[Federal Register Volume 79, Number 106 (Tuesday, June 3, 2014)]
[Proposed Rules]
[Pages 31901-31907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-12858]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0042; 4500030113]
RIN 1018-AZ70


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Bi-State Distinct Population Segment of 
Greater Sage-Grouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; extension of comment period.

-----------------------------------------------------------------------

SUMMARY: On April 8, 2014, we, the U.S. Fish and Wildlife Service 
(Service), announced a reopening of the public comment period on the 
October 28, 2013, proposal to list the Bi-State

[[Page 31902]]

distinct population segment (DPS) of greater sage-grouse (Bi-State DPS; 
Centrocercus urophasianus) as threatened under the Endangered Species 
Act of 1973, as amended, with a special rule, and the proposed 
designation of critical habitat. This document announces an extension 
of the comment period on the proposed critical habitat rule. We also 
announce the availability of a draft economic analysis (DEA) of the 
proposed designation of critical habitat for the Bi-State DPS and an 
amended required determinations section of the proposal. We are 
extending the comment period to allow all interested parties an 
opportunity to comment simultaneously on the proposed critical habitat 
rule, the associated DEA, and the amended required determinations 
section. Comments previously submitted need not be resubmitted, as they 
will be fully considered in preparation of the final critical habitat 
rule. The comment period on the associated proposed listing rule is not 
being extended and closes on June 9, 2014.

DATES: For the proposed rule published on October 28, 2013 (78 FR 
64328), the comment period is extended. In order to fully consider and 
incorporate public comment, the Service requests submittal of comments 
by close of business July 3, 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.

ADDRESSES: Document availability: You may obtain copies of the proposed 
rule and the draft economic analysis (IEc 2014) on the internet at 
http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0042 or by mail 
from the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).
    Written Comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the critical habitat proposal 
and associated draft economic analysis by searching for FWS-R8-ES-2013-
0042, which is the docket number for this rulemaking.
    (2) By hard copy: Submit comments on the critical habitat proposal 
and associated draft economic analysis by U.S. mail or hand-delivery 
to: Public Comments Processing, Attn: FWS-R8-ES-2013-0042; 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 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 Information Requested section below for more information).

FOR FURTHER INFORMATION CONTACT: Edward D. Koch, State Supervisor, U.S. 
Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 
Financial Boulevard, Suite 234, Reno, NV 89502; telephone 775-861-6300; 
or facsimile 775-861-6301. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Information Requested

    We will accept written comments and information during this comment 
period on our proposed designation of critical habitat for the Bi-State 
DPS that was published in the Federal Register on October 28, 2013 (78 
FR 64328), our DEA of the proposed designation (IEc 2014), and the 
amended required determinations provided in this document. We will 
consider information and recommendations from all interested parties. 
We are particularly interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the Bi-State DPS from 
human activity, the degree of which can be expected to increase due to 
the designation, and whether that increase in threat outweighs the 
benefit of designation such that the designation of critical habitat is 
not prudent.
    (2) Specific information on:
    (a) The amount and distribution of the Bi-State DPS's habitat;
    (b) What specific areas, within the geographical area currently 
occupied (at the time of listing) that contain the features essential 
to the conservation of the DPS, should be included in the designation 
and why;
    (c) The features essential to the conservation of the Bi-State DPS 
as described in the Physical or Biological Features section of the 
proposed rule, in particular the currently unsuitable or less than 
suitable habitat that accommodates restoration identified in the Bi-
State Action Plan (i.e., actions HIR1-1-PN, HIR-1-2-PN, HIR1-1-DCF, 
HIR1-2-DCF, HIR1-1-MG, HIR1-1-B, and HIR1-3-SM) (Bi-State Technical 
Advisory Committee (TAC) 2012, pp. 93-95).
    (d) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (e) What areas not within the geographical area currently occupied 
(at the time of listing) are essential for the conservation of the DPS 
and why.
    (3) Whether there is scientific information in addition to that 
considered in our proposed rule that may be useful in our analysis.
    (4) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (5) Data specific to document the need for addition or removal of 
areas identified as proposed critical habitat.
    (6) Data specific to recreational use in the Bi-State area and 
potential adverse or beneficial effects caused by such use within 
proposed critical habitat.
    (7) Spatial data depicting meadow/brood-rearing habitat extent and 
condition.
    (8) Information on the projected and reasonably likely impacts of 
climate change on the Bi-State DPS and proposed critical habitat.
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, the benefits of including or excluding 
areas that exhibit these impacts.
    (10) Information on the extent to which the description of economic 
impacts in the draft economic analysis is a reasonable estimate of the 
likely economic impacts.
    (11) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    (12) Whether any areas we are proposing for critical habitat 
designation should be considered for exclusion under section 4(b)(2) of 
the Act, and whether the benefits of potentially excluding any specific 
area outweigh the benefits of including that area under section 4(b)(2) 
of the Act.
    (13) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    If you submitted comments or information on the proposed critical 
habitat rule (78 FR 64328; 78 FR 77087)

[[Page 31903]]

during the initial comment period from October 28, 2013, to February 
10, 2014, or earlier during this current open comment period, please do 
not resubmit them. Any such comments are part of the public record of 
this rulemaking proceeding, and we will fully consider them in the 
preparation of our final determination. Our final determination 
concerning critical habitat will take into consideration all written 
comments and any additional information we receive during both comment 
periods. The final decision may differ from this revised proposed rule, 
based on our review of all information received during this rulemaking 
process.
    You may submit your comments and materials concerning the proposed 
critical habitat rule or DEA by one of the methods listed in ADDRESSES. 
We request that you send comments only by the methods described in 
ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R8-ES-2013-0042, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Nevada Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of 
the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0042, or by mail from 
the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    On October 28, 2013, we published a proposed rule to list the Bi-
State DPS as a threatened species under the Endangered Species Act of 
1973, as amended (Act) (78 FR 64358), with a special rule. We 
concurrently published a proposed rule to designate critical habitat 
(78 FR 64328). We received requests to extend the public comment 
periods on the rules beyond the December 27, 2013, due date. In order 
to ensure that the public had an adequate opportunity to review and 
comment on our proposed rules, we extended the comment periods for an 
additional 45 days to February 10, 2014 (78 FR 77087).
    On April 8, 2014, we reopened the comment period on our October 28, 
2013, proposed rule to list the Bi-State DPS, the special rule, and the 
proposed critical habitat rule (79 FR 19314, April 8, 2014). We also 
announced two public hearings: (1) April 29, 2014, in Mindon, Nevada; 
and (2) April 30, 2014, in Bishop, California. These meetings were 
subsequently cancelled for unrelated reasons. On May 9, 2014, we 
published a document announcing the re-scheduled hearings to take place 
on May 28, 2014, and May 29, 2014, respectively (79 FR 26684, May 9, 
2014). The April 8, 2014, document also announced a 6-month extension 
of the final determination of whether or not to list the Bi-State DPS 
as a threatened species, which will automatically delay any decision we 
make regarding critical habitat for the Bi-State DPS. The comment 
period was reopened and our determination on the final listing action 
was delayed based on substantial disagreement regarding the sufficiency 
or accuracy of the available data relevant to the proposed listing, 
making it necessary to solicit additional information. Thus, we 
announced that we will publish a listing determination on or before 
April 28, 2015.
    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the Bi-State DPS in this 
document. For more information on previous Federal actions concerning 
the Bi-State DPS, refer to the proposed listing rule (78 FR 64358) and 
the proposed designation of critical habitat (78 FR 64328) published in 
the Federal Register on October 28, 2013. For more information on the 
Bi-State DPS or its habitat, refer specifically to the proposed listing 
rule (78 FR 64358), which is available online at http://www.regulations.gov (at Docket No. FWS-R8-ES-2013-0072) or from the 
Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, Federal agencies proposing actions affecting designated 
critical habitat must consult with us on the effects of their proposed 
actions under section 7(a)(2) of the Act to determine whether any 
activity they fund, authorize, or carry out will cause destruction or 
adverse modification of designated critical habitat.

New Information Regarding Proposed Critical Habitat

    On October 28, 2013, we proposed as critical habitat for the Bi-
State DPS four units consisting of approximately 755,960 hectares (ha) 
(1,868,017 acres (ac) in Carson City, Lyon, Douglas, Mineral, and 
Esmeralda Counties, Nevada, and Alpine, Mono, and Inyo Counties, 
California (78 FR 64328). Approximately 75 percent (about 564,578 ha 
(1,395,103 ac)) of the area within the four units is currently suitable 
habitat. Approximately 25 percent (about 191,381 ha (472,914 ac)) of 
the area within the four units is contiguous with currently suitable 
habitat (as outlined in our October 28, 2013, proposed rule), but based 
on the new information discussed below, is considered less than 
suitable for the DPS in its current condition.
    During the first comment period that closed on February 10, 2014 
(78 FR 77087), we received new information from the public and species 
experts on the species and habitat suitability (suitable versus 
unsuitable habitat for the Bi-State DPS). Specifically, there are 
scattered lands throughout the four units that harbor dense pinyon-
juniper vegetation (dominated by Pinus edulis (pinyon pine) and various 
Juniperus (juniper) species) that are either historically woodland 
habitat (i.e., should not be converted or restored to sage-grouse 
habitat), or would not be considered suitable for restoration, and thus 
should not be considered a feature essential to the conservation of the 
DPS.
    As we described in the Criteria Used To Identify Critical Habitat 
section of the proposed critical habitat rule, we focused on the best 
available vegetation data layers that would identify habitat 
suitability across the range of the Bi-State DPS (78 FR 64337-64339). 
To identify acres that are currently less than suitable (e.g., areas 
exhibiting less than optimal habitat conditions within the present 
range of the DPS that were either known or likely to be historically 
utilized), we examined information pertaining to potential woodland 
restoration sites identified in the 2012 Bi-State Action Plan (Bi-State 
TAC 2012, pp. 90-95). The new information

[[Page 31904]]

provided during the first comment period improves our understanding of 
unsuitable habitat, such that once areas described above are removed 
from the proposed critical habitat boundaries, the remaining habitat 
will be either currently suitable for sage-grouse use, or could be 
suitable for occupation of sage-grouse if practical management was 
applied. As such, we intend to fully evaluate these data and update our 
assessment of areas that fit our criteria according to the new 
information available.

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
among other factors, the additional regulatory benefits that an area 
would receive through the analysis under section 7 of the Act 
addressing the destruction or adverse modification of critical habitat 
as a result of actions with a Federal nexus (activities conducted, 
funded, permitted, or authorized by Federal agencies), the educational 
benefits of identifying areas containing essential features that aid in 
the recovery of the listed species, and any ancillary benefits 
triggered by existing local, State, or Federal laws as a result of the 
critical habitat designation.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to 
incentivize or result in conservation; the continuation, strengthening, 
or encouragement of partnerships; or implementation of a management 
plan. In the case of the Bi-State DPS, the benefits of critical habitat 
include public awareness of the presence of sage-grouse and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for the DPS due to protection from adverse 
modification or destruction of critical habitat. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects undertaken, authorized, funded or otherwise permitted by 
Federal agencies.
    The final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis concerning the proposed 
critical habitat designation (DEA), which is available for review and 
comment (see ADDRESSES).

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, which 
includes the existing regulatory and socio-economic burden imposed on 
landowners, managers, or other resource users potentially affected by 
the designation of critical habitat (e.g., under the Federal listing as 
well as other Federal, State, and local regulations). The baseline, 
therefore, represents the costs of all efforts attributable to the 
listing of the species under the Act (i.e., conservation of the DPS and 
its habitat incurred regardless of whether critical habitat is 
designated). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the Bi-State DPS. The incremental conservation 
efforts and associated impacts would not be expected without the 
designation of critical habitat for the DPS. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat, above and beyond the baseline costs. These are the 
costs we use when evaluating the benefits of inclusion and exclusion of 
particular areas from the final designation of critical habitat should 
we choose to conduct an optional section 4(b)(2) exclusion analysis.
    For this particular designation, we developed an Incremental 
Effects Memorandum (IEM; Service 2014) considering the probable 
incremental economic impacts that may result from this proposed 
designation of critical habitat. The information contained in our IEM 
was then used to develop a DEA of the probable effects of the 
designation of critical habitat for the Bi-State DPS. We began by 
conducting an analysis of the proposed designation of critical habitat 
in order to focus on the key factors that are likely to result in 
incremental economic impacts. Where applicable, the analysis filtered 
out the geographic areas in which the critical habitat designation is 
unlikely to result in probable incremental economic impacts. In 
particular, the DEA considers baseline costs (i.e., absent critical 
habitat designation) and includes probable economic impacts where land 
and water use may be subject to conservation plans, land management 
plans, best management practices, or regulations that protect the 
habitat area as a result of the Federal listing status of the Bi-State 
DPS. The analysis examined costs that may result from projects forecast 
in areas of proposed critical habitat considered to be currently 
suitable and used by the DPS. In the remaining areas considered to be 
currently unsuitable and not currently used by the Bi-State DPS, the 
analysis examined the costs associated with implementation of 
conservation measures that are likely attributable solely to the 
proposed critical habitat designation. Ultimately, this analysis 
examines the economic costs of restricting or modifying specific land 
uses or other activities for the benefit of the DPS's habitat within 
the proposed critical habitat designation. This DEA is summarized in 
the narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the Executive Orders' regulatory analysis requirements, our 
effects analysis under the Act may take into consideration impacts to 
both directly and indirectly impacted entities, where practicable and 
reasonable. We assess to the extent practicable, the probable impacts, 
if sufficient data are available, to both directly and indirectly 
impacted entities.
    As part of our DEA, we considered the types of economic activities 
that are likely to occur within the areas likely affected by the 
critical habitat

[[Page 31905]]

designation. In our evaluation of the probable incremental economic 
impacts that may result from the proposed designation of critical 
habitat for the Bi-State DPS, first we identified probable incremental 
economic impacts associated with the following categories of 
activities: Livestock grazing; agriculture; residential and related 
development; mining activities; renewable energy development; linear 
infrastructure projects; recreation; wildfire; and nonnative, invasive 
plants. We considered each industry or category individually. 
Additionally, we considered whether their activities have any Federal 
involvement. Critical habitat designation will not affect activities 
that do not have any Federal involvement; designation of critical 
habitat only affects activities conducted, funded, permitted, or 
authorized by Federal agencies. In areas where the Bi-State DPS is 
present, Federal agencies already will be required to consult with the 
Service under section 7 of the Act on activities they fund, permit, or 
implement that may affect the DPS, if the Bi-State DPS is listed under 
the Act. If we finalize this proposed critical habitat designation and 
listing rule, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process that will also consider jeopardy to the 
listed DPS. Therefore, disproportionate impacts to any geographic area 
or sector are not likely as a result of this critical habitat 
designation.
    In our IEM (Service 2014), we attempted to clarify the distinction 
between the effects that will result from the species being listed and 
those attributable to the critical habitat designation (i.e., 
difference between the jeopardy and adverse modification standards) for 
the Bi-State DPS's critical habitat. Because the designation of 
critical habitat for the Bi-State DPS was proposed concurrently with 
the listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute an adverse effect to the Bi-State DPS would also likely 
adversely affect the essential physical or biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
DPS. This evaluation of the incremental effects has been used as the 
basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the Bi-State DPS 
includes approximately 755,960 hectares (ha) 1,868,017 acres (ac) in 
four units, all of which are considered currently occupied. The four 
units span eight counties, including portions of Alpine, Inyo, and Mono 
Counties in California; and Carson City, Douglas, Esmeralda, Lyon, and 
Mineral Counties in Nevada. Some of the units we are proposing to 
designate as critical habitat contain corridors/sites that are 
currently unsuitable for use because of woodland encroachment. These 
corridors/sites are interspersed within suitable habitat that is 
currently used by the DPS. These sites provide essential connectivity 
corridors and habitat extent necessary for the conservation and 
recovery of the DPS (see the Physical or Biological Features section of 
the proposed critical habitat rule (78 FR 64328)). Once special 
management designed to improve the condition of these interspersed 
corridors/sites has been implemented, they will help ensure long-term 
conservation of the DPS and provide connectivity between currently 
fragmented areas. We are not proposing to designate specific areas 
outside the geographical area currently occupied by the DPS.
    The four units we proposed as critical habitat on October 28, 2013 
(78 FR 64328), correspond to the four populations of the Bi-State DPS 
recognized by the Western Association of Fish and Wildlife Agencies 
(WAFWA), which include: (1) Pine Nut, (2) North Mono Lake, (3) South 
Mono Lake, and (4) White Mountains. These units are contained within 
the Population Management Unit (PMU) boundaries (which are identified 
on the maps in the Proposed Regulation Promulgation section of the 
proposed critical habitat rule); however, the proposed North Mono Lake 
Unit (Unit 2) combines three PMUs (Desert Creek-Fales, Bodie, and Mount 
Grant PMUs) into a single unit. Approximately 75 percent (about 564,511 
ha (1,394,937 ac)) of the area within the four units is currently 
suitable habitat. Approximately 25 percent (about 191,329 ha (472,784 
ac)) of the area within the four units is contiguous with currently 
suitable habitat but is considered less than suitable for current use. 
However, we expect to reduce these values based on the new information 
received during the first comment period (see New Information Regarding 
Proposed Critical Habitat section above). As a result, we expect that 
the Bi-State DPS economic analysis (IEc 2014) that is summarized below 
will be an overestimate of the probable incremental impacts resulting 
from a critical habitat designation.
    Approximately 86 percent of the proposed critical habitat occurs on 
federally managed lands. However, because the majority of land in the 
eight affected counties is also federally managed (including greater 
than 80 percent in some of the affected counties), it is possible that 
changes to the management of and allowable uses on Federal lands could 
result in significant and material impacts on residents, businesses, 
and their overall economy, in part because some businesses rely on 
access to and resources on Federal lands (IEc 2014, pp. ES-2). 
Activities that may be associated with Federal lands within the 
proposed critical habitat designation include recreation and tourism, 
livestock grazing, agriculture, mining, and renewable energy 
development.
    Given that the presence of the Bi-State DPS is well known across 
the majority of areas proposed as critical habitat, this analysis 
anticipates that the majority (66 percent) of forecast incremental 
costs are administrative in nature (IEc 2014, pp. ES-6). These costs 
result from projects forecast in areas of proposed critical habitat 
considered to be currently suitable and used by the DPS. In these 
areas, any conservation measures recommended by the Service are 
expected to occur regardless of the designation of critical habitat in 
response to listing the DPS under the Act. Specifically, this analysis 
forecasts the total incremental costs of the proposed critical habitat 
designation to be less than $8.8 million (present value over 20 years), 
assuming a seven percent discount rate (IEc 2014, pp. ES-6). Annualized 
incremental costs are forecast to be no greater than $780,000 applying 
either a seven or three percent discount rate (IEc 2014, pp. ES-6).
    We note that there are two scenarios presented in the DEA that 
reflect uncertainty in the potential for future changes specifically to 
livestock grazing, agriculture, and vegetation management. The low 
estimate assumes complete conifer encroachment on the portions of 
allotments overlapping unsuitable habitat; as a result, the only 
project modification costs estimated are for incremental vegetation 
management

[[Page 31906]]

conducted by Federal land managers (IEc 2014, pp. ES-11). The high 
scenario assumes that all areas are grazed and estimates reductions to 
livestock stocking rates (measured in Animal Unit Months, or AUMs) on 
24 active cattle allotments located in unsuitable habitat that are not 
currently managed for the DPS (IEc 2014, pp. ES-9). The actual outcome 
likely falls somewhere between these two scenarios. Also, the actual 
outcome is in addition to the forecast increase in vegetation 
management expected to be conducted by Federal land managers following 
the designation of critical habitat. In both scenarios, the potential 
for voluntary conservation measures implemented by private farmers and 
ranchers with funding from the Natural Resources Conservation Service 
(NRCS) was also considered.
    Of the total forecast incremental costs outlined in the DEA, we 
anticipate that approximately $4.9 million are associated with the 
additional administrative effort required to consider adverse 
modification for future section 7 consultations occurring in areas 
considered currently suitable and used by the Bi-State DPS (IEc 2014, 
pp. ES-6). The largest share of these incremental administrative costs 
is associated with transportation and utility activities, which are 
predicted to occur in suitable habitat at a rate of approximately 25 
projects per year (IEc 2014, pp. ES-6).
    In the remaining proposed critical habitat areas considered to be 
currently unsuitable and not currently used by the Bi-State DPS (where 
conservation measures are likely attributable solely to the proposed 
critical habitat designation), the forecasted incremental costs are 
approximately $4.0 million (IEc 2014, pp. ES-7). Of these costs, 
approximately 75 percent are due to Bi-State DPS conservation measures 
that may be recommended for grazing, transportation, residential 
development, and mining activities in unsuitable habitat (IEc 2014, pp. 
ES-7). Conservation measures recommended for transportation activities 
comprise the largest share of these costs.
    Proposed critical habitat Units 2 and 3 are anticipated to 
experience the greatest incremental costs if the Bi-State DPS proposal 
is finalized. These incremental costs account for approximately 46 
percent and 34 percent of total incremental costs, respectively (IEc 
2014, pp. ES-7).
    The DEA provides activity-specific chapters that describe the 
potential incremental costs; each chapter includes a discussion of the 
key sources of uncertainty and major assumptions affecting the 
estimation of costs. These uncertainties vary depending on the specific 
activity in question. One issue that affects all activities is the 
question of whether conservation efforts undertaken in Bi-State DPS 
suitable habitat will occur regardless of whether critical habitat is 
designated in the future. In particular, the analysis assumes that the 
public is already aware of the need to consider the effects of future 
projects on the DPS in areas identified by the Service as suitable 
habitat and considered to be currently used by the DPS. It is possible 
that in some areas of suitable habitat, project proponents undertaking 
an assessment of the Bi-State DPS presence may determine that sage-
grouse are not present. In such cases, this analysis may understate the 
incremental costs of the proposed rule. Conversely, an activity in a 
location identified as ``unsuitable'' could affect an adjacent 
``suitable'' location where sage-grouse are present at the time. 
Therefore, there is also the possibility that some forecasts made for 
``unsuitable'' habitat have overestimated the incremental costs.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
amended required determinations. We may revise the proposed rule or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exclude an area 
from critical habitat if we determine that the benefits of excluding 
the area outweigh the benefits of including the area, provided the 
exclusion will not result in the extinction of this DPS.

Required Determinations--Amended

    In our October 28, 2013, proposed rule (78 FR 64328), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until we had evaluated the probable 
effects on landowners and stakeholders and the resulting probable 
economic impacts of the designation. Following our evaluation of the 
probable incremental economic impacts resulting from the designation of 
critical habitat for the Bi-State DPS, we have amended or affirmed our 
determinations below. Specifically, we affirm the information in our 
proposed rule concerning Executive Order (E.O.) 12866 (Regulatory 
Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil 
Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), 
the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951). However, based on 
our evaluation of the probable incremental economic impacts of the 
proposed designation of critical habitat for the Bi-State DPS, we are 
amending our required determinations concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630 (Takings).

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical

[[Page 31907]]

small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are required to evaluate the potential incremental impacts of 
rulemaking only on those entities directly regulated by the rulemaking 
itself, and therefore, not required to evaluate the potential impacts 
to indirectly regulated entities. The regulatory mechanism through 
which critical habitat protections are realized is section 7 of the 
Act, which requires Federal agencies, in consultation with the Service, 
to ensure that any action authorized, funded, or carried by the Agency 
is not likely to destroy or adversely modify critical habitat. 
Therefore, under section 7 only Federal action agencies are directly 
subject to the specific regulatory requirement (avoiding destruction 
and adverse modification) imposed by critical habitat designation. 
Consequently, it is our position that only Federal action agencies will 
be directly regulated by this designation. There is no requirement 
under RFA to evaluate the potential impacts to entities not directly 
regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities are directly regulated by this 
rulemaking, the Service certifies that, if promulgated, the proposed 
critical habitat designation for the Bi-State DPS will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if promulgated, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Executive Order 12630 (Takings)

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the Bi-State DPS in a takings implications 
assessment. As discussed above, the designation of critical habitat 
affects only Federal actions. Although private parties that receive 
Federal funding, assistance, or require approval or authorization from 
a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. The economic analysis found that no significant 
economic impacts are likely to result from the designation of critical 
habitat for the Bi-State DPS. Because the Act's critical habitat 
protection requirements apply only to Federal agency actions, few 
conflicts between critical habitat and private property rights should 
result from this designation. Based on information contained in the 
economic analysis assessment and described within this document, it is 
not likely that economic impacts to a property owner would be of a 
sufficient magnitude to support a takings action. Therefore, the 
takings implications assessment concludes that this proposed 
designation of critical habitat for the Bi-State DPS does not pose 
significant takings implications for lands within or affected by the 
designation.

Authors

    The primary authors of this document are the staff members of the 
Pacific Southwest Regional Office and the Nevada Fish and Wildlife 
Office, Region 8, U.S. Fish and Wildlife Service.

Authority

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

    Dated: May 19, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-12858 Filed 6-2-14; 8:45 am]
BILLING CODE 4310-55-P