[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Proposed Rules]
[Pages 38455-38477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12129]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2022-0156; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF85


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Navasota False Foxglove and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list Navasota false foxglove (Agalinis navasotensis), a plant species 
from Grimes and Tyler Counties, Texas, as an endangered species under 
the Endangered Species Act of 1973, as amended (Act). This 
determination also serves as our 12-month finding on a petition to list 
Navasota false foxglove. After a review of the best available 
scientific and commercial information, we find that listing the species 
is warranted. We also propose to designate critical habitat for 
Navasota false foxglove under the Act. In total, approximately 1.9 
acres (0.8 hectares) in Grimes and Tyler Counties, Texas, fall within 
the boundaries of the proposed critical habitat designation. In 
addition, we announce the availability of a draft economic analysis of 
the proposed designation of critical habitat for Navasota false 
foxglove. If we finalize this rule as proposed, it would add this 
species to the List of Endangered and Threatened Plants and extend the 
Act's protections to the species and its designated critical habitat.

DATES: We will accept comments received or postmarked on or before 
August 14, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by July 28, 2023.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2022-0156, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2022-0156, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://fws.gov/species/navasota-false-foxglove-agalinis-navasotensis, and https://www.regulations.gov at Docket No. FWS-R2-ES-2022-0156, or both. For the 
critical habitat designation, the coordinates or plot points or both 
from which the maps are generated are included in the decision file for 
this critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R2-ES-2022-0156 and on the 
Service's website at https://fws.gov/species/navasota-false-foxglove-agalinis-navasotensis.

FOR FURTHER INFORMATION CONTACT: Chuck Ardizzone, Project Leader, Texas 
Coastal Ecological Services Field Office, U.S. Fish and Wildlife 
Service, 17629 El Camino Real, Ste. 211, Houston, TX 77058; telephone: 
(281) 286-8282. Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make

[[Page 38456]]

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 within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
Navasota false foxglove meets the definition of an endangered species; 
therefore, we are proposing to list it as such and proposing a 
designation of its critical habitat. Both listing a species as an 
endangered or threatened species and designating critical habitat can 
be completed only by issuing a rule through the Administrative 
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. We propose to list the Navasota false 
foxglove as an endangered species under the Act, and we propose the 
designation of critical habitat for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the Navasota false 
foxglove is endangered due to the following threats: the encroachment 
of woody vegetation (Factor A) and the demographic consequences of few 
(three) small populations (Factor E). Land use changes (Factor A), 
consequences from global climate change (Factors A and E), and the 
cumulative impacts from all of the above-mentioned influences are also 
impacting the species' status.
    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 protection; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns, 
including the locations of any additional populations of this species;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Threats and conservation actions affecting the species, 
including:
    (a) Factors that may be affecting the continued existence of the 
species, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors.
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species.
    (c) Existing regulations or conservation actions that may be 
addressing threats to this species.
    (3) Additional information concerning the historical and current 
status of this species.
    (4) Specific information on:
    (a) The amount and distribution of Navasota false foxglove habitat;
    (b) Any additional areas occurring within the range of the species, 
in Grimes and Tyler Counties, Texas, that should be included in the 
designation because they (i) are occupied at the time of listing and 
contain the physical or biological features that are essential to the 
conservation of the species and that may require special management 
considerations, or (ii) are unoccupied at the time of listing and are 
essential for the conservation of the species; and
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) Whether occupied areas are adequate for the conservation of the 
species, as this will help us evaluate the potential to include areas 
not occupied at the time of listing. Additionally, please provide 
specific information regarding whether or not unoccupied areas would, 
with reasonable certainty, contribute to the conservation of the 
species and contain at least one physical or biological feature 
essential to the conservation of the species. We also seek comments or 
information regarding whether areas not occupied at the time of listing 
qualify as habitat for the species.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Additional information regarding land ownership within the 
proposed critical habitat units
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (10) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts and any additional information 
regarding probable economic impacts that we should consider.
    (11) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. If you think we should exclude any 
additional areas, please provide information supporting a benefit of 
exclusion.

[[Page 38457]]

    (12) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a threatened species must be made solely on the basis of 
the best scientific and commercial data available, and section 4(b)(2) 
of the Act directs that the Secretary shall designate critical habitat 
on the basis of the best scientific information available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any information that may become available after this proposal. Based 
on the new information we receive (and any comments on that new 
information), we may conclude that the species is threatened instead of 
endangered, or we may conclude that the species does not warrant 
listing as either an endangered species or a threatened species. For 
critical habitat, our final designation may not include all areas 
proposed, may include some additional areas that meet the definition of 
critical habitat, or may exclude some areas if we find the benefits of 
exclusion outweigh the benefits of inclusion and exclusion will not 
result in the extinction of the species. In our final rule, we will 
clearly explain our rationale and the basis for our final decision, 
including why we made changes, if any, that differ from this proposal.

Public Hearing

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

Previous Federal Actions

    On June 25, 2007, we received a petition to list 475 species, 
including Navasota false foxglove, from Forest Guardians (now WildEarth 
Guardians). On December 16, 2009, we published a 90-day finding for 192 
of those species, including the Navasota false foxglove (74 FR 66866). 
We found that there was substantial information indicating that listing 
the species may be warranted. The Navasota false foxglove was added to 
our national listing workplan with a target completion date of fiscal 
year 2023 for the 12-month finding. We completed a species status 
assessment for the species in 2022.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the Navasota false foxglove. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the Navasota false foxglove SSA 
report. We sent the SSA report to eight independent peer reviewers, 
including scientists, botanists, and consultants with a variety of 
expertise in rare plants, conservation and restoration, and fire 
management. We received review from two peer reviewers. Results of this 
structured peer review process can be found at https://regulations.gov 
under Docket No. FWS-R2-ES-2022-0156. In preparing this proposed rule, 
we incorporated the results of these reviews, as appropriate, into the 
SSA report, which is the foundation for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review, above, we received comments from two 
peer reviewers on the draft SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer reviewers generally concurred with our methods and conclusions, 
and provided additional information, clarifications in terminology and 
discussions of genetic diversity, and other editorial suggestions.

I. Proposed Listing Determination

Background

    Agalinis (false foxglove) is a genus of about 70 species in North, 
Central, and South America that until 2008 was aligned with members of 
the family Scrophulariaceae (figwort). In 2008, it was shown to be more 
closely related to Orobanchaceae (broomrape), which consists mostly of 
hemiparasitic plants (plants that obtain part of their food by 
parasitism; Pettengill and Neel 2008, p. 15).
    Navasota false foxglove is a narrowly endemic, hemiparasitic, 
annual plant known from only two counties in southeast Texas (Grimes 
and Tyler Counties). Navasota false foxglove flowering begins in mid-
September and is triggered by short days when there are fewer hours of 
sunlight (Reed et al. 2005, p. 7). Navasota false foxglove blooms from 
mid-September to October, and seeds mature from October to early 
November. Fruit maturation and seed dispersal occurs by November; other 
Agalinis fruit typically contains between 50 and 180 seeds (Cunningham 
and Parr 1990, p. 269). Plants are usually dead by December. This 
species

[[Page 38458]]

is relatively hard to see when the plants are not in flower, and even 
during flowering times they can be hard to see across the landscape. 
They bloom every day in fall months, and flowers often drop by mid-
afternoon of the same day. Navasota false foxglove require full 
sunlight and will not grow in solid stands of very dense vegetation 
(Strong and Williamson 2015, p. 6). The species occurs on rocky 
outcrops with well drained, shallow soils that have historically been 
ungrazed and unplowed.
    Navasota false foxglove is an annual herb from a few fibrous roots, 
11-36 inches (2.7-9.1 decimeters) tall, often tinged with purple, 
maroon, or bronze. The blooms are often purplish-pink in color. The 
leaves and general appearance of Navasota false foxglove resemble 
several other common false foxgloves that all have thin, thread-like 
leaves (Canne-Hilliker and Dubrule 1993, pp. 426-431).
    Navasota false foxglove is hemiparasitic (a plant that possesses 
chlorophyll and typically carries out photosynthesis but is partially 
parasitic on the roots or shoots of a plant host), and little bluestem 
(Schizachyrium scoparium) is hypothesized to be one of the main plants 
that it parasitizes (Reed 2019 pers. comm.). Host plants provided 
needed nutrients for survival and reproduction of Navasota false 
foxglove, especially in drought years.
    Navasota false foxglove is found in three populations in two 
counties in Texas and is most similar to Caddo false foxglove (Agalinis 
caddoensis), a species presumed extinct from Louisiana. The status of 
Navasota false foxglove as a distinct species was supported by DNA 
barcoding research (Pettengill and Neel 2010, entire), but the 
distinction and population genetics between the current sites in Grimes 
and Tyler Counties, Texas, have not been analyzed. The Grimes County 
and Tyler County populations are separated by more than 100 miles.
    Land use has remained consistent since the populations were found. 
The private landowners have allowed the Service and other individuals 
from Texas A&M University to visit their property for surveys and 
implementing habitat management projects.

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 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 required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define 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.

[[Page 38459]]

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess Navasota false foxglove viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt over time to 
long-term changes in the environment (for example, climate conditions, 
pathogens). In general, species viability will increase with increases 
in resiliency, redundancy, and representation (Smith et al. 2018, p. 
306). Using these principles, we identified the species' ecological 
requirements for survival and reproduction at the individual, 
population, and species levels, and described the beneficial and risk 
factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2022-0156 on https://www.regulations.gov and at https://www.fws.gov/office/texas-coastal-ecological-services.

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 evaluated the individual needs of Navasota false foxglove in 
terms of the resource needs and/or the circumstances that are necessary 
to complete each stage of the life cycle. The life history of Navasota 
false foxglove is closely tied to its specific habitat requirements for 
all stages of the species' life cycle. Table 1 summarizes the resources 
that are needed by life stage. For further information about any 
particular life stage or resource need, see chapter 2 of the SSA report 
(Service 2022, pp. 8-24).

                                      Table 1--Resource Needs by Life Stage
----------------------------------------------------------------------------------------------------------------
                                           Resources and/or
                                       circumstances needed for
             Life stage                individuals to complete       Resource function          References
                                           each life stage
----------------------------------------------------------------------------------------------------------------
Seeds..............................   Calcareous sandy    Habitat Nutrition Seed  Strong and Williamson
                                      to clay loam soils that      dispersal.              2015, pp. 5, 9; Canne-
                                      are ungrazed, unplowed,                              Hilliker & Dubrule
                                      shallow thin soils.                                  1993, p. 433.
                                      Limited woody
                                      encroachment; open prairie
                                      habitat..
                                      Full sun.
                                      Annual
                                      precipitation events that
                                      provide enough soil
                                      moisture for germination.
Germination........................   Host plants         Habitat Nutrition.....  Strong and Williamson
                                      (growing root tips that                              2015, pp. 5, 9; Canne-
                                      produce exudate for                                  Hilliker & Dubrule
                                      development).                                        1993, p. 433;
                                      Annual                                       Yatskievych 2021,
                                      precipitation events that                            pers comm.
                                      provide enough soil
                                      moisture for germination..
                                      In drought years,
                                      a host to parasitize to
                                      gather more nutrients and
                                      water..
                                      Disturbance from
                                      periodic fires stimulates
                                      new root growth in host
                                      plants and therefore
                                      stimulates germination of
                                      Agalinis seeds.
                                      Calcareous,
                                      shallow, sandy to clay
                                      loam soils that are
                                      ungrazed and unplowed.
                                      Limited woody
                                      encroachment; open prairie
                                      habitat.
                                      Full sun.
Seedlings..........................   Calcareous,         Habitat Nutrition.....  Strong and Williamson
                                      shallow, sandy to clay                               2015, pp. 5, 8, 9;
                                      loam soils that are                                  Canne-Hilliker &
                                      ungrazed and unplowed.                               Dubrule 1993, p. 433.
                                      Limited woody
                                      encroachment; open prairie
                                      habitat..
                                      Full sun
                                      Annual
                                      precipitation events that
                                      provide enough soil
                                      moisture for germination.
Mature and reproductive adults.....   Short sun hour      Habitat Nutrition       Strong and Williamson
                                      days to trigger flowering.   Reproduction.           2015, pp. 5, 9; Canne-
                                      Full sun exposure;                           Hilliker & Dubrule
                                      can maintain with shade up                           1993, p. 433; Reed
                                      to 10-15%..                                          2021, pers. comm.
                                      Pollinators.......
                                      Host plant for
                                      resources..

[[Page 38460]]

 
                                      Sparse surrounding
                                      vegetation (adversely
                                      affected if surrounding
                                      vegetation is too thick).
                                      Calcareous,
                                      shallow, sandy to clay
                                      loam soils that are
                                      ungrazed and unplowed.
                                      Limited woody
                                      encroachment; open prairie
                                      habitat.
                                      Annual
                                      precipitation events that
                                      provide enough soil
                                      moisture for germination.
Fruit/capsule......................   Pollination         Habitat Nutrition       Canne-Hilliker &
                                      (selfing or pollinators).    Reproduction.           Dubrule 1993, p. 433;
                                      Host plant for                               Strong and Williamson
                                      resources..                                          2015, pp. 5, 9.
                                      Calcareous,
                                      shallow, sandy to clay
                                      loam soils that are
                                      ungrazed and unplowed..
                                      Limited woody
                                      encroachment; open prairie
                                      habitat.
                                      Full sun.
                                      Annual
                                      precipitation events that
                                      provide enough soil
                                      moisture for germination.
----------------------------------------------------------------------------------------------------------------

    We identify the species' needs in terms of redundancy and 
representation of the species. We evaluate the redundancy of this 
species by the number and distribution of Navasota false foxglove 
populations. Having multiple populations distributed across a larger 
area reduces the risk of catastrophic events that may affect one or 
more populations simultaneously, affecting the whole species. Fewer 
populations distributed narrowly across the species' range would 
increase catastrophic risk and lower redundancy. Representation of 
Navasota false foxglove is based on the presence of multiple, self-
sustaining populations across the range of the species and their 
contributions to providing adaptive capacity to the species in the face 
of changing conditions. Navasota false foxglove requires a level of 
genetic diversity that enables the species to adapt to environmental 
change. We do not know if there is occupied habitat elsewhere within 
Grimes County, Tyler County, or other areas of Texas. Therefore, we do 
not know how many populations are necessary to provide sufficient 
redundancy and representation to the species.

Stressors Affecting Navasota False Foxglove and Its Habitat

Encroachment of Woody Vegetation
    Navasota false foxglove thrives in full sun along with its assumed 
host plant, little bluestem. This species thrives in full sun and on 
outcrops that are described as distinct islands surrounded by a sea of 
Post Oak Savannah (Canne-Hilliker and Dubrule 1993). Woody vegetation 
shades out areas of habitat that have previously provided full sun, 
inhibiting plant growth. Woody vegetation from surrounding savannahs, 
if not controlled, will invade these distinct islands of outcrops and 
reduce full sun conditions, which Navasota false foxglove needs to 
survive. Management, including prescribed fires, can prevent the 
invasion of woody vegetation and stimulate root growth of the host 
plant. Woody vegetation control has occurred in element occurrence (EO) 
6674 (East), through both prescribed fires and mechanical removal; 
subsequent surveys revealed much higher numbers of individuals. Habitat 
improvements and prescribed fires have only occurred within EO 6674 
(East), although woody vegetation occurs at the other two populations 
as well.
Disturbance
    Navasota false foxglove has adapted to different types of 
disturbance including land clearing, road improvements, grazing, 
vegetation removal, and prescribed fire. Some disturbance types are 
beneficial; after a prescribed fire, the number of individuals the 
following survey year had more than doubled, indicating this species 
may be fire dependent. Although Navasota false foxglove may be able to 
persist through different types of disturbances, the species occurs in 
areas that are historically ungrazed and unplowed, indicating it is not 
tolerant of land use changes.
    All three Navasota false foxglove populations are near developed 
roads or areas used for harvesting timber, areas that are vulnerable to 
actions such as road construction, grading, and other ground-moving 
activities. Grazing, another type of disturbance, has occurred on the 
Grimes West population of Navasota false foxglove, where evidence of 
hoof prints and livestock waste were observed. Individual livestock 
have not been present during visits to this site. While several 
individuals of Navasota false foxglove have been observed in these 
areas, trampling could occur, but because livestock grazing is limited 
and we know of no plans for it to increase, it likely does not pose a 
current threat to the species.
Climate Change and Drought
    Climate change has already begun, and continued greenhouse gas 
emissions at or above current rates will cause further warming 
(Intergovernmental Panel on Climate Change (IPCC) 2013, pp. 11-12). 
Warming in the Southwest is expected to be greatest in the summer, and 
annual mean precipitation is very likely to decrease in the Southwest 
(IPCC 2013, pp. 11-12). In Texas, the number of extreme hot days (high 
temperatures exceeding 95 degrees Fahrenheit ([deg]F)) are expected to 
double by around 2050 (Kinniburgh et al. 2015, p. 83).
    The Fifth Assessment Report of the IPCC (2013, p. 23) projects the 
following changes by the end of the 21st century, relative to the 1986 
to 2005 averages:
     It is virtually certain that most land areas will 
experience warmer and/or fewer cold days and nights;
     It is virtually certain that most land areas will 
experience warmer and/or more frequent hot days and nights;
     It is very likely that the frequency and/or duration of 
warm spells and heat waves will increase in most land areas;
     It is very likely that the frequency, intensity, and/or 
amount of heavy precipitation events will increase in mid-latitude land 
masses; and
     It is likely that the intensity and/or duration of 
droughts will increase on a regional to global scale.

[[Page 38461]]

    Representative concentration pathways (RCPs) provide a framework 
for modelling in the next stages of scenario-based research for 
greenhouse gas emissions. These are plausible pathways toward reaching 
each target of time-evolving emissions or concentrations of radiatively 
active constituents (Moss et al. 2010, p. 752). RCPs provide scenarios 
that include time series of emissions and concentrations of greenhouse 
gases, aerosols, and chemically active gases. Within the term 
``representative concentration pathway,'' the word ``representative'' 
signifies that each RCP provides only one of many possible scenarios 
that would lead to the specific radiative-forcing characteristics. The 
word ``pathway'' emphasizes that not only are the long-term 
concentration levels something to consider, but the possible outcomes 
of these trajectories over time (Moss et al. 2010, p. 752). RCP models 
provide one of many possible scenarios for future conditions based on 
specific radiative-forcing characteristics, for example, change in the 
concentration of carbon dioxide or the output of the sun. Two RCP 
scenarios were used in the SSA. One pathway was evaluated at RCP 4.5, 
where the radiative forces are stabilized at 4.5 watts per square meter 
by year 2100 and concentrations are constant after year 2150. The 
second pathway evaluated was RCP 8.5, where the radiative forces are 
greater than 8.5 watts per square meter by year 2100 and continue to 
rise.
    Depending on timing and intensity of drought events, Navasota false 
foxglove could be adversely affected by increased mortality rates, 
reduced reproductive output due to loss or reduced vigor of mature 
plants, and reduced rates of seed germination and seedling recruitment. 
Increases in soil temperatures and soil moisture evaporation in 
response to predicted ambient warming could increase rates of soil seed 
bank depletion by increasing seedling mortality rates (Ooi 2012, pp. 
S54-S55) and diminish the resilience of Navasota false foxglove 
populations by reducing the species' ability to maintain soil seed 
banks. While climate has changed in recent decades in regions where the 
Navasota false foxglove occurs, the rate of change likely will continue 
to increase into the future.
    The species retains the ability to rebound after drought, likely 
due to the seed bank responding to rewetted conditions. Reviewing the 
survey data from extreme drought years in Texas (i.e., 2011, the driest 
year on record), abundance increased the year after the drought ended. 
Species specialists hypothesize that the seed bank provides resiliency 
by allowing the species to be dormant through dry years and then 
germinating in years when conditions are suitable. We do not have 
information regarding how long or how intense of a drought the species 
can withstand.

Conservation Efforts and Regulatory Mechanisms

    Of the three source features for Navasota false foxglove, all three 
EOs occur entirely on privately owned land. The owners of the land 
where the EO 6674 (East) population occurs protect the habitat for 
conservation purposes and voluntarily allow researchers and scientists 
on their property to conduct surveys. Employees of the Texas Parks and 
Wildlife Department and the Service, as well as researchers from Texas 
A&M University, have visited the EO 6674 (West) population several 
times. This population is not currently being managed for Navasota 
false foxglove, but it has new electric fencing to restrict cattle (as 
noted during the fall 2020 site visit). The EO 9000 source feature is 
currently owned by a timber company and has not been visited by 
biologists in several years. The habitat descriptions and locations of 
some other plant species specimens report the presence of Navasota 
false foxglove, but these locations have not been verified nor surveyed 
for Navasota false foxglove by specialists at this time.

Current Condition

    It is very difficult to determine the population sizes and 
demographic trends of an annual plant with wide annual variation in the 
numbers of individuals that germinate from the seed bank, flower, and 
set seed. In the case of EOs that have multiple source features, seed 
germination pulses may not be synchronous at all source features; as 
the maximum numbers observed at different areas may occur in different 
years, the potential population size may be much greater than the 
numbers observed in an entire EO in any single year. However, the 
annual survey results for each EO represent the best available data 
from which to assess population size, and regardless of year-to-year 
variation, these populations are not large and occupy very small areas. 
Small, isolated populations are more vulnerable to catastrophic losses 
caused by random fluctuations in recruitment (demographic 
stochasticity) or variations in rainfall or other environmental factors 
(environmental stochasticity) (USFWS 2016, p. 20). Because these 
populations occur over such small areas, any event that affects a 
population is expected to affect the entire population, possibly 
resulting in extirpation. In addition to population size, it is likely 
that population density also influences resiliency, since reproduction 
requires genetically compatible individuals to be clustered within the 
forage ranges of the species' pollinators.
    Population resiliency for the current condition of Navasota false 
foxglove was derived from two habitat factors (host plant availability, 
open canopy) and two demographic factors (population size and 
connectivity). To rank these four factors, we described conditions that 
were assumed to contribute to ``high,'' ``moderate,'' ``low,'' or 
``very low'' levels of population resilience and provided each with a 
quantified rank of 3, 2, 1, or 0, respectively (see table 2, below). 
See chapter 4 of the SSA report for a full description of each factor 
(Service 2022, p. 27-32).

                                      Table 2--Current Condition Categories
----------------------------------------------------------------------------------------------------------------
                                              Habitat factors                       Demographic factors
                                 -------------------------------------------------------------------------------
       Condition category             Host plant       Open canopy (% of                          Population
                                     availability        sun exposure)      Population size      connectivity
----------------------------------------------------------------------------------------------------------------
High (3)........................  Habitat supports    >=75% open habitat  >=1,667             Population located
                                   LBS,\1\ and the                         individuals.        within 0-0.25 km
                                   plant occurs                                                of another
                                   throughout the                                              occupied site.
                                   occupied area.
Moderate (2)....................  LBS occurs in some  50-75% open         834-1,667           Population located
                                   of the occupied     habitat.            individuals.        between 0.25 and
                                   area.                                                       0.5 km from
                                                                                               another occupied
                                                                                               site.

[[Page 38462]]

 
Low (1).........................  LBS has a low       25-50% open         <=834 individuals.  Population located
                                   occurrence in the   habitat.                                between 0.5 and 1
                                   occupied area.                                              km from another
                                                                                               occupied site.
Very Low (0)....................  LBS does not occur  <=25% open habitat  0 individuals.....  Population located
                                   in the occupied                                             >1 km from
                                   area.                                                       another occupied
                                                                                               site.
----------------------------------------------------------------------------------------------------------------
\1\ LBS stands for little bluestem (Schizachyrium scoparium).

    The available survey data for Navasota false foxglove are limited 
to ``presence/absence,'' and where population estimates are provided, 
the data are infrequent and generally incomparable because survey 
methodologies were not documented and changed over time. Therefore, we 
cannot determine if Navasota false foxglove population numbers are 
changing over time across the source features. In the absence of 
current survey data for some populations (EO 9000), it was assumed that 
if a historically known population site maintains habitat conditions 
conducive to the species, the population is presumed extant. Therefore, 
the current condition of the species may be overestimated.
    The conservation principles of resiliency, redundancy, and 
representation were used to summarize the current condition site scores 
for Navasota false foxglove (see table 3, below). The resiliency of 
each source feature was based on the survey data and condition of the 
individual source features. Specifically, the site scores for the 
extant populations within each source feature considered the total 
number and size of extant populations in each area (i.e., redundancy 
within the source feature), and other factors such as observed 
population size, specific local stressors, and available survey data. 
The species' redundancy and representation were assessed based on the 
distribution of the species. As mentioned above, there can be some 
uncertainty in population size of these source features. Our assessment 
of the species' needs determined that populations with fewer than 834 
individuals are considered to have low resiliency (Table 2). Based on 
our survey results from the largest unit (Unit 1: E.O. 6674 (East)), 
there has not been a survey year with more than 834 individuals since 
the early 2000s. All three populations were ranked as a low for 
population size due to several years in a row of surveys with fewer 
than 834 individuals in all populations at each survey year. 
Additionally, canopy conditions and connectivity are moderate or low in 
all populations. Results of the current condition analysis indicate 
that none of the populations are in high condition, one is in moderate 
condition, and two are in low condition.

                                                         Table 3--Current Condition Site Scores
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Habitat factors                              Demographic factors
                                    ----------------------------------------------------------------------------------------------
           Location  (EO)                  Host plant         Canopy openness (sun                                Population          Final site score
                                          availability              exposure)           Population size          connectivity
--------------------------------------------------------------------------------------------------------------------------------------------------------
EO 6674 (East).....................  High..................  Moderate..............  Low..................  Moderate.............  Moderate.
EO 6674 (West).....................  Low...................  Moderate..............  Low..................  Moderate.............  Low.
EO 9000............................  Low...................  Moderate..............  Low..................  Very Low.............  Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Future Conditions

    As part of the SSA, we also developed two future condition 
scenarios to capture the range of uncertainties regarding future 
threats and the projected responses by the Navasota false foxglove. Our 
scenarios assumed two different climate model scenarios and similar or 
increasing effects from the influences on species viability into the 
future. Because we determined that the current condition of the 
Navasota false foxglove is consistent with an endangered species (see 
Determination of Navasota False Foxglove's Status, below), we are not 
presenting the results of the future scenarios in this proposed rule. 
Please refer to the SSA report (Service 2022, p. 32-34) for the full 
analysis of future scenarios.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative-effects analysis.

Determination of Navasota False Foxglove's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of an endangered 
species or a threatened species because of any of the following 
factors: (A) The present or threatened destruction, modification, or

[[Page 38463]]

curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we determined that encroachment of woody vegetation (Factor 
A), disturbance (Factor A), consequences from climate change (Factors A 
and E), and the cumulative impacts from all of the above-mentioned 
influences are threats to the Navasota false foxglove's continued 
existence. Two of the three extant populations have low resiliency, 
which makes them much less likely to be able to withstand stochastic 
events such as drought and disturbance. The third population has 
moderate resiliency.
    A narrow endemic, Navasota false foxglove has little redundancy and 
no adaptive capacity (representation), as it has few populations and is 
inherently at a higher risk of extinction. Simply being a narrow 
endemic does not, in and of itself, mean the species is in danger of 
extinction and should be listed. Because this species is a narrow 
endemic with few populations and population resiliency is either low 
(two of three populations) or moderate (third population), reduction in 
population resiliency can have an outsized influence on the species' 
overall viability. The E.O. records of Navasota false foxglove have 
been documented with a combined area of less than 2 acres. A single 
event, such as a prolonged drought or a single development project, 
could easily extirpate all or most of the remaining populations. Woody 
vegetation is currently negatively affecting the populations, and 
without woody vegetation removal or prescribed fire, the species could 
be reduced or eliminated from these areas that become shaded.
    Population resiliency has presumably declined given the sparse 
number of individuals observed in recent surveys. The E.O. 9000 (Tyler) 
population has low resiliency and little to no connectivity to the 
other two populations, as it is greater than 100 miles away. Therefore, 
the likelihood of the E.O. 9000 (Tyler) population being able to 
recover from stochastic events, or be repopulated if it extirpated, is 
greatly reduced or eliminated.
    The species as a whole possesses little adaptive capacity. The lack 
of connectivity and isolation of the populations has eliminated gene 
flow, and the species retains little ability to withstand environmental 
variation. As a whole, the species has limited representation and 
redundancy, and low to moderate resiliency of the populations, 
resulting in low species viability. Currently, Navasota false foxglove 
populations are extremely vulnerable to woody vegetation encroachment, 
disturbance, and environmental variation due to climate change, and the 
loss of a population could cascade into the extinction of the species. 
Thus, after assessing the best available information, we determine that 
the Navasota false foxglove is in danger of extinction throughout all 
of its range.

Status Throughout a Significant Portion of Its Range

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

Determination of Status

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

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies, 
including the Service, and the prohibitions against certain activities 
are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the time and cost of implementing recovery tasks. Revisions of the 
plan may be done to address continuing or new threats to the species,

[[Page 38464]]

as new substantive information becomes available. If we list the 
Navasota false foxglove, its recovery outline, draft recovery plan, 
final recovery plan, and any revisions would be available on our 
website as they are completed (https://www.fws.gov/program/endangered-species), or from our Texas Coastal Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of Texas would be eligible 
for Federal funds to implement management actions that promote the 
protection or recovery of the Navasota false foxglove. Information on 
our grant programs that are available to aid species recovery can be 
found at: https://www.fws.gov/service/financial-assistance.
    Although the Navasota false foxglove is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, 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 the 
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 (action agency) must enter into consultation 
with the Service.
    Examples of actions that may be subject to the section 7 processes 
are land management or other landscape-altering activities on Federal 
lands administered by the Service, as well as 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. Examples of Federal agency actions that may 
require consultation for the Navasota false foxglove could include any 
other landscape-altering activities on Federal lands administered by 
the Federal Highway Administration for any future construction and 
maintenance of roads or highways. Given the difference in triggers for 
conferencing and consultation, Federal agencies should coordinate with 
the local Service field office (see FOR FURTHER INFORMATION CONTACT, 
above) with any specific questions.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 
17.61, make it illegal for any person subject to the jurisdiction of 
the United States to: import or export; remove and reduce to possession 
from areas under Federal jurisdiction; maliciously damage or destroy on 
any such area; remove, cut, dig up, or damage or destroy 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; deliver, 
receive, carry, transport, or ship in interstate or foreign commerce, 
by any means whatsoever and in the course of a commercial activity; or 
sell or offer for sale in interstate or foreign commerce an endangered 
plant. Certain exceptions apply to employees of the Service, other 
Federal land management agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered plants under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.62. With regard to 
endangered plants, a permit may be issued for scientific purposes or to 
enhance the propagation or survival of the species. The statute also 
contains certain exemptions from the prohibitions, which are found in 
sections 9 and 10 of the Act.
    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 proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. Based on the best available information, 
the following actions are unlikely to result in a violation of section 
9, if these activities are carried out in accordance with existing 
regulations and permit requirements; this list is not comprehensive:
    (1) Normal agricultural and silvicultural practices, including 
herbicide and pesticide use, that are carried out in accordance with 
any existing regulations, permit and label requirements, and best 
management practices; and
    (2) Normal residential landscaping activities.
    To the extent of what is currently known, trampling and other 
activities that would result in habitat disturbance would be considered 
likely to result in violation of section 9 of the Act in addition to 
what is already described in the prohibitions found at 50 CFR 17.61. 
Additional activities that will be considered likely to result in 
violation of section 9 of the Act may be identified during coordination 
with the local field office, Questions regarding whether specific 
activities would constitute violation of section 9 of the Act should be 
directed to the Texas Coastal Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

[[Page 38465]]

II. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that 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 
likely 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 section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an

[[Page 38466]]

endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) 
state that the Secretary may, but is not required to, determine that a 
designation would not be prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As discussed earlier in this document, there is currently no 
imminent threat of collection or vandalism identified under Factor B 
for this species, and identification and mapping of critical habitat is 
not expected to initiate any such threat. In our SSA report and 
proposed listing determination for the Navasota false foxglove, we 
determined that the present or threatened destruction, modification, or 
curtailment of habitat or range is a threat to Navasota false foxglove 
and that those threats in some way can be addressed by section 7(a)(2) 
consultation measures. The species occurs wholly in the jurisdiction of 
the United States, and we are able to identify areas that meet the 
definition of critical habitat. Therefore, because none of the 
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have 
been met and because the Secretary has not identified other 
circumstances for which this designation of critical habitat would be 
not prudent, we have determined that the designation of critical 
habitat is prudent for the Navasota false foxglove.

Critical Habitat Determinability

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

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or absence or a particular level 
of nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic 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.
    Navasota false foxglove needs well drained soils, such as rocky 
outcrops and sandy loam over sandstone. Plants occupy open areas of the 
outcrops where sun exposure is nearly constant (no more than 10 to 15 
percent shade), and populations have been found in areas that have been 
historically ungrazed and unplowed. Additionally, the species needs the 
presence of the presumed host plant, little bluestem, to provide 
nutrients during drought. When needed, Navasota false foxglove 
parasitizes and extracts resources from its host plant, little 
bluestem, for survival and reproduction.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of Navasota false foxglove from studies of the 
species' habitat, ecology, and life history as described below. 
Additional information can be found in the SSA report (Service 2022, 
entire), which is available at https://www.regulations.gov under Docket 
No. FWS-R2-ES-2022-0156. We have determined that the following physical 
or biological features are essential to the conservation of Navasota 
false foxglove:
    (1) Calcareous sandy to clay loam soils that are ungrazed, 
unplowed, shallow thin soils.
    (2) Open prairie habitat with limited woody encroachment.
    (3) Annual precipitation events that provide enough soil moisture 
to germinate.
    (4) Full sun exposure (no more than 10 to 15 percent shade).

[[Page 38467]]

    (5) Presence of the little bluestem (Schizachyrium scoparium) as 
host plant.

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 the species 
may require special management consideration or protection to reduce 
the threat of woody encroachment. Special management considerations or 
protection may be required within critical habitat areas to address 
these threats. Management activities that could ameliorate these 
threats include, but are not limited to, prescribed fire and manual 
removal of woody encroachment. These management activities would 
protect the physical or biological features for the species by opening 
up the habitat for more sunlight and expanding the habitat area for the 
species' survival. Additionally, these management activities would help 
increase potential habitat and allow for an expanded seed bank for this 
species.

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. While the Navasota false foxglove 
needs additional areas to increase viability of the species, we are not 
currently proposing to designate any areas outside the geographical 
area occupied by the species because we have not identified any 
unoccupied areas that meet the definition of critical habitat. We are 
aware of no areas from which the species has been extirpated, and we do 
not currently have information sufficient to determine which other 
areas may be suitable for the species. We are proposing to designate 
critical habitat in areas within the geographical area occupied by the 
species at the time of listing. Within the three currently occupied 
areas, the physical or biological features that are common across all 
habitat types are limited woody encroachment, full sun exposure, host 
plants, and annual precipitation events that provide enough soil 
moisture to germinate. The Oakville formation and Catahoula formation 
make up the rocky outcrop component within the occupied areas along 
with fine sandy loam, sandy loam, and clay soils.
    In summary, for areas within the geographical area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following criteria:
    The three critical habitat unit boundaries are directly related to 
the presence of the species on the ground. The EO 6674 (East) unit 
boundaries were refined by survey data from the fall of 2021. The EO 
6674 (West) and EO 9000 critical habitat unit boundaries were refined 
by using areas of presumed occupancy and information about suitable 
soil type and drainage compatible to the species, due to the lack of 
more recent survey data.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for Navasota false foxglove. 
The scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species. We are not aware of any additional historical locations where 
the species was found. Additionally, we are unable to identify suitable 
areas that would meet the species' needs outside of its currently 
occupied range. Of areas that we analyzed as potentially suitable 
areas, we concluded that we had no information to suggest any areas 
would contribute to the long-term conservation of the species. We have 
concluded that no unoccupied areas meet the definition of critical 
habitat.
    All three units in Grimes and Tyler Counties, Texas, are proposed 
for designation based on one or more of the physical or biological 
features being present to support Navasota false foxglove's life-
history processes. All three units in Grimes and Tyler Counties contain 
all of the identified physical or biological features and support 
multiple life-history processes.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-
2022-0156 and on our internet site at https://www.fws.gov/office/texas-coastal-ecological-services.

Proposed Critical Habitat Designation

    We are proposing approximately 1.9 acres (ac) (0.8 hectares (ha)) 
in three units as critical habitat for the Navasota false foxglove. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
the Navasota false foxglove. The three areas we propose as critical 
habitat are: (1) EO 6674 (East) Unit, (2) EO 6674 (West) Unit, and (3) 
EO 9000 (Tyler) Unit. Table 4 shows the proposed critical habitat units 
and the approximate area of each unit.

[[Page 38468]]



                      Table 4--Proposed Critical Habitat Units for Navasota False Foxglove
----------------------------------------------------------------------------------------------------------------
                                                         Area           Landowner/land
               Unit                  Area  (acres)    (hectares)          manager(s)             Occupied?
----------------------------------------------------------------------------------------------------------------
1. EO 6674 (East).................             0.8             0.3  Private..............  Yes.
2. EO 6674 (West).................             0.5             0.2  Private..............  Yes.
3. EO 9000 (Tyler)................             0.6             0.2  Private..............  Yes.
                                   --------------------------------
    Total.........................             1.9             0.8
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

Unit 1: EO 6674 (East)

    Unit 1 consists of 0.8 ac (0.3 ha) and is located 4 miles just to 
the northeast of the town of Navasota, in Grimes County, Texas. Unit 1 
is completely on private land and can be accessed by a public road. 
Farm to Market Road 3090 runs along the eastern side of this unit, and 
a portion of the unit is within the Texas Department of Transportation 
right-of-way. Unit 1 consists of rolling hills with a rocky outcrop 
(Oakville Formation) and well-drained soils. The area has edges of 
woody vegetation that give way to open areas of full sunlight. This 
unit is occupied and has been since the initial identification of the 
Navasota false foxglove in 1993. It contains all of the physical or 
biological features needed for the Navasota false foxglove. Special 
management considerations may be required to reduce encroachment from 
woody vegetation to maintain open prairie and full sun exposure.

Unit 2: EO 6674 (West)

    Unit 2 consists of 0.5 ac (0.2 ha) and is located about 3.5 miles 
northeast of the town of Navasota, in Grimes County, Texas. This area 
is occupied and located about 0.9 miles to the west of Unit E.O. 6674 
(East). The unit occurs along the Oakville formation that extends 
across southeast Texas. This formation gives way to rocky outcrop areas 
that have well-drained soils and areas of rolling hills. This unit is 
just off County Road 403 in Grimes County and is owned by private 
landowners. The area has been leased to a cattle association since 
2019. It contains all of the physical or biological features needed for 
the Navasota false foxglove. Special management considerations may be 
required to reduce encroachment from woody vegetation to maintain open 
prairie and full sun exposure.

Unit 3: EO 9000 (Tyler)

    Unit 3 consists of 0.6 ac (0.2 ha) and is located approximately 7 
miles to the northwest of Colmesneil, Texas, in Tyler County. This area 
is occupied along a roadside right-of-way. This site is more than 100 
miles to the northeast of Units 1 and 2 in Grimes County. This site is 
located on the Catahoula formation along with rolling hills, well-
drained soils, and timber activity. This site has previously been 
harvested for timber and is currently owned by a timber company. This 
site is located just along the roadside of County Road 2845. It 
contains all of the physical or biological features needed for the 
Navasota false foxglove. Special management considerations may be 
required to reduce encroachment from woody vegetation to maintain open 
prairie and full sun exposure.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    Compliance with the requirements of section 7(a)(2) 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 if any of the following four 
conditions occur: (1) the amount or extent of taking specified in the 
incidental take statement is exceeded; (2) new information reveals 
effects of the action that may affect listed species or critical 
habitat in a manner or to an extent not previously considered; (3) the 
identified action is subsequently modified in a manner that causes an 
effect to the listed species or critical habitat that was not 
considered in the biological opinion or written concurrence; or (4) a 
new species is listed or critical habitat designated that may be 
affected by the identified action. The reinitiation requirement applies 
only to actions that remain subject to some discretionary Federal 
involvement or control. As provided in 50 CFR 402.16, the requirement 
to reinitiate

[[Page 38469]]

consultations for new species listings or critical habitat designation 
does not apply to certain agency actions (e.g., land management plans 
issued by the Bureau of Land Management in certain circumstances.

Application of the ``Destruction or 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 we may, during a consultation under section 7(a)(2) 
of the Act, consider likely to destroy or adversely modify critical 
habitat include, but are not limited to, actions that would permanently 
destroy habitat and would result in complete destruction of habitat and 
any viable seed bank for this species. Such activities could include, 
but are not limited to, widening Farm to Market Road 3090 in Grimes 
County, developing timber roads to access timber harvesting, and 
allowing areas to become overgrown with woody vegetation. These 
activities could reduce the amount of sunlight available for the 
species' survival and could potentially destroy the habitat and any 
viable seed bank in the area.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DOD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation. No DOD lands with a completed INRMP are within the 
proposed critical habitat designation.

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled, ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016). In our final designation, we will 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. In our final rules, we explain any decision to exclude 
areas, as well as decisions not to exclude, to demonstrate that the 
decision is reasonable. We describe below the process that we use for 
taking into consideration each category of impacts and any initial 
analyses of the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities,

[[Page 38470]]

where practicable and reasonable. If sufficient data are available, we 
assess to the extent practicable the probable impacts to both directly 
and indirectly affected entities. Section 3(f) of E.O. 12866 identifies 
four criteria when a regulation is considered a ``significant 
regulatory action'', and requires additional analysis, review, and 
approval if met. The criterion relevant here is whether the designation 
of critical habitat may have an economic effect of $100 million or more 
in any given year (section 3(f)(1)). Therefore, our consideration of 
economic impacts uses a screening analysis to assess whether a 
designation of critical habitat for the Navasota false foxglove is 
likely to exceed the economically significant threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Navasota false foxglove (IEc 2022, entire). We 
began by conducting a screening analysis of the proposed designation of 
critical habitat in order to focus our analysis on the key factors that 
are likely to result in incremental economic impacts. The purpose of 
the screening analysis is to filter out particular geographic areas of 
critical habitat that are already subject to such protections and are, 
therefore, unlikely to incur incremental economic impacts. In 
particular, the screening analysis considers baseline costs (i.e., 
absent critical habitat designation) and includes any probable 
incremental economic impacts where land and water use may already be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. Ultimately, the screening 
analysis allows us to focus our analysis on evaluating the specific 
areas or sectors that may incur probable incremental economic impacts 
as a result of the designation. The presence of the listed species in 
occupied areas of critical habitat means that any destruction or 
adverse modification of those areas is also likely to jeopardize the 
continued existence of the species. Therefore, designating occupied 
areas as critical habitat typically causes little if any incremental 
impacts above and beyond the impacts of listing the species. As a 
result, we generally focus the screening analysis on areas of 
unoccupied critical habitat (unoccupied units or unoccupied areas 
within occupied units). Overall, the screening analysis assesses 
whether any additional management or conservation efforts may incur 
incremental economic impacts. This screening analysis combined with the 
information contained in our IEM constitute what we consider to be our 
draft economic analysis (DEA) of the proposed critical habitat 
designation for the Navasota false foxglove; our DEA is summarized in 
the narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for the Navasota false foxglove, first 
we identified, in the IEM dated July 20, 2022, probable incremental 
economic impacts associated with vegetation management and prescribed 
fire. We considered each industry or category individually. 
Additionally, we considered whether their activities have any Federal 
involvement. Critical habitat designation generally will not affect 
activities that do not have any Federal involvement; under the Act, 
designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies. If we list the 
species, in areas where the Navasota false foxglove is present, Federal 
agencies would be required to consult with the Service under section 7 
of the Act on activities they fund, permit, or implement that may 
affect the species. If, when we list the species, we also finalize this 
proposed critical habitat designation, Federal agencies would be 
required to consider the effects of their actions on the designated 
habitat, and if the Federal action may affect critical habitat, our 
consultations would include an evaluation of measures to avoid the 
destruction or adverse modification of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the 
Navasota false foxglove's critical habitat. Because the designation of 
critical habitat for Navasota false foxglove is proposed concurrently 
with the listing, it has been our experience that it is more difficult 
to discern which conservation efforts are attributable to the species 
being listed and those which would result solely from the designation 
of critical habitat. However, the following specific circumstances in 
this case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Navasota false foxglove would also likely 
adversely affect the essential physical or biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the Navasota false 
foxglove totals approximately 1.9 ac (0.8 ha) in Grimes and Tyler 
Counties, Texas, and is divided into three units. All three units are 
currently occupied by species. In these areas any actions that may 
affect the species or its habitat would also affect designated critical 
habitat, and it is unlikely that any additional conservation efforts 
would be recommended to address adverse modification over and above 
those recommended as necessary to avoid jeopardizing the continued 
existence of Navasota false foxglove. Therefore, only administrative 
costs are expected to result from the proposed critical habitat 
designation. The only incremental impact of critical habitat 
designation that we anticipate is the small (not expected to exceed 
$2,800 per year) administrative effort required during section 7 
consultation to document effects on the physical or biological features 
of the critical habitat and whether the action appreciably diminishes 
the value of critical habitat as a whole for the conservation of the 
listed species (IEc 2022, p. 8). While this additional analysis will 
require time and resources by the Federal action agency and the Service 
(if a Federal nexus exists), it is believed that, in most 
circumstances, these costs would predominantly be administrative in 
nature and would not be significant.
    We are soliciting data and comments from the public on the draft 
economic analysis discussed above, as well as on all aspects of this 
proposed rule and our required determinations. During the development 
of a final designation, we will consider the information presented in 
the economic analysis and any

[[Page 38471]]

additional information on economic impacts we receive during the public 
comment period to determine whether any specific areas should be 
excluded from the final critical habitat designation under the 
authority of section 4(b)(2) of the Act and our implementing 
regulations at 50 CFR 424.19 and the 2016 Policy. We may exclude an 
area from critical habitat if we determine that the benefits of 
excluding the area outweigh the benefits of including the area, 
provided the exclusion will not result in the extinction of this 
species.

Consideration of National Security Impacts

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

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area--such as habitat conservation plans (HCPs), safe 
harbor agreements (SHAs), or candidate conservation agreements with 
assurances (CCAAs)--or whether there are non-permitted conservation 
agreements and partnerships that may be impaired by designation of, or 
exclusion from, critical habitat. In addition, we look at whether 
Tribal conservation plans or partnerships, Tribal resources, or 
government-to-government relationships of the United States with Tribal 
entities may be affected by the designation. We also consider any 
State, local, social, or other impacts that might occur because of the 
designation.

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

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

Required Determinations

Clarity of the Rule

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

[[Page 38472]]

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

    Executive Order 12866, as reaffirmed by E.O. 13563 and E.O. 14094, 
provides that the Office of Information and Regulatory Affairs (OIRA) 
in the Office of Management and Budget will review all significant 
rules. OIRA has determined that this rule is not significant.
    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. We have developed this proposed rule in a 
manner consistent with these requirements. E.O. 13563 emphasizes 
further that regulations must be based on the best available science 
and that the rulemaking process must allow for public participation and 
an open exchange of ideas. We have developed this proposed rule in a 
manner consistent with these requirements.

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

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

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

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

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under 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

[[Page 38473]]

Services; and Child Support Enforcement. ``Federal private sector 
mandate'' includes a regulation that ``would impose an enforceable duty 
upon the private sector, except (i) a condition of Federal assistance 
or (ii) a duty arising from participation in a voluntary Federal 
program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions are not likely to destroy or adversely modify 
critical habitat under section 7. While non-Federal entities that 
receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action, 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above onto State governments.
    (2) We do not believe that this proposed rule would 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 and, as such, a Small Government Agency 
Plan is not required.

Takings--Executive Order 12630

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

Federalism--Executive Order 13132

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

Civil Justice Reform--Executive Order 12988

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

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

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

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

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations. In a line of cases starting with Douglas County 
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this 
position.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination 
with Indian Tribal Governments), and the Department of the Interior's 
manual at

[[Page 38474]]

512 DM 2, we readily acknowledge our responsibility to communicate 
meaningfully with federally recognized Tribes on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We have determined that no Tribal lands fall within the 
boundaries of the proposed critical habitat designation for the 
Navasota false foxglove, so no Tribal lands would be affected by the 
proposed designation.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec.  17.12, amend paragraph (h) by adding an entry for 
``Agalinis navasotensis'' 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
 
                                                  * * * * * * *
Agalinis navasotensis...........  Navasota false      Wherever found....  E              [Federal Register
                                   foxglove.                                              citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.96, amend paragraph (a) by adding an entry for ``Family 
Orobanchaceae: Agalinis navasotensis (Navasota false foxglove)'' 
immediately following the entry for ``Family Orobanchaceae: Castilleja 
cinerea (ash-gray Indian paintbrush)'' to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Orobanchaceae: Agalinis navasotensis (Navasota false 
foxglove)

    (1) Critical habitat units are depicted for Grimes and Tyler 
Counties, Texas, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Navasota false foxglove consist of the 
following components:
    (i) Calcareous sandy to clay loam soils that are ungrazed, 
unplowed, shallow thin soils.
    (ii) Open prairie habitat with limited woody encroachment.
    (iii) Annual precipitation events that provide enough soil moisture 
to germinate.
    (iv) Full sun exposure (no more than 10 to 15 percent shade).
    (v) Presence of the little bluestem (Schizachyrium scoparium) as 
host plant.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of the final rule.
    (4) Data layers defining critical habitat units were created using 
stream segments from the U.S. Geological Survey National Hydrography 
Dataset. 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 the Service's internet site at 
https://www.fws.gov/office/texas-coastal-ecological-services or at 
https://www.regulations.gov at Docket No. FWS-R2-ES-2022-0156.
    (5) Index map follows:
Figure 1 to Family Orobanchaceae: Agalinis navasotensis (Navasota false 
foxglove) paragraph (5)

[[Page 38475]]

[GRAPHIC] [TIFF OMITTED] TP13JN23.000

    (6) Units EO 6674 (East) and EO 6674 (West); Grimes County, Texas.
    (i) Unit EO 6674 (East) consists of approximately 0.8 acres (ac) 
(0.3 hectares (ha)) on private land located east of Navasota, in 
central-west Grimes County, Texas. Unit EO 6674 (East) is along a well-
drained ridge line that extends down to Farm to Market 3090. The Unit 
EO 6674 (East) right-of-way is owned by the Texas Department of 
Transportation.
    (ii) Unit EO 6674 (West) consists of approximately 0.5 ac (0.2 ha) 
on private land located east of Navasota, in central-west Grimes 
County, Texas. This unit is just off Country Road 403. Unit EO 6674 
(West) is a fenced area for cattle and extends along a shallow, well-
drained area along the side of a grazing allotment.
    (iii) Map of Units EO 6674 (East) and EO 6674 (West) follows:
Figure 2 to Family Orobanchaceae: Agalinis navasotensis (Navasota false 
foxglove) paragraph (6)(iii)

[[Page 38476]]

[GRAPHIC] [TIFF OMITTED] TP13JN23.001

    (7) Unit EO 9000 (Tyler); Tyler County, Texas.
    (i) Unit EO 9000 (Tyler) consists of approximately 0.6 ac (0.2 ha) 
of private land northwest of Colmesneil, in northern Tyler County, 
Texas. This unit is located along the roadside of County Road 2845. 
Unit EO 9000 (Tyler) has previously been harvested for timber.
    (ii) Map of Unit EO 9000 (Tyler) follows:

Figure 3 to Family Orobanchaceae: Agalinis navasotensis (Navasota false 
foxglove) paragraph (7)(ii)

[[Page 38477]]

[GRAPHIC] [TIFF OMITTED] TP13JN23.002

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-12129 Filed 6-12-23; 8:45 am]
BILLING CODE 4333-15-P