22-23; Fonteyn et al. 1988, p. 79; Fowler et al. 
2012, pp. 1518-1521). These increases in woody plant cover reduce the 
growth and reproduction of bracted twistflower.
    Excessive herbivory by white-tailed deer and introduced ungulates 
is a significant factor affecting the status of bracted twistflower 
throughout the species' range, except where populations are protected 
from deer by fencing or through intensive herd management (McNeal 1989, 
p. 17; Damude and Poole 1990, pp. 52-53; Dieringer 1991, p. 341; Zippin 
1997, pp. 39-197, 227; Leonard 2010, pp. 36-43; Fowler 2014, pp. 17, 
19). Herbivory is exacerbated by the extremely high deer densities in 
the Edwards Plateau of Texas (Zippin 1997, p. 227).
    Both authorized and unauthorized recreation affects the species' 
survival at several protected natural areas, as well as on private 
lands. Hiking and mountain bike trails have impacted the populations at 
Mt. Bonnell City Park, Barton Creek Preserve, Garner State Park, and 
Bull Creek Park through trampling of the herbaceous vegetation and 
severe soil erosion where trails cut directly through occupied habitat 
(McNeal 1989, p. 19; Fowler 2010, p. 2; Bracted Twistflower Working 
Group 2010, p. 3; Pepper 2010, pp. 5, 15, 17).
    Small, isolated populations are less resilient and more vulnerable 
to catastrophic losses caused by random fluctuations in recruitment or 
variations in rainfall or other environmental factors (Service 2016, p. 
20). Small populations are also less able to overwhelm herbivores to 
ensure replenishment of the soil seed reserve (Service 2021, p. 33). In 
addition to population size, it is likely that population density also 
influences population viability, because reproduction requires 
genetically compatible individuals to be clustered within the forage 
range of the native bee pollinators (Service 2021, p. 33). Small, 
reproductively isolated populations are also more susceptible to the 
loss of genetic diversity, genetic drift, and inbreeding (Barrett and 
Kohn 1991, pp. 3-30). This may reduce the ability of the species or 
population to resist pathogens and parasites, adapt to changing 
environmental conditions, or colonize new habitats. More than half of 
the EOs observed since 1989 are at risk due to the demographic 
consequences of small population sizes (significantly below the 
estimated MVP level of 1,800 individuals), and many of the remaining 
populations have very little genetic diversity and relatively high 
levels of inbreeding (Pepper 2010, pp. 13, 15). The species as a whole 
still possesses significant genetic diversity (Pepper 2010, pp. 4, 11, 
15), but several of the core reservoirs of the species' genetic 
diversity occur on private lands and may be lost to development.

Current Condition

    Our assessment of the current species viability of bracted 
twistflower is based on its resiliency, redundancy, and representation. 
We ranked the current conditions of bracted twistflower EOs as high, 
medium, low, or extirpated based on the following characteristics: The 
resiliency (proportion of potential populations where habitat is 
intact, as described above); the population sizes and trends (if known) 
in remaining intact habitats; genetic diversity and inbreeding 
coefficients (if known); the current levels of monitoring, vegetation 
management, and protection from development, herbivores, and 
recreational impacts on the remaining intact habitats. We considered 
resiliency to be based upon the potential populations in intact 
habitats (see table 1), which is one of several components that 
contribute to current conditions. The current condition of each EO is 
based upon the cumulative effects of these factors.
Resiliency
    Our review of the TXNDD EO records (TXNDD 2018a,b) indicates that

[[Page 21849]]

relatively large pulses of bracted twistflower plants emerge in 
specific areas (``source features'') during relatively few years, while 
during most years few or no plants emerge. This wide annual variation 
in germination makes it very difficult to determine the species' 
population sizes and demographic trends (Service 2021, pp. 22-23, 
appendix A). However, one indicator of the status of bracted 
twistflower populations is the condition of their habitats. We define 
potential population size as the maximum numbers observed in specific 
areas during ``pulse'' years, when optimal conditions stimulate the 
greatest amounts of seed germination, establishment, and survival to 
successful reproduction. Thus, our estimate of the species' status is 
based in part on the potential populations remaining in intact 
habitats. The potential total number of individuals at the 17 naturally 
occurring EOs observed since 1989 is 12,764 (not including 120 planted 
at the experimental population at EO 33).
    Since 1989, 14 percent of bracted twistflower habitat (a potential 
population of 1,780 plants) has been completely destroyed in portions 
of 6 EOs; 19 percent of bracted twistflower habitat (a potential 
population of 2,496 plants) has been partially destroyed in portions of 
5 EOs; and 67 percent (a potential population of 8,488 plants) remains 
intact in portions of 15 naturally occurring EOs (note that each EO can 
have intact, partially destroyed, and destroyed portions, so the total 
is greater than the number of EOs). Nevertheless, this estimate 
reflects only the losses due to habitat development and does not 
account for populations that may have declined due to excessive 
herbivory or juniper competition.
    Only five of the remaining 17 naturally-occurring EOs are in high 
condition, with only four of the remaining 17 naturally-occurring EOs 
maintaining a potential intact population of at least 50 percent of the 
estimated MVP value of 1,800 individuals. These populations are Barton 
Creek Greenbelt and Wilderness Park (EO 17) and Rancho Diana (EO 31), 
which are protected natural areas managed by the City of Austin and 
City of San Antonio, respectively; Laurel Canyon (EO 25), which is 
protected from development and land use change through a City of San 
Antonio conservation easement; and a portion of Medina Lake (EO 18), 
which landowners voluntarily conserve. The City of Austin also protects 
17.9 acres of habitat (EO 7) from development and land use change at 
the Ullrich Water Treatment Plant (Texas Parks and Wildlife Department 
2018, p. 1), where there is a bracted twistflower population with a 
potential maximum population of about 27 percent of the estimated MVP 
level. Gus Fruh (EO 36) is small, but due to its proximity to EO 17 
along Barton Creek, might be considered part of a Barton Creek 
metapopulation. Mt. Bonnell City Park (EO 9), Garner State Park (EO 
10), Eisenhower City Park (EO 23), Valburn Drive/Bull Creek District 
Park (EO 35), and Falls Ranch (no EO number) are all currently far 
below the MVP level. Four EOs have been mostly lost to development: Cat 
Mountain (EO 2), East Medina (EO 8), Mt. Bonnell City Park, and Valburn 
Drive/Bull Creek District Park. Two EOs have been completely lost to 
development: Mesa (EO 21) and Rough Hollow Ranch (EO 32). No 
individuals have been seen in recent years at two additional EOs, 
Bright Leaf SNA (EO 26) and Upper Long Canyon (EO 24), nor at the 
experimental population at Vireo Preserve (EO 33). In summary, none of 
the EOs of bracted twistflower have reached the MVP level in the last 
decade, most have low resiliency, many have gradually declined over the 
years that they have been monitored, and six EOs have been extirpated 
or very nearly extirpated.
Redundancy and Representation
    Bracted twistflower currently possesses significant genetic 
diversity at the species level, but populations are genetically 
distinct and there is no gene flow between most populations (Pepper 
2010, p. 11). However, of the 10 EOs assessed by Pepper, low levels of 
genetic diversity occurred in all or parts of 4 EOs (40 percent), and 
all or parts of 5 EOs (50 percent) had high levels of inbreeding; low 
genetic diversity and inbreeding were more prevalent in smaller, more 
isolated populations (Pepper 2010, pp. 13, 15). Therefore, although the 
species still possesses adequate genetic and ecological representation, 
many of its populations are at risk, due to small population sizes, low 
levels of genetic diversity, lack of gene flow, and inbreeding.
    Representation areas are sectors of a species' geographic range 
where important constituents of the species' genetic and ecological 
diversity occur. The known EOs of bracted twistflower are clustered in 
three geographic areas separated from each other by 50 km (30 mi) or 
more. Slight differences in day length, solar elevation, temperature, 
and precipitation occur over the species' range from northeast to 
southwest. Austin has more moderate summer and winter temperatures, 40 
percent fewer days of freezing weather, and 40 percent greater annual 
rainfall, compared to Uvalde County. These climate differences also 
create variation in the structure and composition of associated 
vegetation. Pepper (2010, pp. 4, 15) identified major, distinct 
clusters of genetic diversity in Medina County and in the Austin area. 
Based on these genetic data and the geographic clustering of 
populations, we identified three representation areas in the 
northeastern, central, and western portions of the species' range 
(Service 2021, figure 9).
    Two EOs are extirpated (EO 21 and EO 32), and five EOs have low 
condition ranks and negligible contributions to redundancy. The 
northeastern representation area has six EOs with high or medium 
condition ranks, conferring an intermediate degree of population 
redundancy within this area. The central representation area also has 
intermediate redundancy because it has four EOs with high- or medium-
condition ranks. In the western representation area, only EO 10 has a 
medium condition rank, and no population pulses have been observed 
there in recent years. This representation area appears to have very 
low redundancy; however, few surveys have been conducted in that area, 
so undiscovered populations might still exist.
    In summary, bracted twistflower has five EOs in high condition, 
with only four that are maintaining a potential population size of 50 
percent of the MVP. Two representation areas have intermediate 
redundancy. Genetic representation at the species level is adequate, 
but 40 to 50 percent of EOs had low genetic diversity and high 
inbreeding and inbreeding also occurred in three larger populations. 
The species has lost all or parts of six EOs and one-third of its 
potential population size over the last 30 years.

Projections of the Species' Future Viability

    The SSA projects viability during two future periods, from 2030 to 
2040 and from 2050 to 2074. These timeframes represent the likely 
minimum and maximum lengths of time that seeds could remain viable in 
the soil, and therefore the potential of declining EOs to recover from 
viable seeds in the soil seed reserve. This timeframe also corresponds 
closely to climate projections and human population growth projections, 
a proxy for urban development (USGCRP 2017, entire; USGS 2019, 
unpaginated; TDC 2023, unpaginated). Although we do not know the 
maximum length of time that

[[Page 21850]]

bracted twistflower seeds can remain viable in the soil seed reserve, 
observations of the experimental population at Vireo Preserve reveal 
that at least some seeds are viable after 7 years. Nevertheless, we do 
not know the maximum length of time that bracted twistflower seeds may 
remain viable in the soil. Consequently, we used a surrogate species 
approach based on a long-term experiment on annual plant seed longevity 
in the soil which found that 60 percent of annual and biennial plant 
species still germinated after 15 years in the soil, but by 35 and 50 
years, viable seeds persisted for only 30 percent and 25 percent of the 
species, respectively (Telewski and Zeevart 2002, pp. 1285-1288). 
Therefore, it is likely that soil seed reserves of bracted twistflower 
will remain viable at least 10 to 20 years and, if not replenished by 
new crops of seeds, will become depleted after 35 to 50 years.
    The projections of future viability also considered three different 
scenarios representing an improvement over current conditions, 
continuation of current trends, or deterioration beyond current 
conditions. These scenarios were based on seven components that 
influence this species' status and their cumulative effects on the 
species: the extent of conservation support, effects of regional 
development, survey results, documentation of the geographic range, 
effectiveness of habitat management, effectiveness of population 
management, and effects of climate changes. Table 2, below, summarizes 
the projected species viability during each of the two timeframes and 
under each of the three scenarios. Under the ``improvement'' scenario, 
the number of EOs in high condition, currently 5, would increase to 10 
by 2030-2040 and to 13 by 2050-2074, leading to an increase in species 
resiliency. In this scenario, species redundancy and representation 
remain stable. Under the ``current trends continue'' scenario, the 
number of extirpated EOs would increase to 4 by 2030-2040 and to 10 by 
2050-2074, leading to a loss of redundancy. Both EOs in the western 
representation area would be extirpated by 2050-2074, leading to a 
reduction in species representation. Conditions within 14 EOs would 
deteriorate under this scenario, leading to a reduction in species 
resiliency. The ``deterioration'' scenario projects extirpation of 11 
and 15 EOs during these periods, respectively, leading to a significant 
reduction in species redundancy and representation. By 2050-2074, all 
EOs in the western representation area would be extirpated, with only 
two remaining in the northeastern representation area and one in the 
central representation area. Under this scenario, species resiliency 
declines across all sites. For more information, see the bracted 
twistflower SSA report (Service 2021, pp. 51-66). These scenarios 
should not be interpreted as mutually exclusive. The components of the 
scenarios will interact independently; future viability will likely 
result from a combination of conditions analyzed in these scenarios. 
For example, conservation support and habitat management could be 
better than expected by 2050, but climate changes and regional growth 
could have more severe impacts than expected.

  Table 2--Projected Viabilities of Bracted Twistflower During Two Future Timeframes and Under Three Scenarios
----------------------------------------------------------------------------------------------------------------
                                                                     Future scenarios
                                         -----------------------------------------------------------------------
                      Current condition      Improvement       Current trends             Deterioration
       EO No.                rank        -------------------      continue     ---------------------------------
                                                            -------------------
                                             Period/rank        Period/rank                Period/rank
----------------------------------------------------------------------------------------------------------------
                                        Northeastern Representation Area
----------------------------------------------------------------------------------------------------------------
2..................  Low................  2030-2040: Low...  2030-2040: Low...  2030-2040: Extirpated.
                                          2050-2074: Medium  2050-2074:         2050-2074: Extirpated.
                                                              Extirpated.
7..................  High...............  2030-2040: High..  2030-2040: High..  2030-2040: Low.
                                          2050-2074: High..  2050-2074: High..  2050-2074: Low.
9..................  Medium.............  2030-2040: High..  2030-2040: Low...  2030-2040: Extirpated.
                                          2050-2074: High..  2050-2074:         2050-2074: Extirpated.
                                                              Extirpated.
17.................  High...............  2030-2040: High..  2030-2040: High..  2030-2040: Low.
                                          2050-2074: High..  2050-2074: Medium  2050-2074: Low.
21.................  Extirpated.........  2030-2040:         2030-2040:         2030-2040: Extirpated.
                                           Extirpated.        Extirpated.       2050-2074: Extirpated.
                                          2050-2074:         2050-2074:
                                           Extirpated.        Extirpated.
26.................  Low................  2030-2040: Medium  2030-2040:         2030-2040: Extirpated.
                                          2050-2074: Medium   Extirpated.       2050-2074: Extirpated.
                                                             2050-2074:
                                                              Extirpated.
32.................  Extirpated.........  2030-2040: Medium  2030-2040:         2030-2040: Extirpated.
                                          2050-2074: Medium   Extirpated.       2050-2074: Extirpated.
                                                             2050-2074:
                                                              Extirpated.
33.................  Low................  2030-2040: Medium  2030-2040:         2030-2040: Extirpated.
                                          2050-2074: High..   Extirpated.       2050-2074: Extirpated.
                                                             2050-2074:
                                                              Extirpated.
35.................  Medium.............  2030-2040: High..  2030-2040: Low...  2030-2040: Low.
                                          2050-2074: High..  2050-2074: Low...  2050-2074: Extirpated.
36.................  High...............  2030-2040: High..  2030-2040: Medium  2030-2040: Low.
                                          2050-2074: High..  2050-2074: Low...  2050-2074: Extirpated.
xx \1\.............  Medium.............  2030-2040: Medium  2030-2040: Low...  2030-2040: Extirpated.
                                          2050-2074: High..  2050-2074:         2050-2074: Extirpated.
                                                              Extirpated.
----------------------------------------------------------------------------------------------------------------
                                           Central Representation Area
----------------------------------------------------------------------------------------------------------------
8..................  Low................  2030-2040: Medium  2030-2040: Low...  2030-2040: Extirpated.
                                          2050-2074: Medium  2050-2074:         2050-2074: Extirpated.
                                                              Extirpated.
18.................  Medium.............  2030-2040: High..  2030-2040: Medium  2030-2040: Low.
                                          2050-2074: High..  2050-2074: Low...  2050-2074: Extirpated.
23.................  Medium.............  2030-2040: High..  2030-2040: Low...  2030-2040: Extirpated.
                                          2050-2074: High..  2050-2074: Low...  2050-2074: Extirpated.

[[Page 21851]]

 
25.................  High...............  2030-2040: High..  2030-2040: Medium  2030-2040: Low.
                                          2050-2074: High..  2050-2074: Low...  2050-2074: Extirpated.
31.................  High...............  2030-2040: High..  2030-2040: High..  2030-2040: Medium.
                                          2050-2074: High..  2050-2074: High..  2050-2074: Low.
----------------------------------------------------------------------------------------------------------------
                                           Western Representation Area
----------------------------------------------------------------------------------------------------------------
10.................  Medium.............  2030-2040: High..  2030-2040: Low...  2030-2040: Extirpated.
                                          2050-2074: High..  2050-2074:         2050-2074: Extirpated.
                                                              Extirpated.
24.................  Low................  2030-2040: Medium  2030-2040: Low...  2030-2040: Extirpated.
                                          2050-2074: High..  2050-2074:         2050-2074: Extirpated.
                                                              Extirpated.
----------------------------------------------------------------------------------------------------------------
\1\ This newly discovered site does not yet have in EO ID or EO number in the TXNDD.

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Conservation Efforts and Regulatory Mechanisms

    The Bracted Twistflower Working Group, a consortium of Federal, 
State, and local agencies, researchers, and conservation organizations, 
has met informally at least annually since 2000, and has worked 
actively to promote the conservation and recovery of this species. The 
Service, Texas Parks and Wildlife Department (TPWD), the City of 
Austin, Travis County, the Lower Colorado River Authority, and the Lady 
Bird Johnson Wildflower Center established a voluntary memorandum of 
agreement to protect, monitor, and restore bracted twistflower and its 
habitats on Balcones Canyonlands Preserve (BCP) tracts. Five extant EOs 
and one experimental population are protected through the agreement, 
including three of the five populations in a high current condition 
(see table 2, above). The City of San Antonio has actively protected 
and managed EOs at Eisenhower Park and Rancho Diana; the latter 
continues to be one of the largest remaining populations. The City of 
San Antonio and The Nature Conservancy own a conservation easement to 
protect 222 ha (549 ac) in Medina County for watershed conservation; 
this includes EO 25, which has one of the largest extant bracted 
twistflower populations (City of San Antonio and The Nature 
Conservancy, 2016). All or parts of 11 EOs are located on State or 
local conservation land.

Summary of Comments and Recommendations

    In the proposed rule published on November 10, 2021 (86 FR 62668), 
we requested that all interested parties submit written comments on the 
proposal by January 10, 2022. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
Uvalde Leader, Austin American Statesman, and the San Antonio Express. 
We did not receive any requests for a public hearing.

Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from one 
peer reviewer. We reviewed all comments we received from the peer 
reviewer for substantive issues and new information regarding the 
information contained in the SSA report. The peer reviewer stated that 
the SSA is an outstanding compendium of what we know about this 
species. This reviewer provided additional information, clarifications, 
and suggestions to improve the final SSA report, which we adopted. They 
also provided the following substantive critique of our analyses of 
current and future conditions:
    (1) Comment: The peer reviewer stated that our assessments of 
current and future viability of the Travis County populations in the 
northeastern representation area were too optimistic.
    Our response: The final two paragraphs of the executive summary 
within the SSA report that was reviewed by the peer reviewer 
incorrectly stated the current conditions and projections of future 
viability and reported higher ranks for current conditions and all 
three future scenarios than our analyses actually determined. This 
error was corrected in the SSA report prior to the publication of the 
proposed rule (86 FR 62668; November 10, 2021). Sections 5 (Current 
Conditions) and 6 (Projections of Future Viability) of the SSA report 
that the peer reviewer reviewed did present the analyses correctly. The 
peer reviewer may also have misinterpreted our definition of the medium 
condition rank. We added information to the final SSA report to clarify 
the meaning of the medium condition rank.

Comments From States

    (2) Comment: The Texas Parks and Wildlife Department (TPWD) 
commented that critical habitat on private lands could harm 
relationships with landowners and stated that the benefits of excluding 
critical habitat on private land without landowner support outweigh the 
benefits of designating the area as critical habitat.
    Our response: When making a critical habitat designation, the 
Service is

[[Page 21852]]

required to identify areas that are essential to the conservation of 
the species, regardless of land ownership. The areas being designated 
as critical habitat contain the necessary physical and biological 
features for the bracted twistflower and are essential to the 
conservation of the species into the future. The Service did not 
receive any comments from private landowners opposing the designation 
of critical habitat on their land. While we are not required to contact 
landowners when making critical habitat designations, we understand 
that cooperative conservation can be very successful. The Service 
supports voluntary conservation through our Partners for Fish and 
Wildlife Program, which provides funding for habitat projects on 
private lands that benefit Federal trust species.

Public Comments

    (3) Comment: The City of Austin requested an exclusion to a portion 
of proposed critical habitat Subunit 1d, which is adjacent to the 
Ullrich Water Treatment Plant, to allow for future infrastructure 
projects and proposed including additional adjacent lands to compensate 
for the exclusion. They also stated that they are unaware of any record 
of the species within the area for which they requested an exclusion.
    Our response: Proposed Subunit 1d has confirmed records of bracted 
twistflower, including some records that may have been within the area 
requested for exclusion by the City of Austin (City of Austin 2016, 
pers. comm.; Fowler 2014, unpaginated; TXNDD 2018b, p. 3 unpaginated). 
However, based on this comment, we examined the survey data again and 
determined that plants were last documented in the easternmost polygon 
in 1989 with a geographic precision of plus-or-minus 164 ft (50 m). Due 
to the low precision, we cannot confirm whether this polygon was 
occupied, and the species has not been documented there since, despite 
regular monitoring. Additionally, we do not have any records of plants 
documented within the southernmost polygon. Therefore, we find that the 
best available information indicates that this area is no longer 
occupied. As a result, the area does not qualify as occupied under the 
first prong of the Act's definition of critical habitat. We then 
assessed whether these areas should be included under the second prong 
of the definition of critical habitat--areas that are not occupied at 
the time of listing but are essential to the conservation of the 
species. We determined that they are not essential for the conservation 
of the species because we are designating areas in all three 
representation areas, including areas that preserve the populations 
with the highest resiliency, and recovery of the species can be 
achieved by maximizing populations in occupied areas, see Criteria Used 
to Identify Critical Habitat. As a result, we revised the boundaries of 
the final critical habitat designation to remove these portions of this 
unit. Because the area is no longer included in the critical habitat 
designation, the exclusion analysis for this area is not necessary.
    Numerous recent occurrence records occur within the westernmost 
polygon in the Subunit 1d; therefore, we continue to conclude that this 
portion of the proposed subunit is occupied by the species (City of 
Austin 2016, pers. comm.; Fowler 2014, unpaginated; TXNDD 2018b, 
unpaginated). We considered the City of Austin's request for exclusion 
for this area. The economic analysis did not identify significant costs 
related to critical habitat, and the City of Austin did not provide 
adequate economic information regarding any of the activities 
identified. The City of Austin also did not provide information or a 
reasoned rationale supporting their requests for exclusion, which is 
necessary for the Service to engage in an exclusion analysis. Critical 
habitat does not restrict access to property. 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. Because 
the areas we are designating as critical habitat in this rule are 
considered occupied, the majority of costs are not associated with the 
critical habitat designation but with the listing of the species as 
threatened.
    (4) Comment: The City of Austin proposed to add additional areas to 
our critical habitat designation within the Balcones Canyonland 
Preserve adjacent to the Ullrich Water Treatment Plant.
    Our response: When developing our critical habitat proposal, we 
relied on a model of the habitat needs of the species to determine the 
boundaries of the proposed units. The areas the City of Austin proposed 
to add to the critical habitat designation are outside the known soil 
formation, slope, and elevational range of known occupied sites in the 
area. Additionally, these areas are currently unoccupied, and we do not 
know if they would be able to become occupied in the future. Therefore, 
we conclude that these areas are not essential to the conservation of 
bracted twistflower, and we are not amending our designation to include 
them.
    (5) Comment: One commenter stated that juniper encroachment is not 
a threat to the bracted twistflower and that the removal of juniper and 
prescribed burning would be detrimental to the species.
    Our response: Our assessment that juniper encroachment and changes 
in wildfire frequency threaten bracted twistflower is based on 
scientific data and observations. Two assessments (McNeal 1989, p. 17; 
Damude and Poole 1990, pp. 29, 30, 46) observed that bracted 
twistflower plants can occur under dense shrub cover due to severe 
herbivory, but are larger, more vigorous, and reproduce more in the 
open, suggesting that open woodlands are preferred habitats. Two 
master's theses (Ramsey 2010, p. 20; Leonard 2010, p. 63), the final 
report of a section 6-funded research project (Fowler 2010, pp. 9-12), 
and two peer-reviewed scientific publications (Fowler et al. 2012, pp. 
1516-1521; Leonard and Van Auken 2013, pp. 282-284) documented 
increased growth and reproductive output for individuals that are 
exposed to direct sunlight at least part of the day, when deer 
herbivory is prevented. These authors concluded that dense brush may 
serve as a refugium from herbivory, but it is not the species' optimal 
habitat. These conclusions are further supported by the species' 
positive response to deer-fencing and brush thinning conducted by the 
City of San Antonio at Rancho Diana Natural Area. Furthermore, two of 
the largest populations, Laurel Canyon and Rancho Diana, occur in 
relatively open vegetation of low shrubs, where there is little or no 
juniper cover. This body of research provides evidence that the bracted 
twistflower is best adapted to the edges and canopy gaps of juniper-oak 
woodlands that were historically maintained by periodic wildfires. We 
emphasize that listing bracted twistflower as a threatened species and 
the designation of its critical habitat do not require landowners, 
including the City of Austin, to manage the species' habitats in a 
particular way.
    (6) Comment: One commenter stated that the SSA report for the 
bracted twistflower was overly optimistic in current and future 
conditions and the species should be listed as endangered rather than 
threatened. However, no new information was provided.
    Our response: The fundamental difference between an endangered and 
a threatened species is the time horizon at which the species becomes 
in danger of extinction. An endangered species is

[[Page 21853]]

currently at risk of extinction, while a threatened species is likely 
to become at risk of extinction in the foreseeable future. The bracted 
twistflower currently occurs primarily on protected natural areas. 
While some populations have declined or have not been recently 
monitored, others are currently stable and likely to maintain stable or 
increasing populations into the foreseeable future provided that their 
habitats are effectively managed. Additionally, as an annual plant, 
effective management and restoration can boost population sizes within 
a relatively short timeframe. One of the primary threats to the species 
is urban and residential development. This threat is not anticipated to 
affect the species within the protected natural areas since these areas 
are protected from development. Other threats, such as ungulate 
herbivory and juniper encroachment, could cause populations on 
protected sites to decline, if they are not effectively managed. The 
SSA report (Service 2021, p. 53) projects that such declines could 
occur as soon as 2030 to 2040 under the ``current trends continue'' 
scenario. Therefore, the Service has determined that this species is 
not currently in danger of extinction, but it is likely to become so 
within the foreseeable future without the protections of the Act. A 
more complete discussion of our finding and rationale can be found 
under Determination of Bracted Twistflower's Status, below.
    (7) Comment: Two commenters stated that the bracted twistflower is 
endangered within a significant portion of its range. Specifically, the 
commenters were concerned with the western and northeastern 
representation areas.
    Our response: In order for a species to be listed due to its status 
within a significant portion of its range, the species must have a 
different status in that portion and that portion must also be 
significant. Although several bracted twistflower populations in the 
northeastern representation area have been destroyed or damaged by 
development, five populations are on protected natural areas, including 
two relatively large populations at Barton Creek and Ullrich. The City 
of Austin's annual monitoring data from 2012 through 2018 (City of 
Austin 2018, entire) indicate wide annual variation in the numbers of 
individuals that germinate and flower, but no detectable trends 
occurred over this timeframe. For this reason, we determined that the 
populations within this portion of the range are not currently in 
danger of extinction and therefore have the same status as the species 
rangewide. A significant portion of the range under the Act is not 
necessarily equivalent to representation areas used in SSAs to describe 
a species' condition. The SSA placed the two Uvalde County populations 
in the western representation area due to their physical separation 
from the central populations. However, these Uvalde County populations 
constitute the western-most periphery of the species' range, rather 
than a significant portion of the range. Furthermore, the Garner State 
Park population has been monitored very infrequently, and the other 
population, on private land, was last observed in 1997. Consequently, 
we have no information upon which to judge the current status of these 
populations and therefore cannot conclude that they have a different 
status from the remainder of the range.
    (8) Comment: One commenter recommended that we designate unoccupied 
critical habitat for the species and suggested Vireo Preserve as a 
potential location.
    Our response: In order to designate critical habitat in areas not 
occupied by the species at the time of listing, the Service must 
determine that the area is essential to the conservation of the 
species. During our analysis, we determined that the occupied areas we 
are designating are adequate to ensure the conservation of the species 
and that designating unoccupied areas as critical habitat was not 
essential for the conservation of the species. Additionally, we have 
concerns about the ability of the Vireo Preserve to support the 
species. Bracted twistflower had been introduced within the Vireo 
Preserve in the past and did not survive due to high levels of 
herbivory from white-tailed deer and introduced ungulates. Because we 
determined that Vireo Preserve is not essential to the conservation of 
the species, we are not designating it as unoccupied critical habitat.
    (9) Comment: One commenter recommended that the Service include 
rights-of-way within Medina County as critical habitat.
    Our response: We are not designating critical habitats in areas 
that lack natural vegetation, such as roads and buildings, because we 
determined that they do not contain the essential physical and 
biological features due to development or significant disturbance. 
Although the species has been found along highway and road rights-of-
way in Medina County, due to frequent soil disturbance and the 
displacement of native vegetation by introduced, invasive grasses, such 
as bermudagrass (Cynodon dactylon) and King Ranch bluestem 
(Bothriochloa ischaemum), these are not the areas where we would 
emphasize recovery of the species.
    (10) Comment: One commenter stated that, although our estimates of 
potential populations are probably the best available method, our 
evaluation overestimated resiliency and underestimated the potential 
extirpation of individual populations. Worsening conditions within many 
sites, due to deer browsing, trampling, and more, have resulted in 
declining population sizes and exhaustion of the persistent seed 
reserve. The commenter stated that, although the numbers in the 
proposed rule's table 2 (86 FR 62668, November 10, 2021, pp. 62675-
62676) are correctly interpreted as site potentials, they are almost 
certainly overestimates of population sizes in the context of the 
resiliency analysis.
    Our response: Estimates of potential populations are often larger 
than the numbers of flowering individuals seen in any given year. As an 
annual plant, bracted twistflower persists through its soil seed 
reserve. As the commenter noted, soil seed reserves decline if not 
replenished through successful reproduction. However, we have no data 
on this particular species' seed reserve capacity and limited data on 
seed longevity in the soil. The method we used is an empirical estimate 
of the seed reserve potential to generate reproductive individuals that 
is derived from the largest numbers of individuals observed in the 
extant portions of a population's habitat. We acknowledge the 
limitations of this method, but as noted, it is the best available 
scientific information.
    (11) Comment: One commenter stated that population estimates used 
within the SSA report overestimate population sizes and suggested a 
better estimate would be based on harmonic means. This commenter also 
stated that genetically effective population sizes are the best 
measures of population sizes.
    Our response: The harmonic mean, is a type of average (The American 
Heritage Dictionary 1982, p. 595), is a useful measure for highly 
variable population sizes. However, this approach requires a relatively 
large number of annual population censuses. We do not have enough 
population census data for most populations, and in other cases 
censuses were conducted only during peak years. In these cases, 
harmonic means are not very meaningful. The data required to calculate 
harmonic means exist for only for a few sites monitored annually by 
staffs of the City of Austin and City of San Antonio; we will include 
the

[[Page 21854]]

harmonic means for those sites in future revisions to the SSA report.

Determination of Bracted Twistflower'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 endangered species 
or 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

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
and the cumulative effect of the threats under the Act's section 
4(a)(1) factors to the bracted twistflower.
    Bracted twistflower occurs in three geographically separate 
representation areas, which experience differing regional climate and 
biotic factors. Although threats are currently acting on the bracted 
twistflower throughout its range, 11 EOs were found to be in high or 
medium r condition currently, and 11 EOs (including one experimental 
population) occur on protected, State-owned or locally owned 
conservation lands. Thus, after assessing the best available 
information, we conclude that the bracted twistflower is not currently 
in danger of extinction throughout all of its range. We, therefore, 
proceed with determining whether the bracted twistflower is likely to 
become endangered within the foreseeable future throughout all of its 
range.
    For the purpose of this determination, the foreseeable future is 50 
years. Based on the best available information, this is the period of 
time in which we can make a reliable prediction of the bracted 
twistflower's viability. These timeframes represent the likely minimum 
and maximum lengths of time that seeds could remain viable in the soil, 
and therefore the potential of declining EOs to recover from viable 
seeds in the soil seed reserve. This timeframe also corresponds closely 
to climate projections and human population growth projections, a proxy 
for urban development (USGCRP 2017, entire; USGS 2019, unpaginated; TDC 
2023, unpaginated). In our projections of future viability, the best 
available information demonstrates that the time period during which we 
can reasonably expect that a population could recover from the soil 
seed reserve if managed appropriately is 10 to 20 years. The best 
available information further demonstrates that soil seed reserves 
would die out if not replenished in a 35- to 50-year timeframe. 
Accordingly, these two timeframes bracket the span of time during which 
populations will either be recovered or extirpated, and they indicate 
the period of time it is reasonable for us to make a reliable 
prediction as to the species' status in the foreseeable future.
    Under the ``current trends continue'' scenario, the number of 
extirpated EOs increases from 2 to 10. Under the ``deterioration'' 
scenario, 15 EOs will become extirpated, and the condition rank of the 
remaining 3 EOs will be low. Development, which results in the 
permanent loss of habitat, is the most significant threat to the 
bracted twistflower, and this threat is expected to continue into the 
future. Habitats throughout the species' range have been degraded due 
to habitat modification and increased browsing pressure from white-
tailed deer and introduced ungulates. Threats from habitat loss, 
habitat modification, increased herbivory, and loss of genetic 
diversity are cumulative and will likely result in further degradation 
without management intervention. Although genetic diversity is high 
within some populations, there is no appreciable gene flow between 
populations; this is likely to cause a loss of overall genetic 
diversity at the population and species level over time (Pepper 2010, 
p. 11). Populations of bracted twistflower have declined and are 
expected to continue to decline into the future. Our analysis of the 
species' current and future conditions show that the population and 
habitat factors used to determine the resiliency, representation, and 
redundancy of bracted twistflower are likely to continue to decline to 
the degree that the species is likely to become in danger of extinction 
within the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Everson), vacated the aspect 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'' (Final Policy; 79 FR 
37578, July 1, 2014) that provided the Service does not undertake an 
analysis of significant portions of a species' range if the species 
warrants listing as threatened throughout all of its range. Therefore, 
we proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant, 
and (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for the bracted twistflower, we choose to 
address the status question first--we consider information pertaining 
to the geographic distribution of the species and the threats that the 
species faces to identify any portions of the range where the species 
is endangered.
    The statutory difference between an endangered species and a 
threatened species is the timeframe in which the species becomes in 
danger of extinction; an endangered species is in danger of extinction 
now while a threatened species is not in danger of extinction now but 
is likely to become so in the foreseeable future. Thus, we reviewed the 
best scientific and commercial data available regarding the time 
horizon for the threats that are driving the bracted twistflower to 
warrant listing as a threatened species throughout all of its range. We 
considered whether the

[[Page 21855]]

threats are geographically concentrated in any portion of the species' 
range in a way that would accelerate the time horizon for the species' 
exposure or response to the threats. We examined the following threats: 
habitat loss to development (Factor A); changes in fire frequency and 
the composition and structure of vegetation (Factor A); excessive 
herbivory by white-tailed deer and other ungulates (Factor C); and 
demographic and genetic consequences of small, isolated populations 
(Factor E), including cumulative effects.
    All of the known threats are present throughout the bracted 
twistflower's range, but to different degrees in different areas. We 
identified the western portion of the species' range, consisting of two 
EOs in Uvalde County, and determined that there is a concentration of 
threats from browsing of white-tailed deer and other ungulates. These 
threats are not unique to this area, but are acting at greater 
intensity here (e.g., larger populations of white-tailed deer and other 
ungulates). One EO is fairly large in size and is in medium condition 
with a moderate level of genetic diversity. The other EO within Uvalde 
County only has data from one observation in 1997, which documented 
five plants, and is in low condition.
    Although some threats to the bracted twistflower are concentrated 
in Uvalde County, the best scientific and commercial data available do 
not indicate that the concentration of threats, or the species' 
responses to the concentration of threats, are likely to accelerate the 
time horizon in which the species becomes in danger of extinction in 
that portion of its range. As a result, the bracted twistflower is not 
in danger of extinction now within Uvalde County. Since the larger 
population in this portion is in medium condition, this portion is not 
currently in danger of extinction. Therefore, we determine that the 
species is likely to become in danger of extinction within the 
foreseeable future throughout all of its range. This does not conflict 
with the courts' holdings in Desert Survivors v. U.S. Department of the 
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 
2017) because, in reaching this conclusion, we did not need to consider 
whether any portions are significant and, therefore, did not apply the 
aspects of the Final Policy's definition of ``significant'' that those 
court decisions held were invalid.

Determination of Status

    Our review of the best scientific and commercial data available 
indicates that bracted twistflower meets the Act's definition of a 
threatened species. Therefore, we are listing the bracted twistflower 
as a threatened species in accordance with sections 3(20) 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 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 Austin Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Following publication of this final rule, funding for recovery 
actions will be available from a variety of sources, including Federal 
budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the State of Texas will 
be eligible for Federal funds to implement management actions that 
promote the protection or recovery of the bracted twistflower. 
Information on our grant programs that are available to aid species 
recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the bracted twistflower. Additionally, we invite 
you to submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat. 
Regulations implementing this interagency cooperation provision of the 
Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act 
requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of any endangered or

[[Page 21856]]

threatened species or destroy or adversely modify its critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency must enter into consultation 
with the Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on projects permitted by the Federal Highways 
Administration, U.S. Department of Agriculture's Natural Resources 
Conservation Service, U.S. Army Corps of Engineers, Department of 
Defense's Joint Base San Antonio, and Federal Emergency Management 
Agency.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a final listing 
on proposed and ongoing activities within the range of a listed 
species. The discussion below regarding protective regulations under 
section 4(d) of the Act complies with our policy.

II. Final Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language similar to the language in section 4(d) of the Act 
authorizing the Secretary to take action that she ``deems necessary and 
advisable'' affords a large degree of deference to the agency (see 
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in 
the Act to mean the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. Additionally, the second sentence of section 4(d) of the Act 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
Thus, the combination of the two sentences of section 4(d) provides the 
Secretary with wide latitude of discretion to select and promulgate 
appropriate regulations tailored to the specific conservation needs of 
the threatened species. The second sentence grants particularly broad 
discretion to the Service when adopting one or more of the prohibitions 
under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do 
not address all of the threats a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this 4(d) rule will promote conservation of the 
bracted twistflower by prohibiting the following activities, except as 
otherwise authorized or permitted: importing or exporting; certain acts 
related to removing, damaging, and destroying; delivering, receiving, 
carrying, transporting, or shipping in interstate or foreign commerce 
in the course of commercial activity; and selling or offering for sale 
in interstate or foreign commerce. The provisions of this rule are one 
of many tools that we will use to promote the conservation of the 
bracted twistflower.
    As mentioned previously in Available Conservation Measures, 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.
    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 Federal 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, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a final rule that is designed to address the bracted 
twistflower's conservation needs. As discussed previously under Summary 
of Biological Status and Threats, we have concluded that the bracted 
twistflower is likely to become in danger of extinction within the 
foreseeable future primarily due to urban and residential land 
development (Factor A), increases in woody plant cover (Factor A), 
excessive herbivory (Factor C), and small, isolated populations (Factor 
E). Section 4(d) requires the Secretary to issue such regulations as 
she deems necessary and advisable to provide for the conservation of 
each threatened species and authorizes the Secretary to include among 
those protective regulations any of the prohibitions that section 
9(a)(2) of the Act prescribes for endangered species. Our regulations 
at 50 CFR 17.71 apply the prohibitions in section 9(a)(2) of the Act to 
all threatened plants. However, if we promulgate species-specific 
protective regulations for a given species, the species-specific 
regulations replace 50 CFR 17.71. We find that the protections, 
prohibitions, and exceptions in this final rule as a whole satisfy the 
requirement in section 4(d) of the Act to issue regulations deemed 
necessary and advisable to

[[Page 21857]]

provide for the conservation of the bracted twistflower.
    The protective regulations in this 4(d) rule for bracted 
twistflower incorporate prohibitions from section 9(a)(2) of the Act to 
address the threats to the species. In particular, this 4(d) rule will 
provide for the conservation of the bracted twistflower by prohibiting 
the following activities, unless they fall within specific exceptions 
or are otherwise authorized or permitted: importing or exporting; 
certain acts related to removing, damaging, and destroying; delivering, 
receiving, carrying, transporting, or shipping in interstate or foreign 
commerce in the course of commercial activity; or selling or offering 
for sale in interstate or foreign commerce.
    To protect the species, in addition to the protections that apply 
to Federal lands, the 4(d) rule prohibits a person from removing, 
cutting, digging up, or damaging or destroying the species on non-
Federal lands in knowing violation of any law or regulation of any 
State or in the course of any violation of a State criminal trespass 
law. As most populations of the bracted twistflower occur off Federal 
land, these protections in the 4(d) rule are key to its effectiveness. 
For example, any damage to the species on non-Federal land in violation 
of a Texas off-highway vehicle law will be prohibited by the 4(d) rule. 
Additionally, any damage incurred by the species due to criminal 
trespass on non-Federal lands will similarly violate the 4(d) rule. 
These protective regulations will help to limit specific actions that 
damage individual populations.
    The exceptions to the prohibitions include all of the general 
exceptions to the prohibitions set forth at 50 CFR 17.71 and 17.72.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened plants state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species (50 CFR 17.72). Those 
regulations also state that the permit shall be governed by the 
provisions of Sec.  17.72 unless a species-specific rule applicable to 
the plant is provided in Sec. Sec.  17.73 to 17.78. Therefore, permits 
for threatened species are governed by the provisions of Sec.  17.72 
unless a species-specific 4(d) rule provides otherwise. However, under 
our recent revisions to Sec.  17.71, the prohibitions in Sec.  17.71(a) 
do not apply to any plant listed as a threatened species after 
September 26, 2019. As a result, for threatened plant species listed 
after that date, any protections must be contained in a species-
specific 4(d) rule. We did not intend for those revisions to limit or 
alter the applicability of the permitting provisions in Sec.  17.72, or 
to require that every species-specific 4(d) rule spell out any 
permitting provisions that apply to that species and species-specific 
4(d) rule. To the contrary, we anticipate that permitting provisions 
would generally be similar or identical for most species, so applying 
the provisions of Sec.  17.72 unless a species-specific 4(d) rule 
provides otherwise would likely avoid substantial duplication. Under 50 
CFR 17.72 with regard to threatened plants, a permit may be issued for 
the following purposes: for scientific purposes, to enhance propagation 
or survival, for economic hardship, for botanical or horticultural 
exhibition, for educational purposes, or for other purposes consistent 
with the purposes and policy of the Act.
    We recognize the beneficial and educational aspects of activities 
with seeds of cultivated plants, which generally enhance the 
propagation of the species and, therefore, such activities will satisfy 
permit requirements under the Act. We intend to monitor the interstate 
and foreign commerce and import and export of these specimens in a 
manner that will not inhibit such activities, providing the activities 
do not represent a threat to the survival of the species in the wild. 
In this regard, seeds of cultivated specimens will not be subject to 
the prohibitions above, provided that a statement that the seeds are of 
``cultivated origin'' accompanies the seeds or their container.
    Propagation is currently taking place for the bracted twistflower 
and will continue to be an important recovery tool. This will include 
collecting seeds from wild populations, following Center for Plant 
Conservation guidelines and the joint ``Policy Regarding Controlled 
Propagation of Species Listed Under the Endangered Species Act'' (65 FR 
56916; September 20, 2000), and propagating them for seed increase, 
population augmentation, introduction, and research related to the 
species' recovery.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we shall cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with the Service in accordance with section 6(c) of the Act, who is 
designated by his or her agency for such purposes, will be able to 
conduct activities designed to conserve bracted twistflower that may 
result in otherwise prohibited activities without additional 
authorization.
    Nothing in this 4(d) rule will change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements under section 7 of the Act, or our ability to enter into 
partnerships for the management and protection of the bracted 
twistflower. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the species 
between us and other Federal agencies, where appropriate.

III. Critical Habitat

Background

    Section 4(a)(3) of the Act requires that, to the maximum extent 
prudent and determinable, we designate a species' critical habitat 
concurrently with listing the species. 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,

[[Page 21858]]

and habitats used periodically, but not solely by vagrant individuals).
    This critical habitat designation was proposed when the regulations 
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the 
4(b)(2) exclusion process for the Service (85 FR 82376; December 18, 
2020) were in place and in effect. However, those two regulations have 
been rescinded (87 FR 37757; June 24, 2022, and 87 FR 43433; July 21, 
2022) and no longer apply to any designations of critical habitat. 
Therefore, for this final rule designating critical habitat for the 
bracted twistflower, we apply the regulations at 424.19 and the 2016 
Joint Policy on 4(b)(2) exclusions (81 FR 7226; February 11, 2016). 
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 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. Where a landowner requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
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 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).
    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 the 4(d) rule. 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 this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Physical or Biological Features 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

[[Page 21859]]

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.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the bracted twistflower from studies of the 
species' habitat, ecology, and life history as described below. 
Additional information can be found in the SSA report available on 
https://www.regulations.gov and https://ecos.fws.gov/ecp/species/2856. 
We have determined that the following physical or biological features 
are essential to the conservation of the bracted twistflower:
Geological Substrate and Soils
    The prevalent Cretaceous geological formations in the Edwards 
Plateau of central Texas include the Edwards group of formations and 
its equivalent, the Devils River formation, which replaces the Edwards 
to the west and south; both of these formations overlie the Glen Rose 
formation (Maclay and Small 1986, pp. 17-24). Karstic, porous 
limestones are abundant in the Edwards and Devils River formations, and 
conversely, the Glen Rose limestones have relatively little porosity. 
The Edwards Aquifer occupies the porous upper strata, and many seeps 
and springs occur along the Balcones Escarpment, where the boundary of 
these upper formations with the Glen Rose is exposed at the surface. 
Some units of the Edwards, Devils River, and Glen Rose formations are 
dolomitic, meaning that, in addition to calcium, they also contain 
significant amounts of magnesium. Bracted twistflower populations occur 
in close proximity to the exposed boundary of the Edwards or Devils 
River and Glen Rose formations (McNeal 1989, p. 15; Zippin 1997, p. 
223; Carr 2001, p. 1; Pepper 2010, p. 5). Most populations are less 
than 2 km (1.2 mi) from this boundary, as seen in less detailed, small-
scale geological maps (Fowler 2014, pp. 11-12). A detailed, large-scale 
geological map of northern Bexar County (Clark et al. 2009, entire) 
reveals that two bracted twistflower populations (Eisenhower City Park 
and Rancho Diana) occur in a narrow stratum identified as a basal 
nodular hydrostratigraphic member of the Kainer Formation, Edwards 
Group (Clark et al. 2016, pp. 6-7). This stratum is immediately below a 
dolomitic hydrostratigraphic member of the Kainer Formation, and 
immediately above a cavernous hydrostratigraphic member of the Glen 
Rose limestone (Service 2021, pp. 8-9, figures 6-8). Populations often 
occur in horizontal bands where these strata are exposed along slopes. 
Soils in the immediate vicinity of individual plants are very shallow 
clays with abundant rock fragments.
    Although we do not know why the species is associated with the 
Edwards-Glen Rose boundary, Fowler (2014, p. 12) proposed two 
hypotheses: (1) The species depends on increased seepage between these 
formations; and (2) the species requires higher levels of magnesium 
ions that leach from dolomitic limestone in the lower strata of the 
Edwards formation. These hypotheses are not mutually exclusive.
Ecological Community
    Bracted twistflower occurs in native, old-growth juniper-oak 
woodlands and shrublands along the Balcones Escarpment. Individual 
plants frequently occur near or under a canopy of Ashe juniper, Texas 
live oak, Texas persimmon (Diospyros texana), Texas mountain laurel, 
Texas red oak, or other trees. In many sites, bracted twistflower 
inhabits dense thickets of evergreen sumac (Rhus virens), agarita 
(Mahonia trifoliolata), Roemer acacia (Acacia roemeriana), Lindheimer 
silk-tassel (Garrya ovata ssp. lindheimeri), thoroughwort (Ageratina 
havanensis), oreja de rat[oacute]n (Bernardia myricifolia), or other 
shrubs.
    Bracted twistflower is a winter annual plant that persists only 
where individuals produce enough seeds to sustain a reserve of viable 
seeds in the soil. White-tailed deer and introduced ungulates heavily 
browse the flower stalks of individual plants before they can set seed, 
thus contributing to the decline of populations. Herbivory threatens 
the species throughout its range, except where it is protected from 
deer by fencing or intensive herd management (hunting) (McNeal 1989, p. 
17; Damude and Poole 1990, pp. 52-53; Dieringer 1991, p. 341; Zippin 
1997, pp. 39-197, 227; Leonard 2010, pp. 36-43; Fowler 2014, pp. 17, 
19). The extremely high deer densities in the Edwards Plateau of Texas 
exacerbate the species' vulnerability to herbivory (Zippin 1997, p. 
227).
    In sites that are protected from white-tailed deer, the most robust 
bracted twistflower plants occur where woody plant cover is less dense 
(Damude and Poole 1990, pp. 29-30; Poole et al. 2007, p. 470). The two 
largest populations, Laurel Canyon and Rancho Diana, occur in 
relatively open vegetation of low shrubs and sotol (Dasylirion 
texanum), where there is little or no juniper cover. Laboratory and 
field experiments demonstrated that growth and reproduction of bracted 
twistflower benefits from higher light intensity and duration than it 
receives in many of the extant populations (Fowler 2010, pp. 10-11; 
Leonard 2010, p. 63; Ramsey 2010, p. 20); its persistence in dense 
thickets may be due to increased herbivory of the plants growing in 
more open vegetation (Leonard 2010, p. 63; Ramsey 2010, p. 22). Deer-
exclusion cages significantly increased the probability of survival, 
reproduction, above-ground biomass, and seed set, compared to un-caged 
plants, at a bracted twistflower population near Mesa Drive in Austin 
where the deer population was very high (Zippin 1997, p. 60). In 2012, 
the City of San Antonio Parks and Recreation Department (SAPRD) 
protected the Rancho Diana population with a deer-fenced exclosure. In 
August and September 2017, SAPRD personnel cut to ground level all 
woody vegetation in a 760-square-meter (m\2\) (8,180-square-foot 
(ft\2\)) plot within the exclosure. In May

[[Page 21860]]

2018, the number of bracted twistflower plants within the cleared plot 
was 16 times greater, and seed production within the plot was 15 times 
greater, than in any of 4 previous years (Cozort 2019, pers. comm). In 
synthesis, shaded juniper thickets may serve as refugia from herbivory, 
but they are not the species' optimal habitat. Bracted twistflower is 
best adapted to microsites at canopy gaps and edges within the juniper-
oak woodland where it receives direct sunlight at least part of the 
day. It is likely that wildfires occurred more frequently in bracted 
twistflower habitats prior to European settlement, and that the more 
recent reduction in fire frequency has allowed Ashe juniper to increase 
in cover and density (Bray 1904, pp. 14-15, 23-24; Fonteyn et al. 1988, 
p. 79; Service 2021, pp. 12, 29-30).
    Bracted twistflower produces seeds primarily through outcrossing 
(fertilization between different individuals), and therefore depends 
heavily on pollinators, including a native leafcutter bee, Megachile 
comata, for reproduction (Dieringer 1991, pp. 341-343). Halictid bees 
(sweat bees) and other native bee species may also be effective 
pollinators (Service 2021, p. 5). Therefore, bracted twistflower 
habitats must also support populations of leafcutter bees and other 
native bee species that effectively pollinate the species. Native bees 
in turn require, as sources of pollen and nectar, a diverse, abundant 
understory of native forb and shrub species that in the past was 
periodically renewed by wildfires.
    In summary, the essential physical and biological features of 
bracted twistflower are:
    (1) Karstic, dolomitic limestones underlain by less permeable 
limestone strata, where perched aquifers seep to the surface along 
slopes. These are often found within 2 km of the exposed boundary of 
the Edwards or Devils River and Glen Rose geological formations;
    (2) Native, old-growth juniper-oak woodlands and shrublands along 
the Balcones Escarpment;
    (3) Herbivory from white-tailed deer and introduced ungulates of 
such low intensity that it does not severely deplete populations prior 
to seed dispersal;
    (4) Tree and shrub canopy gaps that allow direct sunlight to reach 
the herbaceous plant layer at least 6 hours per day; and
    (5) Viable populations of native bee species and the abundant, 
diverse forb and shrub understory that support them.

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 protections to reduce 
the following threats: Habitat loss due to urban and residential 
development, increased woody plant cover, severe herbivory by native 
and introduced ungulates, and trampling and erosion from recreational 
use. Management activities that could ameliorate these threats include 
(but are not limited to) juniper thinning, prescribed fire, fencing to 
exclude deer and other herbivores, herd management of local ungulate 
populations, and protection from foot and bicycle traffic. These 
management activities will protect the physical and biological features 
essential for the conservation of the species by reducing herbivory, 
maintaining open canopies, protecting the habitat from trampling and 
erosion, and conserving diverse shrub and forb understory vegetation 
that supports the species' native bee pollinators.

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 designating critical 
habitat within occupied habitat in all three representation areas, 
including areas that preserve the populations with the highest 
resiliency. We are not designating any areas outside the geographical 
area occupied by the species because we have not identified any 
unoccupied areas that meet the definition of critical habitat.
    We considered the geographic areas occupied by the species at the 
time of listing to consist of EOs with survey data within the past 7 
years or areas in which we confirmed that habitat remained intact using 
aerial imagery. We know that seeds can remain dormant and viable in the 
soil of intact sites for at least 7 years. Due to the large proportion 
of private lands within the range of the species, the majority of known 
locations occur on publicly owned conservation lands that can be 
accessed for surveys. Most of the critical habitat units have been 
surveyed annually, and the habitats are protected by the cities of 
Austin and San Antonio. We do not have recent surveys for two sites, 
EOs 10 and 18 (Garner State Park and Medina Lake). However, we have 
precise geographic coordinates for these populations collected with 
Global Positioning System (GPS) instruments. In a Geographic 
Information System (GIS), we have overlaid the geographic coordinates 
of these sites on recent orthographically corrected aerial photographs 
and have determined that the habitats remain intact.
    For areas within the geographic area occupied by the species at the 
time of listing, we delineated critical habitat unit boundaries using 
the following criteria. We delineated each critical habitat unit around 
areas where karstic, dolomitic limestones of the Edwards or Devils 
River formations overlay the less permeable Glen Rose formation. The 
elevation ranges and degree of slope of these geological strata vary 
among EOs. However, because the exposed strata that support bracted 
twistflower populations are nearly horizontal, we used the elevation 
range where individuals have been observed at each EO to delineate this 
essential geological feature over the short distances spanned by that 
EO. Similarly, since seepage from overlying karst aquifers occurs on 
slopes, we also used the range of slopes where individuals have been 
observed at each EO to delineate this essential feature at that EO. 
Thus, we combined the parameters of the observed elevation range and 
slope range of the species at each EO to delimit each critical habitat 
unit. However, we excluded any areas that lack natural vegetation, such 
as roads and buildings, as determined through examination of recent 
aerial photographs. We also did not designate critical habitat units at 
EOs that are no longer occupied, or that no longer possess the 
essential physical and biological features due to development or 
significant disturbance. Finally, we did not extend critical habitat 
units beyond areas that have been surveyed, because we cannot determine 
if they contain the essential physical or biological features.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands

[[Page 21861]]

lack physical or biological features necessary for bracted twistflower. 
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 rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action will affect the 
physical or biological features in the adjacent critical habitat.
    We are designating as critical habitat areas 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 life-history processes of the 
species.
    Units are designated based on one or more of the physical or 
biological features being present to support bracted twistflower's 
life-history processes. Some units contain all of the identified 
physical or biological features and support multiple life-history 
processes. Some units contain only some of the physical or biological 
features necessary to support the bracted twistflower's particular use 
of that habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document under 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-2021-0013.

Final Critical Habitat Designation

    We are designating three units as critical habitat for the bracted 
twistflower. The critical habitat areas we describe below constitute 
our current best assessment of areas that meet the definition of 
critical habitat for the bracted twistflower. The three areas we 
designate as critical habitat are: (1) Northeast Unit; (2) Central 
Unit; and (3) Southwest Unit. Table 3 shows the critical habitat units, 
the land ownership, and the approximate area of each unit. All 
designated units are occupied.

                           Table 3--Critical Habitat Units for the Bracted Twistflower
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                             Subunit                                                   Critical habitat size
                          (conservation                                          -------------------------------
         Unit            area or property   Property owner        Occupied?
                              name)                                                    Acres         Hectares
----------------------------------------------------------------------------------------------------------------
1. Northeast..........  1a. Barton Creek   City of Austin..  Yes................          690.50          279.44
                         Greenbelt/
                         Wilderness Park
                         (EOs 17, 36).
                        1b. Bull Creek     City of Austin..  Yes................            2.32            0.94
                         District Park
                         (EO 35).
                        1c. Mount Bonnell  City of Austin..  Yes................            2.00            0.81
                         Park (EO 9).
                        1d. Ullrich Water  City of Austin..  Yes................           19.47            7.88
                         Treatment Plant
                         (Bee Creek Park)
                         (EO 7).
2. Central............  2a. Eisenhower     City of San       Yes................           78.16           31.63
                         Park (EO 23).      Antonio.
                        2b. Rancho Diana   City of San       Yes................          395.73          160.15
                         (EO 31).           Antonio.
                        2c. Laurel Canyon  Laurel C. Canyon  Yes................           39.59           16.02
                         Ranch Easement     Ranch LP; City
                         (EO 25).           of San Antonio
                                            holds
                                            conservation
                                            easement.
                        2d. Medina River   Private.........  Yes................           23.28            9.42
                         (EO 18).
3. Southwest..........  Garner State Park  Texas Parks and   Yes................          345.22          139.71
                         (EO 10).           Wildlife
                                            Department.
                                                                                 -------------------------------
    Totals:...........  .................  ................  ...................        1,596.27          646.00
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum exactly due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the bracted twistflower, 
below.

Unit 1: Northeast

    Unit 1 consists of approximately 715 ac (289 ha) of occupied 
habitat within Travis County, Texas, and is composed of four subunits. 
All four subunits are owned by the City of Austin with the majority of 
the designated critical habitat occurring on lands managed for 
conservation as part of the BCP. This unit contains the essential 
physical and biological features of proximity to the geological 
boundary, old-growth juniper-oak woodlands, tree and shrub canopy gaps, 
and viable native bee populations. Some areas within this unit are 
protected from deer herbivory. Threats occurring within this unit 
include juniper encroachment, infrequent wildfire, white-tailed deer 
herbivory, off-trail recreational uses, and small population sizes. 
Special management needed for the bracted twistflower within this unit 
includes white-tailed deer herd management, thinning of juniper trees, 
and prescribed burning. For subunit descriptions, refer to the proposed 
rule (86 FR 62668; November 10, 2021).

Unit 2: Central

    Unit 2 consists of approximately 537 ac (217 ha) of occupied 
habitat within Bexar and Medina Counties in Texas. This unit is 
composed of four subunits and includes the largest known population of 
bracted twistflower. Land ownership within this unit consists of City 
of San Antonio owned properties and well as two privately-owned 
properties, one of which has a conservation easement held by the City 
of San Antonio. This unit contains the essential physical and 
biological features of proximity to the geological boundary, old-growth 
juniper-oak woodlands, protection from deer herbivory, tree and shrub 
canopy gaps, and viable native bee populations.
    Threats to this unit include herbivory from white-tailed deer, 
juniper encroachment, infrequent wildlife, off-trail recreational uses, 
and small population size.
    Special management needed for the bracted twistflower within this 
unit includes white-tailed deer herd management, thinning of juniper 
trees, and prescribed burning.

[[Page 21862]]

Unit 3: Southwest

    Unit 3 consists of occupied habitat within Uvalde County, Texas. 
Garner State Park was donated by local landowners to the State of Texas 
in 1941, and is managed by TPWD. One population of bracted twistflower 
persists at this very heavily visited, 1,786-ac (723-ha) State park. We 
are designating 345.22 ac (139.71 ha) as occupied critical habitat for 
the bracted twistflower at Garner State Park (EO 10). This unit 
contains the essential physical and biological features of proximity to 
the geological boundary, old-growth juniper-oak woodlands, tree and 
shrub canopy gaps, and viable native bee populations. Specific threats 
include herbivory from white-tailed deer and introduced ungulates, 
juniper encroachment into canopy gaps, off-trail recreational uses of 
habitats, and infrequent wildfire. Special management needed for the 
bracted twistflower within this unit includes white-tailed deer herd 
management and thinning of juniper trees; if it can be conducted 
safely, management could include prescribed burning.

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. 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.
    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, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) 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 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 on previously reviewed actions. 
These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (a) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (b) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (c) if 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 (d) if a new species is listed or critical habitat 
designated that may be affected by the identified action.
    In such situations, Federal agencies sometimes may need to request 
reinitiation of consultation with us, but Congress also enacted some 
exceptions in 2018 to the requirement to reinitiate consultation on 
certain land management plans on the basis of a new species listing or 
new designation of critical habitat that may be affected by the subject 
Federal action. See 2018 Consolidated Appropriations Act, Public Law 
115-141, Div, O, 132 Stat. 1059 (2018).

Application of the ``Adverse Modification'' Standard

    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 as a 
whole 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 the Services 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 disturb the soil or underlying rock strata, reduce the diversity 
and abundance of native bees and bee-pollinated plant species, or 
diminish the perched aquifers that supply seep moisture to bracted 
twistflower habitats. Such activities could include, but are not 
limited to, excavation of soil or underlying rock strata with 
bulldozers, graders, back-hoes, or excavators within habitats; 
application of insecticides that kill or impair native bees; 
application of herbicides that kill or damage native bee-pollinated 
plants; and displacement of native juniper-oak woodlands with surface 
cover, such as pavement and

[[Page 21863]]

buildings, that impede infiltration of rainwater into the soil. These 
activities could deplete or destroy the soil seed reserve of viable 
seeds of the bracted twistflower, diminish the abundance of the 
species' pollinators and thereby reduce seed production and gene flow, 
or alter the soil and hydrology so that it no longer supports the 
germination, establishment, and reproduction of the bracted 
twistflower.

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 (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.
    In preparing this final rule, we have determined that the lands 
within the critical habitat designation for the bracted twistflower are 
not owned, managed, or used by the DoD.

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). We explain each decision to exclude areas, as well as decisions 
not to exclude, to demonstrate that the decision is reasonable.
    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. We describe below the process that we undertook for 
taking into consideration each category of impacts and our analyses of 
the relevant impacts.

Exclusions Based on Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, we consider 
our draft economic analysis of the critical habitat designation and 
related factors (IEc 2020, entire). The analysis, dated December 7, 
2020, was made available for public review from November 10, 2021, 
through January 10, 2022 (86 FR 62668). The economic analysis addressed 
probable economic impacts of critical habitat designation for bracted 
twistflower. Following the close of the comment period, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Additional information 
relevant to the probable incremental economic impacts of critical 
habitat designation for the bracted twistflower is summarized below and 
available in the screening analysis for the bracted twistflower (IEc 
2020, entire), available at https://www.regulations.gov.
    Future consultation activity within the critical habitat area is 
likely to be very limited, but may include the following categories: 
(1) Land restoration of enhancement; (2) agriculture; (3) development; 
(4) transmission line construction; (5) oil or gas pipelines; (6) 
transportation; and (7) stream modification. The majority (99 percent) 
of the critical habitat area is within protected areas and conservation 
lands. The consultation history indicates that few projects and 
activities have occurred within critical habitat and within the broader 
range of the species over the past 9 years. Future consultations within 
the critical habitat units are anticipated to range from 0 to 0.1 
formal consultations per year, 0.1 to 0.4 informal consultations per 
year, and 0 to 0.9 technical assistance efforts per year. Based on the 
average annual rate of consultations, the incremental administrative 
costs of consultation for the critical habitat units may range from 
$280 to $2,100 in an average year (IEc 2020, p. 15). We received no new 
information pertaining to our economic analysis during the comment 
period and have made no changes to our analysis of economic impacts in 
this final rule.
    We considered the economic impacts of the critical habitat 
designation. The Secretary is not exercising her discretion to exclude 
any areas from this designation of critical habitat for the bracted 
twistflower based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

    In preparing this rule, we determined that none of the lands within 
the designated critical habitat for the bracted twistflower are owned 
or managed by the DoD or Department of Homeland Security, and, 
therefore, we anticipate no impact on national security or homeland 
security. We did not receive any additional information during the 
public comment period for the proposed designation regarding impacts of 
the designation on national security or homeland security that would 
support excluding any specific areas from this final critical habitat 
designation under the authority of section 4(b)(2) of the Act and our 
implementing regulations at 50 CFR 424.19.

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 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 (SHAs), or 
candidate conservation agreements with assurances (CCAAs)--or whether 
there are non-permitted conservation

[[Page 21864]]

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.
    We received a request to exclude a portion of the subunit 1d: 
Ullrich Water Treatment Plant, from the City of Austin. Although a 
portion of this subunit is within the Balcones Canyonlands Preserve, 
the portion requested for exclusion is outside the preserve and 
therefore not covered by the Balcones Canyonlands Preserve Land 
Management Plan. Because the area requested for exclusion occurs 
outside the Balcones Canyonlands Preserve and is not protected under 
the Balcones Canyonlands Preserve Land Management Plan, we determined 
that it does not qualify for an exclusion based on a permitted plan and 
are not excluding this area from critical habitat. The requester did 
not present a reasoned rationale supporting their requests for 
exclusion on any other basis, which is necessary for us to conduct an 
exclusion analysis.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA 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.
    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 will be directly 
regulated by this designation. There is no requirement under the RFA to 
evaluate the potential impacts to entities not directly regulated. 
Moreover, Federal agencies are not small entities. Therefore, because 
no small entities will be directly regulated by this rulemaking, the 
Service certifies that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities.
    In summary, we have considered whether this final designation will 
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 this final critical habitat designation 
will not have a significant economic impact on a substantial number of 
small business entities. Therefore, a regulatory flexibility analysis 
is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. In our economic analysis, we did not find that this 
critical habitat designation will significantly affect energy supplies, 
distribution, or use. The Office of Management and Budget (OMB) has 
provided guidance for implementing this Executive Order that outlines 
nine outcomes that may constitute ``a significant adverse effect'' when 
compared to not taking the regulatory action under consideration. The 
economic analysis finds that none of these criteria are relevant to 
this analysis. Thus, based on information in the economic analysis, 
energy-related impacts associated with bracted twistflower conservation 
activities within critical habitat are not expected. As such, the 
designation of critical habitat is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a

[[Page 21865]]

significant energy action, and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This rule will 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 will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater 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. By definition, Federal agencies are not 
considered small entities, although the activities they fund or permit 
may be proposed or carried out by small entities. The lands being 
designated as critical habitat are primarily owned by the cities of 
Austin and San Antonio or the State of Texas and none of these 
government entities fits the definition of ``small governmental 
jurisdiction.'' Consequently, we do not believe that the critical 
habitat designation will significantly or uniquely affect small 
government entities. 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 bracted twistflower 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 this designation of critical habitat for the bracted 
twistflower 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 rule does not have 
significant Federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this critical habitat designation with, 
appropriate State resource agencies. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, this final rule does not 
have substantial direct effects either on the States, or on the 
relationship between the national government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The designation may have some benefit to these governments 
because the areas that contain the features essential to the 
conservation of the species are more clearly defined, and the physical 
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 will 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

[[Page 21866]]

rule will not unduly burden the judicial system and that it meets the 
requirements of sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, this final rule identifies the physical or biological features 
essential to the conservation of the species. The designated areas of 
critical habitat are presented on maps, and the 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 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 includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), 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 federally recognized 
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 have determined that no Tribal 
lands fall within the boundaries of the critical habitat for the 
bracted twistflower, so no Tribal lands will be affected by the 
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 Austin Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. In Sec.  17.12, amend paragraph (h) by adding an entry for 
``Streptanthus bracteatus'' to the List of Endangered and Threatened 
Plants in alphabetical order under FLOWERING PLANTS to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name              Common name         Where listed        Status         applicable rules
----------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                  * * * * * * *
Streptanthus bracteatus.........  Bracted twistflower  Wherever found....            T   88 FR [Insert Federal
                                                                                          Register page where
                                                                                          the document begins],
                                                                                          April 11, 2023; 50 CFR
                                                                                          17.73(h);\4d\ 50 CFR
                                                                                          17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.73 by adding paragraph (h) to read as follows:


Sec.  17.73  Special rules--flowering plants.

* * * * *
    (h) Streptanthus bracteatus (bracted twistflower).
    (1) Prohibitions. The following prohibitions that apply to 
endangered plants also apply to the bracted twistflower. Except as 
provided under paragraph (h)(2) of this section, it is unlawful for any 
person subject to the jurisdiction of the United States to commit, to 
attempt to commit, to solicit another to commit, or cause to be 
committed, any of the following acts in regard to this species:
    (i) Import or export, as set forth at Sec.  17.61(b) for endangered 
plants.
    (ii) Remove and reduce to possession the species from areas under 
Federal jurisdiction; maliciously damage or destroy the species on any 
such area; or remove, cut, dig up, or damage or destroy the species on 
any other area in knowing violation of any law or regulation of any 
State or in the course of any violation of a State criminal trespass 
law.
    (iii) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.61(d) for endangered plants.

[[Page 21867]]

    (iv) Sale or offer for sale, as set forth at Sec.  17.61(e) for 
endangered plants.
    (2) Exceptions from prohibitions. In regard to this species:
    (i) You may conduct activities as authorized by permit under Sec.  
17.72.
    (ii) Any employee or agent of the Service or of a State 
conservation agency that is operating a conservation program pursuant 
to the terms of a cooperative agreement with the Service in accordance 
with section 6(c) of the Act, who is designated by that agency for such 
purposes, may, when acting in the course of official duties, remove and 
reduce to possession from areas under Federal jurisdiction members of 
bracted twistflower that are covered by an approved cooperative 
agreement to carry out conservation programs.
    (iii) You may engage in any act prohibited under paragraph (h)(1) 
of this section with seeds of cultivated specimens, provided that a 
statement that the seeds are of ``cultivated origin'' accompanies the 
seeds or their container.

0
4. In Sec.  17.96, amend paragraph (a) by adding an entry for ``Family 
Brassicaceae: Streptanthus bracteatus (bracted twistflower)'', 
immediately after the entry for ``Family Brassicaceae: Physaria 
thamnophila (Zapata bladderpod)'', to read as follows:


Sec.  17.96  Critical habitat--plants.

* * * * *
    Family Brassicaceae: Streptanthus bracteatus (bracted twistflower)
    (1) Critical habitat units are depicted for Bexar, Medina, Travis, 
and Uvalde Counties, Texas, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of bracted twistflower consist of the 
following components:
    (i) Karstic, dolomitic limestones underlain by less permeable 
limestone strata, where perched aquifers seep to the surface along 
slopes. These are often found within 2 kilometers of the exposed 
boundary of the Edwards or Devils River and Glen Rose geological 
formations;
    (ii) Native, old-growth juniper-oak woodlands and shrublands along 
the Balcones Escarpment;
    (iii) Herbivory from white-tailed deer and introduced ungulates of 
such low intensity that it does not severely deplete populations prior 
to seed dispersal;
    (iv) Tree and shrub canopy gaps that allow direct sunlight to reach 
the herbaceous plant layer at least 6 hours per day; and
    (v) Viable populations of native bee species and the abundant, 
diverse forb and shrub understory that support them.
    (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 
May 11, 2023.
    (4) Data layers defining map units were created using U.S. 
Geological Survey digital elevation models. For each unit/subunit, we 
determined the range of occupied elevations and the range of occupied 
slopes; critical habitat polygons consist of the intersection of the 
occupied elevations and occupied slopes. The maps in this entry, as 
modified by any accompanying regulatory text, establish the boundaries 
of the critical habitat designation. The coordinates or plot points or 
both on which each map is based are available to the public at https://www.regulations.gov at Docket No. FWS-R2-ES-2021-0013, 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) Index map follows:

Figure 1 to Streptanthus bracteatus (bracted twistflower) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TR11AP23.004


[[Page 21868]]


    (6) Unit 1: Northeast; Travis County, Texas.
    (i) Subunit 1a: Barton Creek Greenbelt and Barton Creek Wilderness 
Park.
    (A) Subunit 1a consists of 690.5 acres (ac) (279.44 hectares (ha)) 
in Travis County and is composed of lands along Barton Creek owned by 
the City of Austin Parks and Recreation Department and jointly managed 
by the Parks and Recreation Department and Austin Water's Wildland 
Conservation Division as a unit of the Balcones Canyonlands Preserve 
(BCP) system.
    (B) Map of Subunit 1a follows:

Figure 2 to Streptanthus bracteatus (bracted twistflower) paragraph 
(6)(i)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.005


[[Page 21869]]


    (ii) Subunit 1b: Bull Creek District Park.
    (A) Subunit 1b consists of 2.32 ac (0.94 ha) in Travis County and 
is composed of lands owned by the City of Austin Parks and Recreation 
Department and jointly managed by the Parks and Recreation Department 
and Austin Water's Wildland Conservation Division as a unit of the BCP 
system.
    (B) Map of Subunit 1b follows:

Figure 3 to Streptanthus bracteatus (bracted twistflower) paragraph 
(6)(ii)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.006


[[Page 21870]]


    (iii) Subunit 1c: Mount Bonnell Park.
    (A) Subunit 1c consists of 2 ac (0.81 ha) in Travis County and is 
composed of lands owned by the City of Austin Parks and Recreation 
Department and jointly managed by the Parks and Recreation Department 
and Austin Water's Wildland Conservation Division as a unit of the BCP 
system.
    (B) Map of Subunit 1c follows:

Figure 4 to Streptanthus bracteatus (bracted twistflower) paragraph 
(6)(iii)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.007


[[Page 21871]]


    (iv) Subunit 1d: Ullrich Water Treatment Plant/Bee Creek Park.
    (A) Subunit 1d consists of 19.47 ac (7.88 ha) in Travis County and 
is composed of lands owned by the City of Austin Water Utility, a 
portion of which is jointly managed by the Parks and Recreation 
Department and Austin Water's Wildland Conservation Division as a unit 
of the BCP system.
    (B) Map of Subunit 1d follows:

Figure 5 to Streptanthus bracteatus (bracted twistflower) paragraph 
(6)(iv)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.008


[[Page 21872]]


    (7) Unit 2: Central; Bexar and Medina Counties, Texas.
    (i) Subunit 2a: Eisenhower Park.
    (A) Subunit 2a consists of 78.16 ac (31.63 ha) in Bexar County and 
is composed of lands owned by the City of San Antonio and managed by 
San Antonio Parks and Recreation Department.
    (B) Map of Subunit 2a follows:

Figure 6 to Streptanthus bracteatus (bracted twistflower) paragraph 
(7)(i)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.009


[[Page 21873]]


    (ii) Subunit 2b: Rancho Diana.
    (A) Subunit 2b consists of 395.73 ac (160.15 ha) in Bexar County 
and is composed of lands owned and managed by the City of San Antonio.
    (B) Map of Subunit 2b follows:

Figure 7 to Streptanthus bracteatus (bracted twistflower) paragraph 
(7)(ii)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.010

    (iii) Subunit 2c: Laurel Canyon Ranch Easement.
    (A) Subunit 2c consists of 39.59 ac (16.02 ha) in Medina County and 
is composed of private property owned by Laurel C. Canyon Ranch, LP. 
The City

[[Page 21874]]

of San Antonio Edwards Aquifer Protection Program holds a conservation 
easement on 222 ha (549 ac) of Laurel Canyon Ranch.
    (B) Map of Subunit 2c follows:

Figure 8 to Streptanthus bracteatus (bracted twistflower) paragraph 
(7)(iii)(B)
[GRAPHIC] [TIFF OMITTED] TR11AP23.011

    (iv) Subunit 2d: Medina River.
    (A) Subunit 2d consists of 23.28 ac (9.42 ha) in Medina County and 
is composed of private property owned by Medina Ranch Inc.
    (B) Map of Subunit 2d follows:

Figure 9 to Streptanthus bracteatus (bracted twistflower) paragraph 
(7)(iv)(B)

[[Page 21875]]

[GRAPHIC] [TIFF OMITTED] TR11AP23.012

    (8) Unit 3: Southwest; Garner State Park, Uvalde County, Texas.
    (i) Unit 3 consists of 345.22 ac (139.71 ha) in Uvalde County and 
is composed of lands within Garner State Park, which is managed by 
Texas Parks and Wildlife Department.
    (ii) Map of Unit 3 follows:

Figure 10 to Streptanthus bracteatus (bracted twistflower) paragraph 
(8)(ii)

[[Page 21876]]

[GRAPHIC] [TIFF OMITTED] TR11AP23.013

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-07118 Filed 4-10-23; 8:45 am]
BILLING CODE 4333-15-P