[Federal Register Volume 78, Number 238 (Wednesday, December 11, 2013)]
[Proposed Rules]
[Pages 75306-75313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29587]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2012-0071; 4500030113]
RIN 1018-AY21


Endangered and Threatened Wildlife and Plants; Listing the Lesser 
Prairie-Chicken as a Threatened Species With a Special Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revision and reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose a revised

[[Page 75307]]

special rule under authority of section 4(d) of the Endangered Species 
Act of 1973, as amended (Act), that provides measures that are 
necessary and advisable to provide for the conservation of the lesser 
prairie-chicken (Tympanuchus pallidicinctus). In addition, we announce 
the reopening of the public comment period on the December 11, 2012, 
proposed rule to list the lesser prairie-chicken as a threatened 
species under the Act. We also announce the availability of the final 
Lesser Prairie-Chicken Range-Wide Conservation Plan, which has been 
prepared by the Lesser Prairie-Chicken Interstate Working Group, and 
our endorsement of the plan, and request comments on the plan as it 
relates to our determination of status under section 4(a)(1) of the 
Act.

DATES: We will accept comments on this proposed rule received or 
postmarked on or before January 10, 2014. In addition, the comment 
period on the proposed rule published December 11, 2012 (77 FR 73828) 
is reopened until January 10, 2014. Comments submitted electronically 
using the Federal eRulemaking Portal (see ADDRESSES, below) must be 
received by 11:59 p.m. Eastern Time on the closing date. We must 
receive requests for public hearings, in writing, at the address shown 
in ADDRESSES by January 10, 2014.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2012-0071, 
which is the docket number for this rulemaking. You may submit a 
comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2012-0071; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by one of the methods 
described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Jontie Aldrich, Field Supervisor, 
Oklahoma Ecological Services Field Office, 9014 East 21st Street, 
Tulsa, OK 74129; by telephone 918-581-7458 or by facsimile 918-581-
7467. 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

    To allow the public to comment simultaneously on this revised 
proposed 4(d) special rule and the proposed listing rule, we also 
announce the reopening of the comment period on the Service's December 
11, 2012, proposed rule to list the lesser prairie-chicken as a 
threatened species under the Act. We intend to finalize the revised 
proposed 4(d) special rule concurrent with the final listing rule, if 
the results of our final listing determination conclude that threatened 
species status is appropriate and if we determine that this revised 
proposed 4(d) special rule is appropriate following public comment. Any 
final action resulting from the proposed rules will be based on the 
best scientific and commercial data available and be as accurate and as 
effective as possible. Therefore, we request comments or information 
from other concerned governmental agencies, Native American tribes, the 
scientific community, industry, general public, and other interested 
parties concerning the proposed listing rule and revised proposed 4(d) 
special rule. We particularly seek comments regarding:
    (1) The historical and current status and distribution of the 
lesser prairie-chicken, its biology and ecology, specific threats (or 
lack thereof) and regulations that may be addressing those threats and 
ongoing conservation measures for the species and its habitat.
    (2) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Act, which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' 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 and threats to the species or its habitat.
    (3) Application of the Lesser Prairie-Chicken Interstate Working 
Group's final Lesser Prairie-Chicken Range-Wide Conservation Plan to 
our determination of status under section 4(a)(1) of the Act, 
particularly comments or information to help us assess the certainty 
that the plan will be effective in conserving the lesser prairie-
chicken and will be implemented.
    (4) Which areas would be appropriate as critical habitat for the 
species and why areas should or should not be proposed for designation 
as critical habitat, including whether any threats to the species from 
human activity would be expected to increase due to the designation and 
whether that increase in threat would outweigh the benefit of 
designation such that the designation of critical habitat may not be 
prudent.
    (5) Specific information on:
    (a) The amount and distribution of habitat for the lesser prairie-
chicken;
    (b) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why; and
    (f) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (6) Information on the projected and reasonably likely impacts of 
climate change on the lesser prairie-chicken and its habitat.
    (7) Whether measures outlined in this revised proposed 4(d) special 
rule are necessary and advisable for the conservation and management of 
the lesser prairie-chicken.
    (8) Whether the provision related to the continuation of routine 
agricultural practices on existing cultivated lands should more clearly 
differentiate between row crop agriculture and other cropped areas, 
such as managed grasslands, forage, or other untilled crops.
    (9) Whether the provision related to the continuation of routine 
agricultural practices on existing cultivated lands should be revised 
to include spatial or temporal restrictions or deferments.
    (10) Additional provisions the Service may wish to consider for a 
4(d) special rule in order to conserve, recover, and manage the lesser 
prairie-chicken.
    We will consider all comments and information received during our 
preparation of a final determination on the status of the species and 
the 4(d) special rule. Accordingly, the final decision may differ from 
this proposal.
    Please note that comments merely stating support for or opposition 
to the actions under consideration without

[[Page 75308]]

providing supporting information, although noted, will not be 
considered in making a determination, as section 4(b)(1)(A) of the Act 
directs that determinations as to whether any species is a threatened 
or endangered species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    You may submit your comments and materials concerning this revised 
proposed rule by one of the methods listed in ADDRESSES. We request 
that you send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this revised proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Oklahoma Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    A settlement agreement in In re Endangered Species Act Section 4 
Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 
10, 2011) was reached with WildEarth Guardians in which we agreed to 
submit a proposed listing rule for the lesser prairie-chicken to the 
Federal Register for publication by September 30, 2012. On September 
27, 2012, the settlement agreement was modified to require that the 
proposed listing rule be submitted to the Federal Register on or before 
November 29, 2012. We submitted the proposed listing rule to the 
Federal Register on November 29, 2012; on December 11, 2012, we 
published in the Federal Register a proposed rule to list the lesser 
prairie-chicken as a threatened species under the Act (77 FR 73828). 
The proposed listing rule had a 90-day comment period, ending March 11, 
2013. We held a public meeting and hearing in Woodward, Oklahoma, on 
February 5, 2013; in Garden City, Kansas, on February 7, 2013; in 
Lubbock, Texas, on February 11, 2013; and in Roswell, New Mexico, on 
February 12, 2013. On May 6, 2013, we reopened the public comment 
period on the proposed listing rule and proposed a special rule under 
the authority of section 4(d) of the Act (78 FR 26302).
    Section 4(b)(6) of the Act and its implementing regulation, 50 
C.F.R. 424.17(a), requires that we take one of three actions within 1 
year of a proposed listing: (1) Finalize the proposed listing; (2) 
withdraw the proposed listing; or (3) extend the final determination by 
not more than 6 months, if there is substantial disagreement among 
scientists knowledgeable about the species regarding the sufficiency or 
accuracy of the available data relevant to the determination, for the 
purposes of soliciting additional data. On July 9, 2013, we published 
in the Federal Register an announcement of a 6-month extension of the 
final determination of whether to list the lesser prairie-chicken as a 
threatened species, and we reopened the public comment period on the 
proposed rule to list the species (78 FR 41022). As noted in the 
proposed listing rule (77 FR 73828), we were previously required by the 
terms of judicially approved settlement agreement to make a final 
determination on the lesser prairie-chicken proposed listing rule no 
later than September 30, 2013. With the 6-month extension, we will make 
a final determination on the proposed rule no later than March 31, 
2014.
    For information on previous Federal actions pertaining to the 
lesser prairie-chicken, please refer to the proposed listing rule, 
which we published in the Federal Register on December 11, 2012 (77 FR 
73828).

Background

    This document discusses only those topics directly relevant to the 
revised proposed 4(d) special rule for the lesser prairie-chicken. For 
more information on the lesser prairie-chicken and its habitat, please 
refer to the December 11, 2012, proposed listing rule (77 FR 73828), 
which is available online at http://www.regulations.gov (at Docket 
Number FWS-R2-ES-2012-0071) or from the Oklahoma Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).
    As discussed in the proposed listing rule, the primary factors 
supporting the proposed threatened species status for the lesser 
prairie-chicken are the impacts of cumulative habitat loss and 
fragmentation. These impacts are the result of conversion of grasslands 
to agricultural uses; encroachment by invasive woody plants; wind 
energy development; petroleum production; and presence of roads and 
manmade vertical structures including towers, utility lines, fences, 
turbines, wells, and buildings.
    The Act does not specify particular prohibitions, or exceptions to 
those prohibitions, for threatened species. Instead, under section 4(d) 
of the Act, the Secretary of the Interior has the discretion to issue 
such regulations as [s]he deems necessary and advisable to provide for 
the conservation of such species. The Secretary also has the discretion 
to prohibit by regulation with respect to any threatened species, any 
act prohibited under section 9(a)(1) of the Act. Exercising this 
discretion, the Service developed general prohibitions (50 CFR 17.31) 
and exceptions to those prohibitions (50 CFR 17.32) under the Act that 
apply to most threatened species. Alternately, for other threatened 
species, the Service may develop specific prohibitions and exceptions 
that are tailored to the specific conservation needs of the species. In 
such cases, some of the prohibitions and authorizations under 50 CFR 
17.31 and 17.32 may be appropriate for the species and incorporated 
into a special rule under section 4(d) of the Act, but the 4(d) special 
rule will also include provisions that are tailored to the specific 
conservation needs of the threatened species and may be more or less 
restrictive than the general provisions at 50 CFR 17.31.
    At the time of the proposed listing rule, we indicated that we 
would consider whether to subsequently propose a 4(d) special rule for 
the lesser prairie-chicken. In that proposed rule, we solicited public 
comments as to which prohibitions, and exceptions to those 
prohibitions, are necessary and advisable to provide for the 
conservation of the lesser prairie-chicken. In recognition of 
conservation efforts that provide for conservation and management of 
the lesser prairie-chicken and its habitat in a manner consistent with 
the purposes of the Act, we then published in the Federal Register a 
proposed 4(d) special rule on May 6, 2013 (78 FR 26302). We are now 
proposing a revised 4(d) special rule to outline the prohibitions, and 
exceptions to those prohibitions, necessary and advisable for the 
conservation of the lesser prairie-chicken.
    Since the time of the proposed listing rule and proposed 4(d) 
special rule, the Lesser Prairie-Chicken Interstate Working Group, in 
association with the

[[Page 75309]]

Western Association of Fish and Wildlife Agencies, finalized the Lesser 
Prairie-Chicken Range-Wide Conservation Plan. On October 23, 2013, the 
Service announced our endorsement of the Lesser Prairie-Chicken Range-
Wide Conservation Plan (dated September 2013) as a comprehensive 
conservation program that reflects a sound conservation design and 
strategy that, when implemented, will provide a net conservation 
benefit to the lesser prairie-chicken. We would like to consider the 
conservation measures in this plan in our final listing determination 
for the lesser prairie-chicken. As such, we are reopening the comment 
period to allow the public an opportunity to provide comment on the 
final plan as it applies to our determination of status under section 
4(a)(1) of the Act, particularly comments or information to help us 
assess the certainty that the Lesser Prairie-Chicken Range-Wide 
Conservation Plan will be effective in conserving the lesser prairie-
chicken and will be implemented. The final plan is available on the 
Internet in Docket No. FWS-R2-ES-2012-0071 at http://www.regulations.gov.

Provisions of the Proposed 4(d) Special Rule for the Lesser Prairie-
Chicken

    Under section 4(d) of the Act, the Secretary may publish a special 
rule that modifies the standard protections for threatened species with 
special measures tailored to the conservation of the species that are 
determined to be necessary and advisable. Under this revised proposed 
4(d) special rule, the Service proposes that all of the prohibitions 
under 50 CFR 17.31 and 17.32 will apply to the lesser prairie-chicken, 
except as noted below. The revised proposed 4(d) special rule will not 
remove or alter in any way the consultation requirements under section 
7 of the Act.

Lesser Prairie-Chicken Range-Wide Conservation Plan

    The Service proposes that take incidental to activities conducted 
by a participant enrolled in, and operating in compliance with the 
Lesser Prairie-Chicken Interstate Working Group's Lesser Prairie-
Chicken Range-Wide Conservation Plan will not be prohibited. The 
Service proposes this provision of the revised 4(d) special rule in 
recognition of the significant conservation planning efforts of the 
five state wildlife agencies within the range of the lesser prairie-
chicken. The Service has worked closely with the Lesser Prairie-Chicken 
Interstate Working Group in the development of the final Lesser 
Prairie-Chicken Range-wide Conservation Plan. The plan identifies a 
two-pronged strategy for lesser prairie-chicken conservation: (1) The 
coordinated implementation of incentive-based landowner programs and 
(2) the implementation of an impact framework reducing threats and 
providing for off-site mitigation opportunities. Table 1 identifies the 
covered activities, arranged by industry, under the Lesser Prairie-
Chicken Range-Wide Conservation Plan.

 Table 1--Activities Covered Under the Lesser Prairie-Chicken Range-Wide
                            Conservation Plan
------------------------------------------------------------------------
 
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                         Oil and Gas Activities
------------------------------------------------------------------------
Seismic and Land Surveying.
Construction.
Drilling, Completion, and Workovers (Re-Completion).
Operations and Maintenance.
Plugging and Remediation.
------------------------------------------------------------------------
                         Agricultural Activities
------------------------------------------------------------------------
Brush Management.
Building and Maintaining Fences and Livestock Structures.
Grazing.
Water/windmill.
Disturbance Practices.
Crop Production.
------------------------------------------------------------------------
      Wind Power, Cell and Radio Towers, and Power Line Activities
------------------------------------------------------------------------
Construction.
Operations and Maintenance.
Decommissioning and Remediation.
------------------------------------------------------------------------
                             Road Activities
------------------------------------------------------------------------
Construction.
Operations and Maintenance.
Decommissioning and Remediation.
------------------------------------------------------------------------
                           General Activities
------------------------------------------------------------------------
OHV Activity.
General Construction.
Hunter harvest (incidental to legal hunting of greater prairie-
 chickens).
Other Land Management (such as prescribed burns, predator management,
 and remediation of impacted habitat back to baseline conditions).
------------------------------------------------------------------------

    On May 6, 2013 (78 FR 26302), the Service proposed a 4(d) rule for 
the lesser prairie-chicken that stated incidental take of the lesser 
prairie-chicken would not be considered a violation of section 9 of the 
Act if the take results from implementation of a comprehensive lesser 
prairie-chicken conservation program that:
    (A) Was developed by or in coordination with the State agency or 
agencies, or their agent(s), responsible for the management and 
conservation of

[[Page 75310]]

fish and wildlife within the affected State(s);
    (B) Has a clear mechanism for enrollment of participating 
landowners; and
    (C) Was determined by the Service to provide a net conservation 
benefit to the lesser prairie chicken, in consideration of the 
following:
    (1) Comprehensively addresses all of the threats affecting the 
lesser prairie-chicken within the program area;
    (2) Establishes objective, measurable biological goals and 
objectives for population and habitat necessary to ensure a net 
conservation benefit, and provides the mechanisms by which those goals 
and objectives will be achieved;
    (3) Includes the administrative and funding mechanisms necessary 
for effectively implementing all elements of the program, including 
enrollment of participating landowners, monitoring of program 
activities, and enforcement of program requirements;
    (4) Employs an adaptive management strategy to ensure future 
program adaptation as necessary and appropriate; and
    (5) Includes appropriate monitoring of effectiveness and 
compliance.
    (D) Is periodically reviewed by the Service as meeting the 
objective for which it was originally established under paragraph 
(a)(2)(i)(B) of this section.
    In working with the Lesser Prairie-Chicken Interstate Working 
Group, we later reviewed the Lesser Prairie-Chicken Range-wide 
Conservation Plan in light of the criteria that were published in the 
May 6, 2013, proposed 4(d) rule. The plan includes a strategy to 
address threats to the prairie-chicken throughout its range, 
establishes measurable biological goals and objectives for population 
and habitat, provides the framework to achieve those goals and 
objectives, demonstrates the administrative and financial mechanisms 
necessary for successful implementation, and includes adequate 
monitoring and adaptive management provisions. For these reasons, on 
October 23, 2013, the Service announced our endorsement of the Lesser 
Prairie-Chicken Range-Wide Conservation Plan (dated September 2013; any 
subsequent versions of the Lesser Prairie-Chicken Range-Wide 
Conservation Plan will be considered under the same criteria identified 
above) as a comprehensive conservation program that reflects a sound 
conservation design and strategy that, when implemented, will provide a 
net conservation benefit to the lesser prairie-chicken. Ultimately, the 
Lesser Prairie-Chicken Range-Wide Conservation Plan is one that, when 
implemented, addresses the conservation needs of the lesser prairie-
chicken.
    The Service is including this provision of the revised proposed 
4(d) rule to encourage participants of the Service-endorsed Lesser 
Prairie-Chicken Range-Wide Conservation Plan to improve habitat 
conditions and the status of the species across its entire range. The 
Service has determined that the Lesser Prairie-Chicken Range-Wide 
Conservation Plan is expected to provide a net conservation benefit to 
the lesser prairie-chicken population. Conservation, as defined in 
section 3(3) of the Act, means ``to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary.'' The final Lesser Prairie-Chicken 
Range-Wide Conservation Plan must also be periodically reviewed by the 
Service and determined that it continues to provide a net conservation 
benefit to the lesser prairie-chicken. As a result of this provision, 
the Service expects that rangewide conservation actions will be 
implemented with a high level of certainty that the program will 
provide for the conservation of the lesser prairie-chicken.

Agricultural Activities Conducted in Accordance With NRCS's Lesser 
Prairie-Chicken Initiative and Related NRCS Lesser Prairie-Chicken 
Conservation Activities

    The Service proposes that take of the lesser prairie-chicken will 
not be prohibited provided the take is incidental to the conditioned 
conservation practices that are carried out in accordance with a 
conservation plan developed by the U.S. Department of Agriculture's 
NRCS in connection with NRCS's LPCI and related NRCS activities focused 
on lesser prairie-chicken conservation that provide financial or 
technical assistance, and which were developed in coordination with the 
Service.
    The LPCI and related NRCS activities provide financial and 
technical assistance to participating landowners to implement practices 
beneficial to the lesser prairie-chicken that also contribute to the 
sustainability of landowners' agricultural operations. Conservation 
practices, such as brush management, prescribed grazing, range 
planting, prescribed burning, and restoration of rare and declining 
habitats, are used to treat upland wildlife habitat concerns identified 
as limiting factors for the lesser prairie-chicken during the 
conservation planning process. This conservation initiative promotes 
implementation of specific conservation practices to manage, enhance, 
and expand their habitats within the context of sustainable ranching.
    The vast majority of lesser prairie-chicken habitat occurs on 
privately owned and operated lands across the five-state range; 
therefore, the voluntary actions of private landowners are key to 
maintaining, enhancing, restoring, and reconnecting habitat for the 
species. The overall goal of the LPCI is to increase lesser prairie-
chicken abundance and distribution through habitat improvements by 
addressing local and landscape threats. Over the long term, it is 
anticipated that the LPCI will facilitate the expansion of lesser 
prairie-chicken range into suitable portions of the historic range as 
habitat conditions improve and threats are reduced or eliminated.
    The Service issued a conference report to the NRCS in connection 
with the NRCS's LPCI on June 30, 2011 (http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1044884.pdf), in which the Service 
determined that the proposed action, which incorporates the procedures, 
practice standards, and conservation measures of the LPCI, is not 
likely to jeopardize the continued existence of the lesser prairie-
chicken. On November 22, 2013, the Service issued a Conference Opinion 
for the NRCS's LPCI and associated procedures, conservation practices, 
and conservation measures. Conference procedures under section 7 of the 
Act are required only when a Federal agency (action agency) proposes an 
activity that is likely to jeopardize the continued existence of a 
species that has been proposed for listing under the Act or when the 
proposed activity is likely to destroy or adversely modify proposed 
critical habitat. However, conference procedures may also be used to 
assist an action agency in planning a proposed action so that potential 
conflicts may be identified and resolved early in the planning process. 
During the conference, the Service may provide recommendations on ways 
to avoid or minimize adverse effects of the proposed action. The 
conclusions reached during a conference and any subsequent 
recommendations are then provided to the action agency in a conference 
report.
    The November 22, 2013, conference opinion builds upon, refines, and 
updates the 2011 conference report in several ways, including the 
addition of

[[Page 75311]]

four conservation practices to the 23 evaluated in the amended 
conference report, the establishment of a new method of determining 
when the conservation measures are to be applied, an estimate of 
incidental take, and an associated Incidental Take Statement that 
covers take of lesser prairie-chicken by cooperators who implement the 
described conservation practices and measures.
    In the conference opinion, the Service states that implementation 
of the NRCS conservation practices and their associated conservation 
measures described in the conference opinion are anticipated to result 
in a positive population response by the species by reducing or 
eliminating adverse effects. Furthermore, the Service states that 
overwhelming conservation benefits of implementation of the proposed 
action within selected priority areas, maintenance of existing habitat, 
and enhancement of marginal habitat will outweigh short-term negative 
impacts to individual lesser prairie-chickens. Implementation of the 
LPCI is expected to result in more of the threats that adversely affect 
populations being managed, more habitat under the appropriate 
management prescriptions, and more information being developed and 
disseminated on the compatibility of sustainable ranching operations on 
the persistence of this species across the landscape. Through the 
conference opinion, the Service ultimately finds that effective 
implementation of conservation practice standards and associated 
conservation measures for the LPCI are anticipated to result in a 
positive population response by the species as threats are reduced, 
most notably in addressing habitat fragmentation and improvement of 
habitat conditions across the landscape.
    Therefore, this provision of the revised proposed 4(d) special rule 
for conservation practices associated with NRCS's LPCI and related NRCS 
activities focused on lesser prairie-chicken conservation will promote 
conservation of the species by encouraging landowners and ranchers to 
continue managing the remaining landscape in ways that meet the needs 
of their operation while simultaneously providing suitable habitat for 
the lesser prairie-chicken. By reducing threats to the species 
including habitat fragmentation and by promoting the improvement of 
habitat conditions across the species' landscape, the LPCI and related 
NRCS activities focused on lesser prairie-chicken conservation are 
expected to provide for the conservation of the lesser prairie-chicken.

Continuation of Routine Agricultural Practices on Existing Cultivated 
Lands

    The Service proposes that take of the lesser prairie-chicken will 
not be prohibited provided the take is incidental to activities that 
are conducted during the continuation of routine agricultural 
practices, as specified below, on cultivated lands that are in row 
crop, hay, or forage production. These lands must meet the definition 
of cropland as defined in 7 CFR 718.2, and, in addition, must have been 
cultivated, meaning tilled, planted, or harvested, within the previous 
5 years. Thus, this provision does not include take coverage for any 
new conversion of grasslands into agriculture.
    Lesser prairie-chickens are known to travel from native rangeland 
and Conservation Reserve Program lands (CRP), which provide cover types 
that support lesser prairie-chicken nesting and brood rearing, to 
forage within cultivated fields supporting small grains, alfalfa, and 
hay production. Lesser prairie-chickens are also known to maintain lek 
sites up to a half mile (0.8 kilometers) from rangelands and CRP fields 
within these cultivated areas, and they may be present during farming 
operations. Thus, existing cultivated lands, although not a native 
habitat type, may provide food resources for lesser prairie-chickens 
during key times in the life cycle of the species. These existing 
cultivated lands are compatible with the conservation of the lesser 
prairie-chicken.
    Routine agricultural activities proposed to be covered by this 
provision include:
    (1) Plowing, drilling, disking, mowing, or other mechanical 
manipulation and management of lands in cultivation, provided that the 
harvest of cultivated lands is conducted by methods that allow wildlife 
to flush and escape, such as starting operations in the middle of the 
field and working outward, or by modifying equipment to include flush 
bar attachments.
    (2) Routine activities in direct support of cultivated agriculture, 
including replacement, upgrades, maintenance, and operation of existing 
infrastructure such as irrigation conveyance structures and roads.
    Similar to the discussion above for conservation practices carried 
out through the LPCI, this provision of the revised proposed 4(d) 
special rule for agricultural activities will promote conservation of 
the species by encouraging landowners and farmers to continue managing 
the remaining landscape in ways that meet the needs of their operation 
while simultaneously providing habitat and food resources for the 
lesser prairie-chicken. In addition to providing food sources during 
the species' life cycle, existing cultivated agricultural land may 
promote conservation of the species by discouraging inappropriate 
agricultural practices that are incompatible with the lesser prairie-
chicken's habitat needs within the landscape.

Proposed Determination

    Section 4(d) of the Act states that ``the Secretary shall issue 
such regulations as [s]he deems necessary and advisable to provide for 
the conservation'' of species listed as a threatened species. 
Conservation is defined in the Act to mean ``to use and the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to [the Act] are no longer necessary.'' Additionally, 
section 4(d) states that the Secretary ``may by regulation prohibit 
with respect to any threatened species any act prohibited under section 
9(a)(1).''
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, the Secretary may find that it 
is necessary and advisable not to include a taking prohibition, or to 
include a limited taking prohibition. See Alsea Valley Alliance v. 
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, and 2002 
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in 
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule 
need not address all the threats to the species. As noted by Congress 
when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to him with regard to the permitted activities for those 
species. [S]he may, for example, permit taking, but not importation of 
such species,'' or [s]he may choose to forbid both taking and 
importation but allow the transportation of such species, as long as 
the measures will ``serve to conserve, protect, or restore the species 
concerned in accordance with the purposes of the Act'' (H.R. Rep. No. 
412, 93rd Cong., 1st Sess. 1973).
    Section 9 prohibitions make it illegal for any person subject to 
the jurisdiction of the United States to take (including harass, harm, 
pursue, shoot, wound, kill, trap, capture, or collect; or attempt any 
of these), import or export, ship in

[[Page 75312]]

interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any wildlife species 
listed as an endangered species, without written authorization. It also 
is illegal under section 9(a)(1) of the Act to possess, sell, deliver, 
carry, transport, or ship any such wildlife that is taken illegally. 
Prohibited actions consistent with section 9 of the Act are outlined 
for threatened species in 50 CFR 17.31(a) and (b). This revised 
proposed 4(d) special rule proposes that all prohibitions in 50 CFR 
17.31(a) and (b) will apply to the lesser prairie-chicken, except in 
three instances.
    First, we propose that none of the provisions in 50 CFR 17.31 would 
apply to conservation practices that are conducted by a participant in, 
and operating in compliance with, Lesser Prairie-Chicken Interstate 
Working Group's Lesser Prairie-Chicken Range-Wide Conservation Plan. 
The plan reflects a sound conservation design and strategy and is 
expected to provide a net conservation benefit for the lesser prairie-
chicken. Actions in the comprehensive plan will ultimately contribute 
to the conservation of the species. Conservation is defined in section 
3(3) of the Act as ``to use and the use of all methods and procedures 
which are necessary to bring any endangered species or threatened 
species to the point at which the measures provided pursuant to the Act 
are no longer necessary.'' As a result of this provision, the Service 
expects that rangewide conservation actions will be implemented with a 
high level of certainty that the program will provide for the 
conservation of the lesser prairie-chicken.
    Second, we also propose that none of the provisions in 50 CFR 17.31 
would apply to the conditioned conservation practices that are carried 
out in accordance with a conservation plan developed by the NRCS in 
connection with the LPCI. According to the proposed listing rule, the 
primary factors supporting the proposed threatened status for the 
lesser prairie-chicken are the impacts of cumulative habitat loss and 
fragmentation. Allowing the continuation of agricultural operations 
consistent with these criteria encourages landowners to continue 
managing the remaining landscape in ways that meet the needs of their 
operation while simultaneously providing suitable habitat for the 
lesser prairie-chicken. Implementation of conservation practice 
standards and associated conservation measures for the LPCI are 
anticipated to result in a positive population response by the species 
as threats are reduced, most notably in addressing habitat 
fragmentation and improvement of habitat conditions across the 
landscape. Therefore, conservation practices carried out through the 
LPCI will ultimately contribute to the conservation of the species.
    Finally, we propose that none of the provisions in 50 CFR 17.31 
would apply to actions that result from activities associated with the 
continuation of routine agricultural practices, as specified above, on 
existing cultivated lands that are in row crop, hay, or forage 
production. These lands must meet the definition of cropland as defined 
in 7 CFR 718.2, and, in addition, must have been cultivated, meaning 
tilled, planted, or harvested, within the previous 5 years. This 
provision of the revised proposed 4(d) special rule for agricultural 
activities will promote conservation of the species by encouraging 
landowners and farmers to continue managing the remaining landscape in 
ways that meet the needs of their operation while simultaneously 
providing habitat and food resources for the lesser prairie-chicken.
    Based on the rationale explained above, the provisions included in 
this revised proposed 4(d) special rule are necessary and advisable to 
provide for the conservation of the lesser prairie-chicken. Nothing in 
this proposed 4(d) special rule changes in any way the recovery 
planning provisions of section 4(f) and consultation requirements under 
section 7 of the Act or the ability of the Service to enter into 
partnerships for the management and protection of the lesser prairie-
chicken.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this revised proposed rule. The purpose of such review is to 
ensure that our determination of status for this species is based on 
scientifically sound data, assumptions, and analyses. We will send peer 
reviewers copies of this revised proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the reopening of the public comment 
period, on our use and interpretation of the science used in developing 
our proposed rule to list the lesser prairie-chicken and this proposed 
4(d) special rule.
    We will consider all comments and information we receive during the 
comment period on this revised proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal.

Required Determinations

Clarity of the Rule

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

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

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. 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.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with listing a species as an endangered or threatened species under the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244). We intend to incorporate this revised proposed 4(d) special 
rule into our final determination concerning the listing of the species 
or withdrawal of the proposal if new information is provided that 
supports that decision.

[[Page 75313]]

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.
    By letter dated April 19, 2011, we contacted known tribal 
governments throughout the historical range of the lesser prairie-
chicken. We sought their input on our development of a proposed rule to 
list the lesser prairie-chicken and encouraged them to contact the 
Oklahoma Ecological Services Field Office if any portion of our request 
was unclear or to request additional information. We did not receive 
any comments regarding this request.

References Cited

    A complete list of all references cited in this proposed rule is 
available on the Internet at http://www.regulations.gov at Docket No. 
FWS-R2-ES-2012-0071 or upon request from the Field Supervisor, Oklahoma 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Oklahoma Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 78 FR 26302 (May 6, 2013), as follows:

PART 17--[AMENDED]

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

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

0
2. Amend Sec.  17.41 by revising paragraph (a) to read as follows:


Sec.  17.41  Special rules--birds.

    (a) Lesser prairie-chicken (Tympanuchus pallidicinctus).
    (1) Prohibitions. Except as noted in paragraphs (a)(2)(i), 
(a)(2)(ii), and (a)(2)(iii) of this section, all prohibitions and 
provisions of Sec. Sec.  17.31 and 17.32 apply to the lesser prairie-
chicken.
    (2) Exemptions from prohibitions. Incidental take of the lesser 
prairie-chicken will not be considered a violation of section 9 of the 
Act if the take occurs:
    (i) On privately owned, State, or county land from activities that 
are conducted by a participant enrolled in, and operating in compliance 
with, the Lesser Prairie-Chicken Interstate Working Group's Lesser 
Prairie-Chicken Range-Wide Conservation Plan, as endorsed by the U.S. 
Fish and Wildlife Service.
    (ii) On privately owned agricultural land from the following 
conservation practices that are carried out in accordance with a 
conservation plan developed by the U.S. Department of Agriculture's 
Natural Resources Conservation Service (NRCS) in connection with NRCS's 
Lesser Prairie-Chicken Initiative and related NRCS activities that 
provide financial or technical assistance to support lesser prairie-
chicken conservation, and which were developed in coordination with the 
U.S. Fish and Wildlife Service:
    (A) Upland wildlife habitat management;
    (B) Prescribed grazing;
    (C) Restoration and management of rare and declining habitats;
    (D) Access control;
    (E) Forage harvest management;
    (F) Prescribed burning;
    (G) Brush management;
    (H) Firebreaks;
    (I) Cover crops;
    (J) Critical area planting;
    (K) Forage and biomass planting;
    (L) Range planting;
    (M) Watering facilities;
    (N) Spring development;
    (O) Pumping plants;
    (P) Water wells;
    (Q) Pipelines;
    (R) Grade stabilization structures;
    (S) Fences;
    (T) Obstruction removal;
    (U) Herbaceous weed control;
    (V) Ponds;
    (W) Tree and Shrub Planting;
    (X) Heavy Use Protection;
    (Y) Woody Residue Treatment;
    (Z) Well Decommissioning;
    (AA) Conservation Cover.
    (iii) As a result of the continuation of routine agricultural 
practices, as specified below, on cultivated lands that are in row 
crop, hay, or forage production that meet the definition of cropland at 
7 CFR 718.2, and, in addition, must have been cultivated, meaning 
tilled, planted, or harvested, within the previous 5 years. Activities 
covered by this provision include:
    (A) Plowing, drilling, disking, mowing, or other mechanical 
manipulation and management of lands in cultivation, provided that the 
harvest of cultivated lands is conducted by methods that allow wildlife 
to flush and escape, such as starting operations in the middle of the 
field and working outward, or by modifying equipment to include flush 
bar attachments.
    (B) Routine activities in direct support of cultivated agriculture, 
including replacement, upgrades, maintenance, and operation of existing 
infrastructure such as irrigation conveyance structures and roads.
* * * * *

    Dated: December 6, 2013.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-29587 Filed 12-10-13; 8:45 am]
BILLING CODE 4310-55-P