Federal Register / Vol. 82, No. 172 / Thursday, September 7, 2017 / Rules and Regulations 42245 

State and location Community 

No. 

Effective date authorization/ 

cancellation of sale of flood 

insurance in community 

Current effective 

map date 

Date certain Federal 

assistance no longer 

available in SFHAs 

Kentucky: 

Henderson, City of, Henderson 

County.

210109 August 7, 1973, Emerg; June 15, 

1978, Reg; September 29, 2017, 

Susp.

......do ........................ Do. 

Henderson County, Unincorporated Areas.210286 N/A, Emerg; April 10, 1991, Reg; 

September 29, 2017, Susp.

......do ........................ Do. 

Region V 

Minnesota: 

Hallock, City of, Kittson County ... 270226 July 3, 1974, Emerg; January 2, 

1980, Reg; September 29, 2017, 

Susp.

......do ........................ Do. 

Kennedy, City of, Kittson County 270686 March 26, 1976, Emerg; August 5, 

1986, Reg; September 29, 2017, 

Susp.

......do ........................ Do. 

Kittson County, Unincorporated 

Areas.

270224 February 11, 1974, Emerg; February 

4, 1981, Reg; September 29, 2017, 

Susp.

......do ........................ Do. 

Lancaster, City of, Kittson County 270231 June 19, 1975, Emerg; June 22, 

1984, Reg; September 29, 2017, 

Susp.

......do ........................ Do. 

Saint Vincent, City of, Kittson 

County.

270232 December 17, 1974, Emerg; September 2, 1982, Reg; September 

29, 2017, Susp.

......do ........................ Do. 

Wisconsin: 

Black River Falls, City of, Jackson County.550186 April 7, 1975, Emerg; February 4, 

1981, Reg; September 29, 2017, 

Susp.

......do ........................ Do. 

Jackson County, Unincorporated 

Areas.

550583 September 30, 1975, Emerg; February 4, 1981, Reg; September 29, 

2017, Susp.

......do ........................ Do. 

Region IX 

Hawaii: 

Hawaii County, Unincorporated 

Areas.

155166 June 5, 1970, Emerg; May 3, 1982, 

Reg; September 29, 2017, Susp.

......do ........................ Do. 

-do- = Ditto. 

Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp—Suspension. 

Dated: August 29, 2017. 

Michael M. Grimm, 

Assistant Administrator for Mitigation, 

Federal Insurance and Mitigation 

Administration, Department of Homeland 

Security, Federal Emergency Management 

Agency. 

[FR Doc. 2017–18912 Filed 9–6–17; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2016–0099 and 

FWS–R2–ES–2016–0100; 4500030113] 

RIN 1018–BA74 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for Guadalupe Fescue; 

Designation of Critical Habitat for 

Guadalupe Fescue 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), determine 

endangered species status and designate 

critical habitat under the Endangered 

Species Act of 1973, as amended (Act), 

for Festuca ligulata (Guadalupe fescue), 

a plant species from the Chihuahuan 

Desert of west Texas and Mexico. The 

effect of this regulation will be to add 

this species to the List of Endangered 

and Threatened Plants and designate 

approximately 7,815 acres (3,163 

hectares) of critical habitat in Brewster 

County, Texas located entirely within 

Big Bend National Park. 

DATES: This rule becomes effective 

October 10, 2017. 

ADDRESSES: This final rule is available 

on the internet at http://

www.regulations.gov under Docket No. 

FWS–R2–ES–2016–0099 and FWS–R2– 

ES–2016–0100. Comments and 

materials we received, as well as 

supporting documentation we used in 

preparing this rule, are available for 

public inspection at http://

www.regulations.gov in Docket No. 

FWS–R2–ES–2016–0099 and FWS–R2– 

ES–2016–0100. Comments, materials, 

and documentation that we considered 

in this rulemaking will be available by 

appointment, during normal business 

hours at: U.S. Fish and Wildlife Service, 

Austin Ecological Services Field Office, 

10711 Burnet Rd., Suite 200, Austin, TX 

78758; telephone 512–490–0057; or 

facsimile 512–490–0974. 

FOR FURTHER INFORMATION CONTACT: 

Adam Zerrenner, Field Supervisor, U.S. 

Fish and Wildlife Service, Austin 

Ecological Services Field Office, 10711 

Burnet Rd., Suite 200, Austin, TX 

78758; telephone 512–490–0057; or 

facsimile 512–490–0974. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Previous Federal Action 

On September 9, 2016, we, the U.S. 

Fish and Wildlife Service (Service), 

published in the Federal Register a 

proposed rule to list Festuca ligulata 

(Guadalupe fescue), a plant species from 

the Chihuahuan Desert of west Texas 

and Mexico, as an endangered species 

under the Endangered Species Act of 


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42246 Federal Register / Vol. 82, No. 172 / Thursday, September 7, 2017 / Rules and Regulations 

1973, as amended (Act) (16 U.S.C. 1531 

et seq.). The proposed listing rule 

contains a detailed description of 

previous Federal actions concerning this 

species (81 FR 62450). 

On September 9, 2016, we also 

published a proposed rule to designate 

critical habitat for Guadalupe fescue on 

approximately 7,815 acres (3,163 

hectares) in Brewster County, Texas, 

located entirely in Big Bend National 

Park (81 FR 62455) and requested public 

comments. The comment period closed 

on November 8, 2016. We also contacted 

appropriate Federal, State, and local 

agencies; scientific organizations; and 

other interested parties and invited 

them to comment on the proposed rule 

and draft economic analysis during the 

comment period. We opened another 

30-day comment period on June 13, 

2017. 

The effect of this rulemaking action is 

to add Guadalupe fescue to the List of 

Endangered and Threatened Plants in 

title 50 of the Code of Federal 

Regulations at 50 CFR 17.12(h) and 

thereby extend the Act’s protections to 

the species and finalize the designation 

of approximately 7,815 acres (3,163 

hectares) of critical habitat in Big Bend 

National Park. 

Summary of Comments and 

Recommendations 

We received a total of six public 

comments that did not include any new 

information not already considered in 

our analysis. During either comment 

period, we received no comment letters 

directly addressing the proposed critical 

habitat designation or any requests for a 

public hearing. 

Peer Review 

In accordance with our peer review 

policy published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from four knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received responses from 

two of the peer reviewers who provided 

comments on the proposed listing rule 

and the Species Status Assessment. 

However, they did not provide 

comments on the proposed designation 

of critical habitat for Guadalupe fescue. 

Summary of Changes From Proposed 

Rules 

We made no substantive changes from 

the proposed rules of September 9, 2016 

to list or designate critical habitat for 

Guadalupe fescue in this final rule. 

Background 

Staff of the Austin Ecological Services 

Field Office developed the Species 

Status Assessment (SSA) Report for 

Guadalupe fescue, which is an 

evaluation of the best available 

scientific and commercial data on the 

status of the species, including the past, 

present, and future threats to this 

species and the effect of conservation 

measures. The SSA Report and other 

materials related to this final rule are 

available online at http://

www.regulations.gov in Docket No. 

FWS–R2–ES–2016–0099 and FWS–R2– 

ES–2016–0100. 

The SSA Report (Service 2016) is 

based on a thorough review of the 

natural history, habitats, ecology, 

populations, and range of Guadalupe 

fescue. The SSA Report analyzes 

individual, population, and species 

requirements; factors affecting the 

species’ survival; and current conditions 

to assess the species’ current and future 

viability in terms of resiliency, 

redundancy, and representation. We 

define viability as the ability of a 

species to maintain populations over a 

defined period of time. 

Resiliency refers to the population 

size necessary to endure stochastic 

environmental variation (Shaffer and 

Stein 2000, pp. 308–310). Resilient 

populations are better able to recover 

from losses caused by random variation, 

such as fluctuations in recruitment 

(demographic stochasticity), variations 

in rainfall (environmental stochasticity), 

or changes in the frequency of wildfires. 

Redundancy refers to the number and 

geographic distribution of populations 

or sites necessary to endure catastrophic 

events (Shaffer and Stein 2000, pp. 308– 

310). As defined here, catastrophic 

events are rare occurrences, usually of 

finite duration, that cause severe 

impacts to one or more populations. 

Examples of catastrophic events include 

tropical storms, floods, prolonged 

drought, and unusually intense wildfire. 

Species that have multiple resilient 

populations distributed over a larger 

landscape are more likely to survive 

catastrophic events, since not all 

populations would be affected. 

Representation refers to the genetic 

diversity, both within and among 

populations, necessary to conserve longterm adaptive capability (Shaffer and 

Stein 2000, pp. 307–308). Species with 

greater genetic diversity are more able to 

adapt to environmental changes and to 

colonize new sites. 

Summary of Biological Status and 

Threats 

Guadalupe fescue is a short-lived 

perennial grass species found only in a 

few high mountains of the Chihuahuan 

Desert, west of the Pecos River in Texas 

and in the State of Coahuila, Mexico. 

These ‘‘sky island’’ habitats are coniferoak woodlands above 1,800 meters (m) 

(5,905 feet (ft)) elevation. Historically, 

the species has been reported in only six 

sites. It was first collected in 1931, in 

the Guadalupe Mountains, Culberson 

County, Texas, and in the Chisos 

Mountains, Brewster County, Texas; 

these sites are now within Guadalupe 

Mountains National Park and Big Bend 

National Park, respectively. Guadalupe 

fescue was documented near Fraile, 

southern Coahuila, in 1941; in the Sierra 

la Madera, central Coahuila, in 1977; 

and at two sites in the Maderas del 

Carmen Mountains of northern Coahuila 

in 1973 and 2003. The last three sites 

are now within protected natural areas 

(‘‘areas naturales protegidas’’ (ANP)) 

designated by the Mexican Federal 

Government. 

In the United States, populations of 

Guadalupe fescue have experienced 

significant declines. Guadalupe fescue 

was last observed in the Guadalupe 

Mountains in 1952; this population is 

presumed extirpated. Researchers from 

the Texas Parks and Wildlife 

Department and Big Bend National Park 

have quantitatively monitored plots 

within the Chisos Mountains population 

over a 24-year period. Our analysis of 

these data indicates that the population 

within the plots (about 25 to 50 percent 

of the total population) has decreased 

significantly over time, from a high of 

125 and 127 individuals in 1993 and 

1994, to a low of 47 individuals in 2013 

and 2014; by 2016 the monitored 

population had increased slightly to 56 

individuals. Little information is 

available for the known populations in 

Mexico. Valdes-Reyna (2009, pp. 13, 15) 

confirmed that one population in the 

Maderas del Carmen Mountains is 

extant. This population had several 

hundred individuals in 2003 (Big Bend 

National Park and Service 2008), and is 

protected within ANP Maderas del 

Carmen. The status of the other three 

Coahuilan populations remains 

unknown. 

To estimate the amount and 

distribution of potential Guadalupe 

fescue habitat, we mapped conifer-oak 

forests in the Chihuahuan Desert at 

elevations greater than 1,800 m. Because 

larger habitat areas may be more 

suitable for viability, we restricted this 

model to areas greater than 200 hectares 

(ha) (494 acres (ac)). This model reveals 

that northern Mexico has 283 areas of 

potential habitat totaling 537,998 ha 

(over 1.3 million ac), compared to 20 

such areas totaling 27,881 ha (68,894 ac) 

in Texas. Thus, about 95 percent of the 


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Federal Register / Vol. 82, No. 172 / Thursday, September 7, 2017 / Rules and Regulations 42247 

potential habitat for the species is in 

Mexico. However, we do not have 

information confirming that any of these 

areas actually contain Guadalupe 

fescue. 

Monitoring suggests that the Chisos 

Mountains population has decreased in 

size; however, the data indicate that 

survival rates within this monitored 

population have increased. These 

inverse trends may be explained by a 

recruitment rate (establishment of new 

individuals) that is too low to sustain 

the population. We do not know why 

the recruitment rate at the Chisos 

population is low. We have no 

information about the species’ genetic 

viability, within-population and withinspecies genetic differentiation, 

chromosome number, or breeding 

system. However, because grasses are 

wind-pollinated, small and widely 

scattered populations produce few if 

any seeds from out-crossing (pollination 

by unrelated individuals). Many 

perennial grasses, including some 

Festuca species, are obligate outcrossers. If Guadalupe fescue is an 

obligate out-crosser, the sparse Chisos 

population would produce few seeds; if 

it is not an obligate out-crosser, it is 

probably highly inbred and may suffer 

from inbreeding depression. Although 

the minimum viable population (MVP) 

size has not yet been calculated for 

Guadalupe fescue, we can estimate its 

MVP by comparison to species with 

similar life histories (i.e., surrogates) for 

which MVPs have been calculated, 

using the guideline adapted from Pavlik 

(1996, p. 137). Through this 

comparison, we estimate that 

populations of Guadalupe fescue should 

have at least 500 to 1,000 individuals for 

long-term population viability (Service 

2016, pp. 17–18). 

One factor potentially negatively 

affecting the existing population in the 

Chisos Mountains is the loss of regular 

wildfires. Periodic wildfire and leaf 

litter reduction may be necessary for 

long-term survival of Guadalupe fescue 

populations, although this theory has 

not been investigated. Historically, 

wildfires occurred in the vicinity of the 

Chisos population at least 10 times 

between 1770 and 1940 (Moir and 

Meents 1981, p. 7; Moir 1982, pp. 90– 

98; Poole 1989, p. 8; Camp et al. 2006, 

pp. 3–6, 14–23, 59–61). These relatively 

frequent, low-intensity fires would have 

reduced accumulated fuels in the 

understory, thereby preventing highintensity crown fires. However, the last 

major fire there was more than 70 years 

ago, due to fire suppression within the 

National Park. The long absence of fire 

and the resulting accumulation of fuels 

also increase the risk of more intense 

wildfire, which could result in the loss 

of the remaining Guadalupe fescue 

population in the United States. 

Other factors that may affect the 

continued survival of Guadalupe fescue 

include the genetic and demographic 

consequences of small population sizes 

and isolation of its known populations; 

livestock grazing; erosion or debris flow 

caused by trail runoff; competition from 

invasive species such as Marrubium 

vulgare (Horehound) and Bothriochloa 

ischaemum (King Ranch bluestem); 

effects of climate change, such as higher 

temperatures and changes in the amount 

and seasonal pattern of rainfall; and 

fungal infection of seeds. Big Bend 

National Park, the site of the only 

known population in the United States, 

has minimized the potential threat of 

trampling from humans and pack 

animals by restricting visitors and trail 

maintenance crews to established trails 

and through visitor outreach. 

The Service, Big Bend National Park, 

and Guadalupe Mountains National 

Park established candidate conservation 

agreements for the Guadalupe fescue in 

1998 and 2008. The objectives of these 

10-year agreements include monitoring 

and surveys, seed and live plant 

banking, fire and invasive species 

management, trail management, staff 

and visitor education, establishment of 

an advisory team of species experts, and 

cooperation with Mexican agencies and 

researchers to conserve the known 

populations of Guadalupe fescue and 

search for new ones. Research objectives 

include investigations of fire ecology, 

habitat management, genetic structure, 

reproductive biology, and 

reintroduction. Upon listing the species, 

Big Bend National Park has committed 

to meeting the same conservation 

objectives and actions (Sirotnak 2016, 

pers. comm.). 

Based on the best available 

information, we know of only two 

extant populations of Guadalupe fescue. 

The Chisos Mountains population is far 

smaller than our estimated MVP level, 

and despite protection, appropriate 

management, and periodic monitoring 

by the National Park Service, it declined 

between 1993 and 2016. The other 

extant population, at ANP Maderas del 

Carmen in northern Coahuila, Mexico, 

may have exceeded our estimated MVP 

level as recently as 2003, and the site is 

managed for natural resources 

conservation. Unfortunately, we possess 

very little information about the current 

status of the species at Maderas del 

Carmen and throughout Mexico. Our 

analysis revealed that a large amount of 

potential habitat exists in northern 

Mexico. Thus, it is possible that other 

undiscovered populations of Guadalupe 

fescue exist in northern Mexico, and 

that the overall status of the species is 

more secure than we now know. 

Nonetheless, the Service has to make a 

determination based on the best 

available scientific data, which 

currently confirms only one extant 

population in Mexico. 

Summary of Changes From the 

Proposed Listing Rule 

We made no substantive changes from 

the proposed rule of September 9, 2016 

(81 FR 62450), to this final rule. 

Summary of Comments and 

Recommendations 

In the proposed rule, we requested 

that all interested parties submit written 

comments on the proposal by November 

8, 2016. We also contacted the National 

Park Service (Big Bend National Park), 

Texas Parks and Wildlife Department, 

the Texas Comptroller’s Office, the 

Secretarı ́a de Medio Ambiente y 

Recursos Naturales (SEMARNAT, a 

Mexican federal agency), PRONATURA 

Sur (a Mexican non-governmental nonprofit conservation organization), 

scientific experts and organizations, and 

other interested parties and invited 

them to comment on the proposal. We 

opened another 30-day public comment 

period June 13, 2017. Newspaper 

notices inviting general public comment 

were published in the Alpine 

Avalanche. We received no comments 

from State or Federal agencies, no 

substantive public comments, and no 

requests for a public hearing. 

Peer Reviewer Comments 

In accordance with our peer review 

policy published on July 1, 1994 (59 FR 

34270), we solicited expert opinion 

from four knowledgeable individuals 

with scientific expertise that included 

familiarity with Guadalupe fescue and 

its habitat, biological needs, and threats. 

We received responses from two of the 

peer reviewers. 

We reviewed the comments received 

from the peer reviewers for substantive 

issues and new information regarding 

the listing of Guadalupe fescue. The 

peer reviewers generally concurred with 

our conclusions and provided 

additional information, clarifications, 

and suggestions to improve the final 

rule. Peer reviewer comments are 

addressed and incorporated into the 

final rule as appropriate. 

Determination 

Standard for Review 

Section 4 of the Act (16 U.S.C. 1533), 

and its implementing regulations at 50 

CFR part 424, set forth the procedures 

for adding species to the Federal Lists 


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42248 Federal Register / Vol. 82, No. 172 / Thursday, September 7, 2017 / Rules and Regulations 

of Endangered and Threatened Wildlife 

and Plants. Under section 4(a)(1) of the 

Act, we may list a species based on (A) 

The present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) Overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) Disease or 

predation; (D) The inadequacy of 

existing regulatory mechanisms; or (E) 

Other natural or manmade factors 

affecting its continued existence. Listing 

actions may be warranted based on any 

of the above threat factors, singly or in 

combination. 

The fundamental question before the 

Service is whether the species meets the 

definition of ‘‘endangered species’’ or 

‘‘threatened species’’ under the Act. To 

make this determination, we evaluated 

the projections of extinction risk, 

described in terms of the condition of 

current and future populations and their 

distribution (taking into account the risk 

factors and their effects on those 

populations). For any species, as 

population condition declines and 

distribution shrinks, the species’ 

extinction risk increases and overall 

viability declines. 

The Act defines an endangered 

species as any species that is ‘‘in danger 

of extinction throughout all or a 

significant portion of its range’’ and a 

threatened species as any species 

‘‘which is likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range.’’ The 

phrase ‘‘significant portion of its range’’ 

(SPR) is not defined by the Act, and the 

court in Center for Biological Diversity 

v. Jewel held that aspects of the 

Service’s ‘‘Policy on Interpretation of 

the Phrase ‘Significant Portion of Its 

Range’ in the ESA’s Definitions of 

‘Endangered Species’ and ‘Threatened 

Species’ ’’ (SPR Policy) were not valid 

No. 14–cv–02506–RM (D. Ariz. Mar. 29, 

2017) (Pygmy-Owl Decision). Although 

the court’s order in that case has not yet 

gone into effect, if the court denies the 

pending motion for reconsideration, the 

SPR Policy would become vacated. 

Therefore, we have examined the plain 

language of the Act and court decisions 

addressing the Service’s application of 

the SPR phrase in various listing 

decisions, and for purposes of this 

rulemaking we are applying the 

following interpretation for the phrase 

‘‘significant portion of its range’’ and its 

context in determining whether or not a 

species is an endangered species or a 

threatened species. This interpretation 

is consistent with the SPR Policy and 

the Pygmy-Owl Decision, and the SPR 

Policy provides a detailed explanation 

of the bases and support for this 

interpretation. We also set out below 

additional explanation for the 

interpretation we are applying for this 

rulemaking, including explaining any 

aspects of this interpretation that could 

be perceived as inconsistent with the 

SPR Policy or the Pygmy-Owl Decision. 

As described in the SPR Policy, two 

courts have found that, once the Service 

determines that a ‘‘species’’—which can 

include a species, subspecies, or DPS 

under ESA Section 3(16)—meets the 

definition of ‘‘endangered species’’ or 

‘‘threatened species,’’ the species must 

be listed in its entirety and the Act’s 

protections applied consistently to all 

members of that species (subject to 

modification of protections through 

special rules under sections 4(d) and 

10(j) of the Act). See Defenders of 

Wildlife v. Salazar, 729 F. Supp. 2d 

1207, 1222 (D. Mont. 2010) (delisting of 

the Northern Rocky Mountains DPS of 

gray wolf; appeal dismissed as moot 

because of public law vacating the 

listing, 2012 U.S. App. LEXIS 26769 

(9th Cir. Nov. 7, 2012)); WildEarth 

Guardians v. Salazar, No. 09–00574– 

PHX–FJM, 2010 U.S. Dist. LEXIS 

105253, 15–16 (D. Ariz. Sept. 30, 2010) 

(Gunnison’s prairie dog) The issue has 

not been addressed by a Federal Court 

of Appeals. 

For the purposes of this rule, we 

interpret the phrase ‘‘significant portion 

of its range’’ in the Act’s definitions of 

‘‘endangered species’’ and ‘‘threatened 

species’’ to provide an independent 

basis for listing a species in its entirety; 

thus there are two situations (or factual 

bases) under which a species would 

qualify for listing: A species may be in 

danger of extinction or likely to become 

so in the foreseeable future throughout 

all of its range; or a species may be in 

danger of extinction or likely to become 

so throughout a significant portion of its 

range. If a species is in danger of 

extinction throughout an SPR, it, the 

species, is an ‘‘endangered species.’’ 

The same analysis applies to 

‘‘threatened species.’’ Therefore, 

consistent with the district court case 

law, the consequence of finding that a 

species is in danger of extinction or 

likely to become so throughout a 

significant portion of its range is that the 

entire species will be listed as an 

endangered species or threatened 

species, respectively, and the Act’s 

protections will be applied to all 

individuals of the species wherever 

found. 

In implementing these independent 

bases for listing a species, we list any 

species in its entirety either because it 

is in danger of extinction now or likely 

to become so in the foreseeable future 

throughout all of its range or because it 

is in danger of extinction or likely to 

become so in the foreseeable future 

throughout a significant portion of its 

range. With regard to the text of the Act, 

we note that Congress placed the ‘‘all’’ 

language before the SPR phrase in the 

definitions of ‘‘endangered species’’ and 

‘‘threatened species.’’ This suggests that 

Congress intended that an analysis 

based on consideration of the entire 

range should receive primary focus. 

Thus, the first step in our assessment of 

the status of a species is to determine its 

status throughout all of its range. 

Depending on the status throughout all 

of its range, we will subsequently 

examine whether it is necessary to 

determine its status throughout a 

significant portion of its range. 

Guadalupe Fescue Determination of 

Status Throughout All of Its Range 

We documented in our SSA Report 

(Service 2016, entire) that only two 

extant populations of Guadalupe fescue 

are currently known. The only extant 

population in the United States, in the 

Chisos Mountains at Big Bend National 

Park, has declined in abundance since 

1993, despite the conservation efforts 

outlined in the candidate conservation 

agreement. Only 56 individuals were 

observed there in 2016, which is far less 

than an estimated MVP size of 500 to 

1,000 individuals based on species with 

similar life histories. The other extant 

population, in the ANP Maderas del 

Carmen in Coahuila, had several 

hundred individuals in 2003, and was 

confirmed extant in 2009 with no 

population estimate. Three other 

historically known populations in 

remote areas of Coahuila, Mexico, have 

not been observed in at least 39 years, 

and their statuses remain unknown. 

We find that several factors reduce the 

viability of Guadalupe fescue, 

including: Changes in the wildfire cycle 

and vegetation structure of its habitats, 

trampling from humans and pack 

animals, erosion or debris flow caused 

by trail runoff, and competition from 

invasive species such as Marrubium 

vulgare (Horehound) and Bothriochloa 

ischaemum (King Ranch bluestem) 

(Factor A); grazing by livestock and feral 

animals of Guadalupe fescue plants 

(Factor C); and the genetic and 

demographic consequences of small 

population sizes, isolation of its known 

populations, and potential impacts of 

climate changes, such as higher 

temperatures and changes in the amount 

and seasonal pattern of rainfall (Factor 

E). Although trampling, trail runoff, 

invasive species, and grazing are likely 

to be ameliorated by ongoing and future 

conservation efforts on Federal lands in 

the United States, the effects of small 


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population size, geographic isolation, 

and climate change are all rangewide 

threats and expected to continue into 

the foreseeable future. Limited 

information is available regarding the 

known populations of Guadalupe fescue 

in Mexico; however, most of the above 

factors are likely to be widespread and 

ongoing threats throughout the potential 

habitats in Mexico (Service 2016). 

There are only two known extant 

populations of Guadalupe fescue, one 

each in Texas and in Coahuila, Mexico. 

We have no recent observations of three 

additional populations reported from 

Mexico, and their statuses are unknown. 

A second population reported from the 

United States has not been seen in more 

than 60 years, despite extensive surveys, 

and is presumed extirpated. Based on 

annual monitoring conducted through 

2016, the Chisos Mountains population 

in the United States is estimated to have 

in the range of 100 and 200 individuals, 

well below the estimated MVP of 500 to 

1,000 individuals, and the monitored 

population has declined from 127 

individuals in 1993 to 47 individuals in 

2014; in 2016 the monitored population 

had increased slightly to 56 individuals 

(Service 2016, Appendix B). Therefore, 

the Chisos Mountains population is 

considered to have low resiliency. The 

Maderas del Carmen population in 

Mexico may have held the estimated 

MVP as recently as 2003, but the current 

population status is unknown, and thus 

the population is considered to have 

limited resilience (Service 2016). With 

only two known populations, both with 

limited resiliency, the species has 

extremely low redundancy and 

representation. However, if there are 

additional extant populations in 

Mexico, we would expect the 

redundancy and representation of the 

species would be greater. Based on the 

best available information, therefore, the 

species’ overall risk of extinction is such 

that we find it is in danger of extinction 

throughout its range. 

Determination of Status Throughout a 

Significant Portion of Its Range 

Consistent with our interpretation 

that there are two independent bases for 

listing species as described above, after 

examining the species’ status 

throughout all of its range, we now 

examine whether it is necessary to 

determine whether it is an ‘‘endangered 

species’’ or ‘‘threatened species’’ 

throughout a significant portion of its 

range. We must give operational effect 

to both the ‘‘throughout all’’ of its range 

language and the SPR phrase in the 

definitions of ‘‘endangered species’’ and 

‘‘threatened species.’’ The Act, however, 

does not specify the relationship 

between the two bases for listing. As 

discussed above, to give operational 

effect to the ‘‘throughout all’’ language 

and that it is referenced first in the 

definition, we first consider species’ 

status throughout the entire range. 

In order to give operational effect to 

the SPR language, the Service should 

undertake an SPR analysis if the species 

is neither in danger of extinction nor 

likely to become so in the foreseeable 

future throughout all of its range, to 

determine if the species should 

nonetheless be listed because of its 

status in an SPR. However, we have 

already concluded that this species is in 

danger of extinction throughout all of its 

range. We reach this conclusion when 

the species is experiencing highmagnitude threats across its range or 

threats are so high in particular areas 

that they severely affect the species 

across its range. Therefore, the species 

is in danger of extinction throughout 

every portion of its range and an 

analysis of whether there is any SPR 

that may be in danger of extinction or 

likely to become so would not result in 

a different outcome. Thus, we conclude 

that to give operational effect to both the 

‘‘throughout all’’ language and the SPR 

phrase, the Service should conduct an 

SPR analysis if (and only if) a species 

does not warrant listing according to the 

‘‘throughout all’’ language. 

Because we have determined that the 

Guadalupe fescue is in danger of 

extinction throughout all of its range, 

we do not need to undertake an SPR 

analysis to determine if there are any 

significant portions of the species’ range 

where the species is likely to become in 

danger of extinction in the foreseeable 

future or where it does not meet the 

definitions of either ‘‘endangered 

species’’ or ‘‘threatened species.’’ 

Therefore, on the basis of the best 

available scientific and commercial 

information, we are adding Guadalupe 

fescue to the List of Endangered and 

Threatened Plants as an endangered 

species in accordance with sections 3(6) 

and 4(a)(1) of the Act. We find that a 

threatened species status is not 

appropriate for Guadalupe fescue 

because of the immediacy of threats 

facing the species with only two known 

populations, at least one of which is 

declining in abundance. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition through listing, results in 

public awareness, as well as 

conservation by Federal, State, Tribal, 

and local agencies; private 

organizations; and individuals. The Act 

encourages cooperation with the States 

and other countries, and calls for 

recovery actions to be carried out for 

listed species. The protection required 

by Federal agencies and the prohibitions 

against certain activities are discussed, 

in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Subsection 4(f) of 

the Act calls for the Service to develop 

and implement recovery plans for the 

conservation of endangered and 

threatened species. The recovery 

planning process involves the 

identification of actions that are 

necessary to halt or reverse the species’ 

decline by addressing the threats to its 

survival and recovery. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

Recovery planning includes the 

development of a recovery outline 

shortly after a species is listed and 

preparation of a draft and final recovery 

plan. The recovery outline guides the 

immediate implementation of urgent 

recovery actions and describes the 

process to be used to develop a recovery 

plan. Revisions of the plan may be done 

to address continuing or new threats to 

the species, as new substantive 

information becomes available. The 

recovery plan identifies site-specific 

management actions that set a trigger for 

review of the five factors that control 

whether a species remains endangered 

or may be downlisted to threatened or 

delisted, and methods for monitoring 

recovery progress. Recovery plans also 

establish a framework for agencies to 

coordinate their recovery efforts and 

provide estimates of the cost of 

implementing recovery tasks. Recovery 

teams (composed of species experts, 

Federal and State agencies, 

nongovernmental organizations, and 

stakeholders) are often established to 

develop recovery plans. When 

completed, the recovery outline, draft 

recovery plan, and the final recovery 

plan will be available on our Web site 

(http://www.fws.gov/endangered) or 

from our Austin Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 


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Federal agencies, States, Tribes, 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their range may occur primarily 

or solely on non-Federal lands. To 

achieve recovery of these species 

requires cooperative conservation efforts 

on private, State, and Tribal lands. 

Following publication of this final 

listing rule, funding for recovery actions 

will be available from a variety of 

sources, including Federal budgets, 

State programs, and cost-share grants for 

non-Federal landowners, the academic 

community, and nongovernmental 

organizations. In addition, pursuant to 

section 6 of the Act, the State of Texas 

will be eligible for Federal funds to 

implement management actions that 

promote the protection or recovery of 

the Guadalupe fescue. Information on 

our grant programs that are available to 

aid species recovery can be found at: 

http://www.fws.gov/grants. 

Please let us know if you are 

interested in participating in recovery 

efforts for the Guadalupe fescue. 

Additionally, we invite you to submit 

any new information on this species 

whenever it becomes available and any 

information you may have for recovery 

planning purposes (see FOR FURTHER

INFORMATION CONTACT). 

Section 7(a) of the Act requires 

Federal agencies to evaluate their 

actions with respect to any species that 

is proposed or listed as an endangered 

or threatened species and with respect 

to its critical habitat, if any is 

designated. Regulations implementing 

this interagency cooperation provision 

of the Act are codified at 50 CFR part 

402. Section 7(a)(2) of the Act requires 

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or destroy or 

adversely modify its critical habitat. If a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency must enter 

into consultation with the Service. 

Federal agency actions within the 

species’ habitat that may require 

consultation as described in the 

preceding paragraph include the land 

management activities by the National 

Park Service within Big Bend National 

Park. 

With respect to endangered plants, 

prohibitions outlined at 50 CFR 17.61 

make it illegal for any person subject to 

the jurisdiction of the United States to 

import or export, transport in interstate 

or foreign commerce in the course of a 

commercial activity, sell or offer for sale 

in interstate or foreign commerce, or to 

remove and reduce to possession any 

such plant species from areas under 

Federal jurisdiction. In addition, for 

endangered plants, the Act prohibits 

malicious damage or destruction of any 

such species on any area under Federal 

jurisdiction, and the removal, cutting, 

digging up, or damaging or destroying of 

any such species on any other area in 

knowing violation of any State law or 

regulation, or in the course of any 

violation of a State criminal trespass 

law. Exceptions to these prohibitions 

are outlined in 50 CFR 17.62. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered plants under 

certain circumstances. Regulations 

governing permits are codified at 50 

CFR 17.62. With regard to endangered 

plants, the Service may issue a permit 

authorizing any activity otherwise 

prohibited by 50 CFR 17.61 for scientific 

purposes or for enhancing the 

propagation or survival of endangered 

plants. 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a final listing on proposed 

and ongoing activities within the range 

of a listed species. Based on the best 

available information, the following 

actions are unlikely to result in a 

violation of section 9, if these activities 

are carried out in accordance with 

existing regulations and permit 

requirements; this list is not 

comprehensive: 

(1) Normal agricultural and 

silvicultural practices conducted on 

privately owned lands, including 

herbicide and pesticide use, which are 

carried out in accordance with any 

existing regulations, permit and label 

requirements, and best management 

practices; 

(2) Recreation and management at 

National Parks that is conducted in 

accordance with existing National Park 

Service regulations and policies; and 

(3) Normal residential landscape 

activities. 

Based on the best available 

information, the following activities 

may potentially result in a violation of 

section 9 of the Act; this list is not 

comprehensive: 

(1) Unauthorized damage or collection 

of Guadalupe fescue from lands under 

Federal jurisdiction; 

(2) Destruction or degradation of the 

species’ habitat on lands under Federal 

jurisdiction, including the intentional 

introduction of nonnative organisms 

that compete with, consume, or harm 

Guadalupe fescue; 

Questions regarding whether specific 

activities would constitute a violation of 

section 9 of the Act should be directed 

to the Austin Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 


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Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) of the Act would apply, but even 

in the event of a destruction or adverse 

modification finding, the obligation of 

the Federal action agency and the 

landowner is not to restore or recover 

the species, but to implement 

reasonable and prudent alternatives to 

avoid destruction or adverse 

modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). In identifying those 

physical or biological features within an 

area, we focus on the specific features 

that support the life-history needs of the 

species, including but not limited to, 

water characteristics, soil type, 

geological features, prey, vegetation, 

symbiotic species, or other features. A 

feature may be a single habitat 

characteristic, or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. For example, an area currently 

occupied by the species but that was not 

occupied at the time of listing may be 

essential to the conservation of the 

species and may be included in the 

critical habitat designation. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Information sources may 

include the species status assessment; 

any generalized conservation strategy, 

criteria, or outline that may have been 

developed for the species; the recovery 

plan for the species; articles in peerreviewed journals; conservation plans 

developed by States and counties; 

scientific status surveys and studies; 

biological assessments; other 

unpublished materials; or experts’ 

opinions or personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act, (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species, and (3) section 9 

of the Act’s prohibitions on taking any 

individual of the species, including 

taking caused by actions that affect 

habitat. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools would continue to 

contribute to recovery of this species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts calls 

for a different outcome. 

Physical or Biological Features 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

within the geographical area occupied 

by a species at the time of listing to 

designate as critical habitat, we consider 

the physical or biological features that 

are essential to the conservation of the 

species and which may require special 

management considerations or 

protection. For example, physical 

features might include gravel of a 

particular size required for spawning, 

alkali soil for seed germination, 

protective cover for migration, or 

susceptibility to flooding or fire that 

maintains necessary early-successional 

habitat characteristics. Biological 

features might include prey species, 

forage grasses, specific kinds or ages of 

trees for roosting or nesting, symbiotic 

fungi, or a particular level of nonnative 

species consistent with conservation 

needs of the listed species. The features 

may also be combinations of habitat 

characteristics and may encompass the 

relationship between characteristics or 

the necessary amount of a characteristic 

needed to support the life history of the 

species. In considering whether features 

are essential to the conservation of the 

species, the Service may consider an 

appropriate quality, quantity, and 

spatial and temporal arrangement of 

habitat characteristics in the context of 

the life-history needs, condition, and 

status of the species. These 

characteristics include but are not 

limited to space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 


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physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

We conducted a Species Status 

Assessment (SSA Report) for Guadalupe 

fescue, which is an evaluation of the 

best available scientific and commercial 

data on the status of the species. The 

SSA Report (Service 2016; available at: 

http://www.regulations.gov in Docket 

No. FWS–R2–ES–2016–0099 and FWS– 

R2–ES–2016–0100) is based on a 

thorough review of the natural history, 

habitats, ecology, populations, and 

range of Guadalupe fescue. The SSA 

Report provides the scientific 

information upon which this critical 

habitat determination is based (Service 

2016). 

Space for Individual and Population 

Growth and for Normal Behavior 

The size of suitable habitat areas for 

Guadalupe fescue is likely to be 

important, although we do not know 

how large an area must be to support a 

viable population. However, we do 

know that many plant species in the 

Chihuahuan Desert have migrated to 

different elevations and latitudes, or 

were extirpated, since the end of the late 

Wisconsinan glaciation (about 11,000 

years ago). Larger habitat areas provide 

more opportunities for populations to 

migrate, as plant communities and 

weather patterns change and, therefore, 

may be more suitable. Larger habitats 

are also expected to support larger 

populations and greater genetic 

diversity. We provisionally estimate that 

habitats of at least 494 ac (200 ha) are 

more likely to support long-term 

viability of Guadalupe fescue. 

Therefore, we determine that relatively 

large habitat areas that are at least 494 

ac (200 ha) are important to provide the 

necessary space to support the physical 

or biological feature for this species. 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

Precipitation is important to 

Guadalupe fescue, as flowering and 

survival rates are positively correlated 

with rainfall amount and timing. The 

amount of rainfall over longer periods, 

such as the previous 21 months, appears 

to have more influence on flowering, 

which occurs from August to October, 

than rainfall during the previous 9 

months or the previous February 

through May (Service 2016, Appendix 

B). Population size may be positively 

correlated with rainfall over relatively 

long (33-month) periods. Rainfall (or 

drought) over shorter timeframes 

appears to have less effect on 

population size. Precipitation amounts 

and patterns are weather conditions that 

support the physical or biological 

features for Guadalupe fescue. 

All historic and extant populations of 

Guadalupe fescue occur above about 

1,800 meters (m) (5,905 feet (ft)) in the 

Chihuahuan Desert of northern Mexico 

and Texas, although we do not know the 

actual elevation tolerance of this 

species. Many plant species occur at 

relatively lower elevations in mountains 

where habitats are relatively cool and 

moist, such as in narrow ravines, northfacing slopes (in the northern 

hemisphere), or windward slopes where 

there is a pronounced rain shadow 

(higher rainfall on prevailing windward 

slopes). Larger habitat areas provide 

more opportunities for populations to 

migrate, as plant communities and 

weather patterns change and, therefore, 

may be more suitable. Nevertheless, the 

1,800-m elevation contour represents 

the best available information regarding 

the elevation tolerance of this species. 

Habitat areas do not need to be 

contiguous to be considered occupied, 

provided that they are not separated by 

wide, low-elevation gaps. This rationale 

is based on expected long-distance 

dispersal of viable seeds of Guadalupe 

fescue by Carmen white-tailed deer 

(Odocoileus virginianus carminis), the 

most common ungulate in the Chisos 

Mountains. The diet of Carmen whitetailed deer consists of up to 12 percent 

grasses. Carmen white-tailed deer use 

habitats with dense stands of oak and 

the presence of free-standing water, and 

the range is restricted to elevations 

above 906 to 1,220 m (2,970 to 4,000 ft). 

The estimated home range is a radius of 

1.1 to 2.4 kilometers (km) (0.7 to 1.5 

miles (mi)). Hence, we expect that 

Carmen white-tailed deer are able to 

disperse viable seeds of Guadalupe 

fescue to potential habitats that are not 

separated by gaps that are below about 

1,000 m (3,208 ft) and more than 2.4 km 

(1.5 mi) wide. 

All known populations of Guadalupe 

fescue occur in rocky or talus soils of 

partially shaded sites in the understory 

of conifer-oak woodlands within the 

Chihuahuan Desert. The associated 

vegetation consists of relatively open 

stands of both conifer and oak trees in 

varying proportions. Conifer-oak 

woodlands may occur in areas classified 

as pine, conifer, pine-oak, or coniferoak, and as forest or woodland, on 

available vegetation classification maps. 

The conifer species typically include 

one or more of the following: Mexican 

pinyon (Pinus cembroides), Arizona 

pine (P. arizonica), southwestern white 

pine (P. strobiformis), alligator juniper 

(Juniperus deppeana), drooping juniper 

(J. flaccida), and Arizona cypress 

(Cupressus arizonica). Characteristic 

oaks include one or more of the 

following: Chisos red oak (Quercus 

gravesii), gray oak (Q. grisea), Lacey oak 

(Q. laceyi), and silverleaf oak (Q. 

hypoleucoides). Other broadleaf trees, 

such as bigtooth maple (Acer 

grandidentatum), may also occur in this 

element. Therefore, we consider areas of 

rocky or talus soils of partially shaded 

sites in the understory of conifer-oak 

woodlands above elevations of 1,800 m 

(5,905 ft) within the Chihuahuan Desert 

to be a physical or biological feature of 

Guadalupe fescue. 

Habitats That Are Protected From 

Disturbance or Are Representative of the 

Historic Geographical and Ecological 

Distributions of a Species 

The role of fire is very likely 

important to maintain Guadalupe fescue 

habitat for two reasons. First, many 

grass and forb understory species are 

stimulated during the years immediately 

following wildfire, but decline during 

long periods without fire. Second, 

relatively frequent forest wildfires tend 

to be relatively cool because large 

amounts of dry fuel, such as dead trees, 

fallen branches, and leaf litter, have not 

accumulated; such fires do not kill large 

numbers of trees or radically change the 

vegetation structure and composition. 

Conversely, wildfires that burn where 

fuels and small dead trees have 

accumulated for many years can be very 

hot, catastrophic events that not only 

kill entire stands of trees, but also kill 

the seeds and beneficial microorganisms 

in the soil, such as mycorrhizal fungi. 

Fire is probably inevitable in the conifer 

and conifer-oak forests of the 

Chihuahuan Desert. Thus, more 

frequent, relatively cool fires may be 

essential for the long-term sustainability 

of these forested ecosystems and of 

Guadalupe fescue populations. 

Summary of Essential Physical or 

Biological Features 

We derive the specific physical or 

biological features essential for 

Guadalupe fescue from studies of this 

species’ habitat, ecology, and life 

history, as described above. Additional 

information can be found in the final 

listing rule, published elsewhere in this 

issue of the Federal Register, and in the 

SSA Report (Service 2016). We have 

determined that the following physical 

or biological features are essential to the 

conservation of Guadalupe fescue: 

(1) Areas within the Chihuahuan 

Desert: 

(a) Above elevations of 1,800 m (5,905 

ft), and 


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(b) That contain rocky or talus soils. 

(2) Associated vegetation 

characterized by relatively open stands 

of both conifer and oak trees in varying 

proportions. This vegetation may occur 

in areas classified as pine, conifer, pineoak, or conifer-oak, and as forest or 

woodland, on available vegetation 

classification maps. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

features essential to the conservation of 

this species may require special 

management considerations or 

protection to reduce the following 

threats: Changes in wildfire frequency; 

livestock grazing; erosion and trampling 

by visitors hiking off the trails; and 

invasive species. 

Management activities that could 

ameliorate these threats and protect the 

integrity of the conifer-oak habitat 

include, but are not limited to: (1) 

Conducting prescribed burns under 

conditions that favor relatively cool 

burn temperatures; (2) removing 

livestock, including stray and feral 

livestock, from Guadalupe fescue 

habitats; (3) appropriately maintaining 

trails to reduce the incidence of 

trampling and erosion, and informing 

visitors of the need to remain on trails; 

and (4) controlling and removing 

introduced invasive plants, such as 

horehound (Marrubium vulgare) and 

King Ranch bluestem (Bothriochloa 

ischaemum). 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific and 

commercial data available to designate 

critical habitat. In accordance with the 

Act and our implementing regulations at 

50 CFR 424.12(b), we review available 

information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 

area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species to be considered for designation 

as critical habitat. We are designating 

critical habitat in areas within the 

United States that are occupied by 

Guadalupe fescue at the time of listing. 

Occupied habitat for Guadalupe fescue 

is defined as areas with positive survey 

records since 2009 (when the Maderas 

del Carmen population in Mexico was 

last documented), and habitat areas 

around sites with positive survey 

records that contain conifer-oak 

woodlands and that are not separated by 

gaps of lower elevation (<1,000 m) 

terrain and are within the maximum 

distance that seed dispersal is expected 

to occur (about 2.4 km (1.5 mi)). 

Sources of data on Guadalupe fescue 

occurrences include: The Texas Natural 

Diversity Database; herbarium records 

from the University of Texas, Missouri 

Botanical Garden, and University of 

Arizona; a survey report by Valde ́sReyna (2009); a status survey (Poole 

1989); and monitoring data from Big 

Bend National Park (Sirotnak 2014). We 

obtained information on ecology and 

habitat requirements from the candidate 

conservation agreement (Big Bend 

National Park and Service 2008), 

scientific reports (Camp et al. 2006; 

Moir and Meents 1981; Zimmerman and 

Moir 1998), and Rare Plants of Texas 

(Poole et al. 2007). Big Bend National 

Park (2015) provided a recently revised 

vegetation classification map of the 

Park. We used digital elevation models 

created by the U.S. Geological Survey. 

We documented a review and analysis 

of these data sources in the SSA Report 

(Service 2016). 

Areas Occupied at the Time of Listing 

The critical habitat designation 

includes the only known extant 

population of Guadalupe fescue in the 

United States, within the Chisos 

Mountains of Big Bend National Park, 

which has retained the physical or 

biological features that will allow for the 

maintenance and expansion of the 

existing population (criteria described 

above). Guadalupe fescue historically 

occupied one additional site in the 

United States in McKittrick Canyon 

within Guadalupe Mountains National 

Park. However, we are not designating 

critical habitat there because the species 

has not been observed since 1952, and 

it is unlikely that the area is occupied 

at the time of listing (Armstrong 2016; 

Poole 2016; Sirotnak 2016). The best 

available information indicates that 

Guadalupe fescue is extirpated from 

McKittrick Canyon, and the habitat 

would no longer support the species 

due to the abundance of invasive grasses 

such as King Ranch bluestem, and, 

therefore, we do not consider the area 

within McKittrick Canyon to be 

essential for the conservation of the 

species. 

We are designating a single unit of 

critical habitat consisting of five 

subunits totaling 7,815 acres (ac) (3,163 

hectares (ha)). Although currently 

Guadalupe fescue plants have only been 

found in Subunit 1, we consider all 

subunits to be occupied because they 

are not separated by gaps of lower 

elevation (<1,000 m) terrain greater than 

2.4 km (1.5 mi) wide. The entire unit 

lies within the Chisos Mountains of Big 

Bend National Park (see map in the 

Regulation Promulgation section, 

below). See Table 1, below, for 

summaries of land ownership and areas. 

No units or portions of units are being 

considered for exclusion or exemption. 

When determining critical habitat 

boundaries, we made every effort to 

avoid including developed areas such as 

lands covered by buildings, pavement, 

and other structures because such lands 

lack physical or biological features 

necessary for Guadalupe fescue. The 

scale of the maps we prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

lands. Any such lands inadvertently left 

inside critical habitat boundaries shown 

on the maps of this final rule have been 

excluded by text in the final rule and 

are not designated as critical habitat. 

Therefore, a Federal action involving 

these lands would not trigger section 7 

consultations with respect to critical 

habitat and the requirement of no 

adverse modification unless the specific 

action would affect the physical or 

biological features in the adjacent 

critical habitat. 

We are designating critical habitat on 

lands that we have determined are 

occupied at the time of listing and 

contain sufficient elements of physical 

or biological features to support lifehistory processes essential to the 

conservation of the Guadalupe fescue. 

We are designating one critical habitat 

unit within the Chisos Mountains that 

contains all of the identified physical or 

biological features to support the lifehistory processes of Guadalupe fescue. 

This final critical habitat designation 

is defined by the map, as modified by 

any accompanying regulatory text, 

presented at the end of this document 

in the Regulation Promulgation section. 

We include more detailed information 

on the boundaries of the critical habitat 

designation in the preamble of this 

document. We will make the 

coordinates or plot points or both on 

which the map is based available to the 

public on http://www.regulations.gov at 

Docket No. FWS–R2–ES–2016–0099 and 

FWS–R2–ES–2016–0100, on our 

Internet site (https://www.fws.gov/ 

southwest/es/AustinTexas/ESA_Our_

species.html), and at the field office 

responsible for the designation (see FOR

FURTHER INFORMATION CONTACT, above). 


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Critical Habitat Designation 

We are designating approximately 

7,815 ac (3,163 ha) in one unit 

containing five subunits as critical 

habitat for Guadalupe fescue. The 

critical habitat area we describe below 

constitutes our current best assessment 

of areas that meet the definition of 

critical habitat for Guadalupe fescue. 

The area we are designating as critical 

habitat is shown in Table 1. 

TABLE 1—OCCUPANCY, LAND OWNERSHIP, AND SIZE OF GUADALUPE FESCUE CRITICAL HABITAT CHISOS MOUNTAINS

UNIT AND SUBUNITS

[Amounts do not total due to rounding] 

Subunit Occupied at time of 

listing? Currently occupied? Ownership Size (ha) 

Size 

(ac) 

1 ............. Yes .............................. Yes .............................. National Park Service ....................................... 2,648 6,542 

2 ............. Yes .............................. Yes .............................. National Park Service ....................................... 391 966 

3 ............. Yes .............................. Yes .............................. National Park Service ....................................... 100 248 

4 ............. Yes .............................. Yes .............................. National Park Service ....................................... 13 32 

5 ............. Yes .............................. Yes .............................. National Park Service ....................................... 10 25 

Total ..................................... ..................................... ........................................................................... 3,163 7,815 

Below, we present a brief description 

of the Chisos Mountains Unit and 

reasons why it and the subunits 

contained within meet the definition of 

critical habitat for Guadalupe fescue. 

Unit 1: Chisos Mountains 

Unit 1 consists of 7,815 ac (3,163 ha) 

in the Chisos Mountains of Big Bend 

National Park. This unit is within the 

geographical area occupied by the 

species at the time of listing and 

contains all of the physical or biological 

features essential to the conservation of 

Guadalupe fescue. The habitat within 

Unit 1 consists of elevations of 1,800 m 

(5,905 ft) or greater, and the associated 

vegetation is classified as pine, pineoak, juniper-oak, or conifer-oak. The 

geographic delineation of the unit 

resulted in five subunits that are 

separated from each other by narrow 

gaps of lower elevation terrain, but are 

otherwise similar with respect to 

vegetation, geological substrate, and 

soils. The physical or biological features 

in this unit may require special 

management considerations or 

protection to address threats from 

changes in wildfire frequency, livestock 

grazing, erosion and trampling by 

visitors hiking off the trail, and invasive 

species. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. 

On February 11, 2016, we published 

a final rule (81 FR 7214) that sets forth 

a new definition of destruction or 

adverse modification. Destruction or 

adverse modification means a direct or 

indirect alteration that appreciably 

diminishes the value of critical habitat 

for the conservation of a listed species. 

Such alterations may include, but are 

not limited to, those that alter the 

physical or biological features essential 

to the conservation of a species or that 

preclude or significantly delay 

development of such features. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat, and actions 

on State, tribal, local, or private lands 

that are not federally funded or 

authorized, do not require section 7 

consultation. 

As a result of section 7 consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action; 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction; 

(3) Are economically and 

technologically feasible; and 

(4) Would, in the Director’s opinion, 

avoid the likelihood of jeopardizing the 

continued existence of the listed species 

and/or avoid the likelihood of 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies sometimes may need to 

request reinitiation of consultation with 


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us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species. Activities that may destroy or 

adversely modify critical habitat are 

those that result in a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat for the 

conservation of Guadalupe fescue. Such 

alterations may include, but are not 

limited to, those that alter the physical 

or biological features essential to the 

conservation of this species or that 

preclude or significantly delay 

development of such features. As 

discussed above, the role of critical 

habitat is to support physical or 

biological features essential to the 

conservation of a listed species and 

provide for the conservation of the 

species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that may affect critical 

habitat, when carried out, funded, or 

authorized by a Federal agency, should 

result in consultation for Guadalupe 

fescue. These activities include, but are 

not limited to: 

(1) Actions that would remove or 

significantly alter the conifer-oak 

woodland vegetation. Such actions 

could include, but are not limited to, 

cutting or killing trees and shrubs to an 

extent that a site is no longer suitable to 

Guadalupe fescue, due to increased 

levels of sunlight, exposure to wind, or 

other factors. Fire suppression has 

changed the natural wildfire cycle and 

may have altered the conifer-oak 

woodland habitat to an extent that it is 

no longer optimal for Guadalupe fescue 

due to increased tree and shrub 

densities. Hence, pruning or thinning of 

woody vegetation may benefit 

Guadalupe fescue if the tree canopy is 

too dense; therefore, prescribed pruning 

or thinning would not be considered 

adverse modification. The introduction 

of invasive plants could also adversely 

affect Guadalupe fescue through 

increased competition for light, water, 

and nutrients, or through an allelopathic 

effect (the suppression of growth of one 

plant species by another due to the 

release of toxic substances). 

(2) Actions that disturb the soil, or 

lead to increased soil erosion. Such 

actions could include, but are not 

limited to, excavation of the soil; 

removal of vegetation and litter; or 

construction of roads, trails, or 

structures that channel runoff and form 

gullies. The loss or disturbance of soil 

could deplete the soil seed bank of 

Guadalupe fescue or alter soil depth and 

composition to a degree that is no longer 

suitable for Guadalupe fescue. However, 

some actions that affect soil or litter may 

be prescribed to improve habitat 

conditions for Guadalupe fescue, such 

as prescribed burning, and would, 

therefore, not be considered adverse 

modifications. 

Exemptions 

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

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) provides that: 

‘‘The Secretary shall not designate as 

critical habitat any lands or other 

geographical areas owned or controlled 

by the Department of Defense, or 

designated for its use, that are subject to 

an integrated natural resources 

management plan [INRMP] prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands with a completed INRMP within 

the critical habitat designation. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history, are clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

When considering the benefits of 

exclusion, we consider, among other 

things, whether exclusion of a specific 

area is likely to result in conservation; 

the continuation, strengthening, or 

encouragement of partnerships; or 

implementation of a management plan. 

In the case of Guadalupe fescue, the 

benefits of critical habitat include 

public awareness of the presence of 

Guadalupe fescue and the importance of 

habitat protection, and, where a Federal 

nexus exists, increased habitat 

protection for Guadalupe fescue due to 

protection from adverse modification or 

destruction of critical habitat. In 

practice, situations with a Federal nexus 

exist primarily on Federal lands or for 

projects undertaken by Federal agencies. 

Because Guadalupe fescue critical 

habitat is located exclusively on 

National Park Service lands, a Federal 

nexus exists for any action. 

Consideration of Economic Impacts 

Section 4(b)(2) of the Act and its 

implementing regulations require that 

we consider the economic impact that 

may result from a designation of critical 

habitat. In order to consider economic 

impacts, we prepared an incremental 

effects memorandum (IEM) and 

screening analysis which together with 

our narrative and interpretation of 

effects we consider our draft economic 

analysis (DEA) of the proposed critical 

habitat designation and related factors 

(IeC, 2016, entire). The analysis, dated 

April 27, 2016, was made available for 

public review from September 9, 2016, 

through November 8, 2016 (IeC, 2016 

entire). The DEA addressed probable 

economic impacts of critical habitat 

designation for Guadalupe fescue. 

Following the close of the comment 

period, we reviewed and evaluated all 

information submitted during the 

comment period that may pertain to our 

consideration of the probable 

incremental economic impacts of this 

critical habitat designation. Additional 

information relevant to the probable 

incremental economic impacts of 

critical habitat designation for the 

Guadalupe fescue is summarized below 

and available in the screening analysis 

for the Guadalupe fescue (IeC, 2016, 

entire), available at http://

www.regulations.gov in Docket No. 

FWS–R2–ES–2016–0099 and FWS–R2– 

ES–2016–0100. 

Executive Orders (E.O.s) 12866 and 

13563 direct Federal agencies to assess 

the costs and benefits of available 

regulatory alternatives in quantitative 

(to the extent feasible) and qualitative 

terms. Consistent with the E.O.s’ 


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regulatory analysis requirements, our 

effects analysis under the Act may take 

into consideration impacts to both 

directly and indirectly affected entities, 

where practicable and reasonable. If 

sufficient data are available, we assess, 

to the extent practicable, the probable 

impacts to both directly and indirectly 

affected entities. As part of our 

screening analysis, we considered the 

types of economic activities that are 

likely to occur within the areas likely to 

be affected by the critical habitat 

designation. In our evaluation of the 

probable incremental economic impacts 

that may result from the proposed 

designation of critical habitat for 

Guadalupe fescue, first we identified, in 

the IEM dated February 23, 2016, 

probable incremental economic impacts 

associated with the following category 

of activities: Federal lands management 

(National Park Service, Big Bend 

National Park). 

We considered each industry or 

category individually. Additionally, we 

considered whether their activities have 

any Federal involvement. Critical 

habitat designation generally will not 

affect activities that do not have any 

Federal involvement; under the Act, 

designation of critical habitat only 

affects activities conducted, funded, 

permitted, or authorized by Federal 

agencies. In areas where Guadalupe 

fescue is present, the National Park 

Service will be required to consult with 

the Service under section 7 of the Act 

on activities they fund, permit, or 

implement that may affect the species. 

Additionally, consultations to avoid the 

destruction or adverse modification of 

critical habitat would be incorporated 

into the existing consultation process. 

Therefore, disproportionate impacts to 

any geographic area or sector are not 

likely as a result of this critical habitat 

designation. 

The critical habitat designation for 

Guadalupe fescue consists of a single 

unit of critical habitat consisting of five 

subunits currently occupied by the 

species. We are not designating any 

units of unoccupied habitat. The Chisos 

Mountains critical habitat unit totals 

7,815 ac (3,163 ha) and is entirely 

contained within federally owned land 

at Big Bend National Park. We have not 

identified any ongoing or future actions 

that would warrant additional 

recommendations or project 

modifications to avoid adversely 

modifying critical habitat above those 

we would recommend for avoiding 

jeopardy. 

Regarding projects that would occur 

in occupied habitat outside known 

population locations, we will 

recommend that Big Bend National Park 

first conduct surveys for Guadalupe 

fescue within the project impact area. If 

the species is found, we would 

recommend the same modifications 

previously described for avoiding 

jeopardy to the species. If the species is 

not found, we will recommend only that 

Big Bend National Park follow its 

established land management 

procedures. 

We anticipate minimal change in 

behavior at Big Bend National Park if we 

designate critical habitat for Guadalupe 

fescue. The only change we foresee is 

conducting surveys in areas of critical 

habitat based on our recommendation 

for surveys. Based on Big Bend National 

Park’s history of consultation under 

section 7 of the Act and on the 

consultation history of the most 

comparable species, Zapata bladderpod 

(Lesquerella thamnophila), we 

anticipate that this critical habitat 

designation may result in a maximum of 

two additional consultations per 

decade. 

Exclusions 

Exclusions Based on Economic Impacts 

The Service considered the economic 

impacts of the critical habitat 

designation, and the Secretary is not 

exercising his discretion to exclude any 

areas from this designation of critical 

habitat for the Guadalupe fescue based 

on economic impacts. 

A copy of the IEM and screening 

analysis with supporting documents 

may be obtained by contacting the 

Austin Ecological Services Field Office 

(see ADDRESSES) or by downloading 

from the Internet at http://

www.regulations.gov in Docket No. 

FWS–R2–ES–2016–0099 and FWS–R2– 

ES–2016–0100. 

Exclusions Based on National Security 

Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands where 

a national security impact might exist. 

In preparing this final rule, we have 

determined that the lands within the 

final designation of critical habitat for 

Guadalupe fescue are not owned or 

managed by the Department of Defense 

or Department of Homeland Security. In 

addition, the locations of the critical 

habitat areas are at high elevations in 

remote areas of Big Bend National Park 

and not close enough to the 

international border with Mexico to 

raise any border maintenance concerns. 

The closest critical habitat is 

approximately 20.1 km (12.5 mi) away 

from Mexican border. Therefore, we 

anticipate no impact on national 

security. Consequently, the Secretary is 

not intending to exercise his discretion 

to exclude any areas from the final 

designation based on impacts on 

national security. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors, including 

whether the landowners have developed 

any HCPs or other management plans 

for the area, or whether there are 

conservation partnerships that would be 

encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we look at any tribal issues, 

and consider the government-togovernment relationship of the United 

States with tribal entities. We also 

consider any social impacts that might 

occur because of the designation. 

In preparing this final rule, we have 

determined that there are currently no 

HCPs or other management plans for 

Guadalupe fescue, and the final 

designation does not include any tribal 

lands or trust resources. We anticipate 

no impact on tribal lands, partnerships, 

or HCPs from this critical habitat 

designation. Accordingly, the Secretary 

does not intend to exercise his 

discretion to exclude any areas from the 

final designation based on other 

relevant impacts. 

Required Determinations 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) will review all significant 

rules. The Office of Information and 

Regulatory Affairs has determined that 

this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 


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this rule in a manner consistent with 

these requirements. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

The Service’s current understanding 

of the requirements under the RFA, as 

amended, and following recent court 

decisions, is that Federal agencies are 

only required to evaluate the potential 

incremental impacts of rulemaking on 

those entities directly regulated by the 

rulemaking itself, and, therefore, are not 

required to evaluate the potential 

impacts to indirectly regulated entities. 

The regulatory mechanism through 

which critical habitat protections are 

realized is section 7 of the Act, which 

requires Federal agencies, in 

consultation with the Service, to ensure 

that any action authorized, funded, or 

carried out by the Agency is not likely 

to adversely modify critical habitat. 

Therefore, under section 7, only Federal 

action agencies are directly subject to 

the specific regulatory requirement 

(avoiding destruction and adverse 

modification) imposed by critical 

habitat designation. Consequently, it is 

our position that only Federal action 

agencies will be directly regulated by 

this designation. Moreover, Federal 

agencies are not small entities. 

Therefore, because no small entities are 

directly regulated by this rulemaking, 

the Service certifies that this final 

critical habitat designation will not have 

a significant economic impact on a 

substantial number of small entities. 

In summary, we have considered 

whether the final designation would 

result in a significant economic impact 

on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that the final 

critical habitat designation would not 

have a significant economic impact on 

a substantial number of small business 

entities. Therefore, a regulatory 

flexibility analysis is not required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. In 

our economic analysis, we did not find 

that the designation of this final critical 

habitat will significantly affect energy 

supplies, distribution, or use, because 

the critical habitat unit is entirely 

contained within Big Bend National 

Park. Therefore, this action is not a 

significant energy action, and no 

Statement of Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule would not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

tribal governments, or the private sector, 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

would significantly or uniquely affect 

small governments because we are 


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42258 Federal Register / Vol. 82, No. 172 / Thursday, September 7, 2017 / Rules and Regulations 

designating only a single critical habitat 

unit that is entirely owned by the 

National Park Service. Therefore, a 

Small Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

designating critical habitat for 

Guadalupe fescue in a takings 

implications assessment. The Act does 

not authorize the Service to regulate 

private actions on private lands or 

confiscate private property as a result of 

critical habitat designation. Designation 

of critical habitat does not affect land 

ownership, or establish any closures or 

restrictions on use of or access to the 

designated areas. Furthermore, the 

designation of critical habitat does not 

affect landowner actions that do not 

require Federal funding or permits, nor 

does it preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. However, Federal 

agencies are prohibited from carrying 

out, funding, or authorizing actions that 

would destroy or adversely modify 

critical habitat. A takings implications 

assessment has been completed and 

concludes the designation of critical 

habitat for Guadalupe fescue would not 

pose significant takings implications for 

lands within or affected by the 

designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this final rule does not 

have significant Federalism effects. A 

federalism summary impact statement is 

not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of this critical 

habitat designation with, appropriate 

State resource agencies in Texas. From 

a federalism perspective, the 

designation of critical habitat directly 

affects only the responsibilities of 

Federal agencies. The Act imposes no 

other duties with respect to critical 

habitat, either for States and local 

governments, or for anyone else. As a 

result, this final rule does not have 

substantial direct effects either on the 

States, or on the relationship between 

the national government and the States, 

or on the distribution of powers and 

responsibilities among the various 

levels of government. The designation 

may have some benefit to these 

governments because the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical and 

biological features of the habitat 

necessary to the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist these local 

governments in long-range planning 

(because these local governments no 

longer have to wait for case-by-case 

section 7 consultations to occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act would 

be required. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. To assist the 

public in understanding the habitat 

needs of the species, the rule identifies 

the elements of physical or biological 

features essential to the conservation of 

the species. The areas of critical habitat 

are presented on a map, and this 

document provides several options for 

the interested public to obtain more 

detailed location information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This final rule does not contain any 

new collections of information that 

require approval by OMB under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses 

pursuant to the National Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) in connection with designating 

critical habitat under the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). Because all of the 

final critical habitat lies outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we will not 

prepare a NEPA analysis. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination With Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

We determined that Guadalupe fescue 

does not occur on any tribal lands at the 

time of listing, and no tribal lands 

unoccupied by Guadalupe fescue are 

essential for the conservation of the 

species. Therefore, we are not 

designating critical habitat for 

Guadalupe fescue on tribal lands. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

Internet at http://www.regulations.gov 

in Docket No. FWS–R2–ES–2016–0099 

and FWS–R2–ES–2016–0100 and upon 

request from the Austin Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). 


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Federal Register / Vol. 82, No. 172 / Thursday, September 7, 2017 / Rules and Regulations 42259 

Authors 

The primary authors of this final rule 

are the staff members of the Austin 

Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 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. 

■ 2. Amend § 17.12(h) by adding an 

entry for ‘‘Festuca ligulata’’ to the List 

of Endangered and Threatened Plants in 

alphabetical order under FLOWERING 

PLANTS to read as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Scientific name Common name Where listed Status Listing citations and applicable rules 

Flowering Plants 

*******

Festuca ligulata .............. Guadalupe fescue ......... Wherever found ............ E ................ 82 FR [Insert Federal Register page where the 

document begins], September 7, 2017 

*******

■ 3. Amend § 17.96 by adding an entry 

for ‘‘Festuca ligulata (Guadalupe 

fescue)’’ in alphabetical order under 

Family Poaceae to read as follows: 

§ 17.96 Critical habitat—plants. 

(a) * * * 

Family Poaceae: Festuca ligulata 

(Guadalupe fescue) 

(1) A critical habitat unit, including 

five subunits, is depicted for Brewster 

County, Texas, on the map below. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of Guadalupe fescue 

consist of: 

(i) Areas within the Chihuahuan 

Desert: 

(A) Above elevations of 1,800 m 

(5,905 ft), and 

(B) That contain rocky or talus soils. 

(ii) Associated vegetation 

characterized by relatively open stands 

of both conifer and oak trees in varying 

proportions. This vegetation may occur 

in areas classified as pine, conifer, pineoak, or conifer-oak, and as forest or 

woodland, on available vegetation 

classification maps. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on October 10, 2017. 

(4) Critical habitat map units. We 

defined the critical habitat unit using 

the following Geographic Information 

System data layers: A Digital Elevation 

Model produced by the U.S. Geological 

Survey; and a Shapefile of vegetation 

classifications at Big Bend National 

Park, created and provided to us by Park 

personnel. The map in this entry, as 

modified by any accompanying 

regulatory text, establishes the 

boundaries of the critical habitat 

designation. The coordinates or plot 

points or both on which the map is 

based are available to the public at the 

Service’s Internet site (https://

www.fws.gov/southwest/es/ 

AustinTexas/ESA_Our_species.html), at 

http://www.regulations.gov at Docket 

No. FWS–R2–ES–2016–0099 and FWS– 

R2–ES–2016–0100, and at the field 

office responsible for this designation. 

You may obtain field office location 

information by contacting one of the 

Service regional offices, the addresses of 

which are listed at 50 CFR 2.2. 

(5) Map of Unit 1, Big Bend National 

Park, Brewster County, Texas, follows: 

BILLING CODE P 


pmangrum on DSK3GDR082PROD with RULES
42260 Federal Register / Vol. 82, No. 172 / Thursday, September 7, 2017 / Rules and Regulations 

* * * * * Dated: August 29, 2017. 

James W. Kurth, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2017–19001 Filed 9–6–17; 8:45 am] 

BILLING CODE C 


pmangrum on DSK3GDR082PROD with RULESER07SE17.000</GPH>

Guadalupe Fescue Critical Habitat Unit and 

Subunits, Chisos Mountains, Big Bend 

National Park. 

Symbols: 

Critical Habitat 

Park Road 

\., ... 

-....... 2° Park Road 

~ 

/ '), 0!) 

100-m Topographic Contour 

0 

Miles 

0 2 3 

1:100,000 

4 5 

4 5 

New 

N/1{1)(/C