[Federal Register Volume 79, Number 69 (Thursday, April 10, 2014)]
[Rules and Regulations]
[Pages 20074-20085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07298]



[[Page 20073]]

Vol. 79

Thursday,

No. 69

April 10, 2014

Part III





Department of the Interior





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 Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Special Rule for the 
Lesser Prairie-Chicken; Final Rule

  Federal Register / Vol. 79 , No. 69 / Thursday, April 10, 2014 / 
Rules and Regulations  

[[Page 20074]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0071: 4500030113]
RIN 1018-AY21


Endangered and Threatened Wildlife and Plants; Special Rule for 
the Lesser Prairie-Chicken

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, finalize a 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).

DATES: This rule is effective May 12, 2014.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2012-0071 and at https://www.fws.gov/southwest/es/LPC.html. Comments and materials we received 
are available for public inspection at http://www.regulations.gov. All 
of the comments, materials, and documentation that we considered in 
this rulemaking are available by appointment, during normal business 
hours at: U.S. Fish and Wildlife Service, Oklahoma Ecological Services 
Field Office, 9014 East 21st Street, Tulsa, OK 74129; telephone 918-
581-7458; facsimile 918-581-7467.

FOR FURTHER INFORMATION CONTACT: Alisa Shull, Field Supervisor, 
Oklahoma Ecological Services Field Office, 9014 East 21st Street, 
Tulsa, OK 74129; telephone 918-581-7458; 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:

Previous Federal Actions

    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). On May 6, 2013, we published in 
the Federal Register a proposed special rule under section 4(d) of the 
Act (16 U.S.C. 1531 et seq.) for the lesser prairie-chicken (78 FR 
26302), and we accepted public comments on our proposal for 45 days, 
ending June 20, 2013. On December 11, 2013, we proposed to revise the 
special rule (78 FR 75306), and we accepted public comments on that 
revised proposal for 30 days, ending January 10, 2014. On January 29, 
2014, we reopened the public comment period on the proposed revised 
special rule for 2 weeks, ending February 12, 2014 (79 FR 4652). 
Elsewhere in today's Federal Register, we published a final rule to 
list the lesser prairie-chicken as a threatened species. Please see the 
final listing rule for additional information concerning previous 
Federal actions for the lesser prairie-chicken.

Background

    This document discusses only those topics directly relevant to the 
special rule under section 4(d) of the Act for the lesser prairie-
chicken (which we refer to as the ``4(d) special rule'' in this 
document). For more information on the lesser prairie-chicken and its 
habitat, please refer to the final listing rule published elsewhere in 
today's Federal Register, which is also available online at http://www.regulations.gov (at Docket No. FWS-R2-ES-2012-0071) or from the 
Oklahoma Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).
    As discussed in the final listing rule, the primary factors 
supporting the 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.
    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 are 
finalizing a 4(d) special rule which outlines the prohibitions, and 
exceptions to those prohibitions, necessary and advisable for the 
conservation of the lesser prairie-chicken.

Summary of Changes From the Revised Proposed Rule

    Based on information we received in public comments (see Summary of 
Comments and Recommendations), we revised the provisions of the 4(d) 
special rule to provide greater clarity around the activities that are 
covered by this rule.

Provisions of the 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 4(d) special rule, 
the Service provides that all of the prohibitions under 50 CFR 17.31 
and 17.32 will apply to the lesser prairie-chicken, except as noted 
below. This 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 final 4(d) special rule provides 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 (rangewide plan) 
will not be prohibited. The Service has included this provision in the 
final 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.

[[Page 20075]]

Description of the Rangewide Plan
    The rangewide plan is a voluntary conservation strategy that 
establishes a mitigation framework which is administered by the Western 
Association of Fish and Wildlife Agencies (WAFWA) for the purpose of 
allowing plan participants the opportunity to mitigate any unavoidable 
impacts of a particular activity on the lesser prairie-chicken and 
provides financial incentives to landowners who voluntarily participate 
and manage their property for the benefit of the lesser prairie-
chicken. More specifically, the rangewide plan:
    (1) Identifies rangewide ecoregional goals for the lesser prairie-
chicken.
    (2) Identifies desired habitat amounts and conditions to achieve 
the population goals.
    (3) Uses a decision support tool that identifies focal areas and 
connectivity zones where lesser prairie-chicken conservation actions 
will be emphasized to produce the habitat conditions required to 
conserve the species at sustainable levels.
    (4) Enhances programs and cooperative efforts to encourage and 
expand voluntary landowner cooperation in the development and 
maintenance of the desired habitat conditions.
    (5) Promotes agreements designed to avoid and minimize impacts to 
lesser prairie-chicken habitat from various development activities and, 
where avoidance is not possible, mitigate impacts.
    (6) Establishes a mitigation framework administered by WAFWA that 
could be used by any entity to offset impacts to lesser prairie-chicken 
habitat with offsite mitigation.
    (7) Identifies research needs and implements monitoring.
    (8) Develops an adaptive management framework that will incorporate 
monitoring and new information into future adjustments to the 
conservation strategy to maximize benefits to the lesser prairie-
chicken.
    (9) Addresses input and suggestions from agencies, organizations, 
landowners, industries, other stakeholders, and the general public on 
the conservation plan for the lesser prairie-chicken.
    The rangewide plan identifies rangewide and ecoregional population 
goals for the lesser prairie-chicken and the amount and condition of 
habitat desired to achieve those population goals, including focal 
areas and connectivity zones where much of the conservation would be 
targeted. The rangewide population goal, based on an annual spring 
average over a 10-year time frame, is set at 67,000 birds. The 
rangewide plan identifies four ecoregions as described by McDonald et 
al. (2012, p. 7): The Shinnery Oak Prairie Region (eastern New Mexico 
and southwest Texas panhandle), the Sand Sagebrush Prairie Region 
(southeastern Colorado, southwestern Kansas, and western Oklahoma 
panhandle), the Mixed Grass Prairie Region (northeastern Texas 
panhandle, western Oklahoma, and south central Kansas), and the Short 
Grass/CRP Mosaic region (northwestern Kansas). The ecoregional specific 
goals have been set at 8,000 birds in the Shinnery Oak Prairie Region, 
10,000 birds for the Sand Sagebrush Prairie Region, 24,000 birds in the 
Mixed Grass Prairie Region, and 25,000 the Short Grass/CRP Mosaic 
region. These ecoregional goals and the overall rangewide population 
goal may be adjusted after the first 10 years of implementation using 
principles of adaptive management.
    The rangewide plan incorporates a focal area strategy as a 
mechanism to identify and target the population and habitat goals 
established by the plan. This focal area strategy is intended to direct 
conservation efforts into high-priority areas and facilitate creation 
of large blocks of quality habitat, in contrast to untargeted 
conservation efforts spread across larger areas that typically result 
in smaller, less contiguous blocks of appropriately managed habitat. 
These focal areas typically have the following characteristics: Average 
focal area size is at least 20,234 hectares (ha) (50,000 acres (ac)); 
at least 70 percent of habitat within each focal area is high quality; 
and focal area has enhanced connectivity, with each focal area 
generally located no more than 32 kilometers (km) (20 miles (mi)) apart 
and connected by delineated zones between neighboring focal areas that 
provide suitable habitat and allow for movement between the focal 
areas. Citing Hagen et al. (in review), the rangewide plan describes 
quality lesser prairie-chicken habitat as habitats generally considered 
to have vegetation conditions that support greater than 35 percent 
canopy cover of grasses, shrubs, and forbs, consisting of greater than 
50 percent composition of preferred species of shrubs and grasses, and 
have the appropriate structure to provide intermixed nesting and 
brooding habitat. The corridors connecting the focal areas also 
generally have certain characteristics: Habitat within the identified 
corridors consists of at least 40 percent good to high quality habitat; 
distances between existing habitat patches are no more than 3.2 km (2 
mi) apart; corridor widths are at least 8 km (5 mi); and habitat 
contains few, if any, barriers to lesser prairie-chicken movement. The 
lack of an identified connection between focal areas in the Shinnery 
Oak Prairie Region with focal areas in the remaining regions is the 
obvious exception to the identified focal area guidelines. The Shinnery 
Oak Prairie Region is separated from the other regions by a distance of 
over 300 km (200 mi) of unfavorable land uses and very little suitable 
lesser prairie-chicken habitat.
    Table 1 identifies the covered activities, arranged by industry, 
under the rangewide plan. While the covered activities are arranged by 
industry for convenience, any of the activities may be conducted by any 
enrolled participant.

 Table 1--Activities Covered Under the Lesser Prairie-Chicken Range-Wide
                            Conservation Plan
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                         Oil and Gas Activities
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Seismic and Land Surveying.
Construction.
Drilling, Completion, and Workovers (Re-Completion).
Operations and Maintenance.
Plugging and Remediation.
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                         Agricultural Activities
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Brush Management.
Building and Maintaining Fences and Livestock Structures.
Grazing.

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Water/windmill.
Disturbance Practices.
Crop Production.
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      Wind Power, Cell and Radio Towers, and Power Line Activities
------------------------------------------------------------------------
Construction.
Operations and Maintenance.
Decommissioning and Remediation.
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                             Road Activities
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Construction.
Operations and Maintenance.
Decommissioning and Remediation.
------------------------------------------------------------------------
                           General Activities
------------------------------------------------------------------------
Off-highway Vehicle (OHV) Activity.
General Construction.
Hunter Harvest (incidental to legal hunting of greater prairie-chickens
 where the ranges of the two species overlap).
Other Land Management (such as prescribed burns, game and predator
 management, and remediation of impacted habitat back to baseline
 conditions).
------------------------------------------------------------------------

    The mitigation framework used in the rangewide plan incentivizes 
avoidance and minimization of impacts to lesser prairie-chicken 
habitat. The metrics system within this framework provides a pathway to 
mitigate for all impacts to habitat through a biologically based system 
that incorporates space, time, and habitat quality. It also implements 
an offset-to-impact mitigation ratio of 2-to-1 to ensure that offsets 
are greater than impacts, resulting in a net conservation benefit for 
the lesser prairie-chicken. Mitigation fees will be split between 
permanent conservation efforts (25 percent) and short-term management 
contracts (75 percent) that will shift on the landscape over time 
within the action area identified in the rangewide plan. Mitigation 
dollars will be offered to landowners within the lesser prairie-chicken 
range for voluntarily implementing conservation practices that benefit 
the species. Landowner payments will be calculated based on the 
landowner's acreage and its location and habitat quality. To 
incentivize conservation in the best places for lesser prairie-
chickens, landowners in high-priority locations with optimal habitat 
will be paid 125 percent of the standard cost of implementing the 
needed conservation practice, as defined by the U.S. Department of 
Agriculture's Natural Resources Conservation Service (NRCS).
    The rangewide plan incorporates principles of adaptive management 
in several circumstances. The primary reason for using adaptive 
management in the rangewide plan is to allow for changes in the 
conservation measures that may be necessary to reach the stated 
population goals. The mitigation and conservation activities 
implemented under the rangewide plan will be monitored to identify 
whether they are producing the required results. Some of the factors 
that will be evaluated regularly under the rangewide plan include 
estimates of lesser prairie-chicken population size, progress toward 
habitat goals, conservation practice costs, avoidance of high priority 
conservation areas, and management prescriptions. Using this 
information, every 5 years, a science subcommittee under WAFWA will 
conduct a rigorous review to assess, among other things, the progress 
toward achieving the stated population and habitat goals of the 
rangewide plan. New standards will be considered (1) for conservation 
practices that have not maintained lesser prairie-chicken habitat 
quality in at least 3 of 5 years where maintenance of habitat quality 
was the desired outcome, and (2) for practices that have not resulted 
in at least a measurable level of improvement in lesser prairie-chicken 
habitat quality where such improvements were the desired outcome.
Evaluation of the Rangewide Plan
    On May 6, 2013 (78 FR 26302), the Service proposed a 4(d) special 
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 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.
    In working with the Lesser Prairie-Chicken Interstate Working 
Group, we later reviewed the rangewide plan in light of the criteria 
that were published in the May 6, 2013, proposed 4(d) special rule. The 
plan includes a strategy to address threats to the lesser prairie-
chicken throughout its range, establishes measurable biological goals

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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. 
Furthermore, we understand all permanent habitat offset units will meet 
the Service's conservation banking standards, including: (1) Real 
estate assurance in the form of a perpetual conservation easement grant 
held by a qualified third party and recorded in the county in which the 
offset unit is located (or other equivalent appropriate land protection 
instrument); (2) development of a land management plan that includes an 
adaptive management strategy and identifies all tasks and associated 
costs necessary to operate, manage, monitor, and report on the habitat 
offset unit; (3) a long-term funding mechanism (i.e., endowment) 
adequately sized to fund all tasks identified in the land management 
plan, to be held by an entity qualified to manage and disburse such 
funds; and (4) all other measures required under Service mitigation 
policies. In addition, credits may not be generated on habitat offset 
units from Federal funds such as cost share and easement programs that 
provide landowners with funding for habitat improvements and improved 
land use practices (e.g., the U.S. Department of Agriculture's 
Conservation Reserve Program, the Service's Partners for Wildlife 
Program).
    For these reasons, on October 23, 2013, the Service announced our 
endorsement of the rangewide plan 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 rangewide plan is one that, when 
implemented, will address the conservation needs of the lesser prairie-
chicken.
    Accordingly, on December 11, 2013, we published in the Federal 
Register (78 FR 75306) a revised proposed 4(d) special rule to 
specifically exempt from the prohibitions of section 9 of the Act take 
that occurs 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.
    The Service included this provision of the 4(d) special rule to 
encourage participants of the Service-endorsed rangewide plan to 
improve habitat conditions and the status of the species across its 
entire range. The Service has determined that the rangewide 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.'' Through adaptive management, the rangewide plan 
will also be periodically reviewed by WAFWA and the Service to ensure 
it continues to provide a net conservation benefit to the lesser 
prairie-chicken. As a result of this adaptive management provision, the 
Service expects that rangewide conservation actions 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

    This final 4(d) special rule provides 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 NRCS in connection 
with NRCS's Lesser Prairie-Chicken Initiative (LPCI) and related NRCS 
activities focused on lesser prairie-chicken conservation consistent 
with the provisions of the November 22, 2013, conference opinion that 
was developed in coordination with the Service. Conditioned 
conservation practices are NRCS standard conservation practices to 
which the Service and NRCS have added specific requirements in the form 
of conservation measures so that when the measure is followed, impacts 
to the lesser prairie-chicken will be avoided or minimized.
    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 lesser prairie-chicken 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-level threats. Over the long term, the 
Service and NRCS anticipate 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.
    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 Service issued a conference report to 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 (https://www.fws.gov/southwest/es/Documents/R2ES/LPC_NRCS_CO_FINAL_22Nov2013.pdf).
    The November 22, 2013, conference opinion builds upon, refines, and

[[Page 20078]]

updates the 2011 conference report in several ways, including the 
addition of 4 conservation practices to the 23 evaluated in the 
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 November 22, 2013, 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 
management of more of the threats that adversely affect populations, 
more habitat under the appropriate management prescriptions, and the 
development and dissemination of more information on the compatibility 
of sustainable ranching operations and 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 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

    This final 4(d) special rule provides 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, seed-drilled untilled 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 5 years preceding the proposed 
routine agricultural practice that may otherwise result in take. 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 \1/2\ 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. 
These existing cultivated lands are compatible with the conservation of 
the lesser prairie-chicken.
    Routine agricultural activities covered by this provision include:
    (1) Plowing, drilling, disking, mowing, or other mechanical 
manipulation and management of lands.
    (2) Routine activities in direct support of cultivated agriculture, 
including replacement, upgrades, maintenance, and operation of existing 
infrastructure such as buildings, irrigation conveyance structures, 
fences, and roads.
    (3) Use of chemicals in direct support of cultivated agriculture 
when done in accordance with label recommendations.
    Similar to the discussion above for conservation practices carried 
out in coordination with NRCS, this provision of the 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 agricultural operations 
while simultaneously providing 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.

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) of the Act states that the Secretary ``may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1) [of the Act].''
    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, hunt, shoot, wound, kill, trap, capture, or collect; or attempt 
any of these), import or export,

[[Page 20079]]

ship in 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 4(d) 
special rule provides that all of the prohibitions in 50 CFR 17.31(a) 
and (b) will apply to the lesser prairie-chicken, except in three 
instances.
    First, none of the provisions in 50 CFR 17.31 apply to conservation 
practices 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. 
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 rangewide 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 the conservation actions will provide for the 
conservation of the lesser prairie-chicken.
    Second, none of the provisions in 50 CFR 17.31 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 or any NRCS assistance consistent with the November 22, 2013, 
conference opinion. According to the final listing rule, the primary 
factors supporting the threatened species 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 consistent 
with the LPCI and November 22, 2013, conference opinion will ultimately 
contribute to the conservation of the species.
    Finally, none of the provisions in 50 CFR 17.31 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, seed-drilled untilled 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 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 
the 4(d) special rule are necessary and advisable to provide for the 
conservation of the lesser prairie-chicken. Nothing in this 4(d) 
special rule changes in any way the recovery planning provisions of 
section 4(f) of the Act or the 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.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 4(d) 
special rule for the lesser prairie-chicken during four comment 
periods: May 6 to June 20, 2013; July 9 to August 8, 2013; December 11, 
2013, to January 10, 2014; and January 29 to February 12, 2014. We also 
contacted appropriate Federal, Tribal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed listing rule, proposed 4(d) special rule, 
draft rangewide conservation plan, and final rangewide conservation 
plan during the respective comment periods.
    Over the course of the four comment periods, we received 
approximately 56,450 comment submissions. Of these, approximately 
56,150 were form letters. All substantive information provided during 
these comment periods has either been incorporated directly into this 
final rule or is addressed below. Comments from State agencies are 
grouped separately.

Comments From States

    (1) Comment: In order to ensure proper assessment of recovery goals 
and habitat quality, the Service should not endorse or approve any 
other plans, permits, or tools that do not follow the same metrics 
contained in the rangewide plan.
    Our Response: In accordance with section 10 of the Act, the Service 
must process any permit application associated with a habitat 
conservation plan (HCP). The HCP may include metrics that differ from 
the rangewide plan as long as the HCP meets the issuance criteria. If 
the issuance criteria in section 10 of the Act are met, then the 
Service must issue the permit.
    Additionally, we recognize that there may be numerous alternatives 
to, or variations of, the rangewide plan that could provide a net 
conservation benefit to the species. Regarding the possibility of the 
Service endorsing other plans or tools, the Service will assess each of 
those as submitted for our review and will evaluate each on the fact-
specific metrics contained in that plan.
    (2) Comment: The NRCS provision of the 4(d) special rule should be 
expanded to include all actions that are consistent with LPCI.
    Our Response: It is our intention that this provision would apply 
to any conservation practices consistent with LPCI as well as related 
NRCS activities focused on lesser prairie-chicken conservation 
consistent with the provisions of the November 22, 2013, conference 
opinion that was developed in coordination with the Service. We have 
revised the NRCS provision of the 4(d) special rule to clarify that the 
provision includes all activities that are carried out in accordance 
with a conservation plan providing for lesser prairie-chicken 
conservation developed by NRCS in coordination with the Service.
    (3) Comment: The 4(d) special rule should more generally cover all 
grazing and ranching practices. Landowners who are managing lands 
appropriately should not have to sign on to a government plan to 
receive protections.
    Our Response: We have determined that properly managed grazing is 
consistent with conservation of the lesser prairie-chicken. However, 
improperly managed grazing can impact lesser prairie-chickens or render 
their habitats uninhabitable. By covering landowners participating in 
the rangewide plan and NRCS programs in the final 4(d) special rule, we 
have ensured that grazing is being conducted

[[Page 20080]]

in a manner compatible with the conservation of the lesser prairie-
chicken. The rangewide plan and NRCS provisions of the 4(d) special 
rule address grazing and ranching. Additionally, individuals previously 
enrolled in one of the candidate conservation agreements with 
assurances (CCAAs), who are implementing their plans accordingly, have 
incidental take coverage through the incidental take permit associated 
with the CCAA. Individuals who did not choose to participate in the 
CCAAs and who do not wish to participate in the rangewide plan or other 
Federal conservation programs may pursue a traditional HCP and 
associated incidental take permit for their activities.
    (4) Comment: The requirement that lands must have been cultivated 
in the last 5 years is an unnecessary limitation on the cultivated 
lands provision. The provision should cover lands that have been 
cultivated in the last 10 years, or that have never been cultivated.
    Our Response: The intention of this provision is to allow for 
continued agricultural practices on existing cultivated lands, not to 
allow for new conversion of grasslands to cultivation. Existing 
cultivated lands are of low value to lesser prairie-chickens, although 
they may provide food resources for lesser prairie-chickens at some 
times. Conversely, lands that have not been cultivated in 5 years or 
more may have developed habitat qualities that are of higher value to 
lesser prairie-chickens; therefore, the amount of take caused by 
conversion back to cultivation may not be insignificant. Generally 
speaking, lands that are in continuing agricultural use would not be 
rested or remain fallow for more than 4 to 5 years; thus we believe the 
5-year limitation best supports the intent of this provision.
    (5) Comment: Limitations on cultivation practices (e.g., starting 
in the center of a field, use of flush bars) are not ``normal'' farming 
practice. This provision needs reconsideration and clarification.
    Our Response: Upon further review, we have determined that these 
limitations were unnecessary. They were intended to limit the level of 
take that would occur on lands subject to routine, continuing 
agricultural practices; however, since we already determined that the 
take associated with those routine practices would be limited 
generally, we have determined that the limitations are unnecessary and 
revised the cultivated lands provision accordingly.
    (6) Comment: The cultivated lands provision should specifically 
note that use of chemicals on cultivated lands is allowed.
    Our Response: Use of chemicals as a routine agricultural practice 
is covered under the cultivated lands provision. We have revised the 
text of the rule to be more precise on this issue.
    (7) Comment: The 4(d) special rule should include a provision to 
cover activities consistent with the Conservation Reserve Program (CRP) 
and incidental take for landowners choosing to remove their lands from 
CRP practices.
    Our Response: The Service anticipates that incidental take of 
lesser prairie-chicken associated with CRP activities, including 
returning lands enrolled in CRP to cropland after CRP contract 
expiration, will be addressed through section 7 of the Act. In January 
2013, the Farm Services Agency engaged the Service in a collaborative 
effort to develop a conference opinion to address CRP implementation on 
lands occurring within the range of the lesser prairie-chicken. The 
conference opinion is intended to evaluate the cumulative landscape-
level effects of CRP implementation on the lesser prairie-chicken, 
prescribe conservation measures to avoid or minimize any adverse 
effects of CRP implementation, and, if appropriate, provide incidental 
take coverage to CRP participants who adhere to the conditions in the 
conservation opinion.

Public Comments

    (8) Comment: The 4(d) special rule should not preclude or interfere 
with the Service's ability to issue section 10 incidental take permits.
    Our Response: Nothing in the 4(d) special rule precludes the 
Service from continuing to issues permits under the traditional 
incidental take permitting tools (e.g., HCPs, safe harbor agreements 
(SHAs)).
    (9) Comment: The Service has failed to comply with the National 
Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.).
    Our Response: We have determined that environmental assessments and 
environmental impact statements, as defined under the authority of 
NEPA, need not be prepared in connection with listing a species as an 
endangered or threatened species under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). As documented in the Service's 
Endangered Species Listing Handbook (Service 1994), it is the position 
of the Service that rules promulgated under section 4(d) of the Act 
concurrently with listing of the species fall under the same rationale 
as outlined in the October 25, 1983, determination; thus preparation of 
an environmental assessment for the 4(d) special rule for the lesser 
prairie-chicken is not required.
    (10) Comment: A rule promulgated pursuant to section 4(d) of the 
Act must ``provide for the conservation'' of a species. The Service is 
inappropriately relying on a net conservation benefit standard in 
developing this 4(d) special rule. A rule with a net conservation 
benefit is not the same as a rule promulgated for the conservation of 
the species.
    Our Response: The Service believes that a net conservation benefit 
standard is ``necessary and advisable for the conservation'' of the 
lesser prairie-chicken. A net conservation benefit standard allows for 
the Service to evaluate the conservation action and determine whether, 
overall, the action provides for the conservation of the species. In 
other words, the action may have some negative effects to the species 
but in combination with the positive effects, the positive outweighs 
the negative providing for the conservation of the species overall or a 
net conservation benefit.
    (11) Comment: The Service has failed to complete a section 7 
consultation on the 4(d) special rule.
    Our Response: Section 7 consultation on the development of a rule 
to list a species under the Act is not required. Under the Act, we are 
to base listing decisions on the best available scientific and 
commercial information. If a species warrants listing under the Act 
based on a review of the best available scientific and commercial 
information, the Service must list the species, if not precluded by 
other higher priority listing actions. In other words, the Service does 
not have discretion to not list a species in consideration of other 
information, including the results of a section 7 analysis. This 4(d) 
special rule is being promulgated concurrent with the listing of the 
species, and by extension, is therefore also not subject to section 7 
consultation requirements.
    (12) Comment: This Service has not coordinated adequately with 
local governments.
    Our Response: We have coordinated extensively with the public, 
local governments, industry, academia, and other Federal agencies. 
Specifically, in accordance with the Act and Service policies and 
guidelines, we published legal notices and provided notice to affected 
counties. Additionally, we requested written comments from the

[[Page 20081]]

public on the proposed listing of the lesser prairie-chicken and 
proposed 4(d) special rule during four comment periods: May 6 to June 
20, 2013; July 9 to August 8, 2013; December 11, 2013, to January 10, 
2014; and January 29 to February 12, 2014.
    (13) Comment: The Service must clarify to which version of the 
rangewide plan the 4(d) special rule refers.
    Our Response: By using the phrase ``as endorsed by the U.S. Fish 
and Wildlife Service'' to describe the rangewide plan, this final 4(d) 
special rule provides that take incidental to activities conducted by 
participants enrolled in the October 2013 version of WAFWA's ``Lesser 
Prairie-Chicken Range-Wide Conservation Plan'' is not prohibited. The 
October 2013 version of the rangewide plan was made, and remains, 
available on http//www.regulations.gov under Docket No. FWS-R2-ES-2012-
0071 as a supporting material for our January 29, 2014, Federal 
Register publication (79 FR 4652).
    (14) Comment: The rangewide plan does not contain an effective 
strategy to achieve its goals and therefore will not support 
conservation of the lesser prairie-chicken.
    Our Response: As stated in the October 23, 2013, endorsement 
letter, the Service believes the rangewide plan reflects a sound 
conservation design and strategy that, when implemented, will provide a 
net conservation benefit to the lesser prairie-chicken. To the extent 
that there may be uncertainty as to the effectiveness of the strategy, 
the plan contains adaptive management provisions that allow flexibility 
in its implementation over time to ensure that the plan results in 
improvement of the status of the species towards the habitat and 
population goals therein.
    (15) Comment: Several commenters offered alternative plans and 
mitigation strategies to the one in the rangewide plan.
    Our Response: We recognize that there may be numerous alternatives 
to, or variations of, the rangewide plan that could provide a net 
conservation benefit to the species. However, as discussed above, we 
have determined that the endorsed rangewide plan provides a net 
conservation benefit to the species and is an appropriate provision of 
this 4(d) special rule. Regarding the possibility of the Service 
endorsing other plans or tools, the Service will assess each of those 
as submitted for our review and will evaluate each on the fact-specific 
metrics contained in that plan.
    (16) Comment: The Service has inappropriately relied on the draft 
criteria from its May 6, 2013, proposed 4(d) special rule (78 FR 26302) 
to evaluate the rangewide plan. These criteria were never finalized and 
relying on them is contrary to the Administrative Procedure Act.
    Our Response: On May 6, 2013, the Service proposed criteria that 
could be used to evaluate whether a planning effort resulted in a net 
conservation benefit to the lesser prairie-chicken (78 FR 26302). We 
evaluated the rangewide plan against these criteria and determined that 
the rangewide plan would provide a net conservation benefit to the 
species. In our December 11, 2013, revised proposed rule (78 FR 75306), 
we revised the proposed 4(d) special rule to be specific to the 
rangewide plan and published our analysis of net conservation benefit. 
In total, we requested written comments from the public on the proposed 
4(d) special rule during four comment periods: May 6 to June 20, 2013; 
July 9 to August 8, 2013; December 11, 2013, to January 10, 2014; and 
January 29 to February 12, 2014. Given that both the criteria and our 
analysis of the rangewide plan under the criteria have been made 
available for public notice and comment, we believe our actions comply 
with the requirements of the Administrative Procedure Act (5 U.S.C. 
subchapter II), and we rely on this analysis in our final rule.
    (17) Comment: What will the process be for WAFWA to make future 
adjustments or modifications to the rangewide plan? If the rangewide 
plan is revised, will activities conducted under the plan continue to 
be covered by the provisions of the 4(d) special rule?
    Our Response: The rangewide plan includes an adaptive management 
provision that allows for adjustments based on new information. Changes 
are expected to the rangewide plan, as needed, according to that 
process. Given that the endorsed plan includes adaptive management and 
that changes were contemplated as part of the implementation of the 
plan, as long as the new changes are incorporated into the plan, then 
the 4(d) special rule will continue to cover the activities of enrolled 
participants. Significant modifications to the rangewide plan that are 
outside the bounds of the adaptive management provisions of the plan 
would require additional review by the Service and may require revision 
of the 4(d) special rule.
    (18) Comment: The rangewide plan will not result in conservation of 
the species because participation in the plan is voluntary. Enrollment, 
payment of mitigation fees, implementation of conservation practices, 
and implementation of avoidance, minimization, and mitigation measures 
are all voluntary.
    Our Response: Each participant who chooses to enroll in the 
rangewide plan will sign a certificate of participation. This 
certificate of participation will outline either the specific 
avoidance, minimization, and mitigation measures (for impact 
participants) or conservation practices (for offset participants) that 
each participant has agreed to implement on his or her lands. The 
activities identified in each of these certificates of participation 
are not voluntary. In summary, while enrollment in the rangewide plan 
is indeed voluntary, implementation of conservation measures is not 
voluntary once enrolled.
    (19) Comment: Conservation banking, consistent with the Service's 
conservation banking guidance, is the only mitigation solution that can 
achieve a net conservation benefit to the species with certainty and 
long-term accountability.
    Our Response: Conservation banking is a tool that can provide a net 
conservation benefit to a species by reducing the threat of 
fragmentation and habitat loss through perpetual conservation. However, 
it is not the only tool available that can achieve a net conservation 
benefit to the species with certainty and long-term accountability. 
Given the specific biology, life history, and threats facing a species, 
many other tools may also be appropriate to offset negative impacts and 
provide a net conservation benefit. For example, our experience has 
shown that HCPs can provide a net conservation benefit, and not all 
HCPs include conservation banking. This is a species-specific 
determination based on the threats acting on that species.
    (20) Comment: Conservation of lesser prairie-chickens cannot be 
achieved through term or temporary mitigation. Short-term offsets in 
the form of 5-year contracts are not effective mitigation for permanent 
impacts.
    Our Response: The rangewide plan is designed to deliver permanent 
mitigation for permanent impacts, but, in some cases, the impacts will 
be offset through the use of short-term (5-10 year) contracts. Each 
acre of impact will be offset by 2 acres of offset, due to the 2-to-1 
offset-to-impact ratio in the rangewide plan. These offset acres are 
secured through contracts between WAFWA and landowners. Some of the 
contracts (up to 75 percent) will be short-term contracts. When a 
contract for a short-term offset unit is due to expire, the need to 
mitigate the original

[[Page 20082]]

impact does not go away. Rather, WAFWA will offer to extend the 
contract, and if the landowner does not wish to extend, WAFWA will find 
a new land base to apply those offset contracts. In this way, WAFWA 
will maintain the necessary amount of offset units over time, resulting 
in permanent mitigation for permanent impacts.
    For example, Participant A is an impact participant who has been 
assessed 500 acres of impact on his or her enrolled property. WAFWA 
will need to secure 1,000 offset acres (due to the 2:1 offset-to-impact 
ratio) for the impacts from Participant A. Participant B enrolls 1,000 
acres as offset through a short-term 5-year contract (i.e., until the 
end of 2020). In 2020, Participant B chooses not to renew the contract. 
WAFWA must then find a new 1,000 acres of offset to cover the original 
500 acres of impact from Participant A. Participant C signs an 
agreement for 1,000 acres for a 10-year contract, which shifts the 
offset of Participant A's impact from Participant B to Participant C. 
This scenario would repeat itself, as presented in the rangewide plan, 
in perpetuity, thus achieving permanent, but not static, mitigation.
    (21) Comment: It is not appropriate to use short-term contracts for 
restoration because restoration of lesser prairie-chicken habitat may 
take many years to be achieved.
    Our Response: The rangewide plan recognizes that short-term 
contracts may not immediately realize the benefits of restoration 
practices. Because of this recognition, contracts for participants 
employing restoration practices require a minimum 10-year term. 
Furthermore, the calculation of offset credits is based on habitat 
quality, which is evaluated annually. Thus, generation of offset 
credits on lands under restoration contract is determined based on 
annual habitat quality and does not overestimate the contribution of 
lands that are still in an improvement phase. In other words, lands 
that are in an improvement phase do not count fully toward tallies of 
offset acreage.
    (22) Comment: In reference to WAFWA and the rangewide plan, the 
Federal Government cannot delegate regulatory authority over American 
citizens to a foreign government or multinational organization, nor can 
the Federal Government commandeer State agencies in an attempt to 
regulate the conduct of American citizens.
    Our Response: The Service is not attempting to use the rangwide 
plan to regulate the public, nor are we attempting to use the rangewide 
plan as a vehicle to commandeer State agencies. The rangewide plan is a 
voluntary agreement between WAFWA and the participants and is being 
administered voluntarily by WAFWA, not under Service regulation. The 
plan can provide an alternative to the need to seek an incidental take 
permit from the Service in some situations, but is not in itself 
regulatory.
    (23) Comment: How does WAFWA intend to enforce the rangewide plan?
    Our Response: As discussed in the rangewide plan, WAFWA will 
conduct compliance monitoring to confirm adherence to the rangewide 
plan. Any participant who does not comply with the agreed-upon 
avoidance and minimization measures that are appropriate for their 
impacts in their signed certificate will receive a notice of non-
compliance from the rangewide plan administrators. This notice will 
include a detailed list of measures that the participant must address 
and a reasonable timeline in which to address them. If, during the 
duration of the agreement, the participant receives a total of three 
notices of noncompliance and fails to address those measures within the 
allotted timeframe, it will constitute grounds for the termination of 
participation and rangewide plan coverage. Participants enrolled on 
both sides of the framework (i.e., impacts and offsets) have incentive 
to remain enrolled in the plan. Participants enrolled on the impact 
side, if terminated, will forfeit any enrollment or mitigation fees 
paid and will be then subject to the full take prohibitions of the Act. 
Participants enrolled on the offset side, if terminated, will forego 
any incentive payments and will also then be subject to the full take 
prohibitions of the Act.
    (24) Comment: The rangewide plan provision of the 4(d) special rule 
represents a radical departure from the Service's historical mitigation 
policies and sets a questionable precedent for future conservation 
efforts.
    Our Response: Section 4(d) of the Act provides an opportunity for 
the Service to tailor the necessary conservation measures to a 
threatened species. We have concluded that the mitigation framework in 
the rangewide plan is an appropriate tool to use as a part of the 
conservation strategy for the lesser prairie-chicken.
    (25) Comment: The population goals and conservation strategy in the 
rangewide plan do not take into account the results of the 2013 lesser 
prairie-chicken population surveys.
    Our Response: The rangewide plan was in the final stages of 
approval when the 2013 survey results were released; thus the final 
results are not fully incorporated into the plan. However, the adaptive 
management process in the plan allows for future consideration of the 
2013 survey data, survey data from subsequent years, and any other 
relevant scientific information that may become available over time.
    (26) Comment: The confidentiality provisions found in the rangewide 
plan are not appropriate or implementable. The confidentiality 
provisions will not allow outside parties to monitor the implementation 
of the plan. Further, the provisions cannot be implemented as written 
due to requirements under the Freedom of Information Act (FOIA; 5 
U.S.C. 552, as amended).
    Our Response: As discussed in the rangewide plan, WAFWA will allow 
access to confidential and sensitive business information only to the 
relevant State fish and wildlife agency, the Service, employees or 
agents of WAFWA, and the participant that provided the information. 
WAFWA will use a password-protected database to maintain this 
information so that it can be viewed for relevant monitoring purposes 
but not downloaded, possessed, or distributed. This provision was 
developed with full recognition of the FOIA requirements of Federal 
agencies, thus the careful controls on the content of materials shared 
with the Service.
    While this system may make monitoring of implementation by outside 
entities challenging, it is a necessary provision given the 
preponderance of private lands within the range of the lesser prairie-
chicken. This information, limited as it may be, can be more useful 
than we would have been able to gather otherwise from private 
landowners. Finally, one of the most important pieces of information to 
monitor is the overall status of the species in response to rangewide 
plan, which will continue to occur through aerial surveys, the results 
of which will be shared widely.
    (27) Comment: How were the population goals for the lesser prairie-
chicken in the rangewide plan developed?
    Our Response: As discussed in the rangewide plan, a science team 
under WAFWA's Interstate Working Group was tasked with developing the 
population goals. The science team reviewed the available population 
information and analyses, and recommended a rangewide population goal 
of 67,000 birds as an annual spring average over a 10 year-time frame. 
The science team felt that this goal was both attainable and 
sustainable considering that the rangewide population had been above 
this level as recently as 2006.

[[Page 20083]]

This goal was determined to meet the following population objectives:
     Increase populations to ensure a sustainable, long-term 
population within each of the four delineated ecoregions for the next 
10 years of the rangewide plan's implementation;
     Maintain and expand the current distribution of the lesser 
prairie-chicken across its estimated occupied range; and
     Maintain higher population sizes in areas where lesser 
prairie-chickens currently occur and are stable.
    (28) Comment: The population goals for the lesser-prairie chicken 
in the rangewide plan are too low.
    Our Response: The rangewide plan includes a rangewide population 
goal of 67,000 birds as an annual spring average over a 10-year time 
frame. This means that over the course of 10 years, the average of the 
population estimates for each of those 10 years must be at least 
67,000. In practice, this means the population estimate needs to 
stabilize at or above 67,000 birds, not merely reach it once. Use of a 
10-year average as a goal provides a good indicator of the stability of 
the population over time because the population numbers can vary widely 
from one year to the next naturally based on climatic conditions. The 
Service believes the strategy in the rangewide plan, including the 
population goals, will provide a net conservation benefit to the 
species. The adaptive management provisions in the rangewide plan allow 
the population goals to be revised if new science or implementation 
monitoring determines that the goals are not sufficient to support 
conservation of the lesser prairie-chicken.
    (29) Comment: The rangewide plan has a duration of 30 years. What 
happens at the end of that period? Can the plan be renewed? Will the 
participants need to pursue alternative coverage for incidental take at 
that time?
    Our Response: The endorsed rangewide plan has a 30-year term. The 
rangewide plan notes that ``at the end of the term, the [rangewide 
plan] Administrator may apply to the [Service] to renew the [rangewide 
plan] and any associated permits or [certificates of participation]. 
The [rangewide plan] Administrator will apply for a renewal at least 30 
days prior to the expiration of the [rangewide plan]. The [rangewide 
plan] Administrator and Participants may continue the activities 
authorized by the [rangewide plan] until the Service acts on the 
application for renewal. If approved, any assurances and permit 
language agreed to at the time of the renewal request will be honored 
by the [Service]. The [Service] may also deny renewal of the [rangewide 
plan] or have the option of terminating it.'' In the event that the 
rangewide plan is not renewed, at the time of the rangewide plan's 
expiration, participants in the plan would no longer be exempt from the 
general take prohibition of 50 CFR 17.31 and 50 CFR 17.32.
    (30) Comment: The 4(d) special rule should be revised to include 
periodic review of the performance of the rangewide plan by the Service 
and the ability to modify or revoke the rangewide plan provision of the 
4(d) special rule if the implementation of the rangewide plan is not 
achieving its conservation goals.
    Our Response: The Service believes that the rangewide plan 
establishes appropriate measures to evaluate whether the conservation 
efforts are proceeding as planned. Those measures include establishing 
committees that will monitor the implementation effort, of which the 
Service will be a member. Further, the Service has the discretion to 
revise or remove the 4(d) special rule at any time if it is determined 
that the rangewide plan is no longer meeting the intent of the 
regulation.
    (31) Comment: Harvest of native grass hay crop should be 
specifically covered under the 4(d) special rule.
    Our Response: The Service believes that a blanket provision under 
the 4(d) special rule for native grass hay crop would not support the 
conservation of the lesser prairie-chicken. Areas of native grass can 
and do support the life-history needs of the lesser prairie-chicken. 
Unmitigated harvest of these areas is likely to result in continued 
range reductions and decline in the status of the species. As a result, 
this activity is better addressed through the rangewide plan, an 
incidental take permit, or another mechanism designed to offset the 
threats from these activities through compensatory mitigation.
    (32) Comment: The Service should reassess the definition of 
cultivated lands to further clarify or expand it to include ``seed-
drilled untilled crop.''
    Our Response: We have clarified the description of cultivated lands 
in this final 4(d) special rule and preamble to specifically include 
seed-drilled untilled crop production (e.g., wheat).
    (33) Comment: The Service should clarify what it means by 
``cultivated . . . within the previous 5 years.''
    Our Response: When referring to lands that have been cultivated 
with the previous 5 years, the Service intends that the cultivated 
lands provision should only apply to lands that have been cultivated 
within the 5 years prior to the action occurring that may otherwise 
result in take of the lesser prairie-chicken. For example, if a 
landowner wished to cultivate lands in 2020, those lands must have been 
cultivated at some point between 2015 and 2020 in order to be covered 
by this 4(d) special rule. This results in a ``rolling'' 5-year time 
period for applicability of this 4(d) special rule.
    (34) Comment: The Service should clarify which activities are 
allowed under the cultivated lands provision.
    Our Response: The Service intends that all routine activities in 
support of existing agricultural practices within the footprint of 
existing developments are allowed under this provision, including 
actual management of cultivated lands and maintenance of infrastructure 
to support the agricultural practices. The text of the rule has been 
revised to clarify this.
    (35) Comment: Comments were submitted both for and against 
inclusion of provisions in the 4(d) special rule for:
     Criteria that would allow approval of plans completed in 
the future;
     Direct hunting of lesser prairie-chickens;
     Continued enrollment in candidate conservation agreements 
with assurances (CCAAs); and
     Incidental take when in accordance with applicable State 
law for education or scientific purpose, the enhancement of propagation 
or survival of the species, zoological exhibition, and other 
conservation purposes consistent with the Act.
    Our Response: We solicited and considered public comment on the 
inclusion of these provisions. We have determined that it is not 
necessary to include such provisions in the final 4(d) special rule, as 
the suite of provisions currently included in the 4(d) rule, in 
combination with other ongoing conservation efforts, appropriately 
supports the conservation of the species.
    (36) Comment: The Service should include provisions in the 4(d) 
special rule for any other comprehensive plans that provide a net 
conservation benefit to the lesser prairie-chicken, similar to WAFWA's 
rangewide plan.
    Our Response: There are several other comprehensive plans in 
development that may be determined in the future to support 
conservation of the lesser prairie-chicken; however, these efforts are 
not far enough along in the development process to be considered under 
the 4(d) special rule at this time.
    (37) Comment: The 4(d) special rule should include provisions 
allowing incidental take of lesser prairie-chickens as a result of 
development and operation of oil and gas production and wind energy 
generation facilities.

[[Page 20084]]

Incidental take from these operations does not present a risk to the 
species.
    Our Response: The 4(d) special rule includes provisions for 
development and operation of oil and gas production and wind energy 
generation through the mitigation framework in the rangewide plan. The 
Service does not believe that blanket provisions under a 4(d) special 
rule for these sectors would support conservation of the species. These 
activities are two of the primary threats to the lesser prairie-chicken 
into the future (see the final listing rule published elsewhere in 
today's Federal Register), and continued unmitigated impacts are likely 
to result in an additional decline in the status of the species. As a 
result, these sectors are better addressed through the rangewide plan, 
an incidental take permit, or another mechanism designed to offset the 
threats from these activities through compensatory mitigation.
    (38) Comment: A provision should be developed in the 4(d) special 
rule that would serve to exempt or ``grandfather'' projects that are 
pending or otherwise in progress.
    Our Response: While we recognize that the period following the 
listing of a species can be challenging with regards to incidental take 
coverage, we do not believe that such a blanket provision would support 
the conservation of the lesser prairie-chicken. The rangewide plan 
provision of the 4(d) special rule provides a mechanism for exempting 
take for many ongoing activities, and WAFWA is actively enrolling 
participants as of the time of listing.

Required Determinations

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). It is the position of the Service that rules promulgated under 
section 4(d) of the Act concurrently with listing of the species fall 
under the same rationale as outlined in the October 25, 1983, 
determination.

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. We continued to keep tribal 
governments informed by providing notifications of each new or reopened 
public comment period, including those specifically pertaining to the 
4(d) special rule, and requesting their input. We did not receive any 
requests or comments as a result of our request.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov under 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 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.

Regulation Promulgation

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

PART 17--[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 adding paragraph (d) to read as follows:


Sec.  17.41  Special rules--birds.

* * * * *
    (d) Lesser prairie-chicken (Tympanuchus pallidicinctus). (1) 
Prohibitions. Except as noted in paragraphs (d)(2)(i) through (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 
conditioned conservation practices that are carried out in accordance 
with a conservation plan providing for lesser prairie-chicken 
conservation developed by the U.S. Department of Agriculture's Natural 
Resources Conservation Service 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;

[[Page 20085]]

    (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, seed-drilled untilled 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 5 
years preceding the proposed routine agricultural practice that may 
otherwise result in take. Activities covered by this provision include:
    (A) Plowing, drilling, disking, mowing, or other mechanical 
manipulation and management of lands in cultivation.
    (B) Routine activities in direct support of cultivated agriculture, 
including replacement, upgrades, maintenance, and operation of existing 
infrastructure such as buildings, irrigation conveyance structures, 
fences, and roads.
    (C) Use of chemicals in direct support of cultivated agriculture 
when done in accordance with label recommendations.
* * * * *

    Dated: March 23, 2014.
Daniel M. Ashe,
Director, U. S. Fish and Wildlife Service.
[FR Doc. 2014-07298 Filed 4-9-14; 8:45 am]
BILLING CODE 4310-55-P