[Federal Register Volume 78, Number 64 (Wednesday, April 3, 2013)]
[Proposed Rules]
[Pages 20074-20086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07792]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R1-ES-2012-0080; FWS-R1-ES-2012-0088; FWS-R1-ES-2013-
0009; FWS-R1-ES-2013-0021; 4500030114]
RIN 1018-AY18; 1018-AZ17; 1081-AZ36; 1081-AZ37


Endangered and Threatened Wildlife and Plants; Listing and 
Designation of Critical Habitat for Taylor's Checkerspot Butterfly, 
Streaked Horned Lark, and Four Subspecies of Mazama Pocket Gopher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on our October 11, 2012 (77 FR 61938), 
proposal to list Taylor's checkerspot butterfly as endangered and 
streaked horned lark as threatened and to designate critical habitat, 
and on our December 11, 2012 (77 FR 73770), proposal to list four 
subspecies of Mazama pocket gopher (Olympia, Tenino, Yelm, and Roy 
Prairie) and to designate critical habitat, under the Endangered 
Species Act of 1973, as amended (Act). We also announce the 
availability of a draft economic analysis (DEA) of the proposed 
critical habitat designations and an amended required determinations 
section of the proposed designations. The draft economic analysis 
addresses the potential economic impacts of critical habitat 
designation for all six subspecies (collectively, the ``prairie 
species'') under consideration in these rulemakings. In addition, we 
are providing information that we inadvertently omitted from the 
preamble to the October 11, 2012, proposed rule (77 FR 61938) to list 
Taylor's checkerspot butterfly as endangered and streaked horned lark 
as threatened and to designate critical habitat. We are reopening the 
comment periods to allow all interested parties an opportunity to 
comment simultaneously on the proposed rules, the associated DEA, and 
our amended required determinations. Comments previously submitted on 
these proposed rulemakings do not need to be resubmitted, as they will 
be fully considered in preparation of the final rules. We also announce 
a public hearing and three public information workshops on our proposed 
rules and associated documents.

DATES: Written Comments: We will consider comments received or 
postmarked on or before May 3, 2013. Please note comments submitted 
electronically using the Federal eRulemaking Portal (see ADDRESSES) 
must be received by 11:59 p.m. Eastern Time on the closing date. Any 
comments that we receive after the closing date may not be considered 
in the final decisions on these actions.
    Public Information Workshops: We will hold three public information 
workshops. Two in Olympia, Washington, for all six subspecies, on 
Tuesday, April 16, 2013, from 3 p.m. to 5 p.m. and from 6 p.m. to 8 
p.m.; and another in Salem, Oregon, for Taylor's checkerspot butterfly 
and streaked horned lark, on Wednesday, April 17, 2013, from 6 p.m. to 
8 p.m. (see ADDRESSES).
    Public Hearing: We will hold a public hearing in Lacey, Washington, 
on Thursday, April 18, 2013, from 3 p.m. to 5 p.m. and continuing from 
6 p.m. to 8 p.m. (see ADDRESSES).

ADDRESSES: Document Availability: You may obtain copies of the proposed 
rules at http://www.regulations.gov at Docket No. FWS-R1-ES-2012-0080 
for Taylor's checkerspot butterfly and streaked horned lark, and at 
Docket No. FWS-R1-ES-2012-0088 for the Mazama pocket gophers; from the 
Washington Fish and Wildlife Office's Web site (http://www.fws.gov/wafwot); or by contacting the Washington Fish and Wildlife Office 
directly (see FOR FURTHER INFORMATION CONTACT). You may obtain a copy 
of the combined draft economic analysis at Docket No. FWS-R1-ES-2013-
0009 or Docket No. FWS-R1-ES-2013-0021.
    Written Comments: You may submit written comments by one of the 
following methods, or at the public information workshop or public 
hearing:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal for 
Taylor's checkerspot butterfly and streaked horned lark to Docket No. 
FWS-R1-ES-2012-0080; submit comments on the critical habitat proposal 
for Taylor's checkerspot butterfly and streaked horned lark to Docket 
No. FWS-R1-ES-2013-0009. Submit comments on the listing proposal for 
Mazama pocket gophers to Docket No. FWS-R1-ES-2012-0088; submit 
comments on the critical habitat proposal for Mazama pocket gophers to 
Docket No. FWS-R1-ES-2013-0021. See SUPPLEMENTARY INFORMATION for an 
explanation of the four dockets.
    (2) By hard copy:
     Submit comments on the listing proposal for Taylor's 
checkerspot butterfly and streaked horned lark by U.S. mail or hand-
delivery to: Public Comments Processing, Attn: FWS-R1-ES-2012-0080; 
Division of Policy and Directives Management; U.S. Fish and Wildlife 
Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
     Submit comments on the critical habitat proposal for 
Taylor's checkerspot butterfly and streaked horned lark by U.S. mail or 
hand-delivery to: Public Comments Processing, Attn: FWS-R1-ES-2013-
0009; Division of Policy and Directives Management; U.S. Fish and 
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 
22203.

[[Page 20075]]

     Submit comments on the listing proposal for Mazama pocket 
gophers by U.S. mail or hand-delivery to: Public Comments Processing, 
Attn: FWS-R1-ES-2012-0088; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 
2042-PDM; Arlington, VA 22203.
     Submit comments on the critical habitat proposal for 
Mazama pocket gophers by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R1-ES-2013-0021; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    Public Information Workshops and Public Hearing: The public 
information workshops will be held at the Salem Library, 585 Liberty 
Street SE., Salem, Oregon 97301, and at the Lacey Community Center, 
6729 Pacific Avenue SE., Lacey, Washington 98503. The public hearing 
will be held in the Auditorium of Office Building 2 (OB2), 1125 
Jefferson Street SE., Olympia, Washington 98504 (across Capitol Way 
from the Legislative Building, on the lower level of the building). 
People needing reasonable accommodation in order to attend and 
participate in the public hearing should contact Ken S. Berg, Manager, 
Washington Fish and Wildlife Office, as soon as possible (see FOR 
FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Ken S. Berg, Manager, Washington Fish 
and Wildlife Office, 510 Desmond Drive SE., Lacey, WA 98503; by 
telephone at 360-753-9440; or by facsimile at 360-534-9331. Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed rules that were published in 
the Federal Register on October 11, 2012 (77 FR 61938), and on December 
11, 2012 (77 FR 73770); our combined draft economic analysis of the 
proposed critical habitat designations; and the amended required 
determinations provided in this document. We will consider all 
information and recommendations from all interested parties.
    On October 11, 2012, we published a proposal (77 FR 61938) to list 
Taylor's checkerspot butterfly (Euphydryas editha taylori) as 
endangered, to list the streaked horned lark (Eremophila alpestris 
strigata) as threatened, and to designate critical habitat for these 
two subspecies in Oregon and Washington. On December 11, 2012, we 
published a proposal (77 FR 73770) to list four subspecies of the 
Mazama pocket gopher (Roy Prairie [Thomomys mazama glacialis], Olympia 
[T. m. pugetensis], Tenino [T. m. tumuli], and Yelm [T. m. yelmensis]) 
as threatened, and to designate critical habitat for these four 
subspecies in Washington. Later this year, we will publish four 
separate final decisions: two final rules concerning the listing 
determinations described above (i.e., a final rule for Taylor's 
checkerspot butterfly and streaked horned lark, and another final rule 
for the Mazama pocket gophers), and two others concerning the critical 
habitat determinations described above. The final listing rule for 
Taylor's checkerspot butterfly and streaked horned lark will publish 
under the existing Docket No. FWS-R1-ES-2012-0080, and the final 
listing rule for the Mazama pocket gophers will publish under the 
existing Docket No. FWS-R1-ES-2012-0088, while the final critical 
habitat designations will publish separately under Docket No. FWS-R1-
ES-2013-0009 and Docket No. FWS-R1-ES-2013-0021, respectively.
    We request that you provide comments specifically on our proposed 
listing determinations for Taylor's checkerspot butterfly and streaked 
horned lark under Docket No. FWS-R1-ES-2012-0080 and for the Mazama 
pocket gophers under Docket No. FWS-R1-ES-2012-0088 (for comments on 
our related proposed critical habitat designations, please refer to 
alternate docket numbers below). We will consider information and 
recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
threats (or the lack thereof) to the subspecies proposed for listing, 
and regulations that may be addressing those threats.
    (2) Additional information concerning the biology, range, 
distribution, and population sizes and trends of the subspecies 
proposed for listing, including the locations of any additional 
populations of these subspecies.
    (3) Any information on the biological or ecological requirements of 
the subspecies proposed for listing, and ongoing conservation measures 
for the subspecies and their habitat.
    (4) Additional information pertaining to the promulgation of a 
special rule to exempt existing maintenance activities and agricultural 
practices from section 9 take prohibitions on private and Tribal lands, 
including airports, where the four subspecies of Mazama pocket gophers 
and the streaked horned lark occur.
    (5) Whether any populations of the streaked horned lark should be 
considered separately for listing as a distinct population segment 
(DPS), and if so, the justification for how that population meets the 
criteria for a DPS under the Service's Policy Regarding the Recognition 
of Distinct Vertebrate Population Segments under the Endangered Species 
Act (61 FR 4722, February 7, 1996).
    We request that you provide comments specifically on the critical 
habitat determination and related draft economic analysis under Docket 
No. FWS-R1-ES-2013-0009 for the Taylor's checkerspot butterfly and 
streaked horned lark, and Docket No. FWS-R1-ES-2013-0021 for the Mazama 
pocket gophers. The combined draft economic analysis addresses the 
potential economic impacts of critical habitat designation for all six 
subspecies under consideration (collectively, the ``Prairie Species of 
Western Washington and Oregon,'' referred to in this document as the 
``prairie species''). We will consider information and recommendations 
from all interested parties. We are particularly interested in comments 
concerning:
    (6) The reasons why we should or should not designate areas for the 
prairie species as ``critical habitat'' under section 4 of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), including whether there are threats to the prairie species from 
human activity, the degree of which can be expected to increase due to 
the designation, and whether that increase in threat outweighs the 
benefit of designation such that the designation of critical habitat 
may not be prudent.
    (7) Specific information on:
     The amount and distribution of critical habitat for each 
of the prairie species;
     Areas in the geographic area occupied at the time of 
listing and that contain the physical or biological features essential 
for the conservation of each of the prairie species;
     Whether special management considerations or protections 
may be required for the physical or biological features essential to 
the conservation of these species; and
     What areas not currently occupied are essential to the 
conservation of each of the prairie species and why.
    (8) Land use designations and current or planned activities in the 
areas occupied or unoccupied by the species and proposed as critical 
habitat, and the possible impacts of these activities on

[[Page 20076]]

each of the prairie species, or of critical habitat on these 
designations or activities.
    (9) Any foreseeable economic, national security, or other relevant 
impacts of designating any area as critical habitat. We are 
particularly interested in any impacts on small entities, and the 
benefits of including or excluding areas that may experience these 
impacts.
    (10) Whether the benefits of excluding any particular area from 
critical habitat outweigh the benefits of including that area as 
critical habitat under section 4(b)(2) of the Act, after considering 
the potential impacts and benefits of the proposed critical habitat 
designation. We are considering the possible exclusion of non-Federal 
lands, especially areas in private ownership, and whether the benefits 
of exclusion may outweigh the benefits of inclusion of those areas. We, 
therefore, request specific information on:
     The benefits of including any specific areas in the final 
designation and supporting rationale.
     The benefits of excluding any specific areas from the 
final designation and supporting rationale.
     Whether any specific exclusions may result in the 
extinction of any of the prairie species and why.
    For private lands in particular, we are interested in information 
regarding the potential benefits of including private lands in critical 
habitat versus the benefits of excluding such lands from critical 
habitat. This information does not need to include a detailed technical 
analysis of the potential effects of designated critical habitat on 
private property. In weighing the potential benefits of exclusion 
versus inclusion of private lands, the Service may consider whether 
existing partnership agreements provide for the management of the 
subspecies. We may consider, for example, the status of conservation 
efforts, the effectiveness of any conservation agreements to conserve 
the subspecies, and the likelihood of the conservation agreement's 
future implementation. We request comment on the broad public benefits 
of encouraging collaborative efforts and encouraging local and private 
conservation efforts.
    (11) The possible exclusion of lands under Port of Portland 
ownership from Critical Habitat Unit 3-O for the streaked horned lark. 
The Service has received a draft Candidate Conservation Agreement with 
Assurances from the Port of Portland for conservation of the streaked 
horned lark at Portland International Airport and at a new mitigation 
site (Government Island). If this plan is finalized prior to the 
issuance of our final rule, we may consider the exclusion of this site 
from the final designation of critical habitat, following evaluation of 
the agreement according to our criteria as described in our proposed 
rule (October 11, 2012; 77 FR 61938; see Exclusions under section 
4(b)(2) of the Act).
    (12) Our process used for identifying those areas that meet the 
definition of critical habitat for each of the six subspecies, as 
described in the section of the proposed rules for Taylor's checkerspot 
butterfly and streaked horned lark (October 11, 2012; 77 FR 61938) and 
the Mazama pocket gophers (December 11, 2012; 77 FR 73770) titled 
``Criteria Used to Identify Critical Habitat.''
    (13) Information on the extent to which the description of 
potential economic impacts in the draft economic analysis is complete 
and accurate.
    (14) Whether the draft economic analysis makes appropriate 
assumptions regarding current practices and any regulatory changes that 
will likely occur as a result of the designation of critical habitat.
    (15) Whether the draft economic analysis identifies all Federal, 
State, and local costs and benefits attributable to the proposed 
designation of critical habitat, and information on any costs that may 
have been inadvertently overlooked.
    (16) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (17) Specific information on ways to improve the clarity of this 
rule as it pertains to completion of consultations under section 7 of 
the Act.
    Our final determinations concerning listing Taylor's checkerspot 
butterfly as an endangered species, streaked horned lark as a 
threatened species, and the four Mazama pocket gopher subspecies as 
threatened species and designating critical habitat for all of these 
subspecies in Washington and Oregon will take into consideration all 
written comments we receive during the comment periods for each 
species, from peer reviewers, and during the public information 
workshops, as well as comments and public testimony we may receive 
during the public hearing. The comments will be included in the public 
record for this rulemaking, and we will fully consider them in the 
preparation of our final determinations. On the basis of peer reviewer 
and public comments, as well as any new information we may receive, we 
may, during the development of our final determination concerning 
critical habitat, find that areas within the proposed critical habitat 
designation do not meet the definition of critical habitat, that some 
modifications to the described boundaries are appropriate, or that 
areas may or may not be appropriate for exclusion under section 4(b)(2) 
of the Act. Our final determination of critical habitat may therefore 
differ from the proposed designation.
    If you submitted comments or information on the proposed rule for 
Taylor's checkerspot butterfly and streaked horned lark (October 11, 
2012; 77 FR 61938) during the comment period from October 11, 2012, to 
December 10, 2012, or on the proposed rule for the Mazama pocket 
gophers (December 11, 2012; 77 FR 73770) during the comment period from 
December 11, 2012, to February 11, 2013, please do not resubmit them. 
We will incorporate them into the public record as part of this comment 
period, and we will fully consider them in the preparation of our final 
determinations.
    You may submit your comments and materials concerning the proposed 
rules or draft economic analysis by one of the methods listed in the 
ADDRESSES section. Verbal testimony may also be presented during the 
public hearing (see DATES and ADDRESSES sections). We will post your 
entire comment--including your personal identifying information--on 
http://www.regulations.gov. If you submit your comment via U.S. mail, 
you may request at the top of your document that we withhold personal 
information such as your street address, phone number, or email address 
from public review; however, we cannot guarantee that we will be able 
to do so.
    Comments and materials we receive, as well as some of the 
supporting documentation we used in preparing the proposed rules and 
draft economic analysis, will be available for public inspection on 
http://www.regulations.gov at Docket Nos. FWS-R1-ES-2012-0080 and FWS-
R1-ES-2013-0009 for the Taylor's checkerspot butterfly and streaked 
horned lark, and Docket Nos. FWS-R1-ES-2012-0088 and FWS-R1-ES-2013-
0021 for the Mazama pocket gophers. All comments and materials we 
receive, and all supporting documentation, are available for public 
inspection by appointment, during normal business hours, at the U.S. 
Fish and Wildlife Service, Washington Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).

[[Page 20077]]

Public Information Workshops and Public Hearing

    We are holding three public information workshops and a public 
hearing on the dates listed in the DATES section at the addresses 
listed in the ADDRESSES section (above). We are holding the public 
hearing to provide interested parties an opportunity to present verbal 
testimony (formal, oral comments) or written comments regarding the 
proposed listing of Taylor's checkerspot butterfly as an endangered 
species, streaked horned lark as a threatened species, and four 
subspecies of Mazama pocket gophers as threatened species; the proposed 
designation of critical habitat for these six subspecies in Washington 
and Oregon; and the associated draft economic analysis of the proposed 
critical habitat designations. A formal public hearing is not, however, 
an opportunity for dialogue with the Service; it is only a forum for 
accepting formal verbal testimony. In contrast to the hearing, the 
public information workshops will allow the public the opportunity to 
interact with Service staff, who will be available to provide 
information and address questions on the proposed rules and the 
associated draft economic analysis. We cannot accept verbal testimony 
at the public information workshops; verbal testimony can only be 
accepted at the public hearing. Anyone wishing to make an oral 
statement at the public hearing for the record is encouraged to provide 
a written copy of their statement to us at the hearing. At the public 
hearing, formal verbal testimony will be transcribed by a certified 
court reporter and will be fully considered in the preparation of our 
final determination. In the event there is a large attendance, the time 
allotted for oral statements may be limited. Speakers can sign up at 
the hearing if they desire to make an oral statement. Oral and written 
statements receive equal consideration. There are no limits on the 
length of written comments submitted to us.
    Persons with disabilities needing reasonable accommodations to 
participate in the public information workshop or public hearing should 
contact Ken S. Berg, Manager, Washington Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT). Reasonable accommodation requests 
should be received at least 3 business days prior to the public 
information workshop or public hearing to help ensure availability; at 
least 2 weeks prior notice is requested for American Sign Language 
needs.

Background

    The topics discussed below are relevant to designation of critical 
habitat for Taylor's checkerspot butterfly and streaked horned lark in 
Washington and Oregon and designation of critical habitat for four 
subspecies of Mazama pocket gophers in Washington. For more information 
on the proposed listings and proposed designations of critical habitat 
for these prairie species, please refer to the proposed rules published 
in the Federal Register on October 11, 2012 (77 FR 61938) and December 
11, 2012 (77 FR 73770), which are available online at http://www.regulations.gov (at Docket No. FWS-R1-ES-2012-0080 and Docket No. 
FWS-R1-ES-2012-0088) or from the Washington Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT). In addition, please see the 
section Addition to the Proposed Rule for the Listing of Taylor's 
Checkerspot Butterfly and Streaked Horned Lark and Designation of 
Critical Habitat, below.

Previous Federal Actions

    On October 11, 2012, we published a proposed rule (77 FR 61938) to 
list Taylor's checkerspot butterfly as endangered and streaked horned 
lark as threatened and to designate critical habitat. We proposed to 
designate a total of 6,875 acres (ac) (2,782 hectares (ha)) in 
Washington and Oregon as critical habitat for the Taylor's checkerspot 
butterfly, and 12,159 ac (4,920 ha) in Washington and Oregon for the 
streaked horned lark. Within that proposed rule, we announced a 60-day 
comment period, which ended on December 10, 2012. Approximately 17 
percent of the proposed designation for the streaked horned lark 
overlaps areas that are currently designated as critical habitat for 
the western snowy plover (Charadrius alexandrinus nivosus) (77 FR 
36728; June 19, 2012).
    On December 11, 2012, we published a proposed rule (77 FR 73770) to 
list four subspecies of Mazama pocket gopher (Olympia, Tenino, Yelm, 
and Roy Prairie) as threatened and to designate critical habitat. We 
proposed to designate a total of 9,234 acres (ac) (3,737 ha) in 
Washington. Within that proposed rule, we announced a 60-day comment 
period, which ended on February 11, 2013. The proposed designation for 
the Mazama pocket gophers overlaps some of the areas that are currently 
proposed as critical habitat for Taylor's checkerspot butterfly and 
streaked horned lark. We will submit final determinations on the 
proposed listing and critical habitat designations for the prairie 
species to the Federal Register on or before September 30, 2013, for 
publication.

Addition to the Proposed Rule for the Listing of Taylor's Checkerspot 
Butterfly and Streaked Horned Lark and Designation of Critical Habitat

    On October 11, 2012, we published in the Federal Register (77 FR 
61938) a proposed rule to list the Taylor's checkerspot butterfly as 
endangered, to list the streaked horned lark as threatened, and to 
designate critical habitat for each of these subspecies. In the 
preamble of that proposed rule, we inadvertently omitted some text from 
the section Criteria Used to Identify Critical Habitat. Here, we print, 
in full, the description of the criteria used to identify critical 
habitat for the Taylor's checkerspot butterfly and streaked horned 
lark.

Criteria Used To Identify Critical Habitat [Taylor's Checkerspot 
Butterfly and Streaked Horned Lark]

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We review available information pertaining to the habitat requirements 
of the species, and begin by assessing the specific geographic areas 
occupied by the species at the time of listing. If such areas are not 
sufficient to provide for the conservation of the species, in 
accordance with the Act and its implementing regulations at 50 CFR 
424.12(e), we then consider whether designating additional areas 
outside the geographic areas occupied at the time of listing may be 
essential to ensure the conservation of the species. We consider 
unoccupied areas for critical habitat when a designation limited to the 
present range of the species may be inadequate to ensure the 
conservation of the species. In this case, since we are proposing 
listing simultaneously with the proposed critical habitat, all areas 
presently occupied by the Taylor's checkerspot butterfly or streaked 
horned lark are presumed to constitute those areas occupied at the time 
of listing; those areas currently occupied by the subspecies are 
identified as such in each of the unit or subunit descriptions below. 
These descriptions similarly identify which of the units or subunits 
are believed to be unoccupied at the time of listing. Our determination 
of the areas occupied at the time of listing, and our rationale for how 
we determined specific unoccupied areas to be essential the 
conservation of the subspecies, are provided below.
    We plotted the known locations of the Taylor's checkerspot 
butterfly and

[[Page 20078]]

streaked horned lark where they occur in Washington and Oregon using 
2011 NAIP digital imagery in ArcGIS, version 10 (Environmental Systems 
Research Institute, Inc.), a computer geographic information system 
program.
    To determine if the currently occupied areas contain the primary 
constituent elements, we assessed the life-history components and the 
distribution of both subspecies through element occurrence records in 
State natural heritage databases and natural history information on 
each of the subspecies as they relate to habitat. We first considered 
whether the presently occupied areas were sufficient to conserve the 
species. If not, to determine if any unoccupied sites met the criteria 
for critical habitat, we then considered: (1) The importance of the 
site to the overall status of the subspecies to prevent extinction and 
contribute to future recovery of the subspecies; (2) whether the area 
presently provides the essential physical or biological features, or 
could be managed and restored to contain the necessary physical and 
biological features to support the subspecies; and (3) whether 
individuals were likely to colonize the site. We also considered the 
potential for reintroduction of the subspecies, where anticipated to be 
necessary (for Taylor's checkerspot butterfly only).

Occupied Areas

Taylor's Checkerspot Butterfly
    For Taylor's checkerspot butterfly, we are proposing to designate 
critical habitat within the geographical area occupied by the species 
at the time of listing, as well as in unoccupied areas that we have 
determined to be essential to the conservation of the species 
(described below). These presently occupied areas provide the physical 
or biological features essential to the conservation of the species, 
which may require special management considerations or protection. We 
determined occupancy in these areas based on recent survey information. 
All sites occupied by the Taylor's checkerspot butterfly have survey 
data as recently as 2011, except for the Forest Service sites on the 
north Olympic Peninsula where data are as recent as 2010 (Potter, 2011; 
Linders 2011; Ross 2011; Holtrop 2010, Severns and Grossboll 2011). In 
addition, there have been some recent experimental translocations of 
Taylor's checkerspot butterfly to sites where it had been extirpated 
within its historical range. If translocated populations have been 
documented as successfully reproducing, we considered those sites to be 
presently occupied by the subspecies. Areas proposed as critical 
habitat for the Taylor's checkerspot butterfly are representative of 
the known historical geographic distribution for the species, outside 
of Canada.
Streaked Horned Lark
    For the streaked horned lark, we are proposing critical habitat 
within the geographical area occupied by the subspecies at the time of 
listing, with the exception of a single subunit that is currently 
unoccupied (described below). We determined occupancy for the streaked 
horned lark based on recent survey data (Anderson 2011; Linders 2011; 
Moore 2011), and assumptions about occupancy based on known recent 
presence of the subspecies and continuing availability of suitable 
habitat. Not all known streaked horned lark sites are surveyed every 
year due to budget and staffing limitations, and due to the 
inaccessibility of some of the sites. If we have recent information on 
the presence of streaked horned larks and if the site has the habitat 
characteristics required by the species, we assume that streaked horned 
larks persist at the site. We consider it reasonable to presume a site 
is occupied by the streaked horned lark if individuals have been 
detected during the breeding season within the last several years and 
if the site receives consistent management that provides the early 
seral characteristics required by the subspecies (e.g., regular 
maintenance at airports) or if it retains the essential habitat 
features for the subpecies (e.g., dredge material has been deposited at 
the site within the last 5 years).
    We are not proposing to designate critical habitat in the 
agricultural fields in the Willamette Valley, because we are unable to 
determine which areas within the large agricultural matrix in the 
valley will meet the definition of critical habitat at any time. 
Agricultural habitats can provide appropriate habitat conditions, but 
these conditions (large, open landscape context, low stature 
vegetation, bare ground) occur unpredictably and vary in location from 
year to year. Large areas of bare ground and sparse vegetation likely 
occur somewhere within the Willamette Valley every year, as fields are 
newly planted, mowed, burned, tilled, or perhaps as planted crops fail 
for various reasons. However, the occurrence of these shifting habitats 
within more than a million acres of agricultural fields is 
unpredictable. For these reasons, we have no basis for concluding that 
any specific areas are essential for conservation, because we have no 
way of knowing where or how long the appropriate conditions will 
persist.
    Even though we cannot determine the location of the physical and 
biological factors and primary constituent elements on agricultural 
lands in the Willamette Valley, we acknowledge that agricultural lands 
in the Willamette Valley are important and will be necessary for 
recovery of the streaked horned lark.

Unoccupied Areas

    We are proposing critical habitat in areas unoccupied at the time 
of listing, but that we have determined to be essential to the 
conservation of the subspecies for the Taylor's checkerspot butterfly 
(multiple subunits) and the streaked horned lark (a single subunit).
Taylor's Checkerspot Butterfly
    We are proposing 11 subunits as critical habitat for the Taylor's 
checkerspot butterfly that are not presently occupied by the 
subspecies. There has been a rapid decline in the spatial distribution 
of prairies (grassland habitat) throughout the range of Taylor's 
checkerspot butterfly. There are two primary drivers of habitat loss 
for the subspecies across its range: development and changes in the 
vegetative cover across the landscape. One of the primary threats to 
the persistence of the Taylor's checkerspot butterfly is loss of 
habitat due to successional changes that occur when habitat is not 
subject to disturbance or does not receive special management. These 
changes in the vegetative structure are due to the encroachment of 
large shade-producing trees, shrubs, and invasive sod-forming grasses 
that outcompete native grassland plants for water, space, light, and 
nutrients, which in turns effects the vegetative composition of these 
sites. Changes from one vegetative form to another have degraded many 
of the historical Taylor's checkerspot butterfly sites. As a result, 
the present distribution of Taylor's checkerspot butterfly is disjunct 
and isolated throughout the subspecies' historical range. If the 
Taylor's checkerspot butterfly is to recover, there must be sufficient 
suitable habitat available for population expansion and growth that is 
connected in such a way as to allow for dispersal, and these sites must 
receive routine and sustained management to maintain the early seral 
conditions essential to the conservation of the species.
    For this proposed critical habitat, we first identified the areas 
presently occupied by Taylor's checkerspot

[[Page 20079]]

butterfly and that provide the physical or biological features 
essential to the conservation of the species. We then determined that 
the designation of these areas as critical habitat would not be 
sufficient to provide for the conservation of Taylor's checkerspot 
butterfly, because, as described above, the distribution and abundance 
of the subspecies has declined so dramatically in recent years that 
presently occupied sites are too isolated and disjunct to provide for 
long-term viability. We therefore evaluated areas outside the presently 
occupied patches to identify unoccupied habitat areas essential for the 
conservation of the species. We propose to designate some areas 
adjacent to all known occurrences of Taylor's checkerspot butterfly but 
that may currently be unoccupied to provide for population expansion 
and growth. Areas outside of occupied habitat utilized by Taylor's 
checkerspot butterflies are proposed as many occupied sites are 
extremely small, and if populations are to expand for long-term 
viability they will need sufficient space for shelter, breeding, and 
larval and adult feeding to accommodate greater numbers of individuals. 
In addition, we are proposing to designate some specific areas outside 
the geographical area occupied by the species at the time of listing 
that were historically occupied, but are presently unoccupied. These 
unoccupied areas are proposed because they are sites where Taylor's 
checkerspot butterfly was recently extirpated, but that are currently 
receiving restoration specifically aimed to enhance Taylor's 
checkerspot butterfly habitat. These areas would likely be sites that 
would receive captively bred and translocated Taylor's checkerspots to 
achieve the recovery of the subspecies, as this technique for 
reoccupying former sites has been successfully tested at several 
locations (Scatter Creek south and Range 50, JBLM). We are also 
proposing one presently unoccupied site (Smith Prairie) because of the 
high potential for reintroduction success, due to the presence of 
potentially suitable habitat and landowner commitment to the 
conservation of Taylor's checkerspot butterfly. Each of the presently 
unoccupied but essential sites proposed for critical habitat 
additionally provide some or all of the PCEs for the Taylor's 
checkerspot butterfly. The primary reason for proposing to designate 
critical habitat in previously occupied areas (and the single 
unoccupied non-historical site at Smith Prairie) is to enable the 
reintroduction and reestablishment of the species broadly throughout 
its historical range to ensure its long-term persistence. Due to the 
geographic distribution of these unoccupied sites, they provide areas 
for the future translocation and subsequent dispersal of captively bred 
Taylor's checkerspot butterflies to achieve the conservation of the 
species.
    We have identified these unoccupied areas as essential to the 
conservation of the Taylor's checkerspot butterfly because they are 
located strategically between, and in some cases, adjacent to, occupied 
areas from which the butterfly may disperse; these areas contain one or 
more of the PCEs for the butterfly; and are all receiving or are slated 
to receive restoration treatments that will increase the amount of 
suitable habitat available.
Streaked Horned Lark
    For the streaked horned lark, we propose one subunit, Coffeepot 
Island in the Columbia River, which may not be occupied at the time of 
listing, and that we have therefore evaluated as if it were unoccupied 
to determine whether it is nonetheless essential to the conservation of 
the subspecies. Occupancy by the streaked horned lark was last 
documented on Coffeepot Island in 2004. Surveys since this time have 
been intermittent, and changes in the vegetation structure have 
diminished the likelihood that streaked horned larks will use Coffeepot 
Island in the absence of restoration. Subsequent to our identification 
of all areas presently occupied by the species and that provide the 
physical or biological features essential to the conservation of the 
streaked horned lark, we determined that Coffeepot Island is essential 
to the conservation of the subspecies because it provides an essential 
``stepping stone'' in the chain of breeding sites on the islands in the 
Columbia River. In addition, the island is being considered as a dredge 
deposit site, which will recreate the necessary PCEs for occupancy by 
breeding streaked horned larks in the future. We have therefore 
determined that although presently unoccupied, Coffeepot Island is 
essential to the conservation of the streaked horned lark.
    In all cases, when determining proposed critical habitat 
boundaries, we made every effort to avoid including developed areas 
such as lands covered by buildings, pavement (such as airport runways 
and roads), and other structures because such lands lack the essential 
physical or biological features for Taylor's checkerspot butterfly or 
streaked horned lark, with the exception of graveled margins of the 
airport runways and taxiways. 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 the proposed rule have been excluded by text in the proposed rule 
and are not proposed for designation as critical habitat. Therefore, if 
the critical habitat is finalized as proposed, a Federal action 
involving these lands would not trigger section 7 consultation with 
respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect the physical or 
biological features in the adjacent critical habitat.
    We are proposing four units of critical habitat for designation 
based on sufficient elements of physical and biological features being 
present to support life-history processes for the Taylor's checkerspot 
butterfly and streaked horned lark. These 4 units are further divided 
into 47 subunits, some of which contain proposed critical habitat for 
both subspecies. Some subunits within the units contain all of the 
identified elements of physical and biological features and support 
multiple life-history processes. Some subunits contain only some 
elements of the physical and biological features necessary to support 
the subspecies' particular use of that habitat. Because we determined 
that the areas presently occupied by the Taylor's checkerspot butterfly 
and the streaked horned lark are not sufficient to provide for the 
conservation of these subspecies, we have additionally identified some 
subunits that are presently unoccupied, but that we have determined to 
be essential to the conservation of the species. Therefore, we are also 
proposing these unoccupied areas as critical habitat for the Taylor's 
checkerspot butterfly and streaked horned lark.
    We invite public comment on our identification of those areas 
presently occupied by Taylor's checkerspot butterfly or streaked horned 
lark and provide the physical or biological features that may require 
special management considerations or protection, as well as areas that 
are currently unoccupied but that we have determined to be essential to 
the conservation of the subspecies.

Critical Habitat

    Section 3 of the Act defines critical habitat as those specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features essential to the conservation of the 
species and

[[Page 20080]]

that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency unless it is exempted pursuant to the 
provisions of the Act (16 U.S.C. 1536(e)-(n) and (p)). Federal agencies 
proposing actions affecting critical habitat must consult with us on 
the effects of their proposed actions, under section 7(a)(2) of the 
Act.
    Consistent with the best scientific data available, the standards 
of the Act, and our regulations, we have initially identified, for 
public comment, a total of 6,875 ac (2,782 ha) in 3 units (18 subunits) 
for Taylor's checkerspot butterfly and 12,159 ac (4,920 ha) in 3 units 
(29 subunits) for streaked horned lark, located in Washington and 
Oregon, and a total of 9,234 acres (ac) (3,737 ha) in 1 unit (8 
subunits) for four subspecies of Mazama pocket gophers in Washington, 
that meet the definition of critical habitat for each of these 
subspecies. In addition, the Act provides the Secretary with the 
discretion to exclude certain areas from the final designation after 
taking into consideration economic impacts, impacts on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat.

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat. In the 
case of the Taylor's checkerspot butterfly, streaked horned lark, and 
Mazama pocket gophers, the benefits of critical habitat include public 
awareness of the presence of one or more of these subspecies and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection 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.
    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. We also consider 
the potential economic impacts that may result from the designation of 
critical habitat.
    In the proposed rule, we identified several areas to consider 
excluding from the final rule. We are considering excluding from the 
final designation for Taylor's checkerspot butterfly approximately 
1,394 ac (565 ha) of State, county, and private lands that have either 
a perpetual conservation easement, voluntary conservation agreement, 
conservation or watershed preserve designation, or similar conservation 
protection; for streaked horned lark, approximately 182 ac (73 ha) of 
habitat that may be managed and protected for the western snowy plover, 
streaked horned lark, and other native coastal species of cultural 
significance on lands under Shoalwater Tribal ownership and management; 
and for the Mazama pocket gophers, approximately 512 ac (207 ha) of 
State and private lands that have either a habitat conservation plan 
(HCP), voluntary conservation agreement, or similar conservation 
protection.
    In addition, the Port of Portland is in the process of developing a 
Candidate Conservation Agreement with Assurances for the conservation 
of the streaked horned lark on their property within the proposed 
designation. If this plan is finalized prior to the issuance of our 
final rule, we may consider the exclusion of 414 ac (167 ha) from the 
final critical habitat for the streaked horned lark, following 
evaluation of the agreement according to our criteria as described in 
our proposed rule (October 11, 2012; 77 FR 61938; see Exclusions under 
section 4(b)(2) of the Act).
    These specific exclusions will be considered on an individual basis 
or in any combination thereof. In addition, the final designations may 
not be limited to these exclusions, but may also consider other 
exclusions as a result of continuing analysis of relevant 
considerations (scientific, economic, and other relevant factors, as 
required by the Act) and the public comment process. In particular, we 
solicit comments from the public on whether all of the areas identified 
meet the definition of critical habitat, whether other areas would meet 
that definition, whether to make the specific exclusions we are 
considering, and whether there are other areas that are appropriate for 
exclusion.
    The final decision on whether to exclude any area will be based on 
the best scientific data available at the time of the final 
designations, including information obtained during the comment periods 
and information about the economic impact of the designations. 
Accordingly, we have prepared a draft economic analysis concerning the 
proposed critical habitat designations, which is available for review 
and comment (see ADDRESSES section, above, and Draft Economic Analysis 
section, below).

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. Among other things, each INRMP must, to the extent 
appropriate and applicable, provide for fish and wildlife management; 
fish and wildlife habitat enhancement or modification; wetland 
protection, enhancement, and restoration where necessary to support 
fish and wildlife; and enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
now provides: ``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 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.''

[[Page 20081]]

    Critical habitat is proposed on Department of Defense lands in the 
State of Washington for all six prairie species; all of these lands are 
on Joint Base Lewis-McChord (JBLM). As described in our proposed rules 
(October 11, 2012, 77 FR 61938; and December 11, 2012; 77 FR 73770), 
although JBLM's INRMP has the potential to provide a conservation 
benefit to the Taylor's checkerspot butterfly, streaked horned lark, 
and Mazama pocket gophers, it does not at present. Since JBLM's INRMP 
is currently undergoing revision and is subject to change, we have 
reserved judgment on whether management under the new INRMP will meet 
our criteria for exemption from critical habitat at this time. If we 
determine prior to our final rulemaking that conservation efforts 
identified in the newly revised INRMP will provide a conservation 
benefit to the species identified previously, we may at that time 
exempt the identified JBLM lands from the final designation of critical 
habitat.

Draft Economic Analysis

    The purpose of the draft economic analysis (DEA) (IEc 2013) is to 
identify and analyze the potential economic impacts associated with the 
proposed critical habitat designations for the six prairie species: 
Taylor's checkerspot butterfly, streaked horned lark, and the Roy 
Prairie, Olympia, Tenino, and Yelm subspecies of the Mazama pocket 
gopher.
    The DEA describes the economic impacts of potential conservation 
efforts for the six prairie species; some of these costs will likely be 
incurred regardless of whether we designate critical habitat. The 
economic impact associated with the proposed critical habitat 
designation is analyzed by comparing scenarios ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections that would be in place for these species should 
they be listed under the Act (e.g., under Federal, State, and local 
regulations). The baseline, therefore, represents the costs incurred 
regardless of whether critical habitat is designated. The ``with 
critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the six prairie species. The incremental conservation efforts and 
associated impacts are those not expected to occur absent the 
designation of critical habitat for these six prairie species. In other 
words, the ``incremental'' costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs; 
these are the costs we may consider in the final designation of 
critical habitat when evaluating the benefits of excluding particular 
areas under section 4(b)(2) of the Act.
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, and considers the protections that would be afforded 
each of the six subspecies through listing under the Act regardless of 
critical habitat designation. The baseline for this analysis is the 
state of regulation, absent designation of critical habitat, which 
provides protection to the species under the Act, as well as under 
other Federal, State, and local laws and conservation plans. The 
baseline includes sections 7, 9, and 10 of the Act to the extent that 
they are expected to apply absent the designation of critical habitat 
for the species. Baseline costs are not included in the estimated 
economic impacts of critical habitat, because the Act provides for the 
consideration of economic, national security, and other relevant 
impacts only in association with the designation of critical habitat 
(section 4(b)(2) of the Act); the listing of a species, on the other 
hand, is limited to a determination based solely on the best scientific 
and commercial data available (section 4(b)(1)(A) of the Act).
    The analysis qualitatively describes how baseline conservation for 
the Taylor's checkerspot butterfly, streaked horned lark, and Mazama 
pocket gophers would be implemented across the proposed designation if 
we finalize the listing of these subspecies in order to provide context 
for the incremental analysis, which separates the costs attributable to 
critical habitat designation from those associated with listing 
(Chapter 3 of the DEA). The ``with critical habitat'' scenario 
describes and monetizes the incremental impacts due specifically to the 
designation of critical habitat for the six prairie species. The 
incremental conservation efforts and associated impacts are those not 
expected to occur absent the designation of critical habitat, and 
constitute the potential incremental costs attributed to critical 
habitat over and above those baseline costs attributed to listing. For 
a further description of the methodology of the analysis, see Chapter 
2, ``Framework for the Analysis,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed critical habitat designation for the 
six prairie species over the next 20 years, which was determined to be 
the appropriate period for analysis due to the absence of specific 
information on the expected timeframe for recovery of the species, and 
because limited planning information is available for most activities 
to reliably forecast activity levels for projects beyond a 20-year 
timeframe. The DEA identifies potential incremental costs that may be 
incurred as a result of the proposed critical habitat designation; as 
described above, these are those costs attributed to critical habitat 
over and above those baseline costs attributed to listing.
    In the DEA, we concentrated on the activities of primary concern 
with respect to potential adverse modification of critical habitat. The 
key concern is the potential for activities to result in habitat 
alteration within a critical habitat unit. Our analysis therefore 
focuses on the following activities:

 Military activities;
 Recreation and habitat management;
 Airports and agricultural activities;
 Transportation;
 Electricity distribution and forestry activities; and
 Dredging activities.

    Within these activity categories, we focus our analysis on those 
projects and activities that are considered reasonably likely to occur 
within the proposed critical habitat area. This includes projects or 
activities that are currently planned or proposed, or that permitting 
agencies or land managers indicated are likely to occur.
    When a species is federally listed as an endangered or threatened 
species, it receives protection under the Act. For example, under 
section 7 of the Act, Federal agencies must consult with the Service to 
ensure that actions they fund, authorize, or carry out do not 
jeopardize the continued existence of the species (referred to as a 
``jeopardy analysis''). The economic impacts of conservation measures 
undertaken to avoid jeopardy to the species are considered baseline 
impacts in our analysis, as they are not generated by the critical 
habitat designation, and represent costs that would be incurred 
regardless of whether critical habitat is designated. In other words, 
baseline conservation measures and associated economic impacts are not 
affected by decisions related to critical habitat designation for these 
species. Baseline protections accorded listed species under the Act and 
other Federal and State regulations and programs are described in 
Chapter 2 and 3 of the DEA.
    The only Federal regulatory effect of the designation of critical 
habitat is the prohibition on Federal agencies taking actions that are 
likely to adversely modify or destroy critical habitat. They

[[Page 20082]]

are not required to avoid or minimize effects unless the effects rise 
to the level of destruction or adverse modification as those terms are 
used in section 7 of the Act. Even then, the Service must recommend 
reasonable and prudent alternatives that can be implemented consistent 
with the intended purpose of the action, that are within the scope of 
the Federal agency's legal authority and jurisdiction, and that are 
economically and technologically feasible. Thus, while the Service may 
recommend conservation measures, unless the action is likely to destroy 
or adversely modify critical habitat, implementation of recommended 
measures is voluntary and Federal agencies and applicants have 
discretion in how they carry out their mandates under section 7 of the 
Act.
    Thus, the direct, incremental impacts of critical habitat 
designation stem from the consideration of the potential for 
destruction or adverse modification of critical habitat during section 
7 consultations. The two categories of direct, incremental impacts of 
critical habitat designation are: (1) The additional administrative 
costs of conducting section 7 consultation related to critical habitat; 
and (2) implementation of any conservation efforts requested by the 
Service through section 7 consultation, or required by section 7 to 
prevent the destruction or adverse modification of critical habitat.
    The DEA describes the types of project modifications that would 
likely be recommended by the Service, as well as other State and local 
conservation plans, to avoid jeopardy to Taylor's checkerspot 
butterfly, streaked horned lark, and the Roy Prairie, Olympia, Tenino, 
and Yelm subspecies of the Mazama pocket gopher should they be listed 
under a final rule (i.e., potential baseline conservation efforts). 
These project modifications would be considered part of the baseline in 
areas occupied by any of the six prairie species because they would be 
recommended regardless of whether critical habitat is designated, for 
the purpose of avoiding jeopardy to the listed species present. 
Although the standards for jeopardy and adverse modification of 
critical habitat are not the same, because the degradation or loss of 
habitat is a key threat to each of the six prairie species, our 
jeopardy analyses for these species would already consider the 
potential for project modifications to avoid the destruction of 
habitat; therefore recommendations to avoid jeopardy would also likely 
avoid adverse modification or destruction of critical habitat for these 
species. Because the ability of each of the prairie species to exist is 
very closely tied to the quality of their habitats, significant 
alterations of their occupied habitat may result in jeopardy as well as 
adverse modification. Therefore, the Service anticipates that section 7 
consultation analyses will likely result in no difference between 
recommendations to avoid jeopardy or adverse modification in occupied 
areas of habitat. The Service extends this conclusion to certain 
subunits populated by the streaked horned lark, in instances where the 
species may be temporarily absent due to its migratory behavior (in 
other words, areas utilized by the lark are considered occupied for the 
purposes of section 7 consultation, even if the lark is seasonally 
absent). In addition, a significant area of proposed critical habitat 
for the lark is already designated as critical habitat for the western 
snowy plover, the conservation measures for which provide additional 
protection that is considered part of the baseline.
    Unoccupied habitat is analyzed differently. Project modifications 
suggested by the Service in subunits unoccupied by the subject species 
would not be made under the jeopardy standard imposed by the presence 
of a listed species. Rather, in unoccupied subunits, any project 
modifications that may arise would be attributable to the consideration 
under section 7 consultation of possible destruction or adverse 
modification of critical habitat; hence any such modifications would be 
a consequence of the critical habitat designation. Any changes that 
result in an impact on economic activity, therefore, would be 
characterized as incremental rather than baseline impacts.
    Of the proposed critical habitat subunits, a total of 12 are not 
occupied by one of the subspecies for which they are proposed (11 for 
the Taylor's checkerspot butterfly, and 1 for the streaked horned 
lark). While the analysis allows for the possibility of incremental 
project modifications within these subunits, in practice we expect few 
incremental impacts to occur. This conclusion is based first on the 
significant overlap of these sites with existing conserved areas and 
habitat conservation plans, minimizing the need for material additional 
conservation activities as a result of critical habitat designation. In 
addition, incremental impacts for subunits unoccupied by Taylor's 
checkerspot butterfly are not expected in those subunits shared with 
any of the Mazama pocket gopher subspecies, as conservation measures 
for the gopher are expected to coincide year-round with measures that 
may also be recommended for the Taylor's checkerspot butterfly.
    The one area where some incremental impacts may occur is located on 
Joint Base Lewis-McChord (JBLM). Three distinct parcels within this 
site contain unoccupied habitat for the Taylor's checkerspot butterfly 
and experience regular recreational use. Importantly, none of these 
parcels overlaps with habitat for any of the Mazama pocket gopher 
subspecies. But for these JBLM areas, the analysis concludes that 
incremental impacts of critical habitat designation will be limited to 
additional administrative costs to the Service, Federal agencies, and 
private third parties of considering critical habitat as part of 
section 7 consultation.
    The designation of critical habitat may, under certain 
circumstances, affect actions that do not have a Federal nexus and thus 
are not subject to the provisions of section 7 under the Act. Indirect 
impacts are those unintended changes in economic behavior that may 
occur outside of the Act, through other Federal, State, or local 
actions, and that are caused by the designation of critical habitat. 
Chapter 2 of the DEA discusses the common types of indirect impacts 
that may be associated with the designation of critical habitat, such 
as potential time delays, regulatory uncertainty, and negative 
perceptions related to critical habitat designation on private 
property. These types of impacts are not always considered incremental. 
In the case that these types of conservation efforts and economic 
effects are expected to occur regardless of critical habitat 
designation, they are appropriately considered baseline impacts in this 
analysis.
    Critical habitat may generate incremental economic impacts through 
implementation of additional conservation measures (beyond those 
recommended in the baseline) and additional administrative effort in 
section 7 consultation to ensure that projects or activities do not 
result in adverse modification of critical habitat. However, as 
described above and in Chapter 3 of the DEA, where critical habitat is 
considered occupied by any of the prairie species, critical habitat 
designation is expected to have a more limited effect on economic 
activities, since section 7 consultation would already occur due to the 
presence of the species. Although we recognize that the standards for 
jeopardy and adverse modification of critical habitat are not the same, 
with the former focusing more closely on effects to conservation of the 
species, in this case and for the reasons described above, the 
designation of critical habitat in occupied areas would

[[Page 20083]]

likely result only in incremental effects over and above the costs 
associated with consultation due to the presence of the species. 
Furthermore, where proposed critical habitat for the streaked horned 
lark overlaps with the existing critical habitat designation for the 
western snowy plover, economic activities are already subject to 
conservation measures that would benefit the streaked horned lark and 
its critical habitat. The focus of the DEA is projects that are 
reasonably likely to occur, including but not limited to activities 
that are currently authorized, permitted, or funded, or for which 
proposed plans are currently available to the public. All of the 
projects considered reasonably likely to occur in the DEA are in units 
that are occupied by at least one of the prairie species, with the 
exception of recreation activities on unoccupied subunits on JBLM 
described above. Critical habitat designation is therefore expected to 
have a limited incremental impact in most areas.
    For all ongoing and currently planned projects identified in the 
DEA, conservation offsets have been implemented or are currently being 
planned, even absent critical habitat designation that the Service 
believes may also avoid adverse modification, although such projects 
would need to be evaluated on a case-by-case basis if and when critical 
habitat is designated. Therefore, for most of these projects, 
incremental impacts of critical habitat designation are expected to be 
limited to the costs of additional administrative effort in section 7 
consultations to consider adverse modification, as described in Chapter 
3 of the DEA. The exception is some unoccupied subunits on JBLM 
currently utilized for recreation that the DEA anticipates incurring 
some level of unquantified incremental impacts to recreation.
    The DEA monetizes the incremental impacts of critical habitat 
designation where sufficient data are readily available. We estimate 
that the critical habitat designations for all six prairie species 
would result in a total present value impact of approximately $793,574 
(7 percent discount rate) to activities across all proposed units (a 
total annualized impact of $70,007 over 20 years). Airport and 
agricultural activities are likely to be subject to the greatest 
incremental impacts at $550,000 over the next 20 years, followed by 
recreation and habitat management at $110,000, military activities at 
$55,000, transportation at $34,000, and electricity distribution and 
forestry activities at $9,300. Of these costs, the analysis estimates 
that approximately 51 percent will be incurred by the Service, 31 
percent by Federal action agencies, and 18 percent by third parties. In 
other words, Federal agencies will incur approximately 82 percent of 
the estimated economic impacts of the designation.
    As stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis and our amended required 
determinations section, as well as all aspects of the proposed rules. 
The final rules may reflect revisions to the proposed rules or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exclude an area 
from critical habitat if the Secretary determines that the benefits of 
excluding the area outweigh the benefits of including the area, 
provided the exclusion will not result in the extinction of the 
species.

Required Determinations--Amended

    In our October 11, 2012 (77 FR 61938), and December 11, 2012 (77 FR 
73770), proposed rules, we indicated that we would defer our 
determination of compliance with some statutes and executive orders 
until the information concerning potential economic impacts of the 
designation and potential effects on landowners and stakeholders became 
available in the draft economic analysis. We have now made use of the 
draft economic analysis data to make these determinations. In this 
document, we affirm the information in our proposed rule concerning 
Executive Orders (E.O.s) 12866 and 13563 (Regulatory Planning and 
Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 
(Civil Justice Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951). 
However, based on the draft economic analysis data, we are amending our 
required determinations concerning the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) and E.O. 13211 (Energy, Supply, Distribution, and 
Use).

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. Based on our draft economic analysis of the 
proposed designation, we are certifying that the critical habitat 
designation for the six prairie species, if adopted as proposed, will 
not have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    According to the Small Business Administration (SBA), 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 regulatory mechanism through which critical habitat protections 
are enforced is section 7 of the Act, which directly regulates only 
those activities carried out, funded, or permitted by a Federal agency. 
By definition, Federal agencies are not considered small entities, 
although the activities they may fund or permit may be proposed or 
carried out by small entities. Given the SBA guidance described above, 
our analysis considers the extent to which

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this designation could potentially affect small entities, regardless of 
whether these entities would be directly regulated by the Service 
through the proposed rule or by a delegation of impact from the 
directly regulated entity.
    Our screening analysis focuses on small entities that may bear the 
incremental impacts of proposed critical habitat as quantified in 
Chapter 3 of the DEA (IEc 2013). As discussed in greater detail in 
Chapters 2 and 3, the incremental impacts of the designation of 
critical habitat in this case are likely to be limited to 
administrative costs of section 7 consultations. Small entities may 
participate in section 7 consultation as a third party (the primary 
consulting parties being the Service and the Federal action agency). It 
is therefore possible that the small entities may spend additional time 
considering critical habitat during section 7 consultation for the 
species. Additional incremental costs of consultation that would be 
borne by the Federal action agency and the Service are not relevant to 
this screening analysis as these entities (Federal agencies) are not 
small.
    To determine if any of the rules could significantly affect a 
substantial number of small entities, we consider the number of small 
entities affected within particular types of economic activities, such 
as: Military activities; airport operations and agriculture; 
electricity and forestry activities; dredging; and recreation and 
habitat management. After determining which areas of economic 
activities may potentially be affected, we then apply the ``substantial 
number'' test individually to each industry to determine if 
certification is appropriate. However, the SBREFA does not explicitly 
define ``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only has regulatory effects on 
activities authorized, funded, or carried out by Federal agencies. Some 
kinds of activities are unlikely to have any Federal involvement and 
will not be affected by critical habitat designation. If listed under 
the Act, in areas where any of the six prairie species are present, 
Federal agencies would already be required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the species. Federal agencies also must consult with us 
if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities.
    As described in Chapter 3 of the DEA, activities that may be 
affected by the designations include: Military activities; airport 
operations and agriculture; electricity and forestry activities; 
dredging; and recreation and habitat management. However, we do not 
expect critical habitat designation to result in impacts to small 
entities under the categories of military activities, dredging, 
transportation, or electricity distribution and forestry activities, 
for the reasons described here:
     Military Activities. Chapter 3 discusses forecast 
consultations between JBLM and the Service related to military training 
operations, JBLM's habitat restoration operations, and finalization of 
JBLM's INRMP. These consultations are expected to occur between staff 
at JBLM and the Service without third-party involvement. As JBLM is a 
Federal entity, it is by definition not small, and thus no impacts to 
small entities are expected related to these consultations.
     Dredging. Chapter 3 discusses the potential for the U.S. 
Army Corps of Engineers (Corps) to incur incremental administrative 
costs associated with consultations addressing the Corps' dredging 
program in the lower Columbia River channel. These consultations are 
expected to occur between staff at the Corps and the Service without 
third-party involvement. As the Corps is a Federal entity, it is by 
definition not small, and thus no impacts to small entities are 
expected related to these consultations.
     Transportation. Chapter 3 discusses the potential for 
critical habitat to affect roadway construction and maintenance. These 
impacts are limited to consultations between State Departments of 
Transportation and the Service, and they are not expected to involve 
third parties. As State agencies are by definition not small entities, 
we do not expect any impacts to small entities related to 
transportation.
     Electricity Distribution and Forestry Activities. Chapter 
3 discusses the potential for critical habitat designation to affect 
electricity distribution and forestry activities. The only electricity 
distribution activity within the proposed critical habitat is carried 
out by the Bonneville Power Administration (BPA). The BPA is a Federal 
entity and, therefore, is not considered small. As such, we do not 
anticipate impacts to small entities related to BPA's electricity 
distribution activities. The DEA forecasts no incremental costs for 
forestry activities. Therefore, we do not anticipate impacts to small 
entities related to such activities.
    The DEA indicates that any estimated incremental impacts that may 
be borne by small entities are limited to the administrative costs of 
section 7 consultation related to airport operations, agriculture, and 
recreation and habitat management. These potential impacts are 
described below.
     Airport Operations. Chapter 3 of the DEA discusses the 
potential for this critical habitat designation to affect airports. 
Overall, 198 consultations are expected in relation to operations at 
seven airports over the next 20 years. Information on whether airports 
are considered small or large entities was available for some airports 
and not available for others. Information to determine whether 
individual airports are small entities was not available. For the 
purposes of the DEA, we make the simplifying and conservative 
assumption that all airports within the proposed critical habitat 
designations are small entities. These seven entities represent 3 
percent of the total small Other Airport Operations (NAICS code 488119) 
entities within the proposed critical habitat designations. If all 198 
consultations were spread evenly across the seven airports, the cost 
per entity to participate in forecasted consultations is approximately 
$875 to $8,750 in any given year, or 0.01 to 0.1 percent of annual 
revenues per small entity.
     Agricultural Activities. Chapter 3 of the DEA forecasts 
two projects related to agriculture, one at Rock Prairie and one on M-
DAC farms, which may involve small entities within the proposed 
critical habitat designations over the next 20 years. Assuming that all 
agriculture and grazing impacts are borne by two small private 
entities, this amounts to less than one affected entity per year. The 
per entity impact ranges from approximately $875 to $1,750, 
representing less than 2 percent of annual revenues.
    Recreation and Habitat Management: Chapter 3 discusses the 
potential for critical habitat to affect recreational uses, 
particularly those associated with hiking, horseback riding, and dog 
walking, and habitat management efforts

[[Page 20085]]

on State, local, and privately owned lands, and on JBLM lands. 
Incremental habitat restoration impacts are associated with 
administrative costs of consultation and do not include the cost of 
restoration actions. A diverse group of Federal and State agencies, 
county-level governments, and private nonprofit organizations may be 
subject to the administrative burden of these consultations. Federal 
entities are not considered small. Additionally, both counties 
potentially subject to administrative costs associated with these 
activities, Thurston and Benton Counties, Washington, have populations 
over 50,000 and do not meet the small entity size standard for 
government jurisdictions. Therefore, we forecast three such projects 
within the study area that may involve small entities--Wolf Haven 
International, Whidbey/Camano Land Trust, and the Pacific Rim Institute 
for Environmental Stewardship--over the next 20 years. Assuming that 
all recreation and habitat restoration impacts are borne by these three 
small private entities, this amounts to less than one affected entity 
per year. These three entities represent 9 percent of the total small 
Environment, Conservation and Wildlife Organizations (NAICS code 
813312) entities within proposed critical habitat. The per entity 
impact, ranging from approximately $875 to $2,625, represents less than 
1 percent of annual revenues.
    Recreators at JBLM may incur unquantified losses in economic 
surplus in the form of reduced or restricted recreational use of JBLM 
lands proposed as critical habitat. However, because the recreators 
leasing JBLM lands are individuals, not entities, we do not address 
these impacts in our distributional analysis.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts if sufficient data are available, whether or not this 
analysis is believed by the Service to be strictly required by the RFA. 
In other words, while the effects analysis required under the RFA is 
limited to entities directly regulated by the rulemaking, the effects 
analysis under the Act, consistent with the E.O. regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. In 
doing so, we focus on the specific areas proposed to be designated as 
critical habitat and compare the number of small business entities 
potentially affected in that area with other small business entities in 
the region, instead of comparing the entities in the proposed area of 
designation with entities nationally, which is more commonly done. This 
analysis results in an estimation of a higher number of small 
businesses potentially affected.
    In summary, we have considered whether this designation, if 
finalized as proposed, will result in a significant economic impact on 
a substantial number of small entities. Information for this analysis 
was gathered from the SBA, stakeholders, and Service files. In these 
proposed rulemakings, we calculate that from 0.1 to 9 percent of the 
total small entities engaged in airport operations, agricultural 
activities, or recreation and habitat management may be affected if and 
when a final rule becomes effective (IEc 2013, p. A-7), and we do not 
consider this to be a substantial number of small entities. If we were 
to calculate that value based on the proportion nationally, then our 
estimate would be significantly lower. In addition, potential economic 
impacts to small entities are conservatively estimated as less than 2 
percent of annual revenues for entities in the agricultural industry 
and less than 0.1 percent of entities in airport operations or 
environment, conservation, and wildlife organizations (IEc 2013, p. A-
7), which we do not consider to be significant economic impacts. 
Following our evaluation of potential effects to small business 
entities from these proposed rulemakings, we conclude that the number 
of potentially affected small businesses is not substantial, and that 
the economic impacts are not significant. Therefore, we are certifying 
that the designation of critical habitat for the six prairie species 
will not have a significant economic impact on a substantial number of 
small entities, and an initial regulatory flexibility analysis is not 
required. Recognizing that this analysis considered the potential 
impact of all six prairie species collectively, we additionally assert 
that by extension, the individual impact of any one of the six species 
under consideration will be even less; therefore we additionally 
certify that the designation of critical habitat for any one of the six 
prairie species--Taylor's checkerspot butterfly, streaked horned lark, 
or Roy Prairie, Olympia, Tenino, or Yelm subspecies of the Mazama 
pocket gopher--will not have a significant economic impact on a 
substantial number of small entities, and an initial regulatory 
flexibility analysis is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
     Reductions in crude oil supply in excess of 10,000 barrels 
per day (bbls);
     Reductions in fuel production in excess of 4,000 barrels 
per day;
     Reductions in coal production in excess of 5 million tons 
per year;
     Reductions in natural gas production in excess of 25 
million mcf (1,000 cubic feet) per year;
     Reductions in electricity production in excess of 1 
billion kilowatts-hours per year or in excess of 500 megawatts of 
installed capacity;
     Increases in energy use required by the regulatory action 
that exceed the thresholds above;
     Increases in the cost of energy production in excess of 1 
percent;
     Increases in the cost of energy distribution in excess of 
1 percent; or
     Other similarly adverse outcomes.
    As described in Chapter 3 of the DEA, the proposed critical habitat 
designation is anticipated to affect electricity distribution 
activities in seven subunits of proposed critical habitat, primarily

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for the Taylor's checkerspot butterfly. However, impacts to these 
activities are limited to the administrative costs of consultation, and 
no reductions in electricity production are anticipated. Furthermore, 
given the small fraction of projects affected (two consultations over 
20 years), consultation costs are not anticipated to increase the cost 
of energy production or distribution in the United States in excess of 
1 percent. Thus, none of the nine threshold levels of impact listed 
above is exceeded. As such, the designation of critical habitat is not 
expected to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

Authors

    The primary authors of this notice are the staff members of the 
Washington Fish and Wildlife Office, Pacific Region, U.S. Fish and 
Wildlife Service.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 26, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-07792 Filed 4-2-13; 8:45 am]
BILLING CODE 4310-55-P